T.C. Memo. 2013-73
UNITED STATES TAX COURT
THOMAS EUGENE SATKIEWICZ AND MARLENE KAY SATKIEWICZ,
Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 27857-11L. Filed March 12, 2013.
Thomas Eugene Satkiewicz and Marlene Kay Satkiewicz, pro sese.
Rebecca M. Clark, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before us on respondent’s motion for
summary judgment (respondent’s motion). We shall grant respondent’s motion.
Background
The record establishes and/or the parties do not dispute the following.
Petitioners resided in Michigan at the time they filed the petition.
-2-
[*2] Petitioners filed a Federal income tax (tax) return for each of their taxable
years 2003, 2004, 2005, 2006, and 2010. Petitioners did not pay any tax shown
due in each of those returns.
After correcting certain mathematical errors, as defined in section
6213(g)(2),1 that required the recalculation of the total tax and tax due for certain
of petitioners’ taxable years in question, respondent assessed on various dates tax
and certain additions to tax, as well as interest as provided by law as of the
respective dates of assessment, for petitioners’ taxable years 2003, 2004, 2005,
2006, and 2010. (We shall refer to the respective amounts of tax, additions to tax,
and interest that respondent assessed for each of petitioners’ taxable years 2003,
2004, 2005, 2006, and 2010, as well as interest as provided by law accrued after
the respective dates of assessment, as petitioners’ unpaid liabilities at issue.)
On various dates, respondent issued to petitioners notices of balance due
with respect to petitioners’ unpaid liabilities at issue.
On July 28, 2011, respondent issued to each petitioner a notice of Federal
tax lien filing and your right to a hearing under IRC 6320 (notice of tax lien) with
respect to petitioners’ unpaid liabilities at issue.
1
All section references are to the Internal Revenue Code in effect at all
relevant times. All Rule references are to the Tax Court Rules of Practice and
Procedure.
-3-
[*3] Petitioners timely filed with respondent Form 12153, Request for a Collection
Due Process or Equivalent Hearing (petitioners’ Form 12153), and requested a
hearing with respondent’s Appeals Office (Appeals Office). In that form,
petitioners indicated their disagreement with the notice of tax lien and claimed that
they were unable to pay petitioners’ unpaid liabilities at issue. Petitioners requested
in petitioners’ Form 12153 that respondent “discharge” the lien.2 In support of their
request, petitioners stated in pertinent part in an attachment to that form:
In November, 1992, I was downsized/rightsized from a job at
Ameritech which I started on January 12, 1970. I was fired because of
my age. I filed an Age Discrimination in Employment complaint with
the Detroit Office of the Equal Employment Opportunity Commission
(EEOC). The EEOC could not find age discrimination. The EEOC
was given a video tape of the vice-president of Human Resources at
Ameritech who stated on the video that the Downsizing/Rightsizing
Action was done to remove the older workers and make room to hire
younger workers.
Since 1966 to 2002, I paid my taxes. In 2002, I could no longer pay
my taxes. It was better to feed, clothed, [sic] and provide shelter for
my family, then [sic] pay my taxes. Since the Federal Government
refused to protect me, which is a violation of the Implied Equal
Protection of the Law Clause in the 5TH Amendment to the U.S.
Constitution. In 1879, the U.S. Supreme Court, because of the Equal
Protection Clause, ruled that the Government cannot enforce a law to
my detriment, if the Government refuses to enforce a law to my
2
In petitioners’ Form 12153, petitioners did not request as a collection alter-
native an installment agreement or an offer-in-compromise.
-4-
[*4] benefit, and if this act by the Government causes me to violate
the law, I can be held responsible for violating the law.
Now I am not refusing to pay taxes, but I cannot pay taxes, if I don’t
have a job. I cannot gain employment, if the EEOC doesn’t enforce
the Age Discrimination in Employment Act of 1967. Also since we
have 12-20 Million Illegal Immigrants in U.S.A. the Federal
Government is not protecting me, since the Federal Government is not
enforcing our Immigration Laws.
You may claim that enforcement of the Age Discrimination in
Employment Act of 1967 and Immigration Laws are not your
responsibility, but you are wrong. The IRS, EEOC, and Homeland
Security are all one government (U.S.A.). One Government means that
the IRS can’t treat citizens differently than the EEOC or Homeland
Security treats citizens.
