T.C. Memo. 2007-52
UNITED STATES TAX COURT
THEODORE SKERIOTIS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13041-05L. Filed March 6, 2007.
Theodore Skeriotis, pro se.
Russell F. Kurdys, for respondent.
MEMORANDUM OPINION
THORNTON, Judge: Petitioner seeks review pursuant to
sections 6320(c) and 6330(d) of respondent’s determination
sustaining the filing of a tax lien with respect to petitioner’s
Federal income taxes for 2000 and 2001.1 Respondent filed a
1
Unless otherwise indicated, all Rule references are to the
(continued...)
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motion for summary judgment and to impose a penalty under section
6673. We shall grant respondent’s motion for summary judgment.
Background
The record establishes or the parties do not dispute the
following.
In 2003, respondent sent petitioner notices of deficiency
with respect to petitioner’s taxable years 2000 and 2001.
Petitioner received the notices but did not petition the Tax
Court with respect to these notices.
Respondent assessed the deficiencies and sent petitioner
notices of tax due and demand letters. On August 4, 2004,
respondent issued petitioner a Notice of Federal Tax Lien Filing
and Your Right to a Hearing under section 6320. On September 7,
2004, respondent received petitioner’s Form 12153, Request for a
Collection Due Process Hearing. In this request, petitioner
stated that he “would need to see” certain documents “before I am
persuaded that I am legally obligated to pay the taxes at issue”.
The documents requested included a summary record of assessment,
a copy of the notice and demand for payment, and the “pocket
commission” of the IRS employee who signed the notice of lien.
1
(...continued)
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code of 1986, as amended.
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By letter dated April 8, 2005, respondent’s Appeals officer
informed petitioner that his arguments in his hearing request
were either frivolous or groundless or issues that the Office of
Appeals does not consider. The letter informed petitioner that
the Office of Appeals would not provide a face-to-face hearing to
discuss these issues. The letter offered petitioner the option
of a hearing by telephone or correspondence. In the alternative,
the letter suggested various legitimate issues that could be
discussed in a face-to-face conference and gave petitioner
another opportunity to describe the legitimate issues petitioner
would want to raise at a face-to-face conference. Petitioner
responded with three more letters, requesting additional
materials, including a copy of the Appeals officer’s oath of
office.
On June 3, 2005, the Appeals Office issued its notice of
determination, sustaining the tax lien. In an attachment to the
notice, the Appeals officer stated that she had verified the
proper assessment of petitioner’s liabilities by reviewing
respondent’s Integrated Data Retrieval System (IDRS) and also
verified that notice and demand for payment had been made.
On July 11, 2005, petitioner filed his petition. On October
18, 2006, respondent filed a motion for summary judgment and to
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impose a penalty under section 6673.2 On November 14, 2006,
petitioner filed a response, raising frivolous and groundless
arguments.
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 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); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
Commissioner, 90 T.C. 753, 754 (1988). The moving party bears
the burden of proving that there is no genuine issue of material
fact; factual inferences will be read in a manner most favorable
to the party opposing summary judgment. Dahlstrom v.
Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,
79 T.C. 340, 344 (1982). When a motion for summary judgment is
made and properly supported, the adverse party may not rest upon
mere allegations or denials of the pleadings but must set forth
2
Except in limited circumstances not relevant here, Rule 54
generally requires motions to be separately stated and not joined
together; we have permitted this joined motion to be filed in the
interests of judicial administration. See Stewart v.
Commissioner, 127 T.C. 109, 111 n.2 (2006). The Court has
proposed amending Rule 54 to clarify that motions should not be
joined together “Unless otherwise permitted by the Court”. Press
Release dated Jan. 16, 2007, p. 22.
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specific facts showing that there is a genuine issue for trial.
Rule 121(d).
Section 6321 imposes a lien in favor of the United States on
all property and property rights of a person who is liable for
and fails to pay taxes after demand for payment has been made.
The lien arises when assessment is made and continues until the
assessed liability is paid. Sec. 6322. For the lien to be valid
against certain third parties, the Secretary must file a notice
of Federal tax lien; within 5 business days thereafter, the
Secretary must provide written notice to the taxpayer. Secs.
6320(a), 6323(a). The taxpayer may request an administrative
hearing before an Appeals officer. Sec. 6320(b)(1). Once the
Appeals officer issues a determination, the taxpayer may seek
judicial review in the Tax Court or a District Court, as
appropriate. Secs. 6320(c), 6330(d)(1).
Section 6330(c)(2) prescribes the matters that a person may
raise at an Appeals Office hearing, including spousal defenses,
challenges to the appropriateness of the Commissioner’s intended
collection action, and possible alternative means of collection.
The existence or amount of the underlying tax liability may be
contested at an Appeals Office hearing only if the taxpayer did
not receive a notice of deficiency or did not otherwise have an
opportunity to dispute that tax liability. Sec. 6330(c)(2)(B);
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see Sego v. Commissioner, 114 T.C. 604, 609 (2000); Goza v.
