Battle v. Comm'r

T.C. Memo. 2009-171

UNITED STATES TAX COURT

ROBERT M. BATTLE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5016-08L. Filed July 20, 2009.

Robert M. Battle, pro se.

Gordon P. Sanz, for respondent.

MEMORANDUM OPINION

HAINES, Judge: This matter is before the Court on

respondent’s motion for summary judgment and to impose a penalty

under section 6673 and petitioner’s motion for judgment on the

pleadings. Respondent made the determination to proceed to

collect by lien petitioner’s outstanding income tax liabilities

for 1999, 2000, 2001, 2002, 2003, 2004, and 2005 (years at

issue). Respondent also made the decision to collect by levy
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petitioner’s outstanding income tax liabilities for 2003, 2004,

and 2005. Petitioner, under section 6330, seeks review of

respondent’s determinations.1

The parties’ controversy poses the following issues for our

consideration: (1) Whether respondent abused his discretion in

determining to proceed with collection; and (2) whether

petitioner is liable for the penalty under section 6673.

Background

Petitioner is a licensed physician. At the time he filed

the petition, he resided in Texas.

On July 7, 2005, the Internal Revenue Service (IRS) issued

summonses to petitioner individually and as trustee of HSH

Investments, KTW Group, KTW Investments, and KTW Consultants.2

Two of the summonses were issued because of petitioner’s failure

to file his individual income tax returns for the years 1999,

2000, 2001, 2002, 2003, and 2004. Upon petitioner’s failure to

comply, the U.S. filed a petition to enforce the IRS summonses in

the U.S. District Court for the Southern District of Texas,

Houston Division (District Court). United States v. Battle, No.

4:05-MC-00520 (S.D. Tex. Jan. 23, 2006) (order to enforce

1
All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code. Amounts are rounded to the nearest dollar.
2
KTW Consultants and HSH Investments were parties previously
before this Court and petitioner acted as trustee in KTW
Consultants Trust, v. Commissioner, docket No. 19493-06 (May 2,
2007).
 - 3 -

summonses), affd. 213 Fed. Appx. 307 (5th Cir. 2007). After the

court issued an order of coercive contempt ordering petitioner to

be held in the marshal’s custody until he disclosed the documents

sought by the summonses, petitioner released the requested data

and subsequently filed a notice of appeal. Petitioner then filed

an opening brief for appellant in the U.S. Court of Appeals for

the Fifth Circuit, raising many of the same issues he raised

later at the section 6330 hearing and now asks this Court to

consider. However, the Court of Appeals affirmed the judgment of

the District Court. United States v. Battle, 213 Fed. Appx. 307

(5th Cir. 2007).

In 2006 petitioner filed Forms 1040, U.S. Individual Income

Tax Return, for all the years at issue but did not pay the

reported tax. The amounts reported on petitioner’s delinquent

returns were assessed along with additions to tax and interest.

On March 27, 2006, respondent sent petitioner a statutory notice

of balance due for 2003 and 2004. On April 3, 2006, respondent

sent petitioner a statutory notice of balance due for 1999, 2000,

2001, and 2002. On December 11, 2006, respondent sent petitioner

a statutory notice of balance due for 2005.

On May 18, 2007, respondent sent petitioner a Letter 1058,

Final Notice - Notice of Intent to Levy and Notice of Your Right

to a Hearing (notice of intent to levy), with respect to

petitioner’s unpaid 2003, 2004, and 2005 tax liabilities. On May

25, 2007, respondent sent petitioner a Letter 3172, Notice of
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Federal Tax Lien Filing and Your Right to a Hearing Under Section

6320 (notice of Federal tax lien), with respect to petitioner’s

unpaid tax liabilities for all the years at issue.

On June 13, 2007, in response to the notice of intent to

levy, petitioner mailed a request for a hearing with respect to

the years 2003, 2004, and 2005. On June 19, 2007, in response to

the notice of Federal tax lien filing, petitioner mailed a

request for a hearing with respect to all the years at issue. On

August 8, 2007, respondent’s Appeals Office informed petitioner

it had received the request for a hearing and provided

information relating to the collection due process procedure.

On September 7, 2007, Appeals Officer Bart A. Hill (Mr.