On November 15, 2011, a settlement officer with respondent’s Appeals
Office held a telephonic hearing (November 15, 2011 hearing) with petitioners.3
During that hearing, petitioners advanced the following arguments: (1) the filing
of the notice of tax lien violated the due process clause of the Fifth Amendment to
the U.S. Constitution (Constitution) because that notice was filed before petitioners’
hearing under section 6320(b) was held; (2) petitioners were not treated fairly
under the equal protection clause of the Fourteenth Amendment to the Constitution
because, according to them, the Government is prohibited from enforcing a law
to petitioners’ detriment where the Government refuses to enforce a law to
3
Petitioners did not request a face-to-face hearing.
-5-
[*5] their benefit; and (3) the Department of Homeland Security is not protecting
petitioners because it allows undocumented workers to work in the United States
but the Internal Revenue Service is not attempting to require those undocumented
workers to file tax returns and pay tax.
During the November 15, 2011 hearing, the settlement officer informed
petitioners that all procedural and legal requirements had been satisfied before the
filing of the notice of tax lien. The settlement officer also advised petitioners that
they had been placed in a status known as currently not collectible and that therefore
the notice of tax lien was appropriate.
On November 22, 2011, the Appeals Office issued to each petitioner a notice
of determination concerning collection action(s) under section 6320 and/or 6330
(collectively, notices of determination) with respect to petitioners’ unpaid liabilities
at issue. Those notices stated in pertinent part: “The determination of Appeals is
that the filed Notice of Federal Tax Lien is sustained.”
The notices of determination included an attachment that stated in pertinent
part:
SUMMARY AND RECOMMENDATION
You filed a request for a Collection Due Process hearing under
Internal Revenue Code § 6320. * * *
-6-
[*6] Your hearing request listed I cannot pay balance as a collection
alternative. Based on a review of the administrative case file, it is
Appeals position that the lien filing was proper. It is our determination
that the lien filing be sustained.
BRIEF BACKGROUND
The liabilities for tax periods 2003, 2004, 2005, 2006 and 2010 are
based on self assessed tax returns.
In the Settlement Officer’s letter dated October 20, 2011, a telephone
conference was scheduled for November 15, 2011 at 2:00pm EST. In
that letter, you were offered an opportunity to request a face-to-face
conference but no request was made.
During the scheduled telephone conference, the Settlement Officer
advised you that her research indicates that all legal and procedural
requirements were met prior to the filing of the Notice of Federal Tax
Lien and that it was also appropriate because it was filed as a result of
your account being placed in currently not collectible status. You
disagreed with the filing of the Notice of Federal Tax Lien based on the
following issues:
• It was a violation of the 5th amendment due process
clause because it was filed prior to the hearing.
• You were not treated fairly under the Equal Protection
Clause, which states the government cannot enforce a law
to his detriment if the government refuses to enforce a law
to his benefit.
• Homeland Security is not protecting him because they are
allowing undocumented workers to take jobs and that the
IRS is not going after these undocumented workers to file
and pay taxes.
The Settlement Officer explained that the issues you raised do not have
an impact on the filing of the Notice of Federal Tax Lien so she will
proceed with the issuance of the determination letter.
-7-
[*7] * * * * * * *
Issues raised by the taxpayer
The reasons given for requesting the hearing is that he lost his job in
1992 due to age discrimination and filed an age discrimination
compliant [sic] with the Equal Employment Opportunity Commission
that was denied. In 2002, he was unable to pay his taxes and provide
for his family. Now he is not refusing to pay but can’t because he is
unemployed and can’t find a job.
Collection Alternatives Offered by Taxpayer
You requested the collection alternative of I cannot pay balance. Your
account was placed in currently not collectible status on June 10, 2011.
Challenges to the Existence of Amount of Liability
You did not dispute your liability.
Although the NFTL cannot be withdrawn because the assessments are
valid, I considered whether any of the criteria for allowing withdrawal
of the lien existed in your case.
IRS § 6323(j) allows the withdrawal of a filed notice of lien without
full payment and without prejudice under the following conditions:
• The filing of the notice of lien was premature or otherwise
not in accordance with administrative procedures of the
Internal Revenue Service:
• The taxpayer had entered into an installment agreement
under IRC § 6159 to satisfy the tax liability for which the
lien was imposed by means of installment payments, unless
such agreement provides otherwise:
• Withdrawal of the lien will facilitate collection of the tax
liability : or
• With the consent of the taxpayer or the National Tax-
payer Advocate (NTA), the withdrawal of such notice
-8-
[*8] would be in the best interest of the taxpayer (determined
by the NTA of the taxpayer) and the United States.
