T.C. Memo. 2010-44
UNITED STATES TAX COURT
PATRICK R. TURNER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 29001-08L. Filed March 4, 2010.
Patrick Turner, pro se.
Mindy Chou and A. Gary Begun, for respondent.
MEMORANDUM OPINION
KROUPA, Judge: This collection review matter is before the
Court on respondent’s motion for summary judgment filed pursuant
to Rule 121.1 Respondent contends that he is entitled to
1
All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code, unless otherwise indicated.
- 2 -
judgment as a matter of law on whether the Appeals Office
correctly determined to sustain the lien filing against
petitioner to collect unpaid interest, late filing additions to
tax, and late payment additions to tax for the taxable years 1999
and 2000 (years at issue). We shall grant respondent’s motion.
Background
Petitioner resided in Michigan at the time he filed the
petition. Petitioner failed to timely file a return for either
year at issue. Petitioner eventually filed a return for each
year at issue over three years after the filing deadline. On
each return, petitioner reported a tax due but failed to pay the
reported tax. Respondent then assessed the $124,8252 tax due
shown on the returns and $38,677 of statutory interest under
section 6601. Respondent also assessed $28,828 of late payment
additions and $25,945 of late filing additions for both years at
issue.3
Petitioner failed to pay the assessed amounts. Respondent
thereafter sent petitioner a Notice of Federal Tax Lien Filing
and Your Right to a Hearing Under IRC 6320 (lien notice).4
2
All amounts are rounded to the nearest dollar.
3
Respondent applied a $9,513 withholding credit against
petitioner’s liabilities.
4
Petitioner and his wife, Patricia Turner, filed joint
returns for the years at issue. Mrs. Turner is not a party to
this collection proceeding as the lien notice and determination
(continued...)
- 3 -
Petitioner timely requested a collection due process (CDP)
hearing and objected to the imposed interest and additions.
Petitioner did not challenge the underlying tax. Petitioner
asserted that he was not required to file a tax return for either
of the two years at issue based on the Paperwork Reduction Act of
1995 (PRA), 44 U.S.C. section 3512 (2006). Petitioner requested
that all additions and interest be abated.
Appeals Officer Thomas Anderson (AO Anderson) was assigned
petitioner’s collection case. AO Anderson mailed a letter to
petitioner to schedule a telephone conference. AO Anderson
declined to offer petitioner a face-to-face hearing because
petitioner raised only frivolous issues. AO Anderson informed
petitioner that to receive a face-to-face meeting he had to
assert a non-frivolous issue within a certain period. AO
Anderson also requested petitioner to submit a completed Form
433-A, Collection Information Statement.
Petitioner responded by requesting a face-to-face hearing
but did not raise any non-frivolous issues. AO Anderson
reiterated to petitioner in subsequent phone conversations that
he had to raise non-frivolous issues to have a face-to-face
hearing. AO Anderson gave petitioner another opportunity to
4
(...continued)
notice were issued solely to petitioner. Respondent mailed
petitioner and Mrs. Turner a Notice of Intent to Levy and Your
Right to a Hearing for tax years 1999, 2000, and 2002. The levy
determination is not at issue in this proceeding.
- 4 -
present a non-frivolous issue. Petitioner failed to submit any
other issues and did not provide the necessary financial
information for AO Anderson to consider any collection
alternatives. AO Anderson reviewed the material and arguments
petitioner presented and determined to sustain the lien filing.
AO Anderson sent petitioner a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330
(determination notice) sustaining the lien filing. The
determination notice stated that petitioner “has not raised any
issues that have not been previously ruled to be frivolous by the
United States Tax Court.”
Petitioner timely filed an imperfect petition seeking relief
from respondent’s determination notice. Petitioner filed an
amended petition challenging the assessed interest, late filing
additions, and late payment additions under the PRA. Petitioner
does not challenge the self-assessed tax for either year at issue
in the petition for review. As previously mentioned, respondent
moved for summary judgment and petitioner filed an objection.
Discussion
We are asked to decide whether it is appropriate to grant
summary judgment in this collection review proceeding. Summary
judgment is intended to expedite litigation and avoid unnecessary
and expensive trials. See, e.g., FPL Group, Inc. & Subs. v.
Commissioner, 116 T.C. 73, 74 (2001). Either party may move for
- 5 -
summary judgment upon all or any part of the legal issues in
controversy. Rule 121(a). The moving party bears the burden of
proving that there is no genuine issue of material fact.
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 supported as provided in Rule 121, the party
opposing summary judgment must set forth specific facts which
show that a 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).
Petitioner challenges the assessed interest, late filing
additions, and late payment additions asserting that he was not
required to file a return because the return violated the PRA.
