T.C. Memo. 2005-61
UNITED STATES TAX COURT
RICHARD JOHN FLORANCE, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18209-03L. Filed March 29, 2005.
Richard John Florance, Jr., pro se.
Adam L. Flick, for respondent.
MEMORANDUM OPINION
VASQUEZ, Judge: This case is before the Court on
respondent’s motion for summary judgment and to impose a penalty
under section 6673.1
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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Background
Petitioner failed to file Federal income tax returns for
1994, 1995, and 1996.
On November 30, 1999, respondent sent petitioner a statutory
notice of deficiency for 1994, 1995, and 1996. Petitioner
received the notice of deficiency. Respondent determined
deficiencies in and additions to petitioner’s Federal income tax
as follows:
Additions to Tax
Year Deficiency Sec. 6651(f) Sec. 6654(a)
1994 $6,105 $1,561 --
1995 13,675 9,912 $714
1996 14,324 10,743 762
On April 24, 2000, respondent assessed the tax, additions to
tax, and interest for 1994, 1995, and 1996.
On February 14, 2003, respondent sent petitioner a Final
Notice, Notice of Intent to Levy and Notice of Your Right to a
Hearing with respect to petitioner’s 1994 and 1996 taxable years.
On March 5, 2003, respondent sent petitioner a Final Notice,
Notice of Intent to Levy and Notice of Your Right to a Hearing
with respect to petitioner’s 1995 taxable year.
On or about March 7, 2003, respondent filed a notice of
Federal tax lien regarding petitioner’s 1994, 1995, and 1996 tax
years.
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On March 10, 2003, respondent sent petitioner a Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320 regarding petitioner’s 1994, 1995, and 1996 tax years.
On March 14, 2003, petitioner sent respondent a Form 12153,
Request for a Collection Due Process Hearing, regarding his 1994,
1995, and 1996 tax years.2 In a 22-page attachment to the Form
12153, petitioner essentially challenged his underlying tax
liability.
On July 10, 2003, petitioner mailed respondent three Forms
1041, U.S. Income Tax Return for Estates and Trusts, and Forms
W-2, Wage and Tax Statement, for 1994, 1995, and 1996.
On September 3, 2003, a face-to-face hearing was held with
petitioner, Appeals Officer Nancy J. Driver, and Appeals
Collection Specialist Veronica Smith. Appeals Officer Driver
confirmed that respondent had complied with all applicable laws
and administrative procedures regarding 1994, 1995, and 1996, and
she reviewed the administrative file for those years. Petitioner
did not propose any collection alternatives at the hearing and
stated he was not interested in discussing collection
alternatives because he did not believe he owed the amounts in
2
On the face of the Form 12153, petitioner listed 1994 and
1995 as the taxable periods. In his 22-page attachment to the
Form 12153, petitioner referenced 1996. Additionally, on Apr. 9,
2003, petitioner filed a second Form 12153 on which he listed
1996 as the taxable period. Respondent does not dispute that
petitioner timely requested hearings to challenge all 3 years.
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issue. Petitioner questioned Appeals Officer Driver’s authority
to conduct a section 6330 hearing and wanted to discuss his
underlying liabilities for 1994, 1995, and 1996.
On September 26, 2003, respondent issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 to petitioner regarding his 1994, 1995, and 1996 tax
years. In the notice of determination, respondent determined
that the proposed collection actions were appropriate and to
proceed with collection.
On October 24, 2003, petitioner petitioned the Court.
On December 11, 2003, petitioner filed a motion for judgment
on the pleadings. Petitioner asked that the answer be stricken
from the record. Petitioner characterized the primary issue in
his case as whether he was a “taxpayer” and stated that he had
challenged this issue. The motion for judgment on the pleadings
also contained other frivolous and groundless statements,
contentions, and arguments.
On December 16, 2003, the Court denied petitioner’s motion
for judgment on the pleadings.
On January 6, 2004, petitioner filed a status report
containing frivolous and groundless statements, contentions, and
arguments.
By notice dated June 30, 2004, the Court set this case for
trial at the Court’s Dallas, Texas, session beginning December 6,
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2004. This notice specifically stated: “YOUR FAILURE TO APPEAR
MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST
YOU.” Attached to this notice was the Court’s standing pretrial
order.
On October 29, 2004, respondent filed a motion for summary
judgment and to impose a penalty under section 6673.
On November 1, 2004, the Court ordered petitioner to file
any objection to respondent’s motion for summary judgment and to
impose a penalty under section 6673 on or before November 15,
2004.
On November 12, 2004, the Court lodged respondent’s
objection to petitioner’s request for admissions.
