T.C. Memo. 2004-264
UNITED STATES TAX COURT
ROBERT LEE, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15735-03L. Filed November 18, 2004.
Robert Lee, Jr., pro se.
Cindy Wofford, Alan Levine, and Erin K. Huss, for
respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This collection review
case is before the Court on respondent’s Motion for Summary
Judgment.1 As discussed in detail below, we conclude that there
1
Section references are to sections of the Internal
Revenue Code, as amended, and Rule references are to the Tax
Court Rules of Practice and Procedure.
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is no dispute as to a material fact and that respondent is
entitled to judgment as a matter of law.
Background2
Petitioner, a retired Federal employee, is inveterately
opposed to paying Federal income taxes. In Lee v. Commissioner,
T.C. Memo. 2002-95, affd. 61 Fed. Appx. 471 (9th Cir. 2003), we
observed that petitioner failed to file Federal income tax
returns for 1995, 1996, 1997, and 1998, and we sustained the
Commissioner’s determinations that petitioner was liable for
deficiencies and additions to tax for each of those taxable
years. In addition, we imposed a penalty upon petitioner
pursuant to section 6673(a) in the amount of $10,000 on the
ground that his arguments were meritless and asserted solely for
purpose of delay.3
The record in the present case includes a Form 4340
(Certificate of Assessments, Payments, and Other Specified
Matters) which demonstrates that, on September 9, 2002,
respondent entered assessments against petitioner for the taxable
year 1995 reflecting the tax deficiency, additions to tax, and
penalty under section 6673(a) set forth in the Court’s decision
at docket No. 6655-00, as well as statutory interest. On
2
The record reflects and/or the parties do not dispute the
following facts.
3
The Court entered its decision at docket No. 6655-00 on
Apr. 10, 2002.
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September 9, 2002, respondent issued to petitioner a notice of
balance due for the taxable year 1995.
On January 21, 2003, respondent mailed to petitioner a Final
Notice of Intent to Levy and Notice of Your Right to a Hearing
requesting that petitioner pay his outstanding tax liability for
1995. On February 12, 2003, petitioner submitted to respondent a
Request for Collection Due Process Hearing challenging the
validity of the assessment for 1995. Specifically, petitioner
argued that respondent failed to provide petitioner with either a
record of the assessment or a notice of the assessment.
On July 22, 2003, the parties met for the purpose of
conducting an administrative hearing regarding respondent’s
proposed levy. However, the hearing was terminated when the
Appeals officer informed petitioner that he would not be
permitted to make an audio recording of the hearing.
On July 31, 2003, respondent mailed to petitioner a Notice
of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330. In the notice, respondent determined that it
was appropriate to proceed with the proposed levy because: (1)
Petitioner had previously challenged respondent’s notice of
deficiency for 1995 in the Tax Court, and, therefore, he was
barred from challenging his underlying tax liability pursuant to
section 6330(c)(2)(B); (2) petitioner failed to file Federal
income tax returns from 1995 to 2002, and, therefore, he was not
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eligible to make an offer in compromise or to pay his outstanding
tax liability in installments; and (3) the Appeals officer
reviewed petitioner’s administrative file and concluded that
respondent met all of the administrative and legal procedures
governing the assessment and collection of petitioner’s
outstanding tax liability for 1995.
On September 8, 2003, petitioner filed with the Court a
Petition for Lien and Levy Action Under 26 USC §6330(d).4 Citing
the Court’s holding in Keene v. Commissioner, 121 T.C. 8 (2003),
petitioner’s sole contention in the petition is that respondent
abused his discretion in issuing a notice of determination to
petitioner without permitting petitioner to make an audio
recording of the administrative hearing.
After filing an answer to the petition, respondent filed a
Motion for Summary Judgment. Citing the Court’s holding in
Kemper v. Commissioner, T.C. Memo. 2003-195, respondent contends
that, considering the record as a whole (and particularly
petitioner’s predisposition to bring frivolous actions),
respondent’s decision to deny petitioner the opportunity to make
an audio recording of the administrative hearing was at most
harmless error. Further, respondent argued that, under the
circumstances, it was not necessary, nor would it be productive,
4
At the time the petition was filed, petitioner resided in
Tempe, Arizona.
