T.C. Memo. 2001-272
UNITED STATES TAX COURT
TIMOTHY VINCENT TIPP, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 541-01L. Filed October 9, 2001.
Timothy Vincent Tipp, pro se.
Rollin G. Thorley and Susan B. Watson, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This matter is before
the Court on respondent’s Motion to Dismiss for Failure to State
a Claim Upon Which Relief Can be Granted. As explained in detail
below, we shall grant respondent’s motion.
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Background
On August 19, 1992, petitioner filed a Federal income tax
return for 1991 reporting a tax liability of $6,795. Respondent
subsequently entered assessments against petitioner for 1991
reflecting the tax reported due, additions to tax for failing to
pay estimated taxes and failing to pay the amount reported due,
and interest. Respondent applied overpayment credits from 1994,
1996, 1997, and 1998 to petitioner’s outstanding tax liability
for 1991. In addition, petitioner made a number of payments
against his tax liability for 1991 during the period 1993 to
1998.
On April 15, 1993, petitioner filed a Federal income tax
return for 1992 reporting a tax liability of $658.
On May 2, 1995, respondent issued a notice of deficiency to
petitioner determining a deficiency of $2,160 in his Federal
income tax for 1992. Petitioner did not file a petition for
redetermination with the Court challenging the notice of
deficiency.
On October 12, 1999, respondent mailed to petitioner a Final
Notice of Intent to Levy and Notice of Your Right to a Hearing
pursuant to section 6331.1 The notice stated that petitioner
owed taxes, penalties, and interest totaling $4,132.11 for the
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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taxable years 1991 and 1992, and that respondent was preparing to
collect this amount by levy. The notice stated that petitioner
had 30 days to request a collection due process hearing with
respondent's Appeals Office.
On November 10, 1999, petitioner filed a request for a
section 6330 hearing with respondent's Appeals Office.
On November 20, 2000, the Appeals Office conducted a hearing in
petitioner’s case.
On December 12, 2000, respondent's Appeals Office issued to
petitioner a Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 (the determination
letter). The determination letter stated that the Appeals Office
would proceed with collection with respect to the amount due for
1991, but that petitioner was not liable for any amount for 1992.
Respondent’s determination to abate the assessments entered
against petitioner for 1992 produced a credit of $50 for that
year which respondent applied to petitioner’s outstanding tax
liability for 1991.
On January 9, 2001, petitioner filed with the Court an
imperfect Petition for Lien or Levy Action Under Section 6320(b)
or 6330(d).2 On March 26, 2001, petitioner filed an amended
petition which included nothing but frivolous and groundless
2
At the time the petition was filed, petitioner resided in
Las Vegas, Nevada.
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allegations that petitioner is not liable for taxes under the
Uniform Commercial Code. In response, respondent filed a Motion
to Dismiss for Failure to State a Claim Upon Which Relief May Be
Granted.
This matter was called for hearing at the Court's motions
session held in Washington, D.C. Counsel for respondent appeared
at the hearing and presented argument in support of respondent's
motion. No appearance was made by or on behalf of petitioner at
the hearing.
Following the hearing, respondent filed a supplement to his
motion to dismiss asserting that the collection review procedures
set forth in sections 6320 and 6330 are limited to lien and levy
actions and do not preclude respondent from applying an available
credit to a taxpayer’s outstanding tax liability. Petitioner
filed an affidavit which stated that petitioner denied the
existence of various entities including the United States of
America, the United States Tax Court, and the Internal Revenue
Service.
Discussion
In the Internal Revenue Service Restructuring and Reform Act
of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress
enacted new sections 6320 (pertaining to liens) and 6330
(pertaining to levies) to provide protections for taxpayers in
tax collection matters. Section 6330 generally provides that the
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Commissioner cannot proceed with the collection of taxes by way
of a levy on a taxpayer's property until the taxpayer has been
given notice of and the opportunity for an administrative review
of the matter (in the form of an Appeals Office hearing), and, if
dissatisfied, with judicial review of the administrative
determination in either the Tax Court or Federal District Court.
Section 6330(c)(2)(B) provides that neither the existence
nor the amount of the underlying tax liability can be contested
at an Appeals Office hearing unless the taxpayer did not receive
a notice of deficiency for the taxes in question or did not
otherwise have an earlier opportunity to dispute such tax
liability. Section 6330(d)(1)(A) provides that a taxpayer may
file a petition for review of the Commissioner's administrative
determination with the Tax Court.
In Goza v. Commissioner, 114 T.C. 176 (2000), we explained
that section 6330(c) provides for an Appeals Office hearing to
address collection issues such as spousal defenses, the
appropriateness of the Commissioner's intended collection action,
and possible alternative means of collection. The taxpayer in
Goza v. Commissioner, supra, had received a notice of deficiency,
yet failed to file a petition for redetermination with the Court.
When the taxpayer subsequently attempted to use the Court's
collection review procedure as a forum to assert frivolous and
groundless constitutional arguments against the Federal income
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tax, the Court dismissed the petition for failure to state a
claim upon which relief can be granted.
In the instant case, the record indicates that, following an
Appeals Office hearing, respondent determined that he would
proceed with collection against petitioner as to taxes due for
1991, and he would abate the assessments entered against
petitioner for 1992. Respondent asserts that the assessment for
1991 is based on the return as filed and that the tax, penalty,
and interest due for 1991 is the balance after application of a
credit applied from 1992 to 1991. Petitioner does not dispute
this assertion. Respondent did not issue a notice of deficiency
to petitioner for 1991, a circumstance which normally would
permit petitioner to challenge his underlying tax liability for
1991 in this collection review proceeding.3 As was the case in
Goza v. Commissioner, supra, petitioner failed to raise a spousal
defense or challenge respondent's proposed levy by offering a
less intrusive means for collecting the taxes in either the
Appeals Office hearing or in his petition for review filed with
the Court. Sec. 6330(c)(2)(A). Moreover, as indicated, the
3
Petitioner failed to assert a valid claim for relief.
See Landry v. Commissioner, 116 T.C. 60 (2001), holding that the
Court had jurisdiction in a collection review proceeding,
regardless of whether a deficiency was determined, where the
underlying liability related to Federal income tax. Given the
nature of petitioner’s frivolous claims, we conclude that
petitioner failed to assert a valid claim for relief as to the
underlying liability.
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amended petition contains nothing but frivolous and groundless
arguments relating to the Uniform Commercial Code. Petitioner is
deemed to have conceded all issues not raised. Rule 331(b)(4).
Under the circumstances, we conclude that the petition fails to
state a claim for relief, and we shall grant respondent’s motion
to dismiss, as supplemented.
To reflect the foregoing,
An appropriate order
and decision will be entered
for respondent.