T.C. Memo. 2006-42
UNITED STATES TAX COURT
ROY JAY STALLARD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17364-05. Filed March 15, 2006.
Roy Jay Stallard, pro se.
Michelle L. Maniscalco, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion to dismiss for failure to state a claim upon which
relief can be granted and to impose a penalty under section 6673
(respondent’s motion).1
1
All section references are to the Internal Revenue Code in
(continued...)
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Background
On September 16, 2005, petitioner filed a petition with
respect to the notice of deficiency (notice) which respondent
issued to him for his taxable year 2002 and in which respondent
determined, inter alia, a deficiency of $52,174 in petitioner’s
Federal income tax (tax) for that year.2 The petition contains
statements, contentions, and arguments that the Court finds to be
frivolous and groundless. For example, the petition states in
pertinent part:
1. I request that the balance due in the amount
of 1,371.00,[3] found and shown on line 16 of the Form
4549A, attached to the subject notice of deficiency be
redetermined and set to zero, or in the alternative
that the notice of deficiency be remanded to the IRS
for perfection.
2. I am entitled to the relief requested because, as
stated by the Secretary of Treasury at 26 CFR
601.102(f)(1): “Rule 1. An exaction by the
United States Government, which is not based upon
law statutory OR OTHERWISE, is a taking of prop-
erty without due process of law, in violation of
the Fifth Amendment to the U. S. Constitution.
1
(...continued)
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
2
In the notice, respondent also determined additions to
petitioner’s tax under sec. 6651(a)(2) and (f) for his taxable
year 2002. In respondent’s motion, respondent concedes those
additions to tax.
3
In the notice, respondent determined a deficiency of
$52,174 in petitioner’s tax for his taxable year 2002. The
notice further showed “Adjustments to Prepayment Credits” of
$50,803 and a “Balance Due” of $1,371 (excluding interest and
penalties).
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Accordingly, an Appeals representative in his or
her conclusions of fact or application of the law
* * * shall hew to the law and the recognized
standards of legal construction. It shall be his
or her duty to determine the correct amount of the
tax, with strict impartiality as between the tax-
payer and the Government, and without favoritism
or discrimination as between taxpayers.” (empha-
sis added).
3. Unlike the penalties proposed at lines 7a and
7b of the Form 4549A attached to the notice of defi-
ciency, infra, the Form 4549A report does not give any
notice of the law, statutory or otherwise, which was
applied in concluding that I was, indeed, the person
made liable for the payment of the purported debt.
This omission raises the question of whether or not
liability to pay might arises out of some non-statutory
law. Whatever the case may be, the notice of defi-
ciency does not give fair notice of it.
4. Because, with respect to a tax imposed on the
transfer of property, the person made liable for its
payment may be the transferor, transferee or as in the
case of the death tax, a third party, due process
requires that Congress identify the person made liable
for payment of each tax imposed, and so it usually
does. The legal personality of each person made liable
for the payment every other tax imposed by Congress is
described clearly within the IRC, but such is not the
case with regard to the purported tax debt here. There
is neither an Act of Congress nor a Treasury Regulation
which clearly and unequivocally identifies the person
made liable for the payment of the purported tax debt.
[Reproduced literally.]
On November 2, 2005, respondent filed respondent’s motion.
On November 17, 2005, the Court issued an Order (Court’s November
17, 2005 Order) in which it ordered petitioner to file a written
response to respondent’s motion by December 9, 2005. In that
Order, the Court also indicated that the petition contains
statements, contentions, and arguments that the Court finds to be
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frivolous and groundless. In the Court’s November 17, 2005
Order, the Court reminded petitioner about section 6673(a)(1) and
admonished him as follows:
In the event that petitioner continues to advance
frivolous and/or groundless statements, contentions,
and arguments, the Court will be inclined to impose a
penalty not in excess of $25,000 on petitioner under
section 6673(a)(1), I.R.C.
On December 6, 2005, the Court received from petitioner one
document (petitioner’s document) which contained (1) “PETI-
TIONER’S MEMORANDUM IN OPPOSITION TO RESPONDENT’S MOTION TO
DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE
GRANTED AND TO IMPOSE A PENALTY UNDER I.R.C. § 6673” and (2) an
“AMENDED PETITION”. On December 7, 2005, the Court had that
document returned to petitioner unfiled because an amended
petition must be separate from any other document furnished to
the Court and must bear petitioner’s original signature.
