GORI v. COMMISSIONER

T.C. Summary Opinion 2005-79

UNITED STATES TAX COURT

RAYMOND GORI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5985-04S. Filed June 8, 2005.

Raymond Gori, pro se.

Anita A. Gill, for respondent.

POWELL, Special Trial Judge: This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed. The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.

1
Unless otherwise indicated, subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
 - 2 -

Petitioner seeks review under section 6330(d) of

respondent’s determination sustaining a proposed levy for the

collection of his 1998 tax liability in the amount of

$18,868.98.2 The issue is whether petitioner’s case should be

remanded to Appeals for a face-to-face collection due process

hearing. At the time he filed the petition, petitioner was a

resident of Norton, Ohio.

Background

Petitioner filed a Form 1040, U.S. Individual Income Tax

Return, for the taxable year 1998 reporting a tax liability due.

Petitioner did not pay the amount he reported due. After

receiving respondent’s Notice of Intent to Levy and Notice of

Your Right to a Hearing, petitioner filed a Form 12153, Request

for a Collection Due Process Hearing.

In his Form 12153, petitioner asserted he was not liable for

the tax due and made arguments that are considered frivolous and

irrelevant by the Internal Revenue Service and this Court.3

2
This is the amount of the liability as of Oct. 23, 2003.
The record is not clear as to how this amount breaks down into
the original amount due reported on petitioner’s 1998 return and
any additions to tax that have since accrued.
3
The record is not clear as to the exact arguments that
were made by petitioner in his collection due process hearing
request. It appears from an attachment to his petition that
petitioner asserts arguments challenging the constitutional
validity of his tax liability and the authority of the Internal
Revenue Service. These arguments have universally been rejected
as frivolous and warrant no further comment. “We perceive no
(continued...)
 - 3 -

Petitioner was informed that unless he had other issues to raise,

the Appeals officer would not meet with him for a face-to-face

hearing. The Appeals officer then tried to schedule a telephone

hearing with petitioner twice, one for November 24, 2003, and the

other for December 5, 2003. Petitioner notified the Appeals

officer in writing that he refused to participate in a telephone

hearing.

Petitioner then requested a hearing through correspondence,

and provided the Appeals officer with some additional

documentation. Petitioner did not raise any spousal defenses,

offer any other challenges to the collection action, or suggest

any collection alternatives. After reviewing all information

that was submitted by petitioner, on February 9, 2004, the

Appeals officer issued a Notice of Determination Concerning

Collection Action(s) under Section 6320 and/or 6330 that stated

that the Internal Revenue Service has complied with Code and

procedural requirements, that no relief would be granted, and the

proposed levy was sustained. Petitioner then timely filed a

petition with this Court.

The only issue petitioner asserts is that he is entitled to

a face-to-face collection due process hearing. Respondent argues

3
(...continued)
need to refute these arguments 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).
 - 4 -

that a proper collection due process hearing was held through

correspondence. Respondent further contends that petitioner

failed to raise any other issues regarding the collection of the

tax liability and that the proposed levy should be allowed to

proceed. This case was submitted on this basis.

Discussion

1. Section 6330

Section 6330 entitles a taxpayer to notice and the

opportunity for a hearing before the process of collection by

lien and levy are taken. Upon request, a taxpayer is entitled to

a fair hearing before an impartial officer from the Internal

Revenue Service Office of Appeals. Sec. 6330(b)(1), (3). At the

hearing, the Appeals officer is required to verify that the

requirements of any applicable law or administrative procedure

have been met, and to consider any relevant issue relating to the

unpaid tax or proposed levy raised by the taxpayer. Sec.

6330(c)(1) and (2)(A).

A taxpayer may generally raise any relevant issue relating

to his or her unpaid tax liability or proposed levy during the

hearing. Relevant issues include an appropriate spousal defense,

challenges to the appropriateness of the collection action, and

offers of collection alternatives. Sec. 6330(c)(2)(A). The

taxpayer cannot raise issues relating to the underlying tax

liability if the taxpayer received a notice of deficiency or
 - 5 -

otherwise had an opportunity to dispute the liability. Sec.

6330(c)(2)(B).

Following the hearing, the Appeals officer must determine

whether the collection action is to proceed, taking into account

the verification the Appeals officer has made, the issues raised

by the taxpayer at the hearing, and “whether any proposed

collection action balances the need for the efficient collection

of taxes with the legitimate concern of the * * * [taxpayer] that

any collection action be no more intrusive than necessary.” Sec.

6330(c)(3). We have jurisdiction to review such determinations

where we have jurisdiction of the underlying tax liability. Sec.

6330(d)(1)(A).

