T.C. Memo. 2007-18
UNITED STATES TAX COURT
ROGAN C. BIRD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9149-06L. Filed January 29, 2007.
Rogan C. Bird, pro se.
Alan Friday, for respondent.
MEMORANDUM OPINION
WELLS, Judge: This matter is before the Court on
respondent’s motion for summary judgment pursuant to Rule 121.1
The issue we must decide is whether respondent’s Appeals Office
1
Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code, as amended.
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abused its discretion in determining to proceed with collection
of petitioner’s tax liability for taxable year 2002 by levy.
Background
At the time of filing the petition in the instant case,
petitioner resided in Farmerville, Louisiana.
Petitioner failed to file an income tax return for taxable
year 2002. On November 18, 2004, respondent sent a notice of
deficiency to petitioner at his last known address, which is the
same address petitioner listed on his petition in the instant
case. Petitioner did not petition this Court for a
redetermination of the deficiency for taxable year 2002.
On October 7, 2005, respondent sent petitioner a Letter
1058, Notice of Intent to Levy and Your Right to a Hearing. On
November 3, 2005, petitioner sent respondent a Form 12153,
Request for a Collection Due Process Hearing, containing
frivolous arguments.2
By letter dated January 24, 2006, Settlement Officer Suzanne
Magee (Mrs. Magee) advised petitioner that his hearing request
had been assigned to her, the arguments raised in the hearing
request are ones consistently held to be frivolous, and he would
2
We note that although the Form 12153 lists as the taxable
periods 1998 through 2004 and indicates disagreement with both a
lien and a levy, the Notice of Determination relevant to the
instant case sustains only a levy for taxable year 2002.
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not be granted a face-to-face hearing. Mrs. Magee also scheduled
a telephonic conference for February 15, 2006.
Petitioner failed to participate in the telephonic
conference. Instead, petitioner faxed a 17-page document
entitled “Public Protection Clause” to Mrs. Magee. This document
contained only frivolous tax protester arguments.
On February 16, 2006, Mrs. Magee sent a letter to petitioner
stating that since he did not participate in the telephonic
conference she would make a decision in his case on the basis of
the administrative file and any material he had submitted. The
letter gave petitioner the opportunity to submit any additional
information within 14 days. Petitioner did not avail himself of
this opportunity.
In his submissions to the IRS, petitioner raised only
frivolous challenges to the underlying liability. Petitioner did
not offer any collection alternatives for Mrs. Magee to consider.
After verifying that all applicable laws and administrative
procedures had been met, Mrs. Magee determined, on the basis of
the administrative file, that the proposed levy balanced the need
for efficient collection of taxes with the legitimate concern
that any collection action be no more intrusive than necessary.
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On April 12, 2006, Mrs. Magee sent petitioner a Notice of
Determination sustaining the proposed levy. On May 15, 2006,
petitioner timely petitioned the Court.
On November 27, 2006, respondent filed the motion for
summary judgment. The Court ordered petitioner to respond to the
motion by January 3, 2006. Petitioner, in his response,
continued to raise frivolous arguments challenging the underlying
liability.
Discussion
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials and may be granted where
there is no genuine issue of material fact and a decision may be
rendered as a matter of law. Rule 121(a) and (b); Fla. Peach
Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The moving party
bears the burden of proving that there is no genuine issue of
material fact, and factual inferences are viewed in a light most
favorable to the nonmoving party. Craig v. Commissioner, 119
T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821
(1985). The party opposing summary judgment must set forth
specific facts that show that a genuine question of material fact
exists and may not rely merely on allegations or denials in the
pleadings. Grant Creek Water Works, Ltd. v. Commissioner, 91
T.C. 322, 325 (1988); Casanova Co. v. Commissioner, 87 T.C. 214,
217 (1986).
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Section 6330 provides that no levy may be made on any
property or right to property of a person unless the Secretary
first notifies him or her in writing of the right to a hearing
before the Appeals Office. The Appeals officer must verify at
the hearing that the applicable laws and administrative
procedures have been followed. Sec. 6330(c)(1). At the hearing,
the person requesting a hearing may raise any relevant issues
relating to the unpaid tax or the proposed levy, including
appropriate spousal defenses, challenges to the appropriateness
of collection actions, and collection alternatives. Sec.
6330(c)(2)(A). The person may challenge the existence or amount
of the underlying tax, however, only if he or she did not receive
any statutory notice of deficiency for the tax liability or did
not otherwise have an opportunity to dispute the tax liability.
Sec. 6330(c)(2)(B).
Where the validity of the underlying tax liability is
properly in issue, the Court will review the matter de novo.
Where the validity of the underlying tax is not properly at
issue, however, the Court will review the Commissioner’s
administrative determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 181-182 (2000).
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Petitioner does not dispute that he had the opportunity to
challenge the correctness of his tax liability for 2002 by
petitioning this Court from the notice of deficiency, but failed
to do so. Therefore, petitioner’s underlying tax liability for
2002 was not properly in issue.
In the instant case, the record indicates that the only
issues petitioner raised throughout the section 6330
administrative process and in his petition to this Court were
frivolous tax protester type arguments. We do not address
petitioner’s frivolous arguments with somber reasoning and
copious citations of precedent, as to do so might suggest that
these arguments possess some degree of colorable merit. See
Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).
Accordingly, we hold that no genuine issue of material fact
exists requiring trial and that respondent is entitled to summary
judgment. Respondent’s determination to proceed with the
proposed levy to collect petitioner’s tax liability for 2002 was
not an abuse of discretion.
Section 6673(a)(1) authorizes the Court to impose 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 position of the taxpayer
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in such proceeding is frivolous or groundless. In Pierson v.
Commissioner, 115 T.C. 576, 581 (2000), we issued a warning
concerning the imposition of a penalty under section 6673(a)(1)
on those petitioners 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.3 See, e.g.,
Craig v. Commissioner, 119 T.C. at 264-265 (and cases cited
therein).
Respondent has not sought a section 6673 penalty in the
instant case; however, the Court considers this issue sua sponte.
Petitioner was warned by respondent that his arguments were
frivolous. Petitioner referred to the penalty in his response to
respondent’s motion for summary judgment.4 Petitioner clearly is
aware of section 6673, yet raised frivolous arguments during the
3
We note that on Dec. 20, 2006, Congress enacted the Tax
Relief and Health Care Act of 2006, Pub. L. 109-432, div. A, sec.
407, 120 Stat. 2960, which, through amendments to secs. 6702 and
6330, instructs the Secretary to prescribe a list of positions
identified as frivolous. A request for a sec. 6330 hearing based
on any such position may then be disregarded and is not subject
to further administrative or judicial review. The new provisions
are effective only for issues raised after the Secretary
prescribes the list of frivolous positions.
4
The closing line of petitioner’s response reads:
“Petitioner asks this Court to deny Respondent’s Motion for
Summary Judgment, abate the additions to tax determined by
Respondent and refuse any penalty at 26 U.S.C. [section] 6673.”
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administrative process, in his petition to this Court, and in his
response to respondent’s motion. Accordingly, we shall impose a
$3,000 penalty on petitioner pursuant to section 6673.
To reflect the foregoing,
An appropriate order and
decision will be entered.