On January 6, 2006, petitioner filed an amended petition.
In total disregard of the Court’s November 17, 2005 Order,
petitioner included in the amended petition statements, conten-
tions, and arguments that the Court finds to be frivolous and
groundless. For example, the amended petition states in perti-
nent part:
ASSIGNMENTS OF ERROR, FACTUAL BASIS AND
RELIEF REQUESTED
a.
The notice of deficiency is notice in name only and
does not meet due process of law requirements for notice
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4. The notice of deficiency is ambiguous and
without legal effect. The error is an error of omis-
sion. Commissioner erred in drafting and issuing the
document captioned “notice of deficiency” in that he
omitted certain fundamental elements due process of law
requires for such notice to have substantive legal
effect.
FACTS
a. On the notice of deficiency or the accompany-
ing documents there is no unequivocal statement of the
law, statutory or otherwise1, by which the purposed tax
debt was established.
b. On the notice of deficiency or the companying
documents there is no unequivocal statement of the law,
statutory or otherwise that identifies the legal per-
sonality of the person made liable for payment of the
purported debt.
c. On the notice of deficiency or the accompany-
ing documents there is no unequivocal statement of
fact, made under penalty of perjury, that brings the
impact of the law specified in 2 and 3 above, against
me.
d. On the notice of deficiency or the accompany-
ing documents there is no unequivocal statement of
fact, made under penalty of perjury that brings the
impact of the statutes imposing the penalties against
me.
5. I request that the court redetermine all of
the liabilities purported on the notice of deficiency
and the accompanying documents and set it them to zero
on account of the facial defects of the so-called
notice.
_______________________
1
26 CFR 601.106(f)(1)
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b.
Liability for payment of debt, line 16.
6. The Commissioner erred in determining that I
am the person made liable for the payment of
$1,371.00[4] * * *. The error is an error of commis-
sion.
FACTS
a. Either I am or I am not the person made liable
by a particular statutory provision that describes the
person made liable or for payment, or in the alterna-
tive, I am or I am not made liable for its payment by
non-statutory law. We are left to guess at what that
law might be, but whatever the law might be, I deny
liability for want of notice.
b. The Commissioner made a determination based
upon presumption or inference rather than law and fact.
Because the notice of deficiency does not specify the
law or fact upon which determination of liability shown
on line 16 is based, I am without knowledge as to the
basis for the purported debt due to the Commissioner’s
non-disclosure of it, and therefor I am unable to frame
a more specific assignment of error.
7. I request that the amount shown on line 16 of
the form 4595A be set to zero for want of any factual
or legal basis or because the amount shown was deter-
mined by inference, presumption, wishful thinking or
some other inappropriate methodology, but not by the
application of specific law to specific fact. Revenue
Due process is not some carnival guessing game where
the law is hidden under a shell and the player may be
slapped with an outrageous penalty for failing to
detect the palming of it by a debt trickster.
On January 5, 2006, the Court issued an Order in which it
(1) noted that it had returned unfiled to petitioner on December
7, 2005, petitioner’s document that the Court received from
petitioner on December 6, 2005, and (2) ordered petitioner to
4
See supra note 3.
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file a written response to respondent’s motion by January 31,
2006.
On January 9, 2006, the Court received from petitioner a
“Certificate of Service” (petitioner’s certificate of service),
but no document was submitted to the Court with that certificate.
On January 13, 2006, the Court had petitioner’s certificate of
service returned to petitioner unfiled with a reminder to peti-
tioner that a written response to respondent’s motion must be
received by the Court by January 31, 2006. The Court did not
receive from petitioner any such written response.
On February 2, 2006, respondent filed a supplement to
respondent’s motion (respondent’s supplement to respondent’s
motion). Respondent attached as an exhibit to that supplement a
document entitled “PETITIONER’S MEMORANDUM IN OPPOSITION TO
RESPONDENT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED AND TO IMPOSE A PENALTY UNDER I.R.C.
§ 6673” (petitioner’s memorandum in opposition) that petitioner
served on respondent on December 6, 2005. In total disregard of
the Court’s November 17, 2005 Order, petitioner included in
petitioner’s memorandum in opposition that petitioner served on
respondent on December 6, 2005, statements, contentions, and
arguments that the Court finds to be frivolous and groundless.