Where the validity of the underlying tax liability is not at

issue, we review the determination for an abuse of discretion.

Sego v. Commissioner, 114 T.C. 604, 610 (2000). Where the

validity of the underlying tax liability is properly at issue, we

review de novo. Goza v. Commissioner, 114 T.C. 176, 181-182

(2000). The tax liability due in this case is one petitioner

self-assessed and reported on his 1998 income tax return.

Section 6330(c)(2)(B) permits taxpayers to challenge the

existence or the amount of a tax liability reported on an

original income tax return because they have not received a

notice of deficiency or otherwise had an opportunity to dispute

the tax liability in question. Montgomery v. Commissioner, 122
 - 6 -

T.C. 1, 8-9 (2004). Because the tax liability due is one

petitioner reported due on his return, he did not receive a

notice of deficiency or otherwise have an opportunity to dispute

the 1998 tax liability.

For the validity of the 1998 underlying tax liability to be

properly at issue, petitioner must comply with Rule 331. His

pleading must contain a sufficient specificity of facts so that

the Court can conduct a meaningful hearing to determine whether

respondent can proceed with collection. Petitioner has failed to

comply with Rule 331. He has not identified items of income,

deduction, or credit, or the computations that are incorrect.

Poindexter v. Commissioner, 122 T.C. 280, 285 (2004).

Petitioner was told repeatedly by the Appeals officer that

the arguments raised in his request for a hearing were considered

irrelevant and frivolous by the Internal Revenue Service and this

Court. Petitioner insisted in pursuing these arguments and

failed to assert any other issues, such as the ones listed in

section 6330(c)(2)(A). In particular, petitioner never made an

offer of an alternative means of collection during the Appeals

process. We therefore find that petitioner has raised no issue

that would warrant a remand to the Appeals Office for another

hearing. See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001);

Kemper v. Commissioner, T.C. Memo. 2003-195.
 - 7 -

2. The Appeals Hearing

Even though petitioner’s hearing took place through

correspondence, as he requested, he asserts that he is entitled

to a face-to-face hearing he originally requested. A face-to-

face meeting is not invariably required. Hearings conducted

under section 6330 are informal proceedings, not formal

adjudications. Katz v. Commissioner, 115 T.C. 329, 337 (2000);

Davis v. Commissioner, 115 T.C. 35, 41 (2000). Hearings may be

held as face-to-face meetings, and they may also be conducted by

telephone or by correspondence. Katz v. Commissioner, supra at

337-338; Dorra v. Commissioner, T.C. Memo. 2004-16; sec.

301.6330-1(d)(2), Q&A-D6, -D7, Proced. & Admin. Regs.

In light of petitioner’s specious arguments, a face-to-face

hearing in this case would not be productive. See Lunsford v.

Commissioner, supra at 189; Kemper v. Commissioner, supra. The

Appeals officer was willing to have a face-to-face hearing if

petitioner had raised any meaningful issue regarding his tax

liability or the proposed levy. Furthermore, petitioner was also

given the opportunity to discuss the collection of his 1998 tax

liability in two scheduled telephone hearings, and he simply

declined to do so. He again failed to raise any meaningful

issue, explain his position, or offer an alternative means of

collection when he was given the opportunity to do so by
 - 8 -

respondent’s counsel and by this Court.4 In sum, respondent may

proceed with the sustained levy.

3. Section 6673 Penalty

Taxpayers invoking frivolous and groundless claims and

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

delay are subject to penalties. Sec. 6673(a)(1). A position 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);

Gilligan v. Commissioner, T.C. Memo. 2004-194. We have imposed

section 6673 penalties in levy review cases where the taxpayer

has raised irrelevant and frivolous arguments as to the validity

of the Federal income tax system. See Hamzik v. Commissioner,

T.C. Memo. 2004-223; Gilligan v. Commissioner, supra. Petitioner

is hereby warned. Should he insist on further asserting

frivolous and irrelevant arguments, or instituting court

proceedings for the purpose of delaying collection, penalties

will be imposed.

4
We also note that assuming that the Appeals officer did
err in refusing to meet with petitioner in a face-to-face
hearing, according to the rule of prejudicial error (or the
doctrine of harmless error), as applied to an administrative
action, the reviewing court shall disregard procedural errors
unless the complaining party was prejudiced thereby. Keene v.
Commissioner, 121 T.C. 8, 21 (2003) (Halpern, J., concurring).
Petitioner has not presented any evidence that he was so
prejudiced by the Appeals officer’s refusal to hear frivolous and
irrelevant arguments in person.
 - 9 -

Reviewed and adopted as the report of the Small Tax Case

Division.

Decision will be entered

for respondent.