There is nothing else in the Collection administrative file that indicates
withdrawal of the filed lien should be considered and you have provided
no additional information that indicates the withdrawal of the filed lien
should be considered.
Balancing of need for efficient collection with taxpayer concern
that the collection action be no more intrusive than necessary.
The Notice of Federal Tax Lien (NFTL) is necessary to protect the
government’s interest in your assets even if you encumber or sell them.
Per IRC §6330(c)(3)(C), the NFTL balances the need for the efficient
collection of taxes with the legitimate concern of the person that any
collection action be no more intrusive than necessary.
The filing of the Notice of Federal Tax Lien is sustained.
In the petition commencing this case, petitioners alleged in pertinent part:
The IRS put a lien on our home, before the Due Process hearing, which
is a violation of our right to due process
The hearing officer represented the IRS and was the judge, so the
hearing officer was not impartial
The hearing officer was not licensed to practice law, so didnot
understand the U.S. Constitution and 5TH Amendment
The IRS is treating me differently, then the EEOC treats employers who
violate Age Discrimination in Employment Act
The IRS has violated the Age Discrimination in Employment Act, when
the IRS failed to hire me.
The IRS fails to file liens against undocumented workers who don’t file
U.S. Income Tax.
Home Land Security fails to deport illegal aliens, because the illegal
aliens have not committed any crimes.
* * * * * * *
-9-
[*9] The 5TH Amendments Due Process Clause
The 5TH Amendments Equal Protection Clause
Right to a fair and impartial judge [Reproduced literally.]
In an attachment to the petition, petitioners alleged:
The U.S. Government has violated my 5TH Amendment rights to Due
Process and Equal Protection of Law. While the 5TH Amendment
doesn’t have an Equal Protection of Law clause, like the 14TH
Amendment does, in 1954 Case of Bolling vs. Sharpe, Chief Justice Earl
Warren placed the Equal Protection of Law clause in the 5TH
Amendment’s Due Process clause. Procedural Due Process requires that
each side is able to fully present his side of things, whether that is a
complaint or a defense, or any other relevant information. The sides
must also be able to present their information in front of an impartial
judge or jury who will listen fairly to each side. Equal Protection of Law
provides the right of all persons to have the same access to the Law and
Courts, and to be treated equally by the Law and Courts, both in
procedures and in substance of the Law. It is akin to the right to Due
Process of Law, but in particular applies to equal treatment as an
element of fundamental fairness.
In July, 2011, the Internal Revenue Service (IRS) wanted to place a lien
on my home for back Income Taxes, so in July, 2011, I asked the IRS
for a Due Process hearing. In July, 2011, the IRS placed a lien on my
home. On Tuesday (November 15, 2011) I had my Due Process hearing,
and this is 4 months after the IRS placed a lien on my home. The
hearing officer was Dawn Attivissimo who is not licensed to practices
law and doesn’t have any training in law. Also Ms. Attivissimo is
employed by the IRS and represented the IRS in the Due Process
hearing.
The Due Process hearing was not timely, fair, and impartial. The Due
Process hearing was not timely, because it was held 4 months after the
IRS placed a lien on my home. The Due Process hearing was not fair,
because Ms. Attivissimo was both the IRS and the Judge. Ms.
Attivissimo refused to discuss the Law, because as Ms. Attivissimo
- 10 -
[*10] stated that it was not the purpose of this Due Process hearing, and
also, Ms. Attivissimo stated that the U.S. Constitution and the 5TH
Amendment was not relevant to my case. The Due Process hearing was
not impartial, because Ms. Attivissimo started the Due Process hearing
by stating that she (Ms. Attivissimo) read the file and she (Ms.
Attivissimo) could not find that the IRS did anything wrong.
The 5TH Amendment to the U.S. Constitution guarantees me Equal
Protection of Law. Equal Protection of Law means that the U.S.
Government must enforce all Laws equally. As a victim of a crime (Age
Discrimination in Employment) am I not entitled to protection of Law as
are victims of others crimes? Should not the Equal Employment
Opportunity Commission (EEOC) fully and properly investigate claims
of Age Discrimination in Employment, as fully and properly as the IRS
investigates citizens who violate the Tax Codes?
