[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 26, 2008
No. 07-16008 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
U.S. Tax Court No. 4133-007L
GARY L. SANFORD,
Petitioner,
versus
COMMISSIONER OF I RS,
Respondent.
________________________
Petition for Review of a Decision of the
United States Tax Court
_________________________
(June 26, 2008)
Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner Gary Sanford appeals the summary judgment ruling of the United
States Tax Court in favor of the Commissioner of Internal Revenue (“IRS”) and
the imposition of a penalty for instituting and maintaining proceedings primarily to
delay payment of taxes. For the reasons stated below, we affirm the rulings of the
Tax Court.
BACKGROUND
Sanford failed to file a federal income tax return or pay taxes for the 2002
taxable year.1 On October 5, 2004, the IRS prepared a substitute return and sent
Sanford a Notice of Deficiency informing Sanford that he owed $4,177.00 in
unpaid taxes, plus interest and penalties. Sanford did not respond to the Notice of
Deficiency nor did he pay his taxes.
On March 11, 2006, the IRS issued Sanford a Notice of Intent to Levy and
Notice of Right to a Hearing. Sanford responded with a request for a Collection
Due Process Hearing. Sanford argued that he had never given his consent for a
substitute return to be prepared and that the IRS’ authority to execute a tax return
does not extend to individual tax returns. Additionally, Sanford stated that the IRS
had no evidence that a Notice of Deficiency had been sent to him.
On August 4, 2006, the IRS notified Sanford that a Collection Due Process
Hearing by telephone was scheduled for September 12, 2006. The notification
letter provided a phone number for Sanford to call at 9:00 am on that day for the
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The record also shows that Sanford failed to file tax returns or pay taxes for the 1998,
1999, 2000, 2001, 2004, and 2005 taxable years. His tax liability for 2002, however, is the only
issue before us in this appeal.
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hearing. The letter informed Sanford that he would be unable to challenge the
amount or existence of the tax liability because he had failed to respond to the
Notice of Deficiency sent in October 2004, and the time had passed to do so. The
letter also requested that Sanford file tax returns for 2004 and 2005, as failing to be
current on those returns would mean that they would be unable to discuss
collection alternatives at the hearing. The IRS letter also informed Sanford that if
he wished to change the date of the hearing, he would need to contact the named
IRS Settlement Officer within 14 days of the date of the IRS letter.
Sanford responded with a letter dated September 5, 2006 requesting a face-
to-face hearing in Jacksonville, Florida, rather than the scheduled telephone
hearing. Sanford did not identify specific issues that he would like to discuss, but
instead reiterated the list of topics that may be raised at a Collection Due Process
Hearing under the statute, I.R.C. § 6330. Sanford did not call in for his hearing on
September 12.
Because Sanford missed the telephone hearing and did not request a change
in date or a face-to-face hearing within 14 days of the August 4 letter, the IRS sent
Sanford a “last chance letter” on September 19, 2006. The letter requested that
Sanford state his non-frivolous reasons for a face-to-face hearing. The letter
warned Sanford that he could be subject to sanctions if he instituted court
proceedings to petition for review of the notice of determination primarily for
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delay or raised only frivolous or groundless arguments.
Sanford responded in a letter dated October 2, 2006 raising three issues: “(1)
Procedural Errors[,] (2) Collection Alternatives, OIC, payment schedules, CNC,
etc.[,] (3) Proof that [he] received a [Notice of Deficiency].” Sanford did not
provide any additional details as to what procedural errors he believed had
occurred or any specifics on the other two issues. Sanford again requested a face-
to-face hearing, this time in Daytona Beach, Florida. Sanford also demanded 60-
days advance notice of any hearing.
In December, the IRS issued a letter to Sanford informing him that the issues
he raised in his October letter were frivolous. The letter also stated, as had
previous communications, that the IRS had issued the Notice of Deficiency in
October 2004 and sent it to his home address of record which was the same address
Sanford had used from 1996 through the current date. On January 23, 2007, the
IRS issued a Notice of Determination that the levy action was appropriate. Sanford
then petitioned the Tax Court for re-determination of the Notice of Determination.
