Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.susan A. Mccall; Victor K. Mccall, Petitioners-appellants, v. Commissioner of the Internal Revenue Service, Respondent-appellee, 73 F.3d 358 (4th Cir. 1995)

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US Court of Appeals for the Fourth Circuit - 73 F.3d 358 (4th Cir. 1995) Submitted: November 16, 1995. Decided: December 21, 1995

Susan A. McCall, Victor K. McCall, Appellants Pro Se. Gary R. Allen, Anthony Thomas Sheehan, United States Department of Justice, Washington, DC, for Appellee.

Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.


Victor and Susan McCall appeal from the tax court's order determining deficiencies and additions to tax with respect to their 1990, 1991, and 1992 federal income tax liability. Although the McCalls earned wages and other compensation for services, neither reported these amounts as taxable income. Rather, they filed form 1040NR, non-resident returns (although they indicated a United States address on the forms) and reported a zero tax liability.

It is well established that the Commissioner's determinations in a notice of deficiency are presumed correct and that the taxpayer has the burden of proving otherwise. Welch v. Helvering, 290 U.S. 111, 115 (1933). The presumption of correctness also attaches to the amount of any additions to tax determined by the Commissioner. Illes v. Commissioner, 982 F.2d 163, 166 (6th Cir. 1992), cert. denied, 61 U.S.L.W. 3481 (U.S.1993). Wages clearly constitute taxable income under 26 U.S.C. § 61 (1988). And because the McCalls have failed to establish that the Commissioner's assessment of additional penalties for negligence, late-filing, and failure to pay estimated tax was erroneous, we affirm.*  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.



In light of this disposition, the McCalls' motions for injunctive relief, to invalidate the notice of tax due, and to stay collection are hereby denied. The McCalls' "Motion for Summary Judgment Judicial Notice" is denied as well