Joseph John Martella - Page 3

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               (4) whether the Court should impose a penalty, sua sponte,             
          under section 6673.                                                         
                                  FINDINGS OF FACT                                    
               Some of the facts have been stipulated and are so found.               
          The stipulations of the parties, with accompanying exhibits, are            
          incorporated herein by this reference.  At the time this petition           
          was filed, petitioner resided in Henderson, Nevada.                         
               On October 31, 2001, petitioner signed Form 2848, Power of             
          Attorney and Declaration of Representative, designating Milton H.           
          Baxley II (Mr. Baxley) and Bryan Malatesta (Mr. Malatesta), a               
          Texas certified public accountant, as his representatives for tax           
          matters regarding Form 1040, U.S. Individual Income Tax Return,             
          before the Internal Revenue Service for the taxable years 1985-             
               Petitioner did not file a Federal income tax return for                
          either the 1998 or 2001 taxable year.  The last time petitioner             
          filed a tax return was either in the year 1996 or 1997.  It was             
          during 1996 or 1997 that petitioner decided he was not liable for           
          filing income tax returns.                                                  
               On April 28, 2003, the Internal Revenue Service (Service)              
          wrote petitioner a letter entitled:  “Request for your Tax                  
          Return”, informing petitioner that respondent did not receive a             

               3 Mr. Baxley and Mr. Malatesta also represented petitioner             
          during the levy of his nonemployee income from Beyer                        
          Entertainment Group with respect to petitioner’s 1995 tax year              

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