Snyder v. Comm'r

MEMORANDUM OPINION

CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment (respondent's motion). ¹ We shall grant respondent's motion. ²

Background

The record establishes and/or the parties*91 do not dispute the following.

At the time he filed the petition in this case, petitioner's mailing address was in Lancaster, Ohio.

On or about November 7, 1997, petitioner filed a Federal income tax (tax) return for his taxable year 1994 (1994 return). In his 1994 return, petitioner reported, inter alia, taxable income of $ 3,823 and tax of $ 574. Petitioner did not remit any payment with that return.

On December 29, 1997, respondent assessed petitioner's tax as reported in his return, as well as additions to tax under section 6651(a)(1)³ and (2), and interest as provided by law for his taxable year 1994. (We shall refer to any such unpaid assessed amounts, as well as interest as provided by law accrued after December 29, 1997, as petitioner's unpaid liability for 1994.)

On December 29, 1997, respondent issued to petitioner a notice of balance*92 due with respect to petitioner's unpaid liability for 1994.

On or about August 21, 1997, petitioner filed a tax return for his taxable year 1996 (1996 return). In his 1996 return, petitioner reported, inter alia, taxable income of $ 26,117 and tax of $ 4,195. Petitioner did not remit any payment with that return.

On September 22, 1997, respondent assessed petitioner's tax as reported in his return, as well as additions to tax under sections 6651(a)(1) and (2) and 6654(a), and interest as provided by law for his taxable year 1996. (We shall refer to any such unpaid assessed amounts, as well as interest as provided by law accrued after September 22, 1997, as petitioner's unpaid liability for 1996.)

On May 5, 2003, respondent issued to petitioner a notice of balance due with respect to petitioner's unpaid liability for 1996. On June 9, 2003, respondent issued to petitioner another notice of balance due with respect to such unpaid liability.

Petitioner filed a tax return for his taxable year 1998 (1998 return). ⁴ On June 22, 2001, respondent prepared a substitute for return for that taxable year.

*93 On or about September 7, 2000, petitioner filed a tax return for his taxable year 1999 (1999 return). In his 1999 return, petitioner reported taxable income of $ 0 and tax of $ 0. Petitioner remitted a $ 3 payment with that return.

On October 9, 2001, respondent issued to petitioner a notice of deficiency with respect to his taxable years 1998 and 1999, which he received. In that notice, respondent determined deficiencies in, additions to, and an accuracy-related penalty on petitioner's tax, as follows:

                           Accuracy-Related

              Additions to Tax        Penalty

           ______________________________  ________________

Year   Deficiency  Sec. 6651(a)(1)  Sec. 6654(a)   Sec. 6662(a)____   __________   _______________   ____________   ____________

1998    $ 8,080      $ 423.50      $ 45.03       --

1999    11,766       687.25       --      $ 549.80

Petitioner did not file a petition with the Court with respect to the notice of deficiency relating to his*94 taxable years 1998 and 1999. Instead, on December 17, 2001, in response to that notice, petitioner sent a letter to Charles O. Rossotti, who was at the time the Commissioner of the Internal Revenue. That letter stated in pertinent part:

   As the new Commissioner of Internal Revenue and one who is not a

   lawyer, you might still be shocked to discover that the payment

   of income tax is totally voluntary, and not mandatory --as you

   were probably misled to believe while employed in the private

   sector. If you don't believe me, ask your legal counsel to show

   you a Code Section that established a "liability" for income

   taxes and a requirement "to pay" such a tax * * *.

*   *   *   *   *   *   *

   In accordance with the above, I am bringing to your attention a

   Deficiency Notice that I received from one of your underlings,

   and my response to it. David C. Gardin, Technical Support

   Manager (area 6), seems poised to break the law (and a number of

   constitutional prohibitions) by attempting to intimadate [sic]

   me into paying a tax that no law requires me to pay. * * *

On February 18, 2002, respondent*95 assessed petitioner's tax and additions to tax as determined in the notice of deficiency, as well as interest as provided by law, for his taxable year 1998. On the same date, respondent assessed petitioner's tax and an addition to tax and an accuracy-related penalty as determined in the notice of deficiency, as well as interest as provided by law, for his taxable year 1999. (We shall refer to any such unpaid assessed amounts for petitioner's taxable years 1998 and 1999, as well as interest as provided by law accrued after February 18, 2002, as petitioner's respective unpaid liabilities for 1998 and 1999.)

