Diane M. Barber, Petitioner

T .C . Memo . 2007-344

UNITED STATES TAX COURT

I ADM . RECORDE D

SERVICE

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CAL .

STAT .

8-JF . JUDGE

I FILE S

DIANE M . BARBER, Petitioner COMMISSIONER OF INTERNAL REVENUE, responden t Docket No . 2212-05 .

Filed N o vember 21, 2007 .

Larry D . Harvey , for petitioner .

Randall L . Preheim , for respondent .

MEMORANDUM OPINIO N

VASQUEZ, Judge : This case is before th e Court o n respondent's motion for summary judgment puro uant to Rule 121 . 1

references are to and all section _n effect for th e

SERVED NOV 21 2007

After a concession,2 the sole issue for decision is whether petitioner can exclude from income wages earned during 2002 from 2 - working in Antarctica .

Background At the time she filed the petition, petitioner resided i n Dodge Center, Minnesota . During 2002, petitioner performed services at McMurdo Station in Ross Island, Antarctica . On her 2002 Federal income tax return, petitioner excluded wage income earned and received during 2002 for services performed i n Antarctica .

I .

Summary Judgment Discussion Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy .

Full or partial summary judgment may be granted only .if it is demonstrated that no genuine issue exists as to any material fact and that the legal issues presented by the motion may be decided as a matter of law . See Rule 121(b) ; Sundstrand Corp . v .

Commissioner , 98 T .C . 518, 520 (1992), affd . 17 F .3d 965 (7th Cir . 1994) . We conclude that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law .

II .

In Genera l Section 61(a) provides that gross income eans all income from whatever source derived . Accordingly, ci izens of the United States generally are taxed on income ea ned outside the geographical boundaries of the United States less the income is specifically excluded from gross income . Specking V .

Commissioner , 117 T .C . 95, 101-102 (2001), affd . sub nom . Haessly v . Commissioner , 68 Fed . Appx . 44 (9th Cir . 2003), affd . sub nom .

Umbach v . Commissioner , 357 F .3d 1108 (10th C'r . 2003) .

Exclusions from income are construed narrowly, and taxpayers must bring themselves within the clear scope of th exclusion .

Id .

III .

Section 91 1 In Arnett v . Commissioner , 126 T .C . 89, 1-96 (2006) (Arnett I), affd . 473 F .3d 790 (7th Cir . 2007) (Arne t II), we addresse d the arguments made by the parties herein rega ding section 911 .

The U .S . Court of Appeals for the Seventh Cir uit agreed with our analysis of section 911 and affirmed our con c usion tha t Antarctica is not a "foreign country" pursuan to section 911 an d the regulations thereunder . Arnett v . Commissioner, 473 F .3d at 799 . We shall not repeat our analysis from Arnett I herein . We follow our analysis and holding in Arnett I and the analysis and holding of the Court of Appeals in Arnett II .~ i I

. .)

IV .

Conclusio n Accordingly, for the reasons stated in Arnett I, Arnett II, and herein, we conclude that petitioner cannot exclude from gross income wages earned during 2002 from working in Antarctica .

To reflect the foregoing, An appropriate order an d decision will be entered .

3( .

. .continued) citation of sec . 863(d) suggesting that sec . 863(d) provided an additional reason to rule against the taxpayer . also sec . 863(d) (providing that income earned in Antarctica by a U .S . person is sourced in the United States) .") . In Arnett v . Commissioner , 473 F .3d at 797, the U .S . Court of Appeals for the Seventh Circuit addressed sec . 863(d) in greater detail, stating :

Id . at 96 ("See At the outset, we think that it is important to note that considering Antarctica not to be a "foreign country" is compatible with the general statutor y scheme . Notably, section 911 is found under subtitle A, chapter 1, subchapter N of the IRC, which is designated "Tax Based on Income from Sources Within or Without the United States ." Part I of this subchapter, entitled "Source Rules and Other General Rules Relating to Foreign Income," deems any activity in Antarctica to be "space or ocean activity ." In turn, the United States is designated the source country of income from such activity when earned by a citizen of the United States . 26 U .S .C . § 863(d) . Although this provision does not provide a definitive answer as to whether Antarctica is a "foreign country," it supports the conclusion that section 911 is not intended to apply to income earned for services provided in Antarctica .

We take this opportunity to state our agreement with the Court of Appeals' conclusion set forth above . See also HCSC-Laundry v . United States , 450 U .S . 1, 6 (1981) .

1. Unless otherwise indicated, all Rule the Tax Court Rules of Practice and Procedur references are to the Internal Revenue Code year in issue .
2. Respondent concedes that no penalty pursuant to sec . 6662 is due from petitioner for 2002 .
3. In Arnett v . Commissioner , 126 T .C . 8 (2006), affd . 473 F .3d 790 (7th Cir . 2007), we concluded our Opinion with a (continued .