David J. and Jo Dena Johnson - Page 23




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               BEGHE, J., dissenting:  I respectfully dissent from the                 
          granting of respondent’s motion to dismiss for lack of                       
          jurisdiction.  The Court’s action perpetuates needless                       
          inefficiency in judicial administration of the new collection                
          provisions and plays into the hands of tax protesters.                       
          Petitioners have gummed up the works, created delay in the                   
          collection of relatively small amounts obviously due, and                    
          multiplied the proceedings with respect to frivolous return                  
          penalties whose assessment properly bypassed the deficiency                  
          procedures of the Tax Court.                                                 
               The Court should have denied the motion and taken                       
          jurisdiction, overruled Van Es v. Commissioner, 115 T.C. 324                 
          (2000), and put an end to the matter by holding that the hearing             
          requirement was satisfied and that respondent’s determination to             
          collect the assessments should be upheld.  By electing to                    
          petition the Tax Court, rather than the appropriate district                 
          court, petitioners should have been held to have waived their                
          right to appeal the Appeals officer’s determination that they                
          were liable for the frivolous return penalties.1                             

               1 Applying the doctrine of waiver would have been especially            
          appropriate in the case at hand, where the arguments made in the             
          attachments to petitioners’ amended returns are patently                     
          frivolous and have been repeatedly rejected in our published                 
          opinions.  Petitioners argued that no section of the Internal                
          Revenue Code makes them liable for income taxes on their wages.              
          See United States v. Connor, 898 F.2d 942, 943-944 (3d Cir. 1990)            
          (“Every court which has ever considered the issue has                        
          unequivocally rejected the argument that wages are not income”);             
          see also Reading v. Commissioner, 70 T.C. 730 (1978), affd. 614              
                                                              (continued...)           




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