                        T.C. Memo. 2009-244



                      UNITED STATES TAX COURT



                 ANTHONY OROPEZA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 29151-07L.             Filed October 28, 2009.



     Anthony Oropeza, pro se.

     Michael W. Tan, for respondent.



                        MEMORANDUM OPINION


     HOLMES, Judge:   Anthony Oropeza earned wages in 2002 and

2003 but reported zero income and zero tax liabilities because,

he wrote in attachments to the returns, his income was not

“income” in the “constitutional” sense.   Mr. Oropeza’s position

is, in a word, “frivolous.”   Just like we held it was the last
                                - 2 -

time he was in Tax Court.   See Oropeza v. Commissioner, T.C.

Memo. 2008-94.

     The Commissioner issued notices of deficiency for both

years, but Mr. Oropeza did not petition our Court.   The

Commissioner then assessed the taxes and penalties asserted in

the notices.   Mr. Oropeza didn’t pay.   The bureaucracy’s wheels

clanked into gear, and in March 2006 out came a notice of intent

to levy.   Mr. Oropeza requested a face-to-face collection due

process (CDP) hearing that he planned to record.   In his request

he specifically renounced any of his previous arguments that the

Commissioner might consider frivolous, and asked only that the

IRS verify that it had followed all required procedures.

     The IRS Appeals officer did just that.   He then sent Mr.

Oropeza a Form 4340, Certificate of Assessments, Payments, and

Other Specified Matters.    The Form 4340 is a computer-generated

list of assessments, payments, and other activity on a taxpayer’s

account.   The Appeals officer also explained that face-to-face

hearings were reserved for discussions of nonfrivolous issues.

He even listed several nonfrivolous issues Mr. Oropeza might

raise, and pointed him to an IRS website listing frivolous

arguments should Mr. Oropeza want to learn the distinction.     The

Appeals officer gave Mr. Oropeza until October 5, 2007, to submit

additional information and set up a telephone hearing for the

following week.
                                - 3 -

     Mr. Oropeza responded only by asking for copies of paperwork

he’d already sent in.   After the hearing, the Appeals officer

again patiently gave Mr. Oropeza a chance to raise any nonfrivo-

lous issue.   He didn’t discuss any collection alternatives be-

cause Mr. Oropeza didn’t raise the issue, didn’t provide any fi-

nancial information, and hadn’t filed his 2004, 2005, or 2006 tax

returns.   Mr. Oropeza told the Appeals officer to go ahead and

issue the notice of determination and he would see him in court.

      The Appeals officer accepted Mr. Oropeza’s suggestion; Mr.

Oropeza followed through on his threat.   The parties submitted

the case for decision under Tax Court Rule 122, just before trial

was to start in Los Angeles.   Mr. Oropeza was a California

resident when he filed his petition.

     Mr. Oropeza raises for the first time in our Court the issue

of whether he received any of the notices of deficiency that the

IRS sent to him.   If he intends by this to argue that he doesn’t

owe the underlying liabilities, he can’t because he stipulated

that he wasn’t challenging the amounts of his tax liabilities.

And even if he doesn’t intend this, he can’t raise this new issue

on appeal.    See Magana v. Commissioner, 118 T.C. 488 (2002).

     We review the Appeals officer’s determination for abuse of

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

also look to see whether the Appeals officer verified that the

IRS met its legal and procedural requirements for making an
                                 - 4 -

assessment, considered issues that the taxpayer raised, and

balanced the need for efficient tax collection against the

taxpayer’s interest that any collection action be no more

intrusive than necessary.    26 U.S.C. sec. 6330(c)(3).

     There are no problems here.    Appeals officers may rely on a

Form 4340 to show that the IRS followed the law and procedures

for a valid assessment.     Davis v. Commissioner, 115 T.C. 35,

40-41 (2000).   They may rely on nothing but that form where, as

here, a taxpayer has no evidence of any procedural irregularity.

Nicklaus v. Commissioner, 117 T.C. 117, 121 (2001).       And Mr.

Oropeza gives us no reason to upset the Appeals officer’s

conclusion that a levy is appropriate--Mr. Oropeza did not

suggest any collection alternatives to balance against the

government’s interest in efficient tax collection.

     We also reject Mr. Oropeza’s procedural arguments.      Taxpay-

ers who make only frivolous arguments aren’t entitled to face-

-to-face hearings.   Lunsford v. Commissioner, 117 T.C. 183, 189

(2001).   Taxpayers who make no arguments are likewise not enti-

tled to a face-to-face hearing.     Oropeza, T.C. Memo. 2008-94.
                               - 5 -

And Mr. Oropeza has no right to record because 26 U.S.C. section

7521(a)(1) refers to “any in-person interview” and thus doesn’t

apply to telephone hearings.   Calafati v. Commissioner, 127 T.C.

219 (2006).



                                       Decision will be entered for

                               respondent.