Hill) informed petitioner of the hearing procedures and

encouraged petitioner to visit the IRS Web Site “The Truth About

Frivolous Tax Arguments” and to review the list of frivolous and

groundless arguments. Mr. Hill requested that petitioner, within

14 days, describe the legitimate issues he wanted to discuss and

scheduled a telephone conference for October 29, 2007, at 10 a.m.

Mr. Hill referred petitioner to Pierson v. Commissioner, 115 T.C.

576 (2000), and mailed petitioner copies of the following

documents: Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals; Form 433-B, Collection

Information Statement for Businesses; transcripts for the years

at issue; Publication 2105, Why Do I Have to Pay Taxes?; and

Publication 4165, Introduction to Collection Due Process
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Hearings. Petitioner responded on November 13, 2007, by stating

his objections and requesting Form 4340, Certificate of

Assessments, Payments, and Other Specified Matters, which Mr.

Hill sent to petitioner on January 8, 2008.

Mr. Hill conducted the hearing with petitioner on November

14, 2007. Petitioner failed to submit a completed Form 433-A or

Form 433-B, or to discuss any collection alternative during the

hearing. Consequently, on January 31, 2008, respondent’s Appeals

Office issued a Notice of Determination Concerning Collection

Action(s) under Section 6320 and/or 6330 (notice of

determination) which stated:

The IRS followed proper procedures in filing the
tax lien. The lien filing was necessary to protect the
government’s interest in the taxpayer’s assets.

The taxpayer would not abandon his frivolous
theories of taxation during this appeal. The
taxpayer’s failure to furnish a financial statement
bars Appeals from exploring whether a less intrusive
collection alternative, such as an installment
agreement or offer in compromise, might have been
appropriate. The proposed levy action, although
intrusive, is necessary to collect the valid, unpaid
tax liability. It is the determination of Appeals that
the proposed levy action balances the need for
efficient collection of taxes with the taxpayer’s
legitimate concern the action is no more intrusive than
necessary.

On February 27, 2008, petitioner filed a petition with the

Court. On February 2, 2009, respondent filed a motion for

summary judgment seeking a decision that collection can proceed

and to impose a penalty pursuant to section 6673. On February

10, 2009, petitioner filed a motion for judgment on the
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pleadings, and on February 17, 2009, filed a response to

respondent’s motion for summary judgment.

Discussion

A decision granting summary judgment may be rendered if the

pleadings and other materials in the record 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); Sundstrand Corp. &

Subs. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994). We have considered the pleadings and other

materials in the record and conclude that there is no genuine

issue of any material fact and that a decision may be rendered as

a matter of law.

I. The Collection Action

Section 6321(a) provides that if any person liable to pay

any tax neglects or refuses to pay after demand, the Secretary

can collect such tax by placing a lien on the person’s property

or rights to property. Section 6331(a) provides that, if any

person liable to pay any tax neglects or refuses to do so within

10 days after notice and demand, the Secretary can collect such

tax by levy upon property belonging to such person. However, the

Secretary is required to give the taxpayer written notice of his

intent to file a lien or to levy and must describe the

administrative review available to the taxpayer before

proceeding. Secs. 6320(a), 6330(a).
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Section 6330(b) describes the administrative review process,

providing that a taxpayer can request a hearing with the Appeals

office with regard to a levy notice. At the hearing the taxpayer

may raise certain matters set forth in section 6330(c)(2), which

include appropriate spousal defenses, challenges to the

appropriateness of collection actions, and offers of collection

alternatives. Further, a taxpayer may dispute the underlying tax

liability for any tax period if the taxpayer did not receive a

notice of deficiency for the tax liability or did not otherwise

have an opportunity to dispute the tax liability. Sec.

6330(c)(2)(B). Frivolous arguments, however, are not relevant

issues in a hearing. Pierson v. Commissioner, supra. “A

taxpayer's position is frivolous or groundless if it is contrary

to established law and unsupported by a reasoned, colorable

argument for change in the law.” Smith v. Commissioner, T.C.

Memo. 2000-290.

