T.C. Memo. 2006-149
UNITED STATES TAX COURT
FERREL BENJAMIN GIBBS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 24037-05L. Filed July 24, 2006.
Ferrel Benjamin Gibbs, pro se.
Alisha M. Harper, for respondent.
MEMORANDUM OPINION
COHEN, Judge: This case is before the Court on respondent’s
motion for summary judgment pursuant to Rule 121. The petition
in this case was filed in response to a Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
(notice of determination). The issue for decision is whether
there was an abuse of discretion by the Internal Revenue Service
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(IRS) in determining that collection of petitioner’s unpaid
income tax liabilities for 2001 should proceed.
Unless otherwise indicated, all 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.
Background
Petitioner resided at the Federal Correction Institution in
Ashland, Kentucky, at the time that he filed his petition.
Petitioner did not file a Form 1040, U.S. Individual Income
Tax Return, for 2001. A notice of deficiency was sent to
petitioner on January 21, 2004. Petitioner never disputed the
determinations in the notice. Instead, he repeatedly sent
letters to the IRS asserting that he wished to cooperate with the
IRS, but only upon receipt of written confirmation that the
information that he provided to the IRS would, at no time or in
any way, be used in a criminal investigation or criminal
prosecution against him. After the time for filing a petition in
response to the statutory notice had passed, unpaid taxes,
penalties, and interest were assessed.
On June 27, 2005, the IRS sent to petitioner a Final Notice
of Intent to Levy and Notice of Your Right to a Hearing (final
notice). In response to the final notice, petitioner sent to the
IRS a Form 12153, Request for a Collection Due Process Hearing
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(request), dated July 2, 2005. On that form, petitioner repeated
his request for written confirmation that the information sought
by the IRS “never be used against * * * [him] as a link in the
chain of evidence in a criminal investigation or as evidence
against * * * [him] in a criminal prosecution”.
On July 14, 2005, the IRS sent a letter to petitioner,
informing him that his request for a CDP hearing had been
forwarded to Appeals for consideration. In a letter dated
September 12, 2005, petitioner was given the name of Settlement
Officer Genene Hopkins (Hopkins), as the person to contact with
any questions. On September 29, 2005, Hopkins sent to petitioner
a letter that informed him that the statements made in his
request are items that: “1. Courts have determined are frivolous
or groundless, or 2. Appeals does not consider. These are moral,
religious, political, constitutional, conscientious, or similar
grounds.” Also in this letter, Hopkins described what she must
consider during the hearing, stating:
Whether the IRS met all the requirements of any
applicable law or administrative procedure
Any relevant issues you wish to discuss. These can
include:
1. Collection alternatives to levy * * *.
2. Challenges to the appropriateness of
collection action. * * *
3. Spousal defenses, when applicable.
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We may also consider whether you owe the amount due,
but only if you have not otherwise had an opportunity
to dispute it with Appeals or did not receive a
statutory notice of deficiency.
We will balance the IRS’ need for efficient tax
collection and your legitimate concern that the
collection action be no more intrusive than necessary.
Finally, Hopkins asked that petitioner forward to the IRS by
October 28, 2005, a statement providing specific reasons about
the IRS actions with which he disagrees and a collection
alternative; all appropriate documents necessary to consider any
collection alternative, including a completed Form 433-A,
Collection Information Statement for Wage-Earners and Self-
Employed Individuals; and copies of filed Federal income tax
returns for 1999, 2003, and 2004. Petitioner was informed that,
if he did not respond to the letter by the deadline, the
determination would be based on his request, any information he
previously provided, and the IRS’s administrative file and
records.
Petitioner did not send the required statement, collection
alternative, documents, or returns. Instead, he sent a letter
dated October 8, 2005, with statements and requests nearly
identical to those made in his previous correspondence with the
IRS. A notice of determination was sent to petitioner on
December 7, 2005. The determination was summarized as follows:
Our decision is not to grant you relief * * * from the
proposed collection action. You failed to offer an
acceptable alternative resolution.
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Before you decide whether to petition this notice of
determination, you should know that the Tax Court is
empowered to impose monetary sanctions up to $25,000
for instituting or maintaining an action before it
primarily for delay or for taking a position that is
frivolous or groundless. It is our view that the
positions you have taken have no merit and are
groundless. [Citation omitted.]
