                         T.C. Memo. 2003-6



                      UNITED STATES TAX COURT



                 JEFFREY M. YOUNG, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1193-02L.            Filed January 8, 2003.


     Jeffrey M. Young, pro se.

     Jeffrey C. Venzie, for respondent.



                        MEMORANDUM OPINION


     RUWE, Judge:   This matter is before us on respondent’s

motion for summary judgment under Rule 1211 and to impose a

penalty under section 6673.   Respondent argues that no genuine

issue exists as to any material fact and that his determination


     1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code as amended.
                                 - 2 -

to maintain a notice of Federal tax lien filed under section 6323

should be sustained.    At the time of filing the petition,

petitioner resided in Scranton, Pennsylvania.

     Summary judgment is designed to expedite litigation and to

avoid unnecessary and expensive trials.       Shiosaki v.

Commissioner, 61 T.C. 861, 862 (1974).       A motion for summary

judgment is granted where the pleadings and other materials show

that there is no genuine issue as to any material fact and that 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).    The burden is on the moving party

to demonstrate that no genuine issue as to any material fact

remains and that he is entitled to judgment as a matter of law.

FPL Group, Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75

(2001).   In all cases, the evidence is viewed in the light most

favorable to the nonmoving party.        Bond v. Commissioner, 100 T.C.

32, 36 (1993).   However, the nonmoving party is required “to go

beyond the pleadings and by” his “own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on

file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’”     Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986); see also Rauenhorst v. Commissioner, 119 T.C. 157, 175

(2002); FPL Group, Inc. & Subs. v. Commissioner, 115 T.C. 554,
                                - 3 -

560 (2000).    Petitioner has not filed a response to respondent’s

motion as required by our order of October 2, 2002.

     Petitioner filed Federal income tax returns for 1994, 1997,

1998, and 1999.    Those returns reported taxes due; however,

petitioner did not pay the entire amount of the taxes shown on

his returns.    Respondent assessed the taxes reported and also

assessed additions to tax and interest.

     On April 4, 2001, respondent issued to petitioner a “Notice

of Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320”.2   The lien filing was made with respect to unpaid taxes

stated as follows:

           Type of tax        Period           Amount

               1040         12/31/1994        $698.69
               1040         12/31/1997         189.34
               1040         12/31/1998       3,450.59
               1040         12/31/1999       1,466.73

Petitioner filed a Form 12153, Request for a Collection Due

Process Hearing, with respect to the lien filing.       An attachment

to that Form 12153 states in pertinent part:

          Summarizing, I am requesting a “Due Process
     Hearing” as outlined Form 12153. [sic] I am
     “challenging the appropriateness of (the) collection
     action” as specified in 6330(c)(2)(A)(ii) since the IRS
     denied all of my requests of the initial “examinations”
     and “interviews” as provided in Publications 1 & 5. In
     addition, no lien for taxes pursuant to Code Sections
     6321 and 6322 is possible because no valid, underlying


     2
      Respondent filed a Form 668(Y)(c), Notice of Federal Tax
Lien, with the prothonotary of Lackawanna County, Scranton,
Pennsylvania.
                              - 4 -

     assessment was ever made. In addition, I never
     received a statutory, “notice and demand” for payment
     of the taxes at issue as required by Code Sections
     6203, 6321, and 6331. If the appeals officer is going
     to claim that a particular document sent to me by the
     IRS was a “Notice and Demand” for payment, then I am
     requesting that he also provide me with a T.D. or
     Treasury Regulation, which identifies that specific
     document as being the official, statutory “Notice and
     Demand” for payment.

          In addition, I am “challenging the existence of
     the underlying tax liability” as I am authorized to do
     in Code Section 6330(c)(2)(B). In addition, I did not
     receive a (valid) notice of deficiency in connection
     with any of the years at issue. I am also requesting
     that the appeals officer have at the “Due Process
     hearing” a copy of the “Summary Record of Assessment”
     (Form 23 C) together with the “pertinent parts of the
     assessment which set forth the name of the taxpayer,
     the date of the assessment, the character of the
     liability assessed, the taxable period, and the amount
     assessed” as provided for in Treasury Regulation
     301.6203-1.

