T.C. Memo. 2003-122
UNITED STATES TAX COURT
LAVONNE ALLEN HODGSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8884-02L. Filed April 28, 2003.
LaVonne Allen Hodgson, pro se.
Donna F. Herbert, for respondent.
MEMORANDUM OPINION
LARO, Judge: Petitioner, while residing in Santa Maria,
California, petitioned the Court under section 6330(d) to review
respondent’s filing of a notice of lien under section 6323.
Respondent filed the lien on petitioner’s property to secure
petitioner’s payment of his 1994 Federal income tax liability of
$3,385.56. Currently, the case is before the Court on
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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 $5,000 penalty against petitioner. 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
Petitioner’s liability was determined by this Court in our
opinion Hodgson v. Commissioner, T.C. Memo. 1998-70. In
addition, on October 19, 2000, the Court rendered an oral opinion
against petitioner with respect to respondent’s proposed levy to
collect petitioner’s 1994 tax liability. The Court held in the
oral opinion that respondent could proceed with the collection
action as determined in the notice of determination.
On December 3, 2001, respondent mailed to petitioner a
Letter 3172--Notice of Federal Tax Lien Filing and Your Right to
a Hearing (lien notice) for 1994. Enclosed with the lien notice
was a copy of Form 12153, Request for a Collection Due Process
Hearing. On January 9, 2002, respondent received from petitioner
Form 12153 requesting the hearing regarding the lien.
On April 3, 2002, a hearing was held between respondent’s
Appeals officer and petitioner. At the hearing, the Appeals
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officer provided petitioner with a copy of Form 4340, Certified
Transcript, for petitioner’s 1994 income tax liability.
On April 23, 2002, respondent issued to petitioner a Notice
of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330 for 1994. This notice reflected the
determination of Appeals to sustain the lien.
Discussion
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
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).
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As will be shown in the discussion that follows, petitioner
has raised no genuine issue as to any material fact.
Accordingly, we shall grant respondent’s motion for summary
judgment.
Section 6321 imposes a lien in favor of the United States on
all of a person’s property and rights to property where the
person is liable to pay any tax and neglects or refuses to pay
the same after demand. Under section 6322, the lien arises at
the time the assessment is made and continues until the liability
for the amount so assessed is paid. Section 6323(a) requires the
Secretary to file a notice of Federal tax lien in order for the
lien to be valid against any purchaser, holder of a security
interest, mechanic’s lienor, or judgment lien creditor. Lindsay
v. Commissioner, T.C. Memo. 2001-285.
Section 6320 provides that the Secretary shall furnish the
person described in section 6321 with written notice of the
filing of a notice of lien under section 6323. The notice
required by section 6320 must be provided not more than 5
business days after the day of the filing of the notice of lien.
Sec. 6320(a)(2). Section 6320 further provides that the person
may request administrative review of the matter (in the form of
an Appeals Office hearing) within 30 days beginning on the day
after the 5-day period. Section 6320(c) provides that the
Appeals Office hearing generally shall be conducted consistent
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with the procedures set forth in section 6330(c), (d), and (e).
See, e.g., Goza v. Commissioner, 114 T.C. 176, 179 (2000).
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, the person may seek judicial review of the
administrative determination. Davis v. Commissioner, 115 T.C.
35, 37 (2000); Goza v. Commissioner, supra.
We review respondent’s determination for abuse of
discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000);
Hodgson v. Commissioner, T.C. Memo. 1998-70.
Petitioner’s allegations that respondent’s determination
“was both lawless and erroneous” can be summarized as follows:
(1) The lien notice was not signed by the Secretary or his
delegate; (2) the Appeals officer failed to obtain and present at
the hearing the verification from the Secretary required by
section 6330(c)(1); (3) petitioner never received a notice and
demand for payment from the Secretary; (4) “the Congress did not
authorize the assessment and/or collection of a ‘1040’ ‘Kind of
Tax’”; and (5) “the CDP hearing was a mockery and a farce and
provided none of the safeguards against illegal IRS seizures that
Congress envisioned when it enacted Code Sections 6320 and 6330.”
Petitioner’s allegations are frivolous and without any merit.
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Therefore, we do not see any need to address those allegations.
See Crain v. Commissioner, 737 F.2d 1417, 1147 (5th Cir. 1984);
Craig v. Commissioner, 119 T.C. 252, 259-264 (2002) (and cases
cited thereat). We sustain respondent’s determination as to the
lien 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 the proceedings is frivolous or
groundless. We have repeatedly indicated our willingness to
impose such penalties in a lien and levy review case. Roberts v.
Commissioner, 118 T.C. 365 (2002). Moreover, we have imposed
penalties in such proceedings when the taxpayer has raised
frivolous and groundless arguments as to the legality of the
Federal tax laws. Yacksyzn v. Commissioner, T.C. Memo. 2002-99;
Watson v. Commissioner, T.C. Memo. 2001-213; Davis v.
Commissioner, T.C. Memo. 2001-87.
On the basis of the record, we believe that petitioner has
instituted and maintained these proceedings primarily for delay
and has advanced only frivolous and groundless shopworn
arguments. He was warned by Appeals at the hearing and was
advised by the Court in Hodgson v. Commissioner, T.C. Memo. 1998-
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70, that “the amount of the penalty may be greater if he persists
with his tax protester position in the future.” Notwithstanding
our warnings, petitioner continued advancing frivolous and
groundless claims in these proceedings. Pursuant to section
6673, we require petitioner to pay to the United States a penalty
of $5,000.
We have considered all arguments made by the parties and
have found those arguments not discussed herein to be irrelevant
and/or without merit. To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.