                        T.C. Memo. 2008-116



                      UNITED STATES TAX COURT



                   ERNEST ENAX, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17374-07L.            Filed April 28, 2008.



     Ernest Enax, pro se.

     Laura Price, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     SWIFT, Judge:   This matter is before us in this collection

case under section 6330 on respondent’s motion for summary

judgment and to impose a penalty under section 6673.

     All section references are to the applicable provisions of

the Internal Revenue Code.
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                           FINDINGS OF FACT

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

        On documents he filed with respondent as his 2001, 2003, and

2004 individual Federal income tax returns, petitioner reported

no income and no tax liability, and petitioner made tax-protester

arguments.

        On audit, respondent did not treat the above documents

relating to 2001 and 2003 as valid tax returns, and on

January 28, 2004, and January 31, 2005, respectively, using

third-party payor information, respondent prepared for petitioner

substitute 2001 and 2003 individual Federal income tax returns.

        On July 7, 2004, respondent mailed to petitioner a notice of

deficiency for 2001.1    On May 9, 2005, respondent mailed to

petitioner a notice of deficiency for 2003.

     Respondent treated the document petitioner filed for 2004 as

petitioner’s 2004 Federal income tax return, and on April 14,

2006, respondent mailed to petitioner a notice of deficiency for

2004.

     Petitioner did not file a petition with this Court relating

to the above notices of deficiency, receipt of which petitioner




        1
        The first page of respondent’s July 7, 2004, notice of
deficiency to petitioner for 2001 incorrectly stated that the tax
year involved was 2000. However, documents attached to the
notice of deficiency stated correctly that the notice of
deficiency related to petitioner’s 2001 Federal income taxes.
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does not contest, and the deficiencies were assessed on March 28,

2005, November 11, 2005, and August 28, 2006, respectively.

     Respondent also assessed penalties against petitioner under

section 6702 for 1997, 2003, and 2004.

     On March 27, 2007, respondent mailed to petitioner a notice

of intent to levy in order to collect petitioner’s outstanding

Federal income taxes for 2001, 2003, and 2004, and outstanding

penalties for 1997, 2003, and 2004.     Respondent also mailed to

petitioner a notice explaining petitioner’s right to an Appeals

Office hearing, which hearing petitioner requested on March 30,

2007.

     The collection hearing petitioner requested was held between

May 29 and June 25, 2007.    In connection with petitioner’s

collection hearing petitioner mailed to respondent’s Appeals

Office numerous tax-protester arguments and a partially completed

Form 433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals.

     In his communications with respondent’s Appeals Office,

petitioner raised only tax-protester arguments.     As a result,

respondent’s Appeals officer did not hold a face-to-face hearing

with petitioner, and petitioner’s Appeals Office hearing was

conducted via correspondence and over the telephone.

     Petitioner’s 2005 and 2006 Federal income tax returns were

not timely filed.
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     On July 17, 2007, respondent’s Appeals Office mailed to

petitioner a notice of determination sustaining respondent’s

proposed levy action.


                              OPINION

     Petitioner objects to respondent’s motion for summary

judgment solely on the ground that petitioner was entitled to a

face-to-face hearing with respondent’s Appeals Office.   We

disagree.

     During petitioner’s Appeals Office hearing, petitioner made

only tax-protester arguments, and because petitioner received

notices of deficiency for the years in issue he was not entitled

to contest the underlying tax deficiencies respondent had

assessed.   See sec. 6330(c)(2)(B).

     Petitioner was given the opportunity to contest the section

6702 penalties for 1997, 2003, and 2004.   As stated, however,

petitioner made only tax-protester arguments, and petitioner

offered no documentation or other credible evidence to establish

that respondent in any way had committed error or abused his

discretion in sustaining respondent’s proposed levy action.

     At the time of petitioner’s collection hearing, petitioner

was not current on his tax obligations for 2005 and 2006.

     Petitioner has a history of not filing tax returns and of

making tax-protester arguments, and petitioner has outstanding
                               - 5 -
assessed Federal income taxes due for a number of years in

addition to those involved in this case.2

     Respondent acknowledges that respondent is pursuing

collection action against petitioner for Federal income taxes

petitioner owes for years not involved in this case.     Petitioner

offers no credible evidence that respondent is pursuing

collection action relating to years before us in this action in

violation of the stay of section 6330(e).

     On the evidence before us, petitioner is not entitled to a

face-to-face hearing.   See sec. 301.6330-1(d)(2), Q&A-D8, Proced.

& Admin. Regs.   Accordingly, we shall grant respondent’s motion

for summary judgment, and we sustain respondent’s proposed levy

action relating to petitioner’s outstanding and assessed 2001,

2003, and 2004 Federal income taxes and 1997, 2003, and 2004

section 6702 penalties.

     In light of petitioner’s tax-protester arguments, made

before respondent’s Appeals Office and herein, we also impose a

penalty under section 6673 on petitioner in the amount of $2,500.


                                       An appropriate order and

                               decision will be issued.




     2
        Total outstanding Federal income taxes and penalties that
have been assessed by respondent against petitioner for all open
years apparently are in excess of $237,000.