Petitioner filed a petition disputing the determination. In
his objections to respondent’s motion for summary judgment,
petitioner attached copies of letters dated December 22, 2005,
that he allegedly sent to the IRS. In these letters, petitioner
stated that he was invoking the protection of the Fifth Amendment
regarding “each and every item, question, and or portion of an
item and or question” because he had not received any response
regarding his request for written confirmation that information
sought would not be used against him in any criminal
investigation or criminal prosecution. In a supplemental
objection filed on June 21, 2006, petitioner alleged his
“separation of citizenship with the corporate United States”.
Attached to the supplemental objection were letters dated April 5
and May 21, 2006, addressed to the Social Security Administration
(SSA) and the IRS, respectively. In his letter to the SSA,
petitioner asserted that it was by mistake, coercion,
misrepresentation, and intimidation that he obtained a Social
Security number and that he has changed his “Citizenship to South
Carolina Republic”. Petitioner further stated, in an attached
affidavit: “I Rescind, Terminate, Reject, Forfeit and Waive any
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and all benefits from the Social Security Administration”. He
also asserted that any and all funds held by the SSA for him must
immediately be refunded in full and that anything less would be
fraud. Petitioner stated in his letter to the IRS that it was
“NOTICE to the Internal Revenue Service * * * that I no longer
wish to be associated with the Mark of the Beast and have no
desire to participate in the Social Security System.”
Discussion
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. Fla. 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,
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). Petitioner has not
identified any facts or evidence that would be presented at trial
to controvert the undisputed facts already in the record. See
Rule 121(d) (providing, in pertinent part, that a response “must
set forth specific facts showing that there is a genuine issue
for trial.”). Petitioner’s objection to respondent’s motion for
summary judgment does not allege any factual errors with regard
to the Appeals’ determination that the collection action against
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him was appropriate. See Rule 331(b)(4) and (5). We conclude
that the material facts are not disputed and that judgment may be
rendered as a matter of law.
Section 6330 generally provides that the IRS cannot proceed
with the collection of taxes by way of a levy on a taxpayer’s
property until the taxpayer has been given notice of and the
opportunity for an administrative review of the matter (in the
form of an IRS Office of Appeals hearing). Section 6330(c)(1)
provides that the Appeals officer shall obtain verification that
the requirements of any applicable law or administrative
procedure have been met. Section 6330(c)(2)(A) provides that the
taxpayer may raise "any relevant issue relating to the unpaid
tax" including spousal defenses, challenges to the
appropriateness of collection actions, and alternatives to
collection. The taxpayer may also raise challenges to the
existence or amount of the underlying tax liability if he or she
did not receive a statutory notice of deficiency with respect to
the underlying tax liability or did not otherwise have an
opportunity to dispute that liability. Sec. 6330(c)(2)(B).
Petitioner received a notice of deficiency and may not
contest the amount of the underlying tax liability. Therefore,
the Court will review respondent’s determination only for abuse
of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000);
Goza v. Commissioner, 114 T.C. 176, 179-181 (2000). In order to
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prevail, a taxpayer must prove that the Commissioner exercised
this discretion arbitrarily, capriciously, or without sound basis
in fact or law. Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
Petitioner never challenged the appropriateness of the
collection action, and he did not offer any collection
alternative. His objections to the motion for summary judgment
were frivolous. Additionally, petitioner did not properly assert
the Fifth Amendment privilege. But in any event, in a civil tax
case, the taxpayer must accept the consequences of asserting the
Fifth Amendment and cannot avoid the burden of proof by claiming
the privilege and attempting to convert “the shield * * * which
it was intended to be into a sword”. United States v. Rylander,
460 U.S. 752, 758 (1983); see Steinbrecher v. Commissioner, 712
F.2d 195, 198 (5th Cir. 1983), affg. T.C. Memo. 1983-12;
Traficant v. Commissioner, 89 T.C. 501 (1987), affd. 884 F.2d 258
(6th Cir. 1989); see also Wheelis v. Commissioner, T.C. Memo.
2002-102, affd. 63 Fed. Appx. 375 (9th Cir. 2003).
Petitioner did not raise any factual dispute showing that
respondent’s determination was arbitrary, capricious, or without
sound basis in law. We conclude that there was no abuse of
discretion when respondent sustained the proposed levy to collect
petitioner’s unpaid income tax liability for 2001.
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To reflect the foregoing,
An appropriate order
and decision will be entered
for respondent.