                        T.C. Memo. 2004-155



                      UNITED STATES TAX COURT



               GREGORY L. SHIREMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 659-03L.         Filed June 29, 2004.


     Gregory L. Shireman, pro se.

     Jason Anderson, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   The petition in this case was filed in

response to the Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of

determination).1   After concessions, the issue for decision is



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended.
                                - 2 -

whether there was an abuse of discretion in the determination

that collection action could proceed for Federal income tax

liabilities for 1996 and 1997.2

                          FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.

     At the time he filed the petition, petitioner resided in

Wauconda, Illinois.

     Petitioner did not file a Federal income tax return for

1996.    On April 14, 1998, petitioner filed a Federal income tax

return for 1997, reporting a total income of zero and requesting

a refund of $1,365.3   Petitioner attached to his 1997 tax return

a 2-page letter that asserted basic tax-protester arguments and a

Form W-2, Wage and Tax Statement, for 1997 that reported wages of

$38,300 and Federal income tax withheld of $1,365.    On May 5,

1998, respondent filed substitute for returns for petitioner for

1996 and 1997.




     2
        The notice of deficiency along with the notice of intent
to levy were issued for, and this petition was filed for, 1996,
1997, and 1999. After petitioner’s Appeals hearing, the Appeals
officer determined that respondent incorrectly assessed
petitioner’s income tax liability for 1999. Respondent abated
the assessment for that year and this case, insofar as it relates
to 1999, was dismissed as moot.
     3
         Amounts are rounded to the nearest dollar.
                              - 3 -

     On May 2 and 3, 2000, respondent conducted an audit of

petitioner’s taxable years 1996 and 1997.     During the audit

petitioner was told that if he did not sign the Form 4549-CG,

Income Tax Examination Changes (Form 4549-CG), respondent would

follow the proper procedures to assess and collect the tax.      The

examiner informed petitioner that this could include respondent’s

filing a lien against or levying petitioner’s property.

Petitioner told the examiner he wanted to think about it

overnight before he signed the Form 4549-CG, and he would give

the examiner his answer in the morning.

     On May 3, 2000, petitioner signed a Form 4549-CG accepting

respondent’s adjustments for 1996 and 1997.     Petitioner signed

the Form’s “Consent to Assessment and Collection,” which reads as

follows:

     Consent to Assessment and Collection - I do not wish to
     exercise my appeal rights with the Internal Revenue Service
     or to contest in the United States Tax Court the findings in
     this report. Therefore, I give my consent to the immediate
     assessment and collection of any increase in tax and
     penalties, and accept any decrease in tax and penalties
     shown above, plus additional interest as provided by law.
     * * *

After the audit, the examiner stated in his notes:

     Despite the numerous frivolous filer information in the back
     of this case file, the taxpayer, Gregory Shireman, wants to
     fully cooperate with the IRS in getting his tax returns in
     order. Since the initial filing of the 1996-1997 Substitute
     for Returns, he has signed the audit report for these years
     and now wants to file his 1998-1999 1040's at the time he
     submits his Offer and Compromise with Collection.

               *    *    *    *       *   *     *
                                 - 4 -


     Penalties were not assessed since the taxpayer was fully
     cooperative and wants to eventually file an Offer and
     Compromise with Collection.

     On July 24, 2000, respondent assessed tax liabilities,

including additions to tax and interest, against petitioner in

the amounts of $861 and $6,995 for 1996 and 1997, respectively.

Respondent sent petitioner a Final Notice--Notice of Intent to

Levy and Notice of Your Right to a Hearing (Final Notice) for

1996 and 1997, on November 10, 2000.

     On December 8, 2000, respondent received from petitioner a

Form 12153, Request for Collection Due Process Hearing.    In the

Form 12153 petitioner argued that “The numbers are all wrong, you

owe me a refund.”   Petitioner attached to the Form 12153 a 3-page

statement that contained tax-protester arguments.

     In October 2001, petitioner mailed a document entitled

“Notice of Revocation of Signatures and Affidavit in Support

Thereof” to Treasury Secretary Paul O’Neill, IRS Commissioner

Charles Rossotti, and Attorney General John Ashcroft.    Petitioner

also mailed a letter entitled “Request for Status Determination”

to IRS Commissioner Charles Rossotti.    Both of these documents

contained tax-protester arguments.