On February 18, 2002, respondent issued to petitioner a notice of balance due with respect to petitioner's respective unpaid liabilities for 1998 and 1999. On May 5, 2003, respondent issued to petitioner a second notice of balance due with respect to such respective unpaid liabilities. On June 9, 2003, respondent issued to petitioner a third notice of balance due with respect to petitioner's respective unpaid liabilities for 1998 and 1999.

On May 29, 2002, respondent issued to petitioner a final notice of intent to levy and notice of your right to a hearing (notice of intent to*96 levy) with respect to his taxable years 1991, 1994, 1996, 1998, and 1999. On May 31, 2002, respondent issued to petitioner a notice of Federal tax lien filing and your right to a hearing (notice of tax lien) with respect to those same taxable years.

On or about June 27, 2002, in response to the notice of intent to levy and the notice of tax lien, petitioner mailed Form 12153, Request for a Collection Due Process Hearing (Form 12153), and requested a hearing with respondent's Appeals Office (Appeals Office). The Internal Revenue Service (IRS) received that form on July 1, 2002. Petitioner attached a document to his Form 12153 (petitioner's attachment to Form 12153) that contained statements, contentions, arguments, and requests that the Court finds to be frivolous and/or groundless. ⁵

*97 The Appeals Office determined that petitioner's Form 12153 was timely filed with respect to the notice of tax lien but was not timely filed with respect to the notice of intent to levy. ⁶

On January 16, 2003, a settlement officer with respondent's Appeals Office (settlement officer) held one hearing with petitioner that the settlement officer considered to be both an Appeals Office hearing with respect to the notice of tax lien and an equivalent hearing with respect to the notice of intent to levy. During that hearing, the settlement officer relied on a transcript of petitioner's account with respect to each of his taxable years 1991, 1994, 1996, 1998, and 1999.

On March 25, 2003, the Appeals Office issued to petitioner a notice of determination concerning collection action(s) under section 6320 (notice of determination) in which that office sustained the notice of*98 tax lien. An attachment to the notice of determination stated in pertinent part:

BRIEF BACKGROUND

   The taxpayer filed voluntary income tax returns for 1991, 1994,

   1996. The Collection Statute has since expired on the 1991 tax

   liability. The taxpayer filed frivolous returns for 1997, 1998    and 1999. Frivolous return penalties were assessed for each of

   these three years. The taxpayer has filed no income tax returns

   since 1999 even though income information reported to the

   Internal Revenue Service indicates that he would have a filing

   requirement.

           *   *   *   *   *   *   *

   I. Verification of Legal and Procedural Requirements

   The required notice and demand was sent for each period on the

   same date as the assessment.

           *   *   *   *   *   *   *

   With the best information available including computer records

   and the administrative file it has been determined that all

   applicable legal and administrative requirements have been met.

   This*99 settlement officer has had no known previous dealings with

   this taxpayer for the tax liability for the periods listed

   above.

           *   *   *   *   *   *   *

   II. Issues Raised by the Taxpayer

   The taxpayer had an earlier opportunity to raise issues

   concerning the underlying tax liability for the 1998 and 1999

   tax liability. A Statutory Notice of Deficiency (SND) was issued

   for these assessments. It is known that the taxpayer received a

   copy of this notice because he provided a copy of it with his

   appeal request. The tax liability on earlier periods [including

   1994 and 1996] is based upon voluntarily filed tax returns.

   The taxpayer has not filed delinquent returns for 2000 and 2001.

   This precluded discussion of collection alternatives.

           *   *   *   *   *   *   *

   The taxpayer did not raise any relevant issues to challenge the

   appropriateness of the NFTL and none of the conditions for

   considering withdraw [sic] of the NFTL exist in this case.

   The taxpayer has*100 raised only frivolous arguments. During the

   hearing, the taxpayer was unwilling to discuss the legitimate

   issues.

   The taxpayer did not raise any other relevant issues.

   III. Balancing the Need for Efficient Collection with the

   Taxpayer's Concern that the Collection Action be no More

   Intrusive than Necessary

   Has efficient tax collection been balanced with concern

   regarding intrusiveness of the proposed collection action?

  IRC section 6330 requires that the Settlement Officer consider

   whether any collection action balances the need for efficient

   collection of taxes with the taxpayer's legitimate concern that

   any collection action be no more intrusive than necessary.

   The taxpayer has not participated meaningfully in trying to

   resolve his tax liability and has insisted instead on using

   frivolous arguments, which have repeatedly been dismissed by the

   courts.

   Appeals sustains Collection's decision to file the NFTL.

