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Adopted November 28, 2000
STATE BOARD OF EQUALIZATION
INCOME TAX APPEAL DECISION
Appellant Year Assessment
Tax Penalty 1
Jose G. Nunez 1997 $1,903 $1,683
Case No. 32910
Representing the Parties:
For Appellant: Jose
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
 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.
 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.
 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.)
 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.
 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.
 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.
 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.
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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