Following a hearing, the Appeals Office must make a

determination whether the proposed lien or levy action may

proceed. In so doing, the Appeals office is required to take

into consideration the verification presented by the Secretary

that the requirements of applicable law and administrative

procedure have been met, the issues raised by the taxpayer, and

whether the proposed levy action appropriately balances the need

for efficient collection of taxes with a taxpayer’s concerns

regarding the intrusiveness of the proposed collection action.
 - 8 -

Sec. 6330(c)(3). In complying with section 6330, an Appeals

officer may rely on a computer transcript or Form 4340 to verify

that a valid assessment was made and that a notice and demand for

payment was sent to the taxpayer in accordance with section 6303.

Nestor v. Commissioner, 118 T.C. 162, 166 (2002). Absent a

showing of irregularity, a transcript that shows such information

is sufficient to establish that the procedural requirements of

section 6330 have been met. Id. at 166-167.

Pursuant to section 6330(d)(1), within 30 days of the

issuance of the notice of determination, the taxpayer may appeal

that determination to this Court. Although section 6330 does not

prescribe the standard of review that we are to apply in

reviewing the Commissioner’s administrative determinations, we

have stated that, where the validity of the underlying tax

liability is properly at issue, we will review the matter de

novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v.

Commissioner, 114 T.C. 176, 181-182 (2000). Where the validity

of the underlying tax liability is not properly at issue,

however, we will review the Commissioner’s administrative

determination for abuse of discretion. Sego v. Commissioner,

supra at 610; Goza v. Commissioner, supra at 182.

Petitioner, during his hearing, asserted the same groundless

and frivolous arguments as he did in his later petition and

failed to raise any issues relating to the underlying liability.

By not raising any issues with respect to the amount of the
 - 9 -

underlying liabilities with Appeals, petitioner waived his right

to challenge the underlying liability in this proceeding. See

Giamelli v. Commissioner, 129 T.C. 107 (2007); Magana v.

Commissioner, 118 T.C. 488 (2002). Consequently, the validity of

the underlying tax liabilities is not at issue. See, e.g.,

Hathaway v. Commissioner, T.C. Memo. 2004-15; Horton v.

Commissioner, T.C. Memo. 2003-197; Kemper v. Commissioner, T.C.

Memo. 2003-195; Widner v. Commissioner, T.C. Memo. 2003-114.

The undisputed facts set forth in respondent’s motion,

declarations in support of the motion, and attached exhibits

establish that respondent has satisfied the requirements of

section 6330. Mr. Hill, who had no prior involvement with

respect to the unpaid taxes before the section 6330 hearing and

thus met the requirement of section 6330(b)(3), verified that

proper assessments were made as reflected on computer transcripts

attached to the motion for summary judgment and in the notice of

determination and that the requisite notices had been sent to

petitioner. Mr. Hill also considered petitioner’s arguments and

rejected them as frivolous and irrelevant. Following the

hearing, Mr. Hill upheld the lien and levy actions, concluding

that they appropriately balanced the need for efficient

collection of taxes with petitioner’s concerns regarding the

intrusiveness of those actions. See sec. 6330(c)(3).

Upon receiving Mr. Hill’s decision, petitioner filed a

petition asserting the following arguments in support of his
 - 10 -

contention that respondent’s determinations were erroneous: (1)

A “legal and proper” notice of deficiency was not issued to

petitioner for the years at issue; (2) respondent failed to

legally and properly assess the income tax of petitioner; (3)

respondent did not timely assess the taxes; (4) respondent failed

to prepare and execute a Form 4340 during the 3-year period

following the filing of petitioner’s returns; (5) respondent did

not provide a legal and proper 60-day notice that petitioner was

liable for any tax assessments; (6) the District Court’s order on

January 23, 2006, enforced only two of eight summonses; (7) the

subpoena issued by the District Court was improper because of a

lack of jurisdiction; and (8) the Special Assistant U.S. Attorney

Scott Shieldes, who represented the Government in petitioner’s

summons case, refused to receive a duress and protest notice and

receipt.

A. Notice of Deficiency, Assessment, and Statute of
Limitations

Petitioner contends in his first two arguments that the IRS

cannot assess the tax shown on the Forms 1040 he submitted

without first issuing a notice of deficiency. With respect to

the third argument, it is unclear whether petitioner refers to

the statute of limitations regarding assessment or the statute of

limitations regarding collection, both of which are addressed

below.

