T.C. Memo. 2004-178
UNITED STATES TAX COURT
JOSEPH W. MCBRIDE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15990-03L. Filed August 2, 2004.
Joseph W. McBride, pro se.
Pamela Karr Harrison, for respondent.
MEMORANDUM OPINION
WHALEN, Judge: This is a levy action commenced by
petitioner under section 6330(d) of the Internal Revenue
Code and Rule 331 of the Tax Court Rules of Practice and
Procedure. Hereinafter, all section references are to the
Internal Revenue Code, and all Rule references are to the
Tax Court Rules of Practice and Procedure. Petitioner
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resided in Philadelphia, Pennsylvania, at the time he filed
the instant petition.
The case is now before the Court to decide respondent’s
motion for summary judgment, filed April 2, 2004, and
petitioner’s motion for summary judgment, filed April 29,
2004.
The pertinent facts, taken from the pleadings and
the motions filed by the parties, are summarized below.
During calendar year 1996, petitioner received wages of
$19,569 and unemployment compensation of $8,500, but he
failed to file an income tax return for the year. As a
result, respondent determined a deficiency of tax and
additions to tax for the year and issued a notice of
deficiency to petitioner setting forth such determination.
Petitioner did not petition this Court for redetermi-
nation of the deficiency and addition to tax. Accordingly,
in due course, respondent assessed a deficiency in
petitioner’s 1996 income tax of $3,602, an addition to tax
under section 6651(a)(1) of $517.95, an addition to tax
under section 6651(a)(2) of $299.26, and an addition to tax
under section 6654(a) of $116.15.
After petitioner failed to pay the amounts assessed,
respondent sent to petitioner Notice of Intent to Levy and
Notice of Your Right to a Hearing, on Internal Revenue
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Service Form CP90. In response, on or about January 2,
2003, petitioner filed Form 12153, Request for a Collection
Due Process Hearing. In the space on the form which asks
“why you don’t agree” with the notice of levy/seizure,
petitioner stated as follows: “Due to the fact that I
responded to every ‘notice’ with questions I needed to be
answered in order to proceed--I never received a response
to my questions.”
A representative of the Internal Revenue Service Office
of Appeals contacted petitioner by letters dated June 9,
2003, and June 30, 2003, and spoke to petitioner by
telephone on June 30, 2003, and August 18, 2003.
Respondent’s motion for summary judgment states that the
“CDP hearing” took place during the telephone conversation
on June 30, 2003, and, during that conversation, “petitioner
inquired as to the legal definition of income.” In
response, the Appeals officer sent to petitioner the letter
dated June 30, 2003, which enclosed a document entitled,
“The Truth about Frivolous Tax Arguments” to provide “an
explanation for the reasons to file a tax return”. The
June 30, 2003, letter also states that petitioner’s account
balance for 1996 is $5,324.42 as of May 12, 2003.
The letter also refers to a letter from petitioner dated
June 24, 2003, which is not included in the record.
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According to respondent’s motion, during the telephone
conversation on August 18, 2003, “petitioner said he was not
sure he wanted an installment agreement and [petitioner]
would call the Appeals officer on August 19, 2003 if
interested”. The motion states that “Petitioner did not
pursue this matter further.”
Respondent’s motion is supported by the Declaration of
the Appeals officer. Among the documents attached to the
Declaration, is the “Case Activity Records”, which purports
to show all of the actions taken by the Appeals officer
regarding the case. That document refers to a conference
on June 17, 2003, and another contact with petitioner on
July 22, 2003 (“Requested additional info and TP wants an
IA”). These items are not discussed in the Declaration or
in respondent’s motion.
In any event, on August 29, 2003, the Commissioner
issued Notice of Determination Concerning Collection
Action(s) under Section 6320 and/or 6330 (referred to herein
as notice of determination), which contemplates permitting
the collection action to proceed. The notice of
determination states as follows:
Summary of Determination
Although you wanted an installment agreement, you
were not in compliance. In addition you never
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returned the waiver necessary to continue your
case with the audit reconsideration unit.
An attachment to the notice of determination states as
follows:
Applicable Law and Administrative Procedures
* * * * * * *
This Appeals Officer has had no prior involvement with
this taxpayer with respect to these appealed
assessments.
Validity of the Assessment
The assessment is valid.
Challenges to the Existence or Amount of the Liability
Taxpayer wanted to [sic] what is the definition of
income. The Appeals Officer mailed the taxpayer the
first 6 pages of the “THE TRUST ABOUT FRIVLLOUS [SIC]
TAX ARGUMENTS” CHAPTER #1.
SPOUSAL DEFENSES
Not applicable.
