                         T.C. Memo. 2002-184



                       UNITED STATES TAX COURT



                JOHN W. HAUCK, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10266-00L.                Filed July 31, 2002.


     John W. Hauck, Jr., pro se.

     Timothy S. Murphy, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Pursuant to section 6330(d),1 petitioner

seeks review of respondent’s determination to proceed with

collection of petitioner’s 1995 and 1996 tax liabilities.




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 2 -

                         FINDINGS OF FACT

     None of the facts have been stipulated.    The exhibits

received into evidence at trial are incorporated herein by this

reference.   At the time he filed the petition, petitioner resided

in Clinton, Michigan.

     Petitioner did not file Federal income tax returns for 1995

and 1996.

     On April 24, 1998, respondent mailed petitioner separate

notices of deficiency for 1995 and 1996.    For 1995, respondent

determined a deficiency of $155,195, an addition to tax pursuant

to section 6651(a)(1) of $36,924.50, and an addition to tax

pursuant to section 6654 of $7,963.40.   For 1996, respondent

determined a deficiency of $8,263, an addition to tax pursuant to

section 6651(a)(1) of $2,065.75, and an addition to tax pursuant

to section 6654 of $439.79.

     Petitioner timely received these notices of deficiency.

Petitioner voluntarily chose not to file a petition with the

Court with respect to 1995 and 1996.

     On September 21, 1998, respondent assessed the deficiencies

and additions to tax for 1995 and 1996 determined in the notices

of deficiency.

     In 1998, petitioner filed a power of attorney with

respondent authorizing Joseph John Brune III and Thomas W.
                                - 3 -

Roberts to represent petitioner for his 1980 through 1999 tax

years.

     On April 26, 1999, Revenue Officer Henry Morrison mailed

petitioner and Mr. Roberts a copy of the Summary Record of

Assessments, RACS Report (RACS report), for September 21, 1998,

an explanation of the RACS report by Disclosure Officer Michael

Ormond, petitioner’s Individual Master File Tax Module for 1995

and 1996, and petitioner’s literal transcript for 1995 and 1996.

These tax modules listed the assessment date for 1995 and 1996 as

September 21, 1998.

     On June 28, 1999, respondent mailed petitioner a Final

Notice, Notice of Intent to Levy and Notice of Your Right to a

Hearing, Form 1058, for 1995 and 1996.    Petitioner timely

requested a hearing.    The only issues raised in petitioner’s

request for a hearing were the lack of a valid summary record of

assessment and the validity of the assessment.

     Appeals Officer Diane Villa mailed petitioner and his

representatives a letter scheduling a hearing for July 27, 2000.

On July 12, 2000, petitioner’s representative called respondent

and requested that the hearing be held via the telephone.

     On July 27, 2000, Ms. Villa held a hearing via telephone

with Mr. Roberts.    Petitioner attempted to have a court reporter

present at the hearing and wanted the opportunity to cross-

examine witnesses.    Respondent denied petitioner’s request to
                               - 4 -

have a court reporter and cross-examine witnesses at the

hearing.2   The only issues petitioner raised at the hearing were

the validity of the assessment for 1995 and 1996 and an issue

regarding a levy.3   The issue regarding the levy was resolved at

the hearing as no levy had taken place.

     During the hearing, Mr. Roberts acknowledged that petitioner

had received the RACS report and petitioner’s transcripts of

account for 1995 and 1996.   Ms. Villa reviewed the transcripts of

account provided to petitioner by Mr. Morrison and then-current

transcripts of account for 1995 and 1996 to verify the name of

petitioner, the tax periods, the type of tax, the date of the

assessments, and the amount of the assessments.   In verifying the

accuracy of the assessments, Ms. Villa compared the amounts

determined in the notices of deficiency for 1995 and 1996 with

the amounts assessed on petitioner’s transcripts of account.

These numbers matched.

     On August 29, 2000, respondent mailed petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330, for 1995 and 1996 determining to proceed with

collection.


     2
        Respondent, however, allowed Mr. Roberts to tape record
the hearing.
     3
        During the hearing, petitioner did not raise the
underlying tax liabilities, any collection alternatives, or the
appropriateness of the proposed collection activities, nor did he
identify any irregularities in the assessment process.
                               - 5 -

                              OPINION

     Petitioner argues that because the assessment was made on

the RACS report rather than Form 23C, Summary Record of

Assessments, no valid assessment exists and because the Appeals

officer did not review a Form 23C she did not verify the

assessment as required by section 6330.   Petitioner further

argues that review of a transcript of account is insufficient

verification for the purposes of section 6330.