Why is the U.S. Goverment enforcing the Tax Codes against me when
the U.S. Government fails to enforce U.S. Laws that would help me pay
my U.S. taxes? Why is the U.S. Government treating me differently
when I fail to pay my U.S. Income Taxes, than when I am a victim of a
crime (Age Discrimination in Employment)? The reason that I failed to
pay my taxes, is that my family and I are on welfare. The reason that my
family and I are on welfare, is the EEOC failure to enforce the Age
Discrimination in Employment Act of 1967. I am not opposed to paying
taxes, because I paid my taxes for 41 years out of 45 years. The first
order of business for government is to protect its citizens, but when I
needed the U.S. Government’s protection, the U.S. Government failed
me.
The EEOC fails to enforce the Age Discrimination in Employment Act
of 1967. I have not seen where the EEOC has promoted the hiring of
older workers as stated in SEC. 621 [Section 2] paragraph b of the Age
Discrimination in Employment Act of 1967 as stated below;
- 11 -
[*11] SEC 621 [Section 2]
(a) The Congress hereby finds and declares that
(1) In the face of rising productivity and affluence older
workers find themselves disadvantaged in their
efforts to retain employment and especially to regain
employment when displaced from jobs.
(2) The setting of arbitrary age limits regardless of
potential for job performance has become a common
practice, and certain otherwise practices may work to
the disadvange of older persons.
(3) The incidence of unemployment especially long-term
unemployment with resultant deterioration of skills,
morale, and employer acceptability is, relative to the
younger ages, high among older workers, their
numbers are great and growing, and their
employment problems grave.
(4) The existence in industries affecting commerce of
arbitrary discriminaton in employment because of
age, burdens commerce and the free flow of goods
in commerce.
(b) It is therefore the purpose of this chapter to promote
employment of older persons based on their ability rather
than age, to prohibit arbitrary age discrimination in
employment; to help employers and workers find ways of
meeting problems arising from the impact of age on
employment
An EEOC investigation of Age Discrimination in Employment consist
of the EEOC sending the complaint to the employer, then the employer
responds by stating that the employer could not have age discriminated,
because the employer has a policy against age discrimination in
employment. The EEOC will close the case, because the employer has
a policy against Age Discrimination in Employment. The Customs
Border Protection (CBP) has failed to protect the U.S. borders from
illegal entry. If the Customs Border Protection had protected the U. S.
borders, there would not be 12 million illegal aliens in my country.
- 12 -
[*12] The Immigration Customs and Enforcement has failed to enforce
the U.S. Immigration Laws. If the Immigration Customs and
Enforcement had enforced U.S. Immigration Laws, then there would
not be 12 million illegal aliens working in my country. The
Immigration Customs and Enforcement (ICE) will start to release
illegal aliens who have not committed a violent crime, plus ICE will
give the illegal alien a work permit. A job that I could do, but an
illegal alien will have. The Department of Justice (DOJ) is suing
several states (Alabama, Arizona, and Utah), because these states
passed immigration laws. Had the CBP and ICE done the job (that they
are paid to do) of keeping the illegal aliens out of my country, then
these states would not have passed immigration laws. DOJ is wasting
my tax dollars suing states for doing the U.S. Government’s job. The
IRS fails to enforce the U.S. Tax Codes against the undocumented
workers (illegal aliens) or place a lien on the undocumented workers
property for not paying back taxes. How would an undocumented
worker pay taxes without documents (Social Security Number)? Also
the IRS has violated the Age Discrimination in Employment Act of
1967 by refusing to hire me because of my age. A position that I have
over 40 years of experience doing, and a Master Degree in
Management and Supervision with a Bachelor Degree in Electrical
Engineer. I wasn’t even given an interview.
The 5TH Amendment doesn’t have an Equal Protection of Law clause,
but Chief Justice Earl Warren in a 1954 Case (Bolling vs. Sharpe 347
U.S. 497) placed it in the 5TH Amendment. The U.S. Supreme Court
averred that it was absurd that the Constitution could deny the states the
power to abridge equal protection of Laws, yet permit that power to the
congress. “[T]he concepts of equal protection and due process, both
stemming from our American ideal of fairness, are not mutually
exclusive,” reasoned Chief Justice Earl Warren. The Court thus
interpreted the 5TH Amendment’s due process clause to include an equal
protection element but has continued to hold that there is a difference
between due process and equal protection in its 14TH Amendment
jurisprudence.