Sanford concedes that his original petition contained “very little of the
specifics and particulars of his case.” He tried, however, to file a supplemental
petition, but the Tax Court denied his motion to do so. The supplemental petition
still did not specify any arguments or errors in the IRS’ Notice of Deficiency. The
supplement merely reiterated that Sanford felt he was entitled to a face-to-face
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hearing and that, if granted such a hearing, he would raise non-frivolous issues at
that time; the supplement did not, however, discuss specifically any issues,
frivolous or otherwise, that he would raise. The Tax Court stated that the amended
petition “advanced nothing of substance in the case and only further evidenced
Petitioner’s attempt to delay the ultimate resolution of this case.”
On October 18, 2007, the Tax Court granted summary judgment for the
Commissioner of Internal Revenue. The court concluded that the Commissioner
could proceed with collection of Sanford’s 2002 tax liability in accordance with
the Notice of Determination. The Tax Court also imposed a $2,500 penalty upon
Sanford under the provisions of I.R.C. § 6673(a). Sanford filed this timely appeal.
STANDARD OF REVIEW
We review de novo the Tax Court’s grant of summary judgment and apply
the same legal standards as the Tax Court. Baptiste v. C.I.R., 29 F.3d 1533, 1537
(11th Cir. 1994). Summary judgment is proper “if the pleadings, answers to
interrogatories, depositions, admissions, and any other acceptable materials,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that a decision may be rendered as a matter of law.” Tax Ct. R.
121(b). We view the facts in the light most favorable to the nonmoving party.
Baptiste, 29 F.3d at 1533.
We review the Tax Court’s imposition of sanctions for abuse of discretion.
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Roberts v. C.I.R., 329 F.3d 1224, 1227 (11th Cir. 2003).
DISCUSSION
Was Appellant Entitled to a Face-to-Face Hearing?
Sanford argues that the IRS’ refusal to provide him with a face-to-face
hearing instead of the telephone hearing violated his due process rights. He argues
that, after his September 5, 2006 letter (wherein he offered to withdraw all
previously offered frivolous arguments), he raised non-frivolous arguments and so
was entitled to a face-to-face hearing.
The statute provides that if a “person requests a hearing in writing . . . and
states the grounds for the requested hearing, such hearing shall be held by the
Internal Revenue Service Office of Appeals.” I.R.C. § 6330(b)(1). The statute
does not specify that the hearing will take place in person, or that a taxpayer is
guaranteed a right to a face-to-face hearing. Nor has Sanford stated any reasons
why a telephone conference would have been insufficient to explore any objections
to the proposed levy. Other courts to address this issue have similarly found that a
face-to-face hearing is unnecessary. See e.g., O’Meara v. Waters, 464 F.Supp.2d
474, 479-480 (D. Md. 2006). Additionally, the applicable regulations specifically
state that these hearings are “informal in nature and do not require . . . a
face-to-face meeting. A CDP hearing may, but is not required to, consist of a
face-to-face hearing.” 26 C.F.R. § 301.6330-1(d)(2)Q & A-D6 (2006). We
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therefore conclude that Sanford’s due process rights were not violated when the
IRS offered him a telephone hearing only, rather than a face-to-face hearing.
Was the Tax Court’s summary judgment order defective?
Sanford argues that the Tax Court’s summary judgment order was defective
for failing to include detailed conclusions of law and facts. Sanford also disputes
the Tax Court’s conclusion that he raised only frivolous arguments.
Although Sanford vaguely refers to “three other similar decisions” which he
feels establish that the Tax Court’s decision was unlawful, Sanford does not
provide the names or citations of these decisions. Sanford also fails to provide any
authority for his position that the Tax Court must include detailed conclusions of
law and facts. In our opinion, the Tax Court’s order was sufficiently clear and
complete. The court clearly stated that Sanford had raised only frivolous
arguments challenging the Commissioner’s authority to assess and collect the tax
he owed. The record supports this conclusion.
The statute provides that at a Collection Due Process Hearing the taxpayer
may raise “any relevant issue relating to the unpaid tax or the proposed levy,
including (i) appropriate spousal defenses; (ii) challenges to the appropriateness of
collection actions; and (iii) offers of collection alternatives.” I.R.C.
