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Tax Protestor Cases Exhibit
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Adopted November 28, 2000

CALIFORNIA STATE BOARD OF EQUALIZATION

PERSONAL INCOME TAX APPEAL DECISION

                                                     Proposed
Appellant                     Year          Assessment        Tax Penalty ¹
Jose G. Nunez             1997              $1,903               $1,683
Case No. 32910

Representing the Parties:

    For Appellant:                     Jose G. Nunez
    For Franchise Tax Board:     Andrew O'Boyle, Staff Service Manager

Counsel For Board of Equalization: Charles D. Daly, Tax Counsel

QUESTION: Whether appellant has shown that respondent's proposed
         assessment of tax is erroneous.

FINDINGS AND DETERMINATION

[1] Appellant did not file a California tax return for 1997. On February 5, 1999, respondent sent a notice and demand letter to appellant that requested him, within 30 days, to file a tax return for 1997, explain why he was not required to file a tax return, or provide a copy of his tax return if such a return had been filed. When appellant did not reply, respondent issued a Notice of Proposed Assessment (NPA) on April 9, 1999. Respondent's NPA was comprised of a proposed assessment of additional tax, penalties for failure to file a tax return and for failure to reply to respondent's notice and demand letter, and a filing enforcement cost recovery fee. Respondent's proposed assessment of additional tax was calculated upon wages and retirement income reported by appellant's employer and other payers in the total amount of $72,574, an exemption credit of $68, and a withholding credit of $2,926.

[2] At protest, appellant apparently only addressed issues that respondent considered irrelevant. As a result, respondent denied appellant's protest and issued a Notice of Action (NOA) on August 24, 1999. Subsequently, appellant filed an appeal with this Board. On October 6, 1999, this Board, through out Board Proceedings Division (BPD), informed appellant by mail that, in order to pursue his appeal, he needed to supplement his appeal with income information (such as a valid return) by January 4, 2000. The letter noted that the record indicated that arguments similar to appellant's had been considered frivolous in numerous opinions of this Board. The letter further warned appellant that he could be subject to a frivolous appeal penalty under Revenue and Taxation Code section 19714 if he pursued his appeal on the basis of such frivolous arguments. On December 30, 1999, appellant filed a self-fashioned document entitled "Return Statement and Claim for Refund In-Lieu of Form 540" and a number of W-2 Forms. The aggregate gross income stated on the Forms W-2 and appellant's "in-lieu return" was $72,573.83, and the withholding credits stated on the Forms W-2 and appellant's "in-lieu return" was $2,484.21. The foregoing income amount is obviously virtually identical to the corresponding amount upon which respondent relied in proposing its assessment.

[3] Respondent's determination is presumed to be correct, and a taxpayer has the burden of proving that it is erroneous. (Todd v. McColgan (1949) 89 Cal.App.2d 509.) To overcome the presumed correctness of respondent's determination, a taxpayer must introduce credible evidence to support his assertions. (Appeal of Oscar D. and Agatha E. Seltzer, Cal. St. Bd. of Equal., Nov. 18, 1980.)

[4] Revenue and Taxation Code section 19714 provides, in pertinent part, that when proceedings before this Board have been instituted or maintained by a taxpayer primarily for delay or that the taxpayer's position in the proceedings is frivolous or groundless, a penalty not in excess of $5,000 shall be imposed.

[5] In support of his contention that respondent's proposed assessment of tax is erroneous, appellant makes the following and other similar arguments: (1) an unauthorized division of respondent issued the notice and demand letter to appellant; (2) appellant may not be required to file a tax return because filing such a return when appellant believes that he owes no tax subjects appellant to possible prosecution for perjury; (3) appellant was denied due process because respondent denied him a proper hearing at the protest level; and (4) respondent has provided no basis for its proposed assessment of additional tax. We reject appellant's arguments in this appeal because such arguments are similar to those raised, discussed, and rejected in other appeals. (See, e.g., Appeal of Alfons Castillo, 92-SBE-020, July 30, 1992, Appeal of Walter R. Bailey, 92-SBE-001, Feb. 20, 1992, Appeals of Fred R. Dauberger, et al., Ca1. St. Bd. of Equal., Mar. 31, 1992, and cases cited therein.) Therefore, we conclude that appellant has not carried his burden of proving that respondent's proposed assessment of tax is erroneous.

[6] Just as we did in the Appeal of Jose G. Nunez (Case No. 98A-0978), decided on August 10, 1999, an appeal with regard to appellant's 1995 tax year in which he made the same arguments and in which we imposed a frivolous appeal penalty in the amount of $500, we conclude that appellant's present arguments in support of his contentions are frivolous. Because appellant has only provided frivolous arguments in support of his contention, we further conclude that a frivolous appeal penalty in the amount of $2,000 should be imposed.

[7] Accordingly, respondent's action in denying appellant's protest against the proposed assessment of additional tax is hereby sustained. In addition, we hereby impose a frivolous appeal penalty under Revenue and Taxation Code section 19714 in the amount of $2,000.

FOOTNOTES

¹ Respondent proposed a late filing penalty in the amount of $475.75, a notice and demand penalty in the amount of $1,207.25, and a filing enforcement cost recovery fee in the amount of $71.00.

END OF FOOTNOTES

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