     Prior to the section 6330 hearing (hearing), respondent sent

petitioner transcripts of account for 1996 and 1997 at

petitioner’s request.
                               - 5 -

     Petitioner and the Appeals officer held two telephone

conversations on July 2, 2001, and October 23, 2001.   After the

telephone conversations petitioner submitted a 50-page document

that contained tax-protester arguments.

     A face-to-face meeting was held on December 19, 2001, at

which petitioner told the Appeals officer that he believed he had

been coerced into signing the Form 4549-CG.   Petitioner was

allowed to review the Appeals officer’s administrative file and

was provided copies of documents he requested.

     On January 14, 2002, petitioner submitted a 37-page written

document to the Appeals officer.   The document contained tax-

protester arguments.

     In the December 12, 2002, Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 for 1996 and

1997, the Appeals officer found there to be “no credible evidence

that any Internal Revenue Service employee procured the

taxpayer’s waiver of the restrictions on assessment through

duress, coercion, fraud, or misrepresentation.”   The Appeals

officer also determined that collection may proceed for 1996 and

1997.   In making the determination, the Appeals officer relied on

transcripts of petitioner’s account to verify the assessments.

     On January 10, 2003, petitioner filed a petition for

judicial review of respondent’s determination with the Court.
                                 - 6 -

     At trial petitioner insisted that he realized he had erred

by making arguments during the examination and appeals process

that had neither legal nor factual support.

                                OPINION

     Under section 6330, no levy may be made on any property or

right to property of a taxpayer unless the Secretary has notified

the taxpayer in writing of his right to a hearing held with an

impartial officer of the Internal Revenue Service Office of

Appeals.   Sec. 6330(a) and (b).   During the hearing, the taxpayer

may raise any relevant issue relating to the unpaid tax or the

proposed levy, including appropriate spousal defenses, challenges

to the appropriateness of collection actions, and offers of

collection alternatives.   Sec. 6330(c)(2)(A).   The taxpayer may

also raise challenges to the existence or amount of the

underlying tax liability for any tax period if he did not have an

opportunity to dispute such tax liability.    Sec. 6330(c)(2)(B).

     Where the underlying tax liability is properly at issue in

the hearing, we review the issue de novo.     Goza v. Commissioner,

114 T.C. 176, 181-182 (2000).    Petitioner did challenge his

underlying tax liability at his hearing with the Appeals officer.

However, because we conclude, for the reasons discussed below,

that petitioner’s waiver of restrictions on assessment is valid,

petitioner may not dispute his underlying tax liability before

the Court.   See Horn v. Commissioner, T.C. Memo. 2002-207.
                               - 7 -

Therefore, we review the Appeals office’s determination for an

abuse of discretion.   Lunsford v. Commissioner, 117 T.C. 183, 185

(2001); Nicklaus v. Commissioner, 117 T.C. 117, 120 (2001); see

Sego v. Commissioner, 114 T.C. 604, 610 (2000).

     Petitioner alleges that respondent coerced him into signing

the Form 4549-CG, which waived the restrictions on assessment for

1996 and 1997.   If a taxpayer signs a waiver under duress or

coercion, the waiver is invalid.   Diescher v. Commissioner, 18

B.T.A. 353, 358 (1929).   However, where respondent threatens to

take legally authorized actions if a taxpayer does not sign a

waiver, neither duress nor coercion exist, and the waiver is

valid.   See Ballard v. Commissioner, T.C. Memo. 1987-471, affd.

851 F.2d 359 (5th Cir. 1988); Price v. Commissioner, T.C. Memo.

1981-693, affd. without published opinion 742 F.2d 1460 (7th Cir.

1984).

      Petitioner claims he felt he had no other choice but to

sign the waiver.   However, he provided no evidence of duress,

coercion, fraud, or misrepresentation in this case.   The

examining officer’s conduct does not approach conduct which we

have found to constitute duress.   See Diescher v. Commissioner,

supra (threat to impose fraud penalties if taxpayer did not sign

waiver constituted duress); Robertson v. Commissioner, T.C. Memo.

1973-205 (threat to seize taxpayer’s house if he did not sign a

form constituted duress).   By informing petitioner that
                                - 8 -

respondent would proceed against petitioner and that respondent

could file a lien against or levy petitioner’s property, the

examiner was giving petitioner notice that respondent was going

to use the lawful means provided by statute to assess and collect

the taxes.    See Ballard v. Commissioner, supra; Price v.

Commissioner, supra; Narragansett Wire Co. v. Commissioner, T.C.

