T.C. Memo. 2005-183
UNITED STATES TAX COURT
MICHAEL JACK STEPHENS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9485-04L. Filed July 26, 2005.
Michael Jack Stephens, pro se.
Pamela L. Mable, for respondent.
MEMORANDUM OPINION
WELLS, Judge: This matter is before the Court on
respondent’s motion to dismiss for failure to state a claim upon
which relief can be granted. All section references are to the
Internal Revenue Code, as amended, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
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Background
At the time of the filing of the petition, petitioner
resided in Bloomingdale, Georgia.
On March 30, 2003, respondent issued to petitioner a Final
Notice - Notice of Intent to Levy and Notice of Your Right to a
Hearing for tax year 2001. In response, petitioner timely
requested a hearing by filing Form 12153, Request for Collection
Due Process Hearing, citing frivolous arguments in support of his
request.
During the Appeals process, Settlement Officer Powell had a
telephone conversation with petitioner in which he requested a
face-to-face hearing in Savannah, Georgia. Respondent’s Office
of Appeals had previously sent a letter to petitioner stating
that petitioner would not receive a face-to-face hearing unless
he had nonfrivolous issues to discuss but instead would receive a
hearing by telephone and/or correspondence. When Settlement
Officer Powell asked what issues petitioner would discuss at a
face-to-face hearing, petitioner said he wanted to discuss the
law that forces him to pay tax. Settlement Officer Powell
informed petitioner that the issue was frivolous and he would
therefore only receive a telephone or correspondence hearing.
Petitioner then stated that, if he did not receive a face-to-face
hearing in Savannah, Georgia, he did not want a hearing.
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Settlement Officer Powell then verified that he had no prior
involvement with the unpaid income tax at issue, that petitioner
had an unpaid income tax liability for taxable year 2001, and
that respondent met the requirements of all applicable laws and
administrative procedures. Settlement Officer Powell considered
whether the proposed collection action balanced the need for the
efficient collection of taxes with the concern of petitioner that
any collection action be no more intrusive than necessary.
Petitioner did not raise, and, consequently, Settlement Officer
Powell did not consider, any challenges to the appropriateness of
the collection actions or offers of collection alternatives.
On May 11, 2004, respondent issued a notice of determination
sustaining the proposed levy. In response, petitioner timely
petitioned this Court.1 The petition states in part:
The person involved in the determination has not answered
any on my question. I have exhausted my ability to keep
asking when they the IRS just acts like I am sheep they can
run over. I will not ask any more, when they should have
already answered my request. I have called, and called, and
I can’t even get a response, other than one agent told me,
“you owe this because my computer says you owe it.” One of
the other agents I talked to told me,”I am the IRS I can
take your property anytime I want too”. Well I guess this is
where we are going, we are going to see just how it works.
the rest of my research is on the other 5 pages. I was
1
Petitioner incorrectly marked the area of the Court’s
standard petition form used to identify the type of action
sought. Petitioner indicated that it was a Petition for
Redetermination of a Deficiency. The Court has treated this
pleading as a Petition for Lien or Levy Action (Collection
Action).
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denied a due process hearing, all I got was a phone call and
they made up the rest in the notice of determination.
Petitioner attached five additional pages to the petition
which include the following: (1) Numerous citations to Federal
and Supreme Court cases; (2) quotes from various Congressional
proceedings, including a Senate hearing regarding formation of
the UN; (3) a quote from John Maynard Keynes about inflation; and
(4) various Code sections. Petitioner’s response to the instant
motion and statements at the hearing on the motion contain
similar arguments, including: (1) The definition of frivolous;
(2) quotes from Thomas Jefferson and George Washington; (3)
citations of various sections of the Internal Revenue Code and
the Regulations; (4) an argument based on the Sixth Amendment;
(5) a section 861 argument often advanced by tax protesters; and
(6) various religious statements.
Discussion
Rule 331(b)(4) requires that a petition in a levy action
contain “Clear and concise assignments of each and every error
which the petitioner alleges to have been committed in the notice
of determination. Any issue not raised in the assignments of
error shall be deemed to be conceded. Each assignment of error
shall be separately lettered.” Rule 331(b)(5) further requires
that the petition contain “[c]lear and concise lettered
statements of the facts on which the petitioner bases each
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assignment of error.” See Lunsford v. Commissioner, 117 T.C. 183
(2001); Goza v. Commissioner, 114 T.C. 176 (2000).
The petition in the instant case does not contain clear and
concise assignments of any error that petitioner alleges to have
been committed in the notice of determination. Likewise, the
petition does not contain clear and concise lettered statements
of the facts on which petitioner bases an assignment of error.
Instead, petitioner argues only law and legal conclusions in the
petition as evinced by the attachments to the petition.
The petition neither conforms to this Court’s Rules of
Practice and Procedure, nor states a claim upon which relief can
be granted.2 The absence in the petition of specific justiciable
allegations of error and of supporting facts permits this Court
to grant respondent’s motion. See Goza v. Commissioner, supra.
2
Petitioner’s contention that he is entitled to a face-to-
face hearing has no merit. Hearings conducted under sec. 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; sec.
301.6330-1(d)(2), Q&A-D6 and D7, Proced. & Admin. Regs.
In light of petitioner’s frivolous arguments, a face-to-face
hearing in this case would not be productive. See Lunsford v.
Commissioner, 117 T.C. 183, 189 (2001). We note that respondent
offered a face-to-face hearing if petitioner raised any
meaningful issue regarding his tax liability or the proposed
levy.
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Section 6673(a)(1) authorizes the Court to require the
taxpayer to pay a penalty not in excess of $25,000 when it
appears to the Court that, inter alia, proceedings have been
instituted or maintained by the taxpayer primarily for delay or
that the taxpayer's position in such proceeding is frivolous or
groundless.3 In Pierson v. Commissioner, 115 T.C. 576, 581
(2000), we issued a warning to taxpayers concerning the
imposition of a penalty under section 6673(a)(1) on those
taxpayers abusing the protections afforded by sections 6320 and
6330 through the bringing of dilatory or frivolous lien or levy
actions. The Court has since repeatedly disposed of cases
premised on arguments akin to those raised herein summarily and
with imposition of the section 6673 penalty. See, e.g., Craig v.
Commissioner, 119 T.C. 252, 264-265 (2002) (and cases cited
therein).
Respondent has not sought a section 6673 penalty in this
case, and the Court declines to impose such a penalty because the
record contains no evidence that petitioner has been warned
expressly that we may do so under the circumstances extant
herein. However, petitioner is now so warned. If petitioner
insists on asserting frivolous and irrelevant arguments in the
3
Respondent did not move for a penalty under sec.
6673(a)(1). However, the Court considers this issue sua sponte.
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future, or instituting court proceedings primarily for the
purpose of delaying collection, penalties will be imposed.
To reflect the foregoing,
An appropriate order of
dismissal and decision will be
entered.