Following a summons enforcement proceeding, petitioner

submitted signed Forms 1040 for the years at issue but failed to
 - 11 -

date them. However, the Forms 1040 from 1999 through 2004 were

signed by petitioner's return preparer and dated February 9,

2006. The 2005 Form 1040 was signed and dated by petitioner's

return preparer on October 16, 2006.

Section 6201 authorizes the Secretary to assess all taxes

reported by a taxpayer on his return. Richmond v. Commissioner,

T.C. Memo. 2005-238. “A deficiency notice is not required to

assess taxes where there is no deficiency. For example, the

Secretary may assess without a deficiency notice the amount of

tax shown due on a return.” Manko v. Commissioner, 126 T.C. 195,

200 n.2 (2006). Petitioner submitted Forms 1040 for the years at

issue reflecting the tax due. There is no statutory provision

under section 6201 which requires the Commissioner to issue a

notice of deficiency with respect to a return before assessing

the amount reported on that return.

In regard to the statute of limitations on assessment,

section 6501 generally requires that the Commissioner assess

income tax within 3 years after the taxpayer files a return.

Wagenknecht v. Commissioner, T.C. Memo. 2008-179; Martin v.

Commissioner, T.C. Memo. 2003-288, affd. 436 F.3d 1216 (10th Cir.

2006). Petitioner filed all returns in 2006, and the Forms 4340

reflect that the IRS assessed the amounts petitioner reported on

the Forms 1040 within the same year, thus meeting the 3-year

statute of limitations. In regard to collection of assessed

Federal income tax, the period of limitations begins on the date
 - 12 -

taxes are assessed and ends 10 years thereafter. See sec.

6502(a)(1); Severo v. Commissioner, 129 T.C. 160, 168 (2007).

The taxes for the years at issue were assessed during 2006, and

the collection notices were sent to petitioner in 2007, well

within the 10-year period of limitations found in section 6502.

B. Forms 4340

Federal tax assessments are formally recorded on a record of

assessment. Sec. 6203. The summary record of assessment must

“provide identification of the taxpayer, the character of the

liability assessed, the taxable period, if applicable, and the

amount of the assessment.” Sec. 301.6203-1, Proced. & Admin.

Regs. Mr. Hill reviewed respondent’s transcripts of account and

determined that respondent had properly assessed petitioner’s tax

liabilities.

In response to a taxpayer’s request under section 6203 and

the regulation for “a copy of the record of assessment,” the

Commissioner is not required to provide any particular form or

document and may choose among documents so long as the form used

identifies the taxpayer, states the character of the liabilities

assessed, the tax period giving rise to the assessment, the

amount of the assessment, and the date of assessment. Sec.

301.6203-1, Proced. & Admin. Regs; see also Roberts v.

Commissioner, 329 F.3d 1224, 1228 (11th Cir. 2003), affg. 118

T.C. 365 (2002). Furthermore, section 6330(c)(1) does not

mandate that the Appeals officer rely on a particular document in
 - 13 -

satisfying the verification requirement or that the Appeals

officer actually give the taxpayer a copy of the verification

upon which he or she relied. Craig v. Commissioner, 119 T.C.

252, 262 (2002); Nestor v. Commissioner, 118 at 166.

Mr. Hill provided petitioner with Forms 4340 for the years

at issue. We have specifically held in Nestor v. Commissioner,

supra at 166, that it is not an abuse of discretion for an

Appeals officer, in complying with section 6330(c)(1), to rely on

Form 4340 or a computer transcript of account. Schroeder v.

Commissioner, T.C. Memo. 2002-190; Mann v. Commissioner, T.C.

Memo. 2002-48. Furthermore, a Form 4340 constitutes presumptive

evidence that a tax has been validly assessed pursuant to section

6203. Davis v. Commissioner, 115 T.C. 35, 40 (2000). Because

petitioner failed to show some irregularity in the assessment

procedure that would raise a question regarding its validity, we

conclude that the Forms 4340 reflecting that tax liabilities were

assessed and remain unpaid are sufficient to support a collection

action under sections 6320 and 6330. Davis v. Commissioner,

supra at 40-41.