Commissioner, 114 T.C. 176, 180 (2000).
If the validity of the underlying tax liability is properly
at issue, we review that issue de novo. See Sego v.
Commissioner, supra at 609-610. Other issues we review for abuse
of discretion. Id.
Because petitioner received notices of deficiency but failed
to petition this Court to redetermine the deficiencies,
petitioner is not entitled in this collection proceeding to
challenge his underlying liabilities for 2000 and 2001. See sec.
6330(c)(2)(B); Sego v. Commissioner, supra at 610; Goza v.
Commissioner, supra at 182-183. Accordingly, we review
respondent’s determination for an abuse of discretion. See Sego
v. Commissioner, supra at 610.
In his response to respondent’s motion for summary judgment,
petitioner’s primary argument appears to be that the notices of
deficiency, as well as numerous other documents, including
respondent’s pleadings in this case, respondent’s tax return
forms, and correspondence that respondent sent to him, are
invalid because they lack valid Office of Management and Budget
numbers.3 Petitioner’s argument is without merit. See, e.g.,
United States v. Dawes, 951 F.2d 1189, 1191 (10th Cir. 1991);
3
In making this argument, petitioner appears to rely on
provisions of the Paperwork Reduction Act of 1980, 44 U.S.C.
secs. 3501-3520 (2000).
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United States v. Hicks, 947 F.2d 1356, 1359 (9th Cir. 1991);
Wheeler v. Commissioner, 127 T.C. 200, 208 n.12 (2006).
Petitioner assigns as error respondent’s failure to provide
him various documents requested in his Form 12153 and
correspondence. Petitioner’s contention is without merit. There
is no right to discovery in the Appeals hearing, which is
informal. See Katz v. Commissioner, 115 T.C. 329, 337 (2000).
The Appeals officer did not abuse her discretion in declining to
provide the requested materials to petitioner. See Roberts v.
Commissioner, 118 T.C. 365, 372 (2002), affd. 329 F.3d 1224 (11th
Cir. 2003).
Petitioner suggests that respondent did not properly assess
his taxes for 2000 and 2001 because he did not receive requested
copies of Form 23C, Certificate of Assessment, or some other
summary record of assessment as required by section 6203 and
section 301.6203-1, Proced. & Admin. Regs. We reject
petitioner’s argument. Respondent was not required to use Form
23C in making the assessment. Roberts v. Commissioner, supra at
371. The Forms 4340, Certificate of Assessments, Payments, &
Other Specified Matters, which are in the record provide
presumptive evidence that respondent has validly assessed
petitioner’s 2000 and 2001 liabilities. Id. n.10. Furthermore,
on August 4, 2004, respondent issued to petitioner a notice of
tax lien, the last page of which set forth, among other things,
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petitioner’s name, the date of assessment, the character of the
liability assessed (“Form 1040”), the taxable periods, and the
amounts assessed. This information satisfied the requirements of
section 6203 and section 301.6203-1, Proced. & Admin. Regs. See
Balice v. Commissioner, T.C. Memo. 2005-161 n.6.
Petitioner complains that he was not given a face-to-face
hearing. Petitioner’s complaint is without merit. A face-to-
face hearing is not invariably required by section 6330; the
hearing may be conducted by correspondence or telephone. See
Katz v. Commissioner, 115 T.C. 329, 337-338 (2000); Summers v.
Commissioner, T.C. Memo. 2006-219. Petitioner was offered a
face-to-face hearing to consider legitimate issues. Petitioner
chose to pursue only frivolous and groundless arguments as
asserted in his Form 12153 and in correspondence with the Appeals
officer. In these circumstances, the Appeals officer did not
abuse her discretion in determining that a face-to-face hearing
would not be productive to consider petitioner’s arguments. See,
e.g., Summers v. Commissioner, supra. Moreover, in this
proceeding, petitioner has raised no legitimate issue that would
suggest that it would be productive or appropriate to remand this
case to the Office of Appeals for further proceedings. See
Lunsford v. Commissioner, 117 T.C. 183, 189 (2001).
Petitioner has made various other arguments and requests
that the Court finds frivolous or groundless. We conclude that
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there are no genuine issues of material fact and that respondent
is entitled to summary judgment as a matter of law. On the basis
of our review of the record, we find that respondent did not
abuse his discretion in sustaining the tax lien.
Section 6673(a)(1) authorizes the Tax Court to require a
taxpayer to pay to the United States a penalty no greater than
$25,000 whenever it appears that proceedings have been instituted
or maintained by the taxpayer primarily for delay or that the
taxpayer’s position in such proceedings is frivolous or
groundless. Although we do not impose a section 6673 penalty on
petitioner today, we strongly warn him that if he advances
similar frivolous arguments in this Court in the future, we may
impose on him a section 6673 penalty up to the $25,000 maximum
allowable amount, even upon our own motion.
To reflect the foregoing,
An appropriate order and
decision will be entered.