T.C. Memo. 2009-244
UNITED STATES TAX COURT
ANTHONY OROPEZA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 29151-07L. Filed October 28, 2009.
Anthony Oropeza, pro se.
Michael W. Tan, for respondent.
MEMORANDUM OPINION
HOLMES, Judge: Anthony Oropeza earned wages in 2002 and
2003 but reported zero income and zero tax liabilities because,
he wrote in attachments to the returns, his income was not
“income” in the “constitutional” sense. Mr. Oropeza’s position
is, in a word, “frivolous.” Just like we held it was the last
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time he was in Tax Court. See Oropeza v. Commissioner, T.C.
Memo. 2008-94.
The Commissioner issued notices of deficiency for both
years, but Mr. Oropeza did not petition our Court. The
Commissioner then assessed the taxes and penalties asserted in
the notices. Mr. Oropeza didn’t pay. The bureaucracy’s wheels
clanked into gear, and in March 2006 out came a notice of intent
to levy. Mr. Oropeza requested a face-to-face collection due
process (CDP) hearing that he planned to record. In his request
he specifically renounced any of his previous arguments that the
Commissioner might consider frivolous, and asked only that the
IRS verify that it had followed all required procedures.
The IRS Appeals officer did just that. He then sent Mr.
Oropeza a Form 4340, Certificate of Assessments, Payments, and
Other Specified Matters. The Form 4340 is a computer-generated
list of assessments, payments, and other activity on a taxpayer’s
account. The Appeals officer also explained that face-to-face
hearings were reserved for discussions of nonfrivolous issues.
He even listed several nonfrivolous issues Mr. Oropeza might
raise, and pointed him to an IRS website listing frivolous
arguments should Mr. Oropeza want to learn the distinction. The
Appeals officer gave Mr. Oropeza until October 5, 2007, to submit
additional information and set up a telephone hearing for the
following week.
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Mr. Oropeza responded only by asking for copies of paperwork
he’d already sent in. After the hearing, the Appeals officer
again patiently gave Mr. Oropeza a chance to raise any nonfrivo-
lous issue. He didn’t discuss any collection alternatives be-
cause Mr. Oropeza didn’t raise the issue, didn’t provide any fi-
nancial information, and hadn’t filed his 2004, 2005, or 2006 tax
returns. Mr. Oropeza told the Appeals officer to go ahead and
issue the notice of determination and he would see him in court.
The Appeals officer accepted Mr. Oropeza’s suggestion; Mr.
Oropeza followed through on his threat. The parties submitted
the case for decision under Tax Court Rule 122, just before trial
was to start in Los Angeles. Mr. Oropeza was a California
resident when he filed his petition.
Mr. Oropeza raises for the first time in our Court the issue
of whether he received any of the notices of deficiency that the
IRS sent to him. If he intends by this to argue that he doesn’t
owe the underlying liabilities, he can’t because he stipulated
that he wasn’t challenging the amounts of his tax liabilities.
And even if he doesn’t intend this, he can’t raise this new issue
on appeal. See Magana v. Commissioner, 118 T.C. 488 (2002).
We review the Appeals officer’s determination for abuse of
discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000). We
also look to see whether the Appeals officer verified that the
IRS met its legal and procedural requirements for making an
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assessment, considered issues that the taxpayer raised, and
balanced the need for efficient tax collection against the
taxpayer’s interest that any collection action be no more
intrusive than necessary. 26 U.S.C. sec. 6330(c)(3).
There are no problems here. Appeals officers may rely on a
Form 4340 to show that the IRS followed the law and procedures
for a valid assessment. Davis v. Commissioner, 115 T.C. 35,
40-41 (2000). They may rely on nothing but that form where, as
here, a taxpayer has no evidence of any procedural irregularity.
Nicklaus v. Commissioner, 117 T.C. 117, 121 (2001). And Mr.
Oropeza gives us no reason to upset the Appeals officer’s
conclusion that a levy is appropriate--Mr. Oropeza did not
suggest any collection alternatives to balance against the
government’s interest in efficient tax collection.
We also reject Mr. Oropeza’s procedural arguments. Taxpay-
ers who make only frivolous arguments aren’t entitled to face-
-to-face hearings. Lunsford v. Commissioner, 117 T.C. 183, 189
(2001). Taxpayers who make no arguments are likewise not enti-
tled to a face-to-face hearing. Oropeza, T.C. Memo. 2008-94.
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And Mr. Oropeza has no right to record because 26 U.S.C. section
7521(a)(1) refers to “any in-person interview” and thus doesn’t
apply to telephone hearings. Calafati v. Commissioner, 127 T.C.
219 (2006).
Decision will be entered for
respondent.