          In addition, I want to see proof that a purported
     “Deficiency Notice” was actually sent to me. Also,
     since Section 6330(c)(1) requires that “The appeals
     officer shall at the hearing obtain verification from
     the Secretary that the requirements of any applicable
     law or administrative procedure have been met,” I am
     requesting that the Appeals Officer have such
     verification with him at the Appeals Conference.
     However, if the verification called for by 6330(c)(1)
     is signed by someone other then [sic] the Secretary
     himself, than - in line with the Supreme Court’s
     holding in Federal Crop Ins. Corp vs. Merril, 92L.ED.11
     - I am requesting that the Appeals Officer also have a
     Delegation Order from the Secretary delegating to that
     the [sic] person the authority to prepare such a
     “verification.”

Petitioner also submitted a supplement to the Form 12153 request

in which he requested that the Appeals officer have the following

documents at the Appeals hearing:   (1) Verification from the
                               - 5 -

Secretary; (2) proof that a notice and demand for payment was

sent to petitioner, a copy of the actual notice and demand that

was sent or a blank copy of the notice, and a Treasury decision

or Treasury regulation which identifies that notice as the

statutory notice and demand.   In addition, petitioner raised

challenges to the “existence” of his underlying tax liabilities,

claiming that no “liability” for income taxes exists as a matter

of law.3   Further, petitioner claimed that there is no statute

requiring him “to pay” income taxes.

     A hearing was held on September 19, 2001.4   In that

proceeding, petitioner did not raise any collection alternatives

or other relevant issues.   Instead, petitioner insisted that he

did not receive a “statutory notice and demand” for payment.

Petitioner also argued:

     there is no statutory liability in connection with
     these taxes at issue, nor is there a provision that
     states that I have to pay the taxes at issue, and in my
     letter I said that if the appeals officer believes
     otherwise, he need only identify the code section that
     establishes such a liability and payment for taxes, and
     I would immediately make arrangements to pay as
     provided in code section 6330(C)(2) [sic] for whatever
     the amount the appeals officer claims is due.

Frank Smigiel (Mr. Smigiel) accompanied petitioner to the Appeals

hearing.   The Appeals officer did not permit Mr. Smigiel to


     3
      Petitioner stated that he was not disputing the “amount” of
his underlying tax liabilities.
     4
      Attached to the petition is a document that petitioner
claims to be a transcription of the Appeals hearing.
                               - 6 -

represent petitioner at the Appeals hearing since he was not an

attorney in good standing, a certified public accountant, or an

enrolled agent in good standing.   The Appeals officer allowed Mr.

Smigiel to stay at the hearing as a witness only.    The Appeals

officer verified that all applicable laws and administrative

procedures had been met.   In doing so, he reviewed the

information in the case file, petitioner’s Form 12153, the tax

correspondence, and the case history.    The Appeals officer

reviewed the transcripts for 1994, 1997, 1998, and 1999 and

determined that the proper taxes were assessed, they remained

unpaid, and demand for payment had been made.

     On October 5, 2001, the Internal Revenue Service (IRS)

Office of Appeals issued a notice of determination sustaining the

notice of Federal tax lien filing.     The notice of determination

states in relevant part as follows:

     Relevant Issues Presented by the Taxpayer

     You do not believe that the filing of Notice of Federal
     Tax Lien is appropriate. You were presented with
     copies of certified transcripts but failed to show why
     the lien should be withdrawn or offer alternatives to
     this action. You engaged in repeated requests for
     documents that were irrelevant, unnecessary or for
     purposes of delay. You were given the opportunity to
     resolve the liabilities or suggest alternatives but
     chose not to.