On March 25, 2003, respondent issued to petitioner a decision letter concerning equivalent hearing*101 under section 6330 (decision letter) with respect to the notice of intent to levy. That letter stated in pertinent part:

   We have reviewed the proposed collection action for the

   period(s) shown above [including 1994, 1996, 1998, and 1999].

   This letter is our decision on your case. A summary of our

   decision is stated below and the enclosed statement shows, in

   detail, the matters we considered at your Appeals hearing and

   our conclusions.

   Your due process hearing request was not timely filed within the

   time prescribed under Section 6330. However, you received a

   hearing equivalent to a due process hearing except that there is

   no right to dispute a decision by the Appeals Office in court

   under IRC section 6330.

A statement attached to the decision letter provided in pertinent part:

BRIEF BACKGROUND

   The taxpayer filed voluntary income tax returns for 1991, 1994,

   1996. The Collection Statute has since expired on the 1991 tax

   liability. The taxpayer filed frivolous returns for 1997, 1998

and 1999. Frivolous return penalties were assessed*102 for each of

   these three years. The taxpayer has filed no income tax returns

   since 1999 even though income information reported to the

   Internal Revenue Service indicates that he would have a filing

   requirement.

           *   *   *   *   *   *   *

   I. Verification of Legal and Procedural

   Requirements

   The required notice and demand was sent for each period on the

   same date as the assessment.

           *   *   *   *   *   *   *

   With the best information available including computer records

   and the administrative file it has been determined that all

   applicable legal and administrative requirements have been met.

   This settlement officer has had no known previous dealings with

   this taxpayer for the tax liability for the periods listed

   above.

   II. Issues Raised by the Taxpayer

   The taxpayer had an earlier opportunity to raise issues

   concerning the underlying tax liability for the 1998 and 1999

   tax liability. A Statutory Notice of Deficiency (SND) was issued

 *103   for these assessments. It is known that the taxpayer received a

   copy of this notice because he provided a copy of it with his

   appeal request. The tax liability on earlier periods [including

   1994 and 1996] is based upon voluntarily filed tax returns.

   The taxpayer was given an opportunity to raise the issue of the

   underlying tax liability with regards to the Frivolous Income

   Tax Return Civil Penalty under IRC section 6702 for the tax

   periods listed above. The taxpayer did not present any relevant,

   non-frivolous documentation to challenge the liability.

   The taxpayer has not filed delinquent returns for 2000 and 2001.

   This precluded discussion of collection alternatives.

   The taxpayer has raised only frivolous arguments. During the

   hearing, the taxpayer was unwilling to discuss the legitimate

   issues.

   The taxpayer did not raise any other relevant issues.

   III. Balancing the Need for Efficient Collection with the

   Taxpayer's Concern that the Collection Action be no More

   Intrusive than Necessary

   Has*104 efficient tax collection been balanced with concern

   regarding intrusiveness of the proposed collection action?

  IRC section 6330 requires that the Settlement Officer consider

   whether any collection action balances the need for efficient

   collection of taxes with the taxpayer's legitimate concern that

   any collection action be no more intrusive than necessary.

   The taxpayer has not participated meaningfully in trying to

   resolve his tax liability and has insisted instead on using

   frivolous arguments, which have repeatedly been dismissed by the

   courts.

   Appeals sustains Collection's decision to issue a levy as its

   next collection tool for resolving the taxpayer's tax account.

   Summary of Decision

   Appeals sustains Collection's decision to levy to collect the

   balance due on the taxpayer's account. The taxpayer is not in

   compliance with filing requirements for individual income tax

   returns. The taxpayer raised no relevant issues with regards to

   collection alternatives.

On April 28, 2003, petitioner filed a petition with*105 the Court in response to the notice of determination and the decision letter. Except for an argument under section 7521(a)(1), the petition and a supplement attached to the petition that we consider to be part of the petition contain statements, contentions, arguments, and requests that the Court finds to be frivolous and/or groundless. ⁷ With respect to section 7521(a)(1), petitioner alleges in the supplement attached to the petition that the Appeals Office refused to allow him to make an audio recording of the hearing held with that office on January 16, 2003, and that that refusal was improper under that section.

*106 Discussion

The Court may grant summary judgment where there is no genuine issue 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), affd. 17 F.3d 965 (7th Cir. 1994). We conclude that there are no genuine issues of material fact regarding the questions raised in respondent's motion.

