Dudley Joseph Callahan and Myrna Dupuy Callahan - Page 14




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          incorrect.  Id.  Third, the taxpayer’s position must be frivolous           
          or demonstrate a desire (which appears on the purported return)             
          to delay or impede the administration of Federal income tax laws.           
          Sec. 6702(a)(2).  We generally look to the face of the documents            
          to determine whether a taxpayer is liable for a frivolous return            
          penalty as a matter of law.8  See Yuen v. United States, 290 F.             
          Supp. 2d at 1224.                                                           
               Petitioners’ Form 1040 is an income tax return.  Petitioners           
          appear to have reported all income from their Forms W-2, Wage and           
          Tax Statement, and Forms W-2G, Certain Gambling Winnings, on                
          their Form 1040.  They calculated a total tax due of $6,016.                
          Petitioners had $13,813 withheld from their wages and gambling              
          income, and they requested the difference be refunded.                      
          Petitioners also reported that they made additional payments of             
          $9,600 and that these were illegal garnishments from petitioner             
          husband’s wages.  They requested a refund of that amount as well.           
               Petitioners’ 2003 Form 1040 is substantially incorrect in              
          that they cannot claim a refund of levied amounts related to a              
          previous tax year on their 2003 Form 1040.  Petitioners will                
          therefore be liable for the frivolous return penalty if the                 



               8As we lack jurisdiction to hear a claim for refund in                 
          situations where a notice of deficiency has not been issued, see            
          secs. 6512(b), 7422, we make no judgment as to the validity of              
          petitioners’ claims for refund made on their Form 843 and Form              
          1040.                                                                       






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