     You also objected that Mr. Frank Smigiel was not
     allowed to represent you. Mr. Smigiel cannot represent
     you before Appeals per Cir 230 and Rev. Proc. 81-38.
     To represent you before Appeals, he must be an
     Attorney, Certified Public Accountant or an Enrolled
     Agent. Mr. Smigiel has none of these qualifications.
                               - 7 -


     In addition, during the period of the appeal, you have
     incurred another liability and have failed to pay
     estimated taxes as required by law. You have a long
     history of noncompliance and the appeal appears
     primarily for delay.

     This appeal is limited to the filed Notice of Federal
     Tax Lien.

     III. Balancing Efficient Collection and Intrusiveness

     Further delay would only result in increasing the
     liabilities as you have done during the appeal. You
     are not eligible for an installment agreement or an
     offer in compromise due to your lack of compliance.

     Although you have had opportunities to comply, you have
     failed to do so. Therefore, it is recommended that the
     actions by the Compliance [sic] be sustained, as
     appropriate, after considering all of the facts,
     circumstances and law. The filed Notice of Federal Tax
     Lien shall remain in full force and effect.

     Petitioner timely filed a petition with the Tax Court, in

which he alleged as error:   (1) He did not receive the statutory

notice and demand for payment; (2) the Appeals officer did not

obtain and produce the verification from the Secretary as

provided in section 6330(c)(1); (3) the Appeals officer refused

to address challenges to the existence of petitioner’s underlying

tax liability; (4) the Appeals officer refused to allow Mr.

Smigiel to represent petitioner at the Appeals hearing; and (5)

the notice of determination is invalid because the Appeals

officer ended the hearing abruptly and did not allow petitioner

to “raise any issues as provided for in the law.”   Petitioner
                               - 8 -

states in his petition that he “is not challenging the

assessment”.

     On September 30, 2002, respondent filed a motion for summary

judgment and to impose a penalty under section 6673.   On October

2, 2002, we ordered petitioner to file a response to that motion

on or before November 13, 2002.   Petitioner has not filed a

response to respondent’s motion as required by our order of

October 2, 2002.   After reviewing the pleadings and the materials

in the record, we find that no genuine issue of material fact

exists and that respondent’s determination should be sustained as

a matter of law.

     Under section 6330(c)(2)(B), a taxpayer may raise challenges

to the existence or amount of his underlying tax liability if he

did not receive a notice of deficiency or did not otherwise have

an opportunity to dispute the tax liability.5   Petitioner has not

raised any legitimate issues regarding his underlying tax

liabilities in his request for an Appeals hearing, in his

supplement to that request, in the course of the Appeals Office

proceedings, and in his petition filed with this Court.   Instead,

petitioner challenges the “existence” of his underlying tax

liabilities on the basis that no Internal Revenue Code section



     5
      We avoid herein whether the self-reporting of taxes on a
return constitutes an opportunity to dispute those taxes for
purposes of sec. 6330(c)(2)(B). See Horn v. Commissioner, T.C.
Memo. 2002-207.
                                - 9 -

makes him “liable” for income taxes or requires him “to pay”

income taxes.    We have consistently rejected this type of

frivolous, tax-protester argument, and we perceive no reason, nor

are we required, to address such contentions.     See, e.g., Crain

v. Commissioner, 737 F.2d 1417 (5th Cir. 1984); Keene v.

Commissioner, T.C. Memo. 2002-277; Hall v. Commissioner, T.C.

Memo. 2002-267.    We address petitioner’s remaining contentions to

determine whether the Appeals officer abused his discretion.      See

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

     Section 6330(c)(1) requires the Appeals officer to verify

that the requirements of any applicable law or administrative

procedure have been met.    However, section 6330(c)(1) does not

require the Appeals officer to rely on a particular document to

satisfy his verification function.      Kuglin v. Commissioner, T.C.

