STANDIFIRD v. COMMISSIONER

T.C. Memo. 2002-245

UNITED STATES TAX COURT

LANCE STANDIFIRD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8977-01L. Filed September 26, 2002.

Lance Standifird, pro se.

Erin K. Huss, for respondent.

MEMORANDUM OPINION

LARO, Judge: Petitioner, while residing in Mesa, Arizona,

petitioned the Court under section 6330(d) to review respondent’s

determination as to his proposed levy upon petitioner’s property.

Respondent proposed the levy to collect 1990 and 1991 Federal

income taxes (plus frivolous tax return penalties and interest)
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of approximately $20,728 for 1990 and $30,737.52 for 1991.1

Currently, the case is before the Court on respondent’s motion

for summary judgment under Rule 121 and to impose a penalty under

section 6673. Petitioner responded to respondent’s motion under

Rule 121(b).

We shall grant respondent’s motion for summary judgment and

shall impose a $7,500 penalty against petitioner. In addition,

we dismiss for lack of jurisdiction the part of the petition with

respect to the frivolous return penalties and related interest.

Unless otherwise noted, section references are to the applicable

versions of the Internal Revenue Code. Rule references are to

the Tax Court Rules of Practice and Procedure.

Background

On October 15, 1992, petitioner filed a 1990 U.S.

nonresident alien income tax return in which he reported zero

taxable income. Petitioner reported that he was not a U.S.

citizen and had not visited the U.S. in 1990. Petitioner stated

that his country of residence was “America.”

On September 22, 1995, respondent issued to petitioner a

notice of deficiency for 1990. The notice determined that

petitioner was liable for an $11,224 deficiency in his 1990

income tax and a $2,806 addition to tax under section 6651(a)(1)

1
We use the term “approximately” because these amounts were
computed before the present proceeding and have since increased
on account of interest.
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for failure to file a timely Federal income tax return.

Petitioner did not petition the Court with respect to the notice.

On March 4, 1996, respondent assessed petitioner’s tax liability

for 1990 as per the notice of deficiency.

On April 20, 1993, petitioner filed a 1991 U.S. nonresident

alien income tax return in which he again reported zero taxable

income. He further reported that he was not a U.S. citizen and

that he was “stateless.” Once again, petitioner stated that his

country of residence was “America.”

On September 3, 1993, respondent issued to petitioner a

notice of deficiency for 1991. The notice determined that

petitioner was liable for a $10,974 deficiency in his 1991 income

tax, a $2,744 addition to tax under section 6651(a)(1) for

failure to file a timely Federal income tax return and a $628

addition to tax under section 6654 for failure to pay estimated

tax. Petitioner petitioned the Court with respect to the notice.

On July 31, 1995, this Court dismissed that case for failure to

state a claim upon which relief may be granted. Standifird v.

Commissioner, T.C. Memo. 1995-348. On January 29, 1996,

respondent assessed petitioner’s tax liability for 1991 as per

the notice of deficiency.

On February 12, 1999, respondent mailed to petitioner a Form

L1058, “Final Notice - Notice of Intent to Levy and Notice of

Your Right to a Hearing” (final notice). The final notice
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informed petitioner of (1) respondent’s intention to levy under

section 6331 and (2) petitioner’s right under section 6330 to a

hearing with respondent’s Office of Appeals (Appeals). Enclosed

with the final notice was a copy of Form 12153, Request for a

Collection Due Process Hearing.

On March 13, 1999, petitioner sent to respondent the Form

12153 requesting the referenced hearing.

On August 28, 2000, Appeals officer Patrick J. Wilcox held

with petitioner a hearing under section 6330. At the hearing,

the Appeals officer provided petitioner with copies of the MFTRA-

X transcript with respect to petitioner’s income tax liabilities

for 1990 and 1991. On September 8, 2000, the Appeals officer

mailed to petitioner copies of the TXMODA transcripts for 1990

and 1991. Additionally, on September 12, 2000, the Appeals

officer mailed to petitioner two Forms 4340, Certificate of

Assessments, Payments and Other Specified Matters. The Forms

4340 were dated September 6, 2000, and were for 1990 and 1991

respectively.

On September 14, 2000, respondent issued to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 for 1990 and 1991. This notice

reflected the determination of Appeals to sustain the proposed

levy.
 -5-

On October 16, 2000, petitioner filed a Complaint with the

United States District Court for the District of Arizona. The

Court dismissed that Complaint on June 12, 2001. Stanifird v.

