DAVIS v. COMMISSIONER

T.C. Memo. 2001-87

UNITED STATES TAX COURT

REGINA S. DAVIS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5882-00L. Filed April 10, 2001.

Regina S. Davis, pro se.

Stephen J. Neubeck, for respondent.

MEMORANDUM OPINION

POWELL, Special Trial Judge: This case is before the Court

on respondent’s motion for summary judgment and petitioner’s

motion to strike for lack of “personam” (sic) jurisdiction.

Petitioner seeks review of respondent’s denial of relief under
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section 6330.1 At the time the petition was filed, petitioner

resided in Cincinnati, Ohio.

The facts may be summarized as follows. Respondent issued

notices of deficiency determining deficiencies in petitioner’s

Federal income taxes and additions to tax (rounded to the nearest

dollar) as follows:

Additions to Tax
Year Deficiency Sec. 6651(a) Sec. 6654

1993 $3,629 $649 $103
1994 4,845 1,100 222
1995 5,564 1,198 255
1996 6,613 1,361 283

The notices were sent to petitioner at 6727 High Meadows Drive,

Cincinnati, Ohio 45230. This is the same address shown on the

petition filed in this case. Petitioner did not file a petition

to seek review of respondent’s determinations of the deficiencies

and additions to tax, and respondent assessed the liabilities.

On or about July 28, 1999, respondent sent a notice of intent to

levy, and petitioner requested a hearing pursuant to section

6330. On May 1, 2000, after a hearing before an Appeals officer,

respondent notified petitioner that her objections to collection

were denied.

1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years in issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
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On May 25, 2000, petitioner filed a petition in this Court

to review respondent’s actions. The petition simply alleges that

petitioner was denied a lawful “due process” hearing. Respondent

filed an answer. Respondent subsequently filed a motion for

summary judgment.

Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days of

notice and demand for payment, the Secretary may collect such tax

by levy upon the taxpayer’s property. Section 63302 generally

provides that the Secretary cannot proceed with the collection of

taxes by way of a levy until the taxpayer has been given notice

and an opportunity for administrative review in the form of an

Appeals Office hearing. Section 6330(c)(2), provides

(2) Issues at hearing.--

(A) In general.–-The person may raise at the
hearing any relevant issue relating to the unpaid tax
or the proposed levy, including--

(i) appropriate spousal defenses;
(ii) challenges to the appropriateness of
collection actions; and
(iii) offers of collection alternatives,
which may include the posting of a bond, the
substitution of other assets, an installment
agreement, or an offer-in-compromise.

(B) Underlying liability.-–The person may also
raise at the hearing challenges to the existence or
amount of the underlying tax liability for any tax
period if the person did not receive any statutory

2
Sec. 6330 was enacted by the Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3401,
112 Stat. 746.
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notice of deficiency for such tax liability or did not
otherwise have an opportunity to dispute such tax
liability.

The determination of the Appeals officer may be reviewed

judicially if the taxpayer files a timely petition in this Court

or in an appropriate United States District Court. See sec.

6330(d). In Goza v. Commissioner, 114 T.C. 176, 181-182 (2000),

we noted that “where the validity of the underlying tax liability

is properly at issue, the Court will review the matter on a de

novo basis. However, where the validity of the underlying tax

liability is not properly at issue, the Court will review the

Commissioner’s administrative determination for abuse of

discretion.”

The constitutionality of the levy provisions has long been

established. See United States v. National Bank of Commerce, 472

U.S. 713, 721 (1985); Davis v. Commissioner, 115 T.C. 35, 36

(2000). We assume, therefore, that when petitioner refers to a

denial of a “due process” hearing, she is referring to statutory

rights under section 6330, rather than a constitutional attack on

the levy power.