     Section 6330(c)(1) does not require the Commissioner to rely

on a particular document to satisfy the verification requirement

imposed therein.   E.g., Schnitzler v. Commissioner, T.C. Memo.

2002-159 (citing five other cases to support this principle).     We

have repeatedly held that the Commissioner may rely on

transcripts of account to satisfy the verification requirement of

section 6330(c)(1).   Id.; Kaeckell v. Commissioner, T.C. Memo.

2002-114; Obersteller v. Commissioner, T.C. Memo. 2002-106;

Weishan v. Commissioner, T.C. Memo. 2002-88; Lindsey v.

Commissioner, T.C. Memo. 2002-87; Tolotti v. Commissioner, T.C.

Memo. 2002-86; Duffield v. Commissioner, T.C. Memo. 2002-53;

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

     Additionally, we have held that the use of a RACS report,

instead of a Form 23C, in making an assessment does not

constitute an irregularity in respondent’s assessment procedure.
                                 - 6 -

Roberts v. Commissioner, 118 T.C. 365, 371 (2002).4      Respondent,

for a number of years, has been making a transition in his

assessment procedure from the use of a manually prepared Form 23C

to the use of the RACS report.     Id.

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the

transcripts of account.   Davis v. Commissioner, 115 T.C. 35, 41

(2000); Mann v. Commissioner, T.C. Memo. 2002-48.      Accordingly,

we hold that the Appeals officer satisfied the verification

requirement of section 6330(c)(1).       Cf. Nicklaus v. Commissioner,

117 T.C. 117, 120-121 (2001).

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.      Rule 331(b)(4).

     On brief, petitioner also argues that he did not receive a

section 6330 hearing because he was not allowed to have a court

reporter, to call witnesses, or to cross-examine witnesses at the

section 6330 hearing.   Generally, we do not consider issues that




     4
        We note that the taxpayer in Roberts v. Commissioner, 118
T.C. 365 (2002), was Thomas W. Roberts--petitioner’s
representative prior to trial.
                               - 7 -

are raised for the first time at trial or on brief.5   Foil v.

Commissioner, 92 T.C. 376, 418 (1989), affd. 920 F.2d 1196 (5th

Cir. 1990); Markwardt v. Commissioner, 64 T.C. 989, 997 (1975).

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

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous positions in the

proceedings or instituted the proceedings primarily for delay.

In Pierson v. Commissioner, 115 T.C. 576, 581 (2000), we issued

an unequivocal warning to taxpayers concerning the imposition of

a penalty pursuant to section 6673(a) on those taxpayers who

abuse the protections afforded by sections 6320 and 6330 by

instituting or maintaining actions under those sections primarily

for delay or by taking frivolous or groundless positions in such

actions.

     At trial, the Court informed petitioner the Court had

already ruled that taxpayers are not entitled to a court

reporter, to subpeona witnesses, or to cross-examine witnesses at

the section 6330 hearing.   Davis v. Commissioner, supra at 41-42.

Additionally, the Court advised petitioner that we had previously

held that for section 6330 cases whether or not the taxpayer was

given a copy of a Form 23C did not affect the validity of the


     5
        Regardless of whether petitioner was given an appropriate
hearing, there was a valid determination. A hearing is not
required as a prerequisite to our jurisdiction. Lunsford v.
Commissioner, 117 T.C. 159, 164-165 (2001); see also Tilley v.
Commissioner, T.C. Memo. 2002-161.
                                 - 8 -

assessment.   At that time, the Court admonished petitioner that

he was wasting the Court’s time.

     At trial, respondent advised the Court that he had provided

petitioner with a copy of Davis v. Commissioner, 115 T.C. 35

(2000).   At the conclusion of the trial, respondent argued that

petitioner was fighting a frivolous battle and that this case was

nothing more than an attempt to further delay the collection

activities.   We agree.

     In the petition, at trial, and on brief petitioner raised,

primarily for delay, arguments and contentions that we have

previously rejected, thereby causing the Court to waste its

limited resources.   Accordingly, we shall impose a penalty of

$10,000 pursuant to section 6673.

     To reflect the foregoing,

                                              An appropriate order and

                                         decision will be entered.