Memo. 2002-51.    Further, that section does not require the

Appeals officer to provide a copy of the verification that the

requirements of any applicable law or administrative procedure

have been met.    Nestor v. Commissioner, 118 T.C. 162, 166 (2002).

     In the instant case, the Appeals officer reviewed

transcripts of petitioner’s account for 1994, 1997, 1998, and

1999, as well as other relevant items in the case file.     The

Appeals officer verified that all applicable laws and

administrative procedures had been met and that petitioner

received notice and demand for payment for the unpaid tax
                              - 10 -

liabilities at issue.   Copies of the certified transcripts were

provided to petitioner.   Petitioner does not challenge the

validity of the assessments of taxes.    Further, our review of the

Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters, shows that the assessments were valid.6     We

perceive no irregularities in the assessment procedures.     The

Form 4340 also indicates that multiple notices of balance due, as

well as the notice of intent to levy, were sent to petitioner for

each of the tax years at issue.    Those notices satisfy the

requirements of section 6303(a).    Tornichio v. Commissioner, T.C.

Memo. 2002-291.7

     The Appeals officer did not abuse his discretion in refusing

to allow Mr. Smigiel to represent petitioner at the Appeals

hearing.   The Appeals officer determined that Mr. Smigiel was not

an attorney in good standing, a certified public accountant, or

an enrolled tax return preparer in good standing.    Accordingly,


     6
      A Form 4340, Certificate of Assessments, Payments, and
Other Specified Matters, provides at least presumptive evidence
that the taxes were validly assessed. Nicklaus v. Commissioner,
117 T.C. 117, 121 (2001). The Form 4340 herein contains all the
information prescribed in sec. 301.6203-1, Proced. & Admin.
Regs., including identification of the taxpayer, the character of
the liabilities assessed, the taxable periods, and the amounts of
the assessments.
     7
      Petitioner suggests that a Form 17 or Form 17A is the only
document that satisfies sec. 6303(a), seemingly relying upon a
1914 Treasury decision. We have previously rejected this
argument. Keene v. Commissioner, T.C. Memo. 2002-277; Davich v.
Commissioner, T.C. Memo. 2002-255; Tapio v. Commissioner, T.C.
Memo. 2002-141.
                              - 11 -

under Treasury Department Circular No. 230, current version at 31

C.F.R. secs. 10.3 and 10.7 (2001), and Rev. Proc. 81-38, 1981-2

C.B. 592, Mr. Smigiel was not permitted to represent petitioner

before the IRS Appeals Office.

     Finally, the notice of determination herein is valid on its

face.   It is not invalid by reason of the Appeals officer’s

concluding the Appeals hearing “abruptly”.   Moreover, the Appeals

officer did not terminate the hearing “abruptly” as petitioner

contends.   The Appeals officer gave petitioner ample opportunity

to raise relevant issues relating to the notice of Federal tax

lien filing.   However, petitioner insisted upon making frivolous

and groundless arguments.   Only after petitioner continued to

repeat those same arguments and after he failed to raise any

relevant issues did the Appeals officer end the hearing.    The

Appeals officer did not abuse his discretion in doing so.

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

taxpayer to pay to the United States a penalty whenever it

appears that proceedings have been instituted or maintained by

the taxpayer primarily for delay or that the taxpayer’s position

in the proceeding is frivolous or groundless.   Throughout the

proceedings in this case, petitioner has raised the same

arguments that we have previously and consistently rejected as

frivolous and groundless.   Petitioner failed to file a response

to respondent’s motion for summary judgment as required by our
                              - 12 -

order of October 2, 2002.   Petitioner has failed to present any

legitimate arguments regarding the collection action at issue,

and the only reason we find for his instituting and maintaining

these proceedings is delay.   Accordingly, we impose a penalty of

$500.



                                         An appropriate order

                                    and decision will be entered

                                    for respondent.