We turn first to whether the Court's jurisdiction is invoked with respect to the decision letter that the Appeals Office issued to petitioner with respect to the notice of intent to levy. Respondent acknowledges that petitioner's Form 12153 was timely filed with the IRS with respect to the notice of intent to levy. Respondent concedes that the decision letter that the Appeals Office issued to petitioner with respect to that notice constitutes a "determination" for purposes of section 6330(d)(1). We agree with respondent's concession. Craig v. Comm'r, 119 T.C. 252, 259 (2002). We conclude that the determination reflected in the decision letter coupled with petitioner's timely filed petition with the Court with respect to, inter alia, that determination invokes the Court's*107 jurisdiction under section 6330(d)(1). Moorhous v. Comm'r, 116 T.C. 263, 269 (2001).

We turn now to the determinations with respect to the notice of tax lien and the notice of intent to levy relating to petitioner's taxable years 1994, 1996, 1998, and 1999. A taxpayer may raise challenges to the existence or the amount of the taxpayer's underlying liability if the taxpayer did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). Where the validity of the underlying tax liability is properly placed at issue, the Court will review the matter on a de novo basis. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

With respect to petitioner's taxable years 1994 and 1996, respondent based the assessment with respect to each of those years on the tax shown in petitioner's return for each such year. At the hearing held by the Appeals Office, petitioner did not raise any relevant issues challenging the appropriateness of the notice of tax lien or the notice of intent to levy relating to his taxable years 1994, 1996, 1998, and*108 1999. In the notice of determination and the decision letter, the Appeals Office concluded that the petitioner advanced only frivolous arguments at that hearing. Petitioner does not claim here that the amount of tax reported in his return for each of his taxable years 1994 and 1996 is not correct. Instead, he advances statements, contentions, arguments, and requests in his petition and the supplement to that petition that we have found to be frivolous and/or groundless.

With respect to petitioner's taxable years 1998 and 1999, respondent issued, and petitioner received, a notice of deficiency for those years, but he did not file a petition with respect to that notice. On the instant record, we find that petitioner may not challenge the existence or the amounts of petitioner's respective unpaid liabilities for 1998 and 1999.

We turn now to petitioner's argument under section 7521(a)(1) that the refusal by the Appeals Office to permit petitioner to make an audio recording of the hearing held by that office on January 16, 2001, was improper.⁸*110 Before he filed the petition in this case, petitioner made statements and requests and advanced contentions and arguments that the Court has*109 found to be frivolous and/or groundless. In that petition and the supplement thereto, petitioner persists in advancing such frivolous and/or groundless statements, requests, contentions, and arguments. Consequently, even though we held in Keene v. Comm'r, 121 T.C. 8, 19 (2003), that section 7521(a)(1) requires the Appeals Office to allow a taxpayer to make an audio recording of an Appeals Office hearing held pursuant to section 6330(b), we conclude that (1) it is not necessary and will not be productive to remand this case to the Appeals Office for another hearing under sections 6320(b) and 6330(b) in order to allow petitioner to make such an audio recording, see Lunsford v. Comm'r, 117 T.C. 183, 189 (2001), and (2) it is not necessary or appropriate to reject respondent's determinations to proceed with the collection action as determined in the notice of determination and in the decision letter with respect to petitioner's unpaid liability for 1994, petitioner's unpaid liability for 1996, and petitioner's respective unpaid liabilities for 1998 and 1999, see id. ⁹

Based upon our examination of the entire record before us, we find that respondent did not abuse respondent's discretion in determining to proceed with the collection action as determined in the notice of determination and in the decision letter with respect to petitioner's taxable years 1994, 1996, 1998, and 1999.

Although respondent does not ask the Court to impose a penalty on petitioner under section 6673(a)(1), we now consider sua sponte whether the Court should impose a penalty on petitioner under that section. Section 6673(a)(1) authorizes the Court to require a taxpayer to pay a penalty to the United States in an amount not to exceed $ 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.

In an Order dated February 23, 2004, the Court cautioned petitioner that in the event he were to advance in this matter or any future matter arguments that the Court finds to be frivolous and/or without*111 merit, it is likely that the Court would impose a penalty on him under section 6673(a)(1). Since that time, petitioner has not advanced any contentions or arguments in this case. See supra note 1. Although we shall not impose a penalty under section 6673(a)(1) on petitioner in the instant case, we caution him that he may be subject to such a penalty if in the future he institutes or maintains a proceeding in this Court primarily for delay and/or his 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).

We have considered all of petitioner's statements, contentions, arguments, and requests that are not discussed herein, and, to the extent we have not found them to be frivolous and/or groundless, we find them to be without merit and/or irrelevant.

On the record before us, we shall grant respondent's motion.

To reflect the foregoing and the concession of respondent,

An order granting respondent's motion and an appropriate decision will be entered.