This and other courts have consistently held taxpayers’ claims
based on the PRA groundless. See, e.g., James v. United States,
970 F.2d 750, 753 n.6 (10th Cir. 1992) (lack of an OMB number on
IRS forms and notices does not violate the PRA); United States v.
Neff, 954 F.2d 698, 699 (11th Cir. 1992) (lack of an OMB number
on a Federal income tax return does not violate the PRA); Freas
v. Commissioner, T.C. Memo. 1993-552 (PRA does not apply to
Federal income tax regulations or to Federal tax forms); Andreas
v. Commissioner, T.C. Memo. 1993-551 (PRA does not apply to
Federal income tax regulations or to Federal tax forms). Courts
- 6 -
have refused to even consider such arguments so as not to suggest
they have any credence. See Schneller v. Commissioner, T.C.
Memo. 2006-99. We similarly find that petitioner’s arguments
regarding the OMB control numbers and the PRA lack merit.
Furthermore, petitioner’s argument that the PRA prevents
respondent from charging interest is without merit. See Wolcott
v. Commissioner, T.C. Memo. 2008-153.
Petitioner also challenges the assessed interest, late
filing additions, and late payment additions on the grounds that
respondent denied him the right to a CDP hearing. Again we
disagree. A CDP hearing may consist of one or more written or
oral communications between an Appeals officer and the taxpayer.
Sec. 301.6320-1(d)(2), Q&A-D6, Proced. & Admin. Regs.; see Katz
v. Commissioner, 115 T.C. 329 (2000); Dinino v. Commissioner,
T.C. Memo. 2009-284. This Court and other courts have held that
a face-to-face CDP hearing is not required under section 6330.
Katz v. Commissioner, supra (telephone conference procedurally
proper); Williamson v. Commissioner, T.C. Memo. 2009-188
(taxpayer not entitled to face-to-face hearing after asserting
only meritless arguments); Stockton v. Commissioner, T.C. Memo.
2009-186 (upholding denial of face-to-face conference after the
taxpayer failed to raise non-frivolous issue after multiple
opportunities); Leineweber v. Commissioner, T.C. Memo. 2004-17
(prior telephone conversations constitute CDP hearing); Tilley v.
- 7 -
United States, 270 F. Supp. 2d 731 (M.D.N.C. 2003) (telephone
conversations sufficed), affd. 85 Fed. Appx. 333 (4th Cir. 2004).
All communications between the taxpayer and the Appeals officer
between the time of the hearing request and the issuance of the
determination notice constitute part of the CDP hearing. See
Middleton v. Commissioner, T.C. Memo. 2007-120; see also Dinino
v. Commissioner, supra.
Here, AO Anderson spoke with petitioner on the phone and
exchanged written correspondence with petitioner. AO Anderson
gave petitioner ample opportunity to raise non-frivolous issues.
AO Anderson verified that respondent met the requirements of
applicable law and administrative procedures. We find that
petitioner had a CDP hearing with AO Anderson. In addition, we
find that petitioner has failed to raise any meritorious issue to
suggest that it would be productive or appropriate to remand this
case to the Appeals Office for further proceedings. See Lunsford
v. Commissioner, 117 T.C. 183, 189 (2001).
Petitioner has raised no legitimate issue, spousal defense,
or collection alternative. See sec. 6330(c)(2). Accordingly,
these issues are now deemed conceded. See Rule 331(b)(4).
Petitioner has advanced a plethora of groundless arguments.
We have specifically warned petitioner on two occasions (one
order dated December 7, 2009, and another order dated January 22,
2010) to stop making these frivolous arguments. We informed
- 8 -
petitioner that other taxpayers in similar cases were subject to
a section 6673 penalty.5 See, e.g., Wolcott v. Commissioner,
supra; Schneller v. Commissioner, supra. Despite these warnings,
petitioner has wasted the Court’s limited time and resources.
See Takaba v. Commissioner, 119 T.C. 285, 295 (2002). We will
not impose a section 6673 penalty at this time but we caution
petitioner that should he bring similar arguments before this
Court in the future, the Court may impose such a penalty up to
$25,000.
We have considered all arguments made in reaching our
decision, and, to the extent not mentioned, we conclude that they
are moot, irrelevant, or without merit. We conclude that there
are no genuine issues of material fact and that respondent is
entitled to summary judgment as a matter of law.
To reflect the foregoing,
Decision will be entered
for respondent.
5
Sec. 6673 authorizes this Court to require a taxpayer to
pay a penalty up to $25,000 whenever it appears that a taxpayer
instituted or maintained a proceeding in the Court primarily for
delay or that a taxpayer’s position in such a proceeding is
frivolous or groundless. Sec. 6673(a)(1).