§ 6330(c)(2)(A). Additionally, the taxpayer may challenge the existence or
amount of the underlying tax liability, but only if the taxpayer did not receive a
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Notice of Deficiency. I.R.C. § 6330(c)(2)(B). Sanford never adequately raised
any of these issues, nor any other non-frivolous, non-groundless error that would
establish his entitlement to a hearing.
Sanford repeatedly demanded proof from the IRS that it had sent a Notice of
Deficiency, but in his many letters, pleadings to the Tax Court, or his briefs to this
court, Sanford never alleged that he had not received the notice. Nowhere does the
statute state that the IRS must produce proof that a Notice of Deficiency was sent.
Because he never argued that he did not receive the Notice of Deficiency, Sanford
could not have challenged the existence or amount of the tax liability. I.R.C.
§ 6330(c)(2)(B). In his October 2006 letter, Sanford stated that he would raise
“procedural errors” but never specified what these errors were. Under the statute,
the taxpayer must state the grounds for the requested hearing. I.R.C. § 6330(b)(1).
Thus, the alleged “procedural errors” did not constitute a non-frivolous issue
entitling Sanford to a face-to-face hearing. In the same letter, Sanford briefly
mentioned that he would discuss collection alternatives. The IRS has already
informed him that it would not discuss collection alternatives unless he filed his tax
returns for the 2004 and 2005 taxable years. Sanford does not dispute that he
failed to do so. Sanford never suggested that he would raise spousal defenses or
that a collection action would be inappropriate. Thus, Sanford raised no relevant
non-frivolous issues. See I.R.C. § 6330(c)(4)(ii)(B) (stating that an issue may not
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be raised at a Collection Due Process Hearing if it is based on a frivolous position
or reflects a desire to delay or impede the administration of Federal tax laws).
Sanford has failed to identify arguments that are non-frivolous. Instead, he
has only vaguely asserted that he would have raised non-frivolous arguments had
he been granted a face-to-face hearing. Because he has not identified any
legitimate arguments relating to the Notice of Determination, we affirm the Tax
Court’s summary judgment order.
Should the Tax Court Have Granted Sanford’s Motion to Supplement His Petition?
We agree with the Tax Court that Sanford’s supplement petition raised no
new arguments and that allowing the petition to be filed therefore would have been
futile. His supplemental petition did discuss specific facts, but failed to raise any
new arguments challenging the Notice of Determination. Sanford merely
reasserted that he had been unfairly denied a face-to-face hearing. As discussed
above, Sanford was not entitled to a face-to-face hearing. It was not, therefore,
error for the Tax Court to deny Sanford’s motion to supplement his petition.
Was the Imposed Sanction Appropriate?
Sanford argues only briefly that the sanction was inappropriate because the
Tax Court issued a penalty “without any explanation whatsoever.”
The Tax Court stated that it imposed a $2,500 penalty “under the provisions
of section 6673(a). Section 6673(a) states that the Tax Court may impose
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sanctions on a taxpayer, if he institutes or maintains proceedings primarily for
delay or if his position is frivolous or groundless. 26 U.S.C. § 6673(a)(1)(A)-(B);
see also Roberts, 329 F.3d at 1229.
As discussed above, we agree that Sanford’s positions were frivolous and
groundless. Furthermore, a number of positions taken by Sanford suggest that his
actions were motivated primarily to avoid or delay his tax liability. In his
correspondence with the IRS, he demanded significant amounts of notice before he
would accept a scheduled hearing. Sanford never stated his precise complaints or
arguments against the Notice of Determination. Sanford demanded proof that the
IRS had sent a Notice of Deficiency, but never alleged that he had not received it.
Sanford did not call the IRS Settlement Officer at the appointed time on September
12, 2006—not even to discuss his demand for a face-to-face hearing. His actions
thus seem to consist more of delay tactics than attempts to raise actual issues. The
Tax Court, therefore, did not abuse its discretion by imposing sanctions.
CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the Tax Court.
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