- 13 -
[*13] The U.S. Supreme Court has held that a government (U.S. or State)
cannot treat Citizens differently, because we are all Citizens. This can be
seen in the following cases; Strauder vs. West Virginia 1880, Yick Wo vs.
Hopkins 1886, Brown vs. Board of Education 1954, Hernandez vs. Texas
1954, Reynolds vs. Sims 1964, and Wesberry vs. Sanders 1964. The U.S
Government is treating me (U.S. Citizen) differently as a victim of crime
(Age Discrimination in Employment), then the U.S. Government treat
victims of other crimes. [Reproduced literally.]
In an Order dated October 15, 2012 (October 15, 2012 Order), we ordered
petitioners to file a response to respondent’s motion.4 In that Order, we also
indicated that our review of the record suggested that petitioners may intend to
advance in this case certain frivolous and/or groundless statements, contentions,
arguments and/or questions. In the October 15, 2012 Order, we reminded petitioners
about section 6673(a)(1) and admonished them that if they (1) advanced frivolous
and/or groundless statements, contentions, arguments and/or questions and/or (2)
instituted or maintained this proceeding primarily for delay, we would impose on
them a penalty under section 6673(a)(1) in an amount not exceeding $25,000.
4
Petitioners filed a response to respondent’s motion before they received our
Order dated November 15, 2012, ordering (1) respondent to file a supplement to
respondent’s motion and (2) petitioners to file after respondent filed that supplement
a response to respondent’s motion as supplemented. As a result, petitioners filed a
response to respondent’s motion and a response to respondent’s motion as
supplemented.
- 14 -
[*14] About six weeks before the parties were required to file pretrial memoranda,
petitioners filed their pretrial memorandum. In that pretrial memorandum, petitioners
advanced essentially the same statements, contentions, arguments, and/or questions
that they advanced in the petition and the attachment to the petition and that they
advanced to the settlement officer during the November 15, 2011 hearing.
Discussion
The Court may grant summary judgment where there is no genuine dispute of
material fact and a decision may be rendered as a matter of law. Rule 121(b);
Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th
Cir. 1994). We conclude that there is no genuine dispute as to any material
fact regarding the questions raised in respondent’s motion.
Where, as is the case here, the validity of the underlying tax liability is not
properly placed at issue, the Court will review the determination of the Commissioner
of Internal Revenue for abuse of discretion. Sego v. Commissioner, 114 T.C. 604,
610 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000).
In both their response to respondent’s motion and their response to respon-
dent’s motion as supplemented, petitioners advance, albeit in a summary fashion,
essentially the same statements, contentions, arguments, and/or questions that they
- 15 -
[*15] advanced in the petition and the attachment to the petition. Those statements,
contentions, arguments, and/or questions are also essentially the same as what they
made to the settlement officer during the November 15, 2011 hearing.
Based upon our examination of the entire record before us, we find that
respondent did not abuse respondent’s discretion in making the determinations in the
notices of determination with respect to petitioners’ unpaid liabilities at issue.
We consider sua sponte whether to impose on petitioners a penalty under
section 6673(a)(1). Section 6673(a)(1) authorizes us to require a taxpayer to pay to
the United States a penalty in an amount not to exceed $25,000 whenever it appears
to the Court, inter alia, that the taxpayer’s position in a proceeding before us is
frivolous or groundless. Sec. 6673(a)(1)(B).
Despite the admonition in our October 15, 2012 Order regarding section
6673(a)(1), petitioners persisted in advancing a position in this case that we find to be
frivolous and/or groundless. Nonetheless, we shall not impose a penalty under
section 6673(a)(1) on petitioners. We caution them that they may be subject to such a
penalty if in the future they institute or maintain a proceeding in this Court primarily
for delay and/or their position in any such proceeding is frivolous or groundless. See
Abrams v. Commissioner, 82 T.C. 403, 409-413 (1984); White v. Commissioner, 72
T.C. 1126, 1135-1136 (1979).
- 16 -
[*16] We have considered any of petitioners’ contentions and arguments that are not
discussed herein and that we do not find to be frivolous and/or groundless, and we
find them to be without merit, irrelevant, and/or moot.
On the record before us, we shall grant respondent’s motion.
To reflect the foregoing,
An order granting respondent’s motion
and decision for respondent will be entered.