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to remand the case to respondent’s Appeals Office for further
proceedings.
This matter was called for hearing at the Court’s motions
session held in Washington, D.C., on July 21, 2004. Counsel for
respondent appeared at the hearing and offered argument in
support of respondent’s motion. No appearance was entered by or
on behalf of petitioner at the hearing. However, on July 26,
2004, petitioner filed with the Court a written statement under
Rule 50(c) in opposition to respondent’s motion.
Following the hearing, the Court issued an Order directing
petitioner to file with the Court an amended petition setting
forth a valid claim for relief under section 6330(c). The Court
subsequently granted petitioner’s motion for an extension of time
to comply with the Court’s Order. Nevertheless, petitioner
failed to file an amended petition as directed.5
Discussion
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. See Florida 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,
5
Had petitioner filed an amended petition setting forth a
valid claim for relief under sec. 6330, it might have been
appropriate to remand the case to respondent’s Appeals Office.
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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(b); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);
Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving
party bears the burden of proving that there is no genuine issue
of material fact, and factual inferences will be read 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). Based on our review of
the record, we are satisfied that there is no genuine issue as to
any material fact and that respondent is entitled to judgment as
a matter of law.
Petitioner’s conduct in his earlier deficiency case at
docket No. 6655-00, coupled with the arguments that he made in
his request for collection due process hearing, clearly
demonstrate that petitioner initiated the collection review
procedures set forth in section 6330 solely for the purpose of
delay. As discussed below, the arguments that petitioner
included in his request for a collection due process hearing have
no merit. Moreover, petitioner ignored the opportunity that the
Court extended to him to file an amended petition setting forth a
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legitimate claim for relief.
Considering all the facts and circumstances, we agree with
respondent that the Appeals officer’s decision to preclude
petitioner from making an audio recording of the administrative
hearing was at most harmless error. Moreover, petitioner has
given us no reason to believe that remanding this matter to
respondent’s Appeals Office would be productive or otherwise
advance the policies underlying section 6330. Consistent with
our reasoning in Kemper v. Commissioner, supra, we conclude that
a remand is unwarranted.6
The Form 4340 attached to respondent’s motion in this case
shows that respondent properly assessed the tax liability that
respondent intends to collect and respondent properly notified
petitioner of the assessment by way of a notice of balance due.
See, e.g., Hughes v. United States, 953 F.2d 531, 536 (9th Cir.
1992).
Numerous cases establish that no particular form of
verification of an assessment is required, that no particular
document need be provided to a taxpayer at an administrative
hearing conducted under section 6330, and that a Form 4340 (such
as that included in this record) and other transcripts of account
6
As previously discussed, petitioner was given every
opportunity to file a proper amended petition setting forth a
valid claim for relief. However, petitioner failed to comply
with the Court’s Order to file an amended petition.
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satisfy the verification requirements of section 6330(c)(1). See
Roberts v. Commissioner, 118 T.C. 365, 371 n.10 (2002), affd. 329
F.3d 1224 (11th Cir. 2003); Nestor v. Commissioner, 118 T.C. 162,
166 (2002); Lunsford v. Commissioner, 117 T.C. 183 (2001).
Petitioner has not alleged any irregularity in the
assessment procedure that would raise a question about the
validity of the assessments or the information contained in the
Form 4340. Moreover, petitioner has failed to raise a spousal
defense, make a valid challenge to the appropriateness of
respondent’s intended collection action, or offer alternative
means of collection. These issues are now deemed conceded. Rule
331(b)(4).
The record reflects that respondent has complied with all
applicable laws and administrative procedures in this case.
Consistent with the preceding discussion, it follows that
respondent is entitled to judgment as a matter of law sustaining
respondent’s determination to proceed with collection.
To reflect the foregoing,
An Order and Decision will
be entered granting respondent’s
Motion for Summary Judgment.