Memo. 1973-135, affd. 491 F.2d 371 (1st Cir. 1974).

     We agree with respondent and conclude that petitioner did

not sign the Form 4549-CG under duress, coercion, fraud, or

misrepresentation, and that petitioner’s waiver of restrictions

on assessment is valid.

     Petitioner also argues that respondent erred by concluding

that no notices of deficiency were required to be issued for 1996

and 1997.    This argument has no merit.   By signing Form 4549-CG,

petitioner consented to the immediate assessment of the tax

liability set forth therein plus any penalties and interest and

agreed not to receive any notices of deficiency.     Aguirre v.

Commissioner, 117 T.C. 324, 327 (2001); see Perez v.

Commissioner, T.C. Memo. 2002-274.

     Likewise, we reject petitioner’s argument that respondent

erred by failing to verify that all applicable laws and

administrative procedures were met.     Under section 6330(c)(1),

during a hearing, an Appeals officer is required to obtain

verification from the Secretary that the requirements of any
                                - 9 -

applicable law or administrative procedure have been met.       Sec.

6330(c)(1).    However, section 6330(c)(1) does not require the

Commissioner to rely on a particular document to satisfy this

verification requirement.    See Roberts v. Commissioner, 118 T.C.

365, 371 n.10 (2002), affd. 329 F.3d 1224 (11th Cir. 2003);

Weishan v. Commissioner, T.C. Memo. 2002-88, affd. 66 Fed. Appx.

113 (9th Cir. 2003); Lindsey v. Commissioner, T.C. Memo. 2002-87,

affd. 56 Fed. Appx. 802 (9th Cir. 2003); Tolotti v. Commissioner,

T.C. Memo. 2002-86, affd. 70 Fed. Appx. 971 (9th Cir. 2003);

Duffield v. Commissioner, T.C. Memo. 2002-53; Kuglin v.

Commissioner, T.C. Memo. 2002-51.

     In this case the Appeals officer obtained and reviewed

transcripts of petitioner’s account.     The transcripts contained

the information required by section 301.6203-1, Proced. & Admin.

Regs., such as the identification of the taxpayer, the character

of the liability assessed, the taxable period, if applicable, and

the amount of the assessment.

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessment or the information contained in the

transcripts.    See Davis v. Commissioner, 115 T.C. 35, 41 (2000);

Mann v. Commissioner, T.C. Memo. 2002-48.     Accordingly, we

conclude the Appeals officer satisfied the verification

requirement of section 6330(c)(1).      See Nicklaus v. Commissioner,
                              - 10 -



supra at 120-121; Cipolla v. Commissioner, T.C. Memo. 2004-6;

Weishan v. Commissioner, supra; Lindsey v. Commissioner, supra.

     Petitioner has not presented any evidence or persuasive

arguments to convince us that respondent abused his discretion.

As a result, we hold the issuance of the notice of determination

was not an abuse of respondent’s discretion and respondent may

proceed with collection.

     The Court may sua sponte determine whether to impose a

penalty under section 6673(a) against petitioner.   Pierson v.

Commissioner, 115 T.C. 576, 580 (2000); Jensen v. Commissioner,

2004-120; Frey v. Commissioner, T.C. Memo. 2004-87; Frank v.

Commissioner, T.C. Memo. 2003-88; Robinson v. Commissioner, T.C.

Memo. 2003-77.

     Section 6673(a)(1) authorizes the Court to require a

taxpayer to pay the United States a penalty in an amount not to

exceed $25,000 whenever it appears to the Court the taxpayer’s

position in such a proceeding is frivolous or groundless.   Sec.

6673(a)(1)(B).

     As a pro se litigant, petitioner struggled in making proper

arguments.   However, we believe petitioner instituted this action

in good faith.   There is no evidence that petitioner has

previously been a litigant in this Court, nor are we persuaded

that petitioner maintained this suit primarily to delay payments
                              - 11 -

of his taxes.   Therefore, we decline to impose a penalty under

section 6673(a), but admonish petitioner that we shall not be

inclined to exercise our discretion so favorably in the future if

he persists in pursuing frivolous arguments before this Court.

See Sides v. Commissioner, T.C. Memo. 2004-141; Kaeckell v.

Commissioner, T.C. Memo. 2002-114.

     In reaching our holding herein, we have considered all

arguments made, and, to the extent not mentioned above, we

conclude that they are irrelevant or without merit.



                                                  Decision will be

                                           entered for respondent.