In the hearing before this Court petitioner alleged that she

was denied “due process” on the grounds that (1) she is not a

taxpayer because “the Internal Revenue laws repealed [the]

National Prohibition Act”; (2) “anything that was called adjusted

gross income is actually the Quam [Guam] income tax” and that

does not apply to petitioner; (3) “the U.S. Internal Revenue
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Service is a function of the Puerto Rican Bureau of Alcohol,

Tobacco and Firearms”; (4) “the Secretary of Health and Human

Services is the only one who can determine * * * wages”; (5) “the

[Form] 1040 * * * was classified as [a] Virgin Island Return” and

petitioner had no connection with the Virgin Islands; (6) “it’s a

felony to disclose the social security [number] to the Internal

Revenue Service prior to service of a 6001 notice”; and (7) the

Internal Revenue Service is not “an agency of the United

States”.3

Initially, we note that the petition for review of

respondent’s determination to proceed with levying petitioner’s

property does not satisfy the requirements of our Rules. Rule

331(b) requires that the petition contain clear and concise

assignments of each and every error in respondent’s determination

and clear and concise statements of the facts on which petitioner

bases each assignment of such error. A general statement that

petitioner was denied “due process” is insufficient.

3
In response to respondent’s motion for summary judgment,
petitioner filed a “Motion to Strike for Lack of Personam
Jurisdiction” in which she states that “the United States Tax
Court * * * lacks jurisdiction over states of the United States
of America and is limited to the states of the United States,
which includes the District of Columbia, Puerto Rico, Virgin
Islands, Guam, American Samoa, other unnamed possessions and
insular possessions of the Federal government.” Petitioner’s
conclusion is that the Tax Court’s jurisdiction is limited to the
District of Columbia, Puerto Rico, territories, and insular
possessions and, accordingly, the Court lacks jurisdiction to
accept motions filed by the Commissioner.
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Second, as we understand petitioner’s position, she contends

that she is not liable for the taxes. Petitioner does not allege

that she did not receive the notices of deficiency for the tax

liabilities in issue, nor does she allege that she did not have

an opportunity to contest the deficiencies. Under section

6330(c)(2)(B), a taxpayer is precluded from contesting the

existence or amount of the tax liability at an Appeals Office

hearing or in this Court unless a taxpayer did not receive a

notice of deficiency and did not otherwise have an opportunity to

dispute such tax liability. See Pierson v. Commissioner, 115

T.C. 576, 579 (2000); Goza v. Commissioner, supra at 180-181.

Third, even if petitioner were not precluded from contesting

the liabilities, the arguments that she makes are totally

frivolous.

Finally, it should be pointed out that petitioner has not

contended that any other issue under section 6330(c)(2) should

have been considered. She did not offer any collection

alternative or offer-in-compromise. As to these issues, the

propriety of respondent’s determination is deemed to be conceded.

See Rule 331(b)(4).

In sum, petitioner has not raised any issue that would call

into question the correctness of respondent’s determination to

proceed with the collection of the tax liabilities. Under these

circumstances, it makes no difference whether we grant
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respondent’s motion for summary judgment or dismiss the case for

failure to state a claim upon which relief may be granted. In

all events, our decision affirms respondent’s determination to

proceed with collection. Accordingly, respondent’s motion is

granted, and petitioner’s motion shall be denied.

We next consider whether this Court should impose a penalty

against petitioner under section 6673(a). That section provides

that in proceedings before this Court where the position of a

taxpayer is frivolous or groundless the Court may impose a

penalty not to exceed $25,000. In Pierson v. Commissioner, supra

at 581, the Court warned that we would impose the section 6673(a)

penalty in collection cases arising under section 6320 and/or

section 6330 if the taxpayer instituted or maintained such a case

primarily for delay or took a position that was frivolous in such

proceeding. Furthermore, at the hearing in this case, the Court

warned petitioner that the penalty could be imposed. Petitioner

did not heed our warnings4 and persisted in making frivolous and

groundless arguments. Accordingly, we award a penalty to the

United States of $4,000 under section 6673.

An appropriate order and decision

will be entered.

4
Wayne C. Bentson appeared with petitioner at the hearing and
attempted to represent her. Bentson is not qualified to practice
before this Court, and the Court refused to recognize him.
Bentson is no stranger to this Court. See Bentson v.
Commissioner, T.C. Memo. 1987-172, where we imposed damages under
the statutory antecedent of sec. 6673(a) of $4,000 against
Bentson.