On November 16, 2004, pursuant to Rule 90, the Court ordered
petitioner to file his request for admissions. Petitioner failed
to do so.
On November 18, 2004, petitioner filed a 53-page response to
respondent’s motion for summary judgment and to impose a penalty
under section 6673. Petitioner alleged criminal conduct by the
Court and made disrespectful statements directed to the Court.
On November 19, 2004, the Court ordered respondent’s motion
for summary judgment and to impose a penalty under section 6673
calendared for hearing at the Court’s Dallas, Texas, session
beginning December 6, 2004.
Petitioner failed to appear at the hearing.
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Discussion
I. Motion for Summary Judgment
Rule 121(a) provides that either party may move for summary
judgment upon all or any part of the legal issues in controversy.
Full or partial summary judgment may be granted only if it is
demonstrated that no genuine issue exists as to any material fact
and 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).
We conclude that there is no genuine issue as to any
material fact and that a decision may be rendered as a matter of
law.
II. Determination To Proceed With Collection
Section 6320 provides that the Secretary shall furnish the
person described in section 6321 with written notice (i.e., the
hearing notice) of the filing of a notice of lien under section
6323. Section 6320 further provides that the taxpayer may
request administrative review of the matter (in the form of a
hearing) within a 30-day period. The hearing generally shall be
conducted consistent with the procedures set forth in section
6330(c), (d), and (e). Sec. 6320(c).
Section 6330(a) provides that the Secretary shall furnish
taxpayers with written notice of their right to a hearing before
any property is levied upon. Section 6330 further provides that
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the taxpayer may request administrative review of the matter (in
the form of a hearing) within a prescribed 30-day period. Sec.
6330(a) and (b).
Pursuant to section 6330(c)(2)(A), a taxpayer may raise at
the section 6330 hearing any relevant issue with regard to the
Commissioner’s collection activities, including spousal defenses,
challenges to the appropriateness of the Commissioner’s intended
collection action, and alternative means of collection. Sego v.
Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner, 114
T.C. 176, 180 (2000). If a taxpayer received a statutory notice
of deficiency for the years in issue or otherwise had the
opportunity to dispute the underlying tax liability, the taxpayer
is precluded from challenging the existence or amount of the
underlying tax liability. Sec. 6330(c)(2)(B); Sego v.
Commissioner, supra at 610-611; Goza v. Commissioner, supra at
182-183.
Petitioner received the notice of deficiency for 1994, 1995,
and 1996. Accordingly, he cannot challenge his underlying
liabilities. See sec. 6330(c)(2)(B); Sego v. Commissioner, supra
at 610-611; Goza v. Commissioner, supra at 182-183. Therefore,
we review respondent’s determination for an abuse of discretion.
See Sego v. Commissioner, supra at 610.
Petitioner has failed to raise a spousal defense, make a
valid challenge to the appropriateness of respondent’s intended
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collection action, or offer alternative means of collection.
These issues are now deemed conceded. See Rule 331(b)(4).
Accordingly, we conclude that respondent did not abuse his
discretion, and we sustain respondent’s determination to proceed
with collection.
III. Section 6673
Section 6673(a)(1) authorizes this Court to require a
taxpayer to pay to the United States a penalty not to exceed
$25,000 if the taxpayer took frivolous or groundless positions in
the proceedings or instituted the proceedings primarily for
delay. A position maintained by the taxpayer is “frivolous”
where it is “contrary to established law and unsupported by a
reasoned, colorable argument for change in the law.” Coleman v.
Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); see also Hansen v.
Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673
penalty upheld because taxpayer should have known claim was
frivolous).
Petitioner filed frivolous documents and motions with the
Court. Petitioner has advanced shopworn arguments characteristic
of tax-protester rhetoric that has been universally rejected by
this and other courts.3 Wilcox v. Commissioner, 848 F.2d 1007
3
Petitioner advanced similar frivolous arguments in
Florance v. Commissioner, T.C. Memo. 2005-60 (docket No. 11782-
03). That case also was on the Court’s Dallas, Texas, session
beginning Dec. 6, 2004.
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(9th Cir. 1988), affg. T.C. Memo. 1987-225; Carter v.
Commissioner, 784 F.2d 1006, 1009 (9th Cir. 1986). We will not
painstakingly address petitioner’s assertions “with somber
reasoning and copious citation of precedent; to do so might
suggest that these arguments have some colorable merit.” Crain
v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).
We conclude petitioner’s position was frivolous and
groundless and that petitioner instituted and maintained these
proceedings primarily for delay. Accordingly, pursuant to
section 6673(a) we hold petitioner is liable for a $12,500
penalty.
To reflect the foregoing,
An appropriate order and
decision will be entered.