Wilcox, 87 AFTR 2d 2585, 2001-2 USTC par. 50,492 (D. Ariz. 2001).

Discussion

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

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

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

by levy on the person’s property. Section 6331(d) provides that

at least 30 days before enforcing collection by levy on the

person’s property, the Secretary must provide the person with a

final notice of intent to levy, including notice of the

administrative appeals available to the person.

Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the person has been given

notice 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. Davis v. Commissioner, 115 T.C. 35, 37 (2000);

Goza v. Commissioner, 114 T.C. 176, 179 (2000). In the case of

such judicial review, the Court will review a taxpayer’s

liability under the de novo standard where the validity of the

underlying tax liability is at issue. The Court will review the

Commissioner’s administrative determination for abuse of
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discretion with respect to other issues. Sego v. Commissioner,

114 T.C. 604, 610 (2000).

Here, respondent notified petitioner that he was proposing

to levy upon petitioner’s property in order to collect

petitioner’s Federal income tax debt for 1990 and 1991.

Following the determination by Appeals that respondent’s proposed

levy was proper, petitioner sought relief in this Court.2 The

only allegation by petitioner is that “the determination was made

without verification that the law and procedures were complied

with.”

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials. Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.” Rule 121(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994). The moving party bears the burden of proving

2
Because we lack jurisdiction over the assessment of the
sec. 6702 frivolous return penalties, we shall dismiss for lack
of jurisdiction the related part of the petition. Van Es v.
Commissioner, 115 T.C. 324 (2000).
 -7-

that there is no genuine issue of material fact, and factual

inferences are drawn in a manner most favorable to the party

opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C.

812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).

As will be shown in the discussion that follows, petitioner

has raised no genuine issue as to any material fact.

Accordingly, we conclude that this case is ripe for summary

judgment.

Petitioner argues that the Appeals officer failed to obtain

verification from the Secretary that the requirements of all

applicable laws and administrative procedures were met as

required by section 6330(c)(1). We disagree. First, section

6330(c)(1) does not require the Commissioner to rely upon a

particular document (e.g., the summary record itself rather than

transcripts of account) to satisfy this verification requirement.

Kuglin v. Commissioner, T.C. Memo. 2002-51; see also Weishan v.

Commissioner, T.C. Memo. 2002-88. Second, the Appeals officer is

not required to give the taxpayer a copy of the verification that

the requirements of any applicable law or administrative

procedure have been met. Sec. 6330(c)(1); sec. 301.6330-1(e)(1),

Proced. & Admin. Regs.; see also Nestor v. Commissioner, 118 T.C.

162 (2002). More importantly, in this case, petitioner not only
 -8-

received copies of the MFTRA-X transcript but also Forms 43403

and TXMODA transcripts. Even standing alone, the MFTRA-X

transcript, which was reviewed by the Appeals officer at the

hearing, is a valid verification that the requirements of any

applicable law or administrative procedure have been met.4

Roberts v. Commissioner, 118 T.C. 365 (2002); Mudd v.

Commissioner, T.C. Memo. 2002-204; Howard v. Commissioner, T.C.

Memo. 2002-81; Mann v. Commissioner, T.C. Memo. 2002-48. We hold

that the Appeals officer satisfied the verification requirement

of section 6330(c)(1). Yacksyzn v. Commissioner, T.C. Memo.

2002-99; cf. Nicklaus v. Commissioner, 117 T.C. 117, 120-121

(2001).

Petitioner further contends that he did not receive “the

notices of assessment for the alleged assessment of the income

3
Petitioner is not prejudiced by the fact that he received
Forms 4340 after the Appeals Office hearing. Nestor v.
Commissioner, 118 T.C. 162, 167 (2002).
4
Federal tax assessments are formally recorded on a record
of assessment. Sec. 6203. The summary record of assessment must
“provide identification of the taxpayer, the character of the
liability assessed, the taxable period, if applicable, and the
amount of the assessment.” Sec. 301.6203-1, Proced. & Admin.
Regs. The MFTRA-X transcript received by petitioner at the
Appeals Office hearing contained all this information.
Petitioner has not demonstrated in this proceeding any
irregularity in the assessment procedure that would raise a
question about the validity of the assessment or the information
contained in the MFTRA-X transcript. See Mann v. Commissioner,
T.C. Memo. 2002-48. We hold that the assessment made by
respondent is valid. See Kuglin v. Commissioner, T.C. Memo.
2002-51; see also Duffield v. Commissioner, T.C. Memo. 2002-53.
 -9-

taxes.” He argues that there is no proof of mailing by

respondent of the Notices of Assessment required by section 6303.