On February 22, 2006, the Court issued an Order in which it
ordered the Clerk of the Court to file as of February 2, 2006, as
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petitioner’s response to respondent’s motion a copy of peti-
tioner’s memorandum in opposition that respondent attached as an
exhibit to respondent’s supplement to respondent’s motion.
Discussion
Rule 34(b) provides in pertinent part that a petition with
respect to a notice of deficiency is to contain:
(4) Clear and concise assignments of each and
every error which the petitioner alleges to have been
committed by the Commissioner in the determination of
the deficiency * * *. * * * Any issue not raised in the
assignments of error shall be deemed to be conceded.
* * *
(5) Clear and concise lettered statements of the
facts on which the petitioner bases the assignments of
error * * *.
The petition that petitioner filed on September 16, 2005,
and the amended petition that petitioner filed on January 6,
2006, do not contain (1) a clear and concise statement of the
errors allegedly committed by respondent in determining the
deficiency with respect to petitioner’s taxable year 2002 and
(2) a clear and concise statement of the facts that form the
basis of petitioner’s assignments of alleged error. We conclude
that both the petition and the amended petition that petitioner
filed do not comply with the Tax Court Rules of Practice and
Procedure as to the form and content of a petition.
Moreover, we have found that the petition and the amended
petition that petitioner filed contain statements, contentions,
and arguments that are frivolous and groundless. “A petition
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that makes only frivolous and groundless arguments makes no
justiciable claim”. Nis Family Trust v. Commissioner, 115 T.C.
523, 539 (2000); see also Funk v. Commissioner, 123 T.C. 213,
216-217 (2004) (a petition and an amended petition did not state
a claim upon which relief may be granted where they lacked a
clear statement of error and contained “nothing more than frivo-
lous rhetoric and legalistic gibberish”).
We find that petitioner’s claims in the petition and the
amended petition state no justiciable basis upon which relief may
be granted.
In respondent’s motion, respondent also asks the Court to
impose a penalty on petitioner under section 6673. Section
6673(a)(1) states in pertinent part:
Whenever it appears to the Tax Court that--
(A) proceedings before it have been insti-
tuted or maintained by the taxpayer primarily for
delay, [or]
(B) the taxpayer’s position in such proceed-
ing is frivolous or groundless, * * *
the Tax Court, in its decision, may require the tax-
payer to pay to the United States a penalty not in
excess of $25,000.
In the Court’s November 17, 2005 Order, the Court, inter
alia, indicated that the petition contains statements, conten-
tions, and arguments that the Court finds to be frivolous and
groundless. In that Order, the Court reminded petitioner about
section 6673(a)(1) and admonished him that, in the event he
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continued to advance frivolous and/or groundless statements,
contentions, and arguments, the Court would be inclined to impose
a penalty not in excess of $25,000 on him under section
6673(a)(1). In total disregard of the admonitions in the Court’s
November 17, 2005 Order, petitioner included in the amended
petition and in petitioner’s memorandum in opposition, which he
served on respondent on December 6, 2005, and which the Court had
filed as petitioner’s response to respondent’s motion,5 state-
ments, contentions, and arguments that the Court finds to be
frivolous and groundless.
Petitioner is no stranger to this Court. He previously
raised frivolous challenges to determinations that the Commis-
sioner of Internal Revenue made with respect to certain of his
other taxable years. Stallard v. Commissioner, T.C. Memo. 1992-
593.6 In Stallard, we imposed a penalty of $8,000 on petitioner
under section 6673(a)(1) because he advanced frivolous arguments
in that case. Id.
We find that petitioner remains undeterred in advancing
frivolous and groundless statements, contentions, and arguments.
We further find that petitioner has instituted this proceeding
5
The Court had petitioner’s memorandum in opposition filed
as petitioner’s response to respondent’s motion as of Feb. 2,
2006.
6
See Stallard v. Commissioner, 1993 U.S. App. LEXIS 21011
(D.C. Cir., June 29, 1993) (granting motion to dismiss appeal for
improper venue).
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primarily for delay. Under the circumstances presented, we shall
impose a penalty of $25,000 on petitioner under section
6673(a)(1).
To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.