Collection Alternative Considered
Taxpayer stated he wanted an Installment Agreement,
[sic] However since the taxpayer is not in compliance.
[sic]
Balancing Efficient Collection Intrusiveness
IRC§6330 requires that the Appeals Officer consider
whether any collection action balance the need for
efficient tax collection with the legitimate concern
that any collection action be no more intrusive than
necessary. The levy action is appropriate.
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Within 30 days of the notice of determination,
petitioner filed a petition with the Court commencing this
levy action. Paragraph 4 of the amended petition sets forth
the reasons for petitioner’s belief that he is entitled to
relief. It states as follows:
4. Set forth the relief requested and the reasons why
you believe you are entitled to such relief.
1) I interpreted the “relief” to mean why I
couldn’t pay the $60 Court Cost.
2) I have responded to every letter the IRS
has sent with questions and the only
response was more intimidating letters
until 2002, when I received “Frivolous
questions” - “frivoulous [sic] - meaning
without serious attention.
One of the questions is where is the
legislative regulation that requires
individuals [sic] taxpayers to file.
I can’t locate it.
After respondent filed his motion for summary judgment,
the Court gave petitioner a period of time in which to
respond to respondent’s motion. Petitioner chose to file
his own motion for summary judgment in response to
respondent’s motion. In that document, petitioner
acknowledges that he received the notice of deficiency dated
October 13, 1998, issued for taxable year 1996, but he does
not address any other facts of the case. Significantly,
petitioner’s motion takes issue with none of the facts set
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forth in respondent’s motion nor does it allege any new
facts. Thus, in responding to respondent’s motion,
petitioner did not set forth specific facts showing that
there is a genuine issue for trial. See Rule 121(d).
Furthermore, petitioner’s motion does not take issue with
the Appeals officer’s determination that petitioner is not
eligible for an installment agreement.
Petitioner’s motion for summary judgment consists of
a series of legal statements that raise frivolous and
groundless issues. First, petitioner’s motion states that
“unless an ‘assessment’ of an ‘imposed’ tax ‘has been made’
the imposed tax cannot be ‘collected by levy or by a
proceeding in court’.” While we agree that, generally, the
tax must be assessed as a liability of the taxpayer before
there can be a levy on the taxpayer’s property to collect
the tax, see secs. 6303(a), 6330, 6501(a), and 6502, there
is ample evidence in the record of this case to show that
the subject tax determined by respondent was properly
assessed. The notice of determination issued on August 29,
2003, sets forth the statement of the Appeals officer that
“the assessment is valid.” Furthermore, attached to the
Declaration of the Appeals officer is a copy of the
transcript of petitioner’s account, dated May 12, 2003,
showing that the subject tax was assessed on June 7, 1999.
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Petitioner’s motion gives the Court no reason to
conclude that the subject tax was not properly assessed.
It simply disregards both the statement in the notice of
determination that the assessment is valid and the
transcript attached to the Declaration of the Appeals
officer that shows that the subject tax was assessed.
Petitioner’s motion makes three other frivolous
arguments. The motion states: “that withholding has
nothing to do with income taxes and/or the 16th Amendment”;
that “corporations only pay income taxes on their profit;
this must also apply to individuals”; and that “no law makes
anyone ‘liable’ for income taxes and no law required them
‘to pay’ income taxes and they have no income in the
‘constitutional sense’.” We reject these arguments as
patently spurious. See, e.g., Jacobs v. Commissioner,
100 Fed. Appx. 126 (3d Cir. 2004) (per curiam).
Finally, we note that petitioner has failed to assign
error to any of the additions to tax determined by
respondent in the notice of deficiency. Accordingly,
petitioner is deemed to have conceded the additions to tax
determined by respondent. See Swain v. Commissioner, 118
T.C. 358, 363 (2002).
On the basis of our review of the entire record in
this case, we find no abuse of discretion in respondent’s
determination to proceed with collection with respect to
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petitioner’s 1996 taxable year as set forth in the notice
of determination.
We note that section 6673(a)(1) authorizes the Court to
require a taxpayer to pay to the United States a penalty of
up to $25,000 whenever it appears that the proceeding has
been instituted or maintained by the taxpayer primarily for
delay or that the taxpayer’s position in such proceedings is
frivolous or groundless. In this case, we conclude that the
position advanced by petitioner is frivolous and groundless.
Nevertheless, respondent has not asked for penalties under
section 6673 to be imposed, and we choose not to do so at
this time. We caution petitioner that such penalties under
section 6673 may be imposed if he continues to advance the
same frivolous and groundless arguments in the future.
Upon consideration of the above,
An appropriate Order and
Decision authorizing respondent
to proceed with collection will
be entered.