Petitioner also argues that a Form 4340 must be prepared

within 3 years from the filing of a tax return. However, a Form

4340 is simply a literal transcript, generated on a specific

date, containing tax data from an IRS master file associated with

a particular taxpayer. Hazel v. Commissioner, T.C. Memo. 2008-

134; Bowman v. Commissioner, T.C. Memo. 2007-114, affd. 285 Fed.
 - 14 -

Appx. 309 (8th Cir. 2008); see also Armstrong v. Commissioner,

T.C. Memo. 2002-224. There is no rule requiring that a Form 4340

be prepared within 3 years from the filing of a return.

C. Notice and Demand

Petitioner’s fifth claim is that the IRS failed to give him

“legal and proper” 60-day notice that he was liable for the

unpaid tax for the tax years at issue. Section 6303(a) requires

that petitioner be given notice and demand for payment within 60

days of the making of an assessment. A Form 4340, which

petitioner received, is presumptive evidence that a tax has been

validly assessed. Davis v. Commissioner, supra at 40.

Furthermore, the Forms 4340 for the years at issue show that the

IRS sent petitioner a notice of balance due, which constitutes a

notice and demand for payment as required by section 6303, for

each of the years involved. Craig v. Commissioner, supra at 262-

263; Coleman v. Commissioner, T.C. Memo. 2002-132. Proof that

notice and demand was issued to petitioner’s last known address

is sufficient to satisfy the requirements of section 6303, and

there is no requirement that respondent prove receipt of such

notice. United States v. Chila, 871 F.2d 1015, 1019 (11th Cir.

1989); Pursifull v. United States, 849 F. Supp. 597, 601 (S.D.

Ohio 1993), affd. 19 F.3d 19 (6th Cir. 1994). As petitioner has

failed to present any evidence that the notice and demand was not

issued as reflected on the Forms 4340 and has failed to show

error or irregularity in the Forms 4340 with respect to the
 - 15 -

issuance of a statutory notice of balance due, we hold that

proper notice was received and this argument is without merit.

D. Summonses, Subpoena, and Duress and Protest Notice

The issues raised relate to the IRS summonses, a subpoena,

and an alleged refusal by the special assistant U.S. attorney to

accept a “Duress and Protest Notice and Receipt.” The first two

issues were raised in and addressed by the Court of Appeals for

the Fifth Circuit. See United States v. Battle, 213 Fed. Appx.

307 (5th Cir. 2007). Under section 6330(c)(2), a taxpayer may

raise any “relevant” issue which relates to the unpaid tax.

However, frivolous arguments are not relevant issues in a section

6330 hearing. Pierson v. Commissioner, 115 T.C. 576 (2000). The

issues regarding the summonses, subpoena, and “duress and protest

notice” are immaterial and do not relate to this hearing, nor are

they relevant issues which may be raised under section

6330(c)(2).

In addition, petitioner is precluded, pursuant to section

6330(c)(4), from raising the first two of these issues before the

Appeals officer and this Court. Section 6330(c)(4) expressly

provides that taxpayers, at collection hearings before the

Commissioner’s Appeals office, may not raise issues that were

previously raised by taxpayers and considered in any other

administrative or judicial proceeding in which the taxpayers

meaningfully participated. See secs. 301.6320-1(e)(1), 301.6330-

1(e)(1), Proced. & Admin. Regs.; Magana v. Commissioner, 118 T.C.
 - 16 -

488 (2002); Richmond v. Commissioner, T.C. Memo. 2008-59; Wooten

v. Commissioner, T.C. Memo. 2003-113. These statutory and

regulatory prohibitions are directly applicable to the summons

and subpoena issues that petitioner previously litigated in

United States v. Battle, supra. Accordingly, we conclude that

petitioner is precluded from raising these issues in this

proceeding.

The last issue petitioner raises is the alleged refusal by

the special assistant U.S. attorney of accepting a “Duress and

Protest Notice and Receipt.” We are unaware of any statute which

requires that a special assistant U.S. attorney accept such a

document or any statute authorizing such a document.

E. Abuse of Discretion and Verification

Where the validity of the underlying tax liability is not at

issue, the Court will review the determination of the Appeals

officer for abuse of discretion. Sego v. Commissioner, 114 T.C.

at 610; Goza v. Commissioner, 114 T.C. at 181-182. Nonliability

determinations include Appeals’ determination of the

appropriateness of the collection action as well as a

determination as to matters involving collection alternatives

such as an installment agreement or offer-in-compromise. See

sec. 6330(c)(2)(A). Under an abuse of discretion standard, the

Court must determine whether the Appeal officer’s exercise of

discretion was arbitrary, capricious, or without sound basis in
 - 17 -

law or fact. Woodral v. Commissioner, 112 T.C. 19, 23 (1999)

(citing Mailman v. Commissioner, 91 T.C. 1079, 1084 (1988)).