The record shows otherwise. “The Secretary shall, as soon as

practicable, and within 60 days, after the making of an

assessment of a tax pursuant to section 6203, give notice to each

person liable for the unpaid tax, stating the amount and

demanding payment thereof.” Sec. 6303(a). If mailed, this

notice and demand is required to be sent to the taxpayer’s last

known address. Id. Forms 4340 show that respondent sent

petitioner notices of balance due on the same dates that

respondent made assessments against petitioner for 1990 and 1991.

A notice of balance due constitutes a notice and demand for

payment within the meaning of section 6303(a). Schaper v.

Commissioner, T.C. Memo. 2002-203. In addition, petitioner in

this case received numerous final notices (notices of intention

to levy), as well as notices of deficiency, receipt of which

petitioner does not dispute. These numerous notices were

sufficient and met the requirements of section 6303(a). Hansen

v. United States, 7 F.3d 137, 138 (9th Cir. 1993); Hughes v.

United States, 953 F.2d 531, 536 (9th Cir. 1992); Weishan v.

Commissioner, T.C. Memo. 2002-88. “The form on which a notice of

assessment and demand for payment is made is irrelevant as long

as it provides the taxpayer with all the information required
 -10-

under 26 U.S.C. § 6303(a).” Elias v. Connett, 908 F.2d 521, 525

(9th Cir. 1990).

Petitioner argues that the declaration of Erin K. Huss

accompanying respondent’s motion for summary judgment is

insufficient to prove that “the Notices were mailed to the

Petitioner’s ‘last known address’ as required by § 6303.”

Petitioner claims that Ms. Huss “is not qualified to testify as

to what address the Notices may or may not have been mailed”

because “she has absolutely no personal knowledge of the facts

that would establish that the Notices were mailed.” We disagree

with petitioner that the declaration is deficient. The

declaration merely identifies documents contained in respondent’s

administrative file, all of which were submitted to the Court as

part of respondent’s motion for summary judgment. This argument

by petitioner is without merit.

For the foregoing reasons, we sustain respondent’s

determination as to the proposed levy as a permissible exercise

of discretion. We now turn to the requested penalty under

section 6673.

Section 6673(a)(1) authorizes the Court to require a

taxpayer to pay to the United States a penalty not in excess of

$25,000 whenever it appears that proceedings have been instituted

or maintained by the taxpayer primarily for delay or that the

taxpayer’s position in such proceeding is frivolous or
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groundless. We have repeatedly indicated our willingness to

impose such penalties in collection review cases. Roberts v.

Commissioner, supra. In Pierson v. Commissioner, 115 T.C. 576

(2000), taxpayers advancing frivolous and groundless claims and

instituting proceedings under section 6330(d) for the purposes of

delay were given unequivocal warning that the Court would impose

penalties. See also Hoffman v. Commissioner, T.C. Memo. 2000-

198. Moreover, we have imposed penalties in such proceedings

when the underlying tax liability was not at issue and the

taxpayer raised frivolous and groundless arguments as to the

legality of the Federal tax laws. Yacksyzn v. Commissioner,

supra; Watson v. Commissioner, T.C. Memo. 2001-213; Davis v.

Commissioner, T.C. Memo. 2001-87.

Petitioner is a frequent litigator of groundless challenges

to the validity of the Internal Revenue Code. See, e.g.,

Standifird v. United States, 41 Fed. Appx. 99 (9th Cir. 2002);

Standifird v. Augustine, 74 AFTR 2d 94-5447, 94-2 USTC par.

50,530 (D. Ariz. 1994); Standifird v. United States, 32 Fed. Cl.

731 (1995). In a prior proceeding, this Court imposed upon

petitioner a penalty under section 6673 of $2,500. Standifird v.

Commissioner, T.C. Memo. 1995-348. Petitioner, however,

continues to advance the same type of frivolous and groundless

arguments as in the previous cases.
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Petitioner, we believe, has instituted and maintained this

proceeding primarily for delay. His attention has been directed

to our decision in Davis v. Commissioner, supra, wherein the

Court imposed upon the taxpayer a $4,000 penalty under section

6673, for advancing frivolous and groundless claims. Pursuant to

section 6673, we require petitioner to pay to the United States a

penalty of $7,500.

We have considered all arguments made by the parties and

have found those arguments not discussed herein as irrelevant

and/or without merit. To reflect the foregoing,

An appropriate order and

decision will be entered for

respondent.