Pursuant to section 6330(c)(3), the determination of an

Appeals officer as to a proposed collection action must take into

consideration: (1) The verification that the requirements of

applicable law and administrative procedures have been met; (2)

the issues raised by the taxpayer; and (3) “whether any proposed

collection action balances the need for the efficient collection

of taxes with the legitimate concern of the [taxpayer] that any

collection action be no more intrusive than necessary.” As

stated in the notice of determination, and as shown by the

record, Mr. Hill considered all three of these matters.

As part of the hearing process, the Appeals officer must

“obtain verification from the Secretary that the requirements of

any applicable law or administrative procedure have been met.”

Sec. 6330(c)(1). Nonetheless, the Code does not require the

Appeals officer in a hearing to rely on a particular document or

to provide the taxpayer copies of the documents the Appeals

officer obtained or reviewed to verify that the requirements of

any applicable law or administrative procedure were met. The

notice of determination and the record demonstrate that Mr. Hill

complied with section 6330(c)(3) by reviewing the administrative

files and account transcripts and verifying that all legal and

procedural requirements had been met. Furthermore, Mr. Hill

addressed the relevant issues raised by petitioner and did not
 - 18 -

abuse his discretion. See Craig v. Commissioner, 119 at 261-262;

Nestor v. Commissioner, 118 T.C. at 166.

II. Penalty Pursuant to Section 6673

Section 6673(a)(1) authorizes this Court to require a

taxpayer to pay a penalty, not to exceed $25,000, if it appears

that the taxpayer has instituted or maintained a proceeding

primarily for delay, or that the taxpayer’s position is frivolous

or groundless. Section 6673(a)(1) applies to proceedings under

section 6330. Pierson v. Commissioner, supra at 581. In

proceedings under section 6330, we have imposed the penalty on

taxpayers who have raised frivolous and groundless arguments with

respect to the legality of the Federal tax laws. See, e.g.,

Roberts v. Commissioner, 118 T.C. at 372-373; Eiselstein v.

Commissioner, T.C. Memo. 2003-22; Yacksyzn v. Commissioner, T.C.

Memo. 2002-99.

The record clearly establishes that the only arguments

petitioner made during the administrative processing of this case

were frivolous and/or groundless. Moreover, petitioner is aware

of the frivolity of his arguments, as evidenced by a letter

petitioner provided to Special Assistant U.S. Attorney Shieldes

on February 7, 2006, which explains that petitioner was misled by

various tax patriot or protest groups that openly challenge the

income tax system.
 - 19 -

Furthermore, petitioner raised these same frivolous

arguments in a prior action before this Court.3 In our order and

decision entered May 2, 2007 in that action, we “[concluded] that

imposition of the [section 6673] penalty [was] not appropriate,

but we [cautioned] petitioners against raising frivolous

contentions in the future.” Petitioner received from the Appeals

officer Publication 2105 and was warned that any further pursuit

of these arguments could result in penalties under section 6673.

In spite of these warnings, petitioner has continued to raise

issues which the Court has found to be frivolous, groundless, or

lacking in merit.

Petitioner’s conduct demonstrates that this proceeding was

instituted and maintained primarily for delay. Moreover, every

argument made by petitioner during the administrative appeal and

in this Court was frivolous and/or groundless. Consequently, we

find that a penalty under section 6673(a)(1) is warranted. On

the basis of the above, we shall impose a penalty on petitioner

pursuant to section 6673(a)(1) of $20,000.

3
Petitioner presented many of the same arguments in KTW
Consultants Trust v. Commissioner, docket No. 19493-06.
 - 20 -

In reaching our holdings herein, we have considered all

arguments made, and, to the extent not mentioned above, we

conclude they are moot, irrelevant, or without merit.

To reflect the foregoing,

An appropriate order and

decision will be entered

granting respondent’s motion

for summary judgment and for a

penalty and denying

petitioner’s motion for

judgment on the pleadings.