                         T.C. Memo. 2003-196



                       UNITED STATES TAX COURT



            VIRGIL AND JOYCE BRASHEAR, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12147-02L.             Filed July 9, 2003.



     Virgil and Joyce Brashear, pro sese.

     Alan J. Tomsic, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment and to impose a penalty under
                               - 2 -

section 66731 (respondent’s motion).2    We shall grant respon-

dent’s motion.

                            Background

     The record establishes and/or the parties do not dispute the

following.

     Petitioners resided in Henderson, Nevada, at the time they

filed the petition in this case.

     On April 15, 1999, petitioners filed jointly a Federal

income tax (tax) return for their taxable year 1998 (1998 joint

return).   In their 1998 joint return, petitioners reported total

income of $0 and total tax of $0 and claimed a refund of $748.40

of tax withheld.   Petitioners attached to their 1998 joint return

Form W-2, Wage and Tax Statement, reporting wages, tips, and

other compensation of $73,382.39.   Petitioners also attached a

document to their 1998 joint return (petitioners’ attachment to

their 1998 joint return) that contained statements, contentions,

and arguments that the Court finds to be frivolous and/or ground-

less.3


     1
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
     2
      Although the Court ordered petitioners to file a response
to respondent’s motion, petitioners failed to do so.
     3
      Petitioners’ attachment to their 1998 joint return is very
similar to the documents that certain other taxpayers with cases
in the Court attached to their tax returns. See, e.g., Copeland
                                                   (continued...)
                                - 3 -

     On February 25, 2000, respondent issued to petitioners a

notice of deficiency (notice) with respect to their taxable year

1998, which they received.   In that notice, respondent determined

a deficiency in, and an accuracy-related penalty under section

6662(a) on, petitioners’ tax for their taxable year 1998 in the

respective amounts of $11,540 and $2,158.32.

     Petitioners did not file a petition in the Court with

respect to the notice relating to their taxable year 1998.

     On August 7, 2000, respondent assessed petitioners’ tax, as

well as a penalty and interest as provided by law, for their

taxable year 1998. (We shall refer to any such unpaid assessed

amounts, as well as interest as provided by law accrued after

August 7, 2000, as petitioners’ unpaid liability for 1998.)

     On August 7, 2000, respondent issued to petitioners a notice

of balance due with respect to petitioners’ unpaid liability for

1998.    On September 11, 2000, respondent issued a second notice

of balance due with respect to that unpaid liability.

     On July 3, 2001, respondent issued to petitioners a notice

of Federal tax lien filing and your right to a hearing (notice of

tax lien) with respect to their taxable year 1998.   On or about

August 1, 2001, in response to, inter alia, the notice of tax

lien petitioners filed Form 12153, Request for a Collection Due


     3
      (...continued)
v. Commissioner, T.C. Memo. 2003-46; Smith v. Commissioner, T.C.
Memo. 2003-45.
                              - 4 -

Process Hearing (Form 12153), and requested a hearing with

respondent’s Appeals Office (Appeals Office).   In that form,

petitioners stated that they intended to make an audio recording

of their Appeals Office hearing.   Petitioners attached a document

to their Form 12153 (petitioners’ attachment to Form 12153) that

contained statements, contentions, arguments, and requests that

the Court finds to be frivolous and/or groundless.4

     On August 7, 2001, August 24, 2001, and September 5, 2001,

respectively, respondent applied payments of $1,957.59,

$1,884.97, and $1,803.94 to petitioners’ account with respect to

their taxable year 1998.

     On May 15, 2002, respondent’s Appeals officer (Appeals

officer) held an Appeals Office hearing with petitioners with

respect to the notice of tax lien.    At the Appeals Office hear-

ing, the Appeals officer gave petitioners Form 4340, Certificate

of Assessments, Payments, and Other Specified Matters (Form

4340), with respect to their taxable year 1998.

     On June 18, 2002, the Appeals Office issued to petitioners a

notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination).   An attach-



     4
      Petitioners’ attachment to Form 12153 contained statements,
contentions, arguments, and requests that are very similar to the
statements, contentions, arguments, and requests contained in the
attachments to Forms 12153 filed with the Internal Revenue
Service by certain other taxpayers with cases in the Court. See,
e.g., Flathers v. Commissioner, T.C. Memo. 2003-60.
                              - 5 -

ment to the notice of determination stated in pertinent part:

     WHAT IS THE ISSUE?

     You requested a hearing under the provisions of IRC
     6320 to prevent the appropriate collection action. The
     only issue raised by you was to dispute the authority
     under which the Service has assessed tax and is at-
     tempting to collect the tax. You raised no non-frivo-
     lous issues at the hearings held.

     Verification of Legal and Procedural Requirements

     Notice and demand was issued by regular mail for the
     above year to your last known address, as required
     under IRC 6303. The Notice of Federal Tax Lien (Letter
     3172) was sent to you by certified mail dated July 3,
     2001. You responded timely with a request for a Col-
     lection Due Process Hearing so you are entitled to
     judicial review.

     A certified transcript was requested, reviewed, and a
     copy was provided to you at the hearing held. Appeals
     Officer, Tony Aguiar has had no other involvement with
     this case in respect to this liability.

     Issues Raised by the Taxpayer

     You claim you did not receive a statutory notice and
     demand, or valid notice of deficiency for the 1998.
     [sic] Although you had income you filed Form 1040 for
     1998 showing zero income. You attached two pages to
     the tax return disputing the authority of the Service
     to assess and collect income tax. You were sent a
     Statutory Notice of Deficiency on February 25, 2000,
     which gave you the opportunity to petition the United
     States Tax Court and raise issue with the amount owed.
     You chose not to petition the Tax Court. The Statutory
     Notice of Deficiency defaulted and the amount per the
     notice was assessed. The assessment is valid.

     At the hearing, you stated you did not believe there
     was any authority for the Service to assess and collect
     income taxes. You believe voluntary means giving you a
     choice of whether or not to pay income tax. You did
     not raise any collection alternatives.
     Balancing Efficient Collection
                              - 6 -

     The requirements for all applicable laws and adminis-
     trative procedures have been met. The courts have
     addressed the arguments presented. You received all
     required notices. You were given the opportunity at
     the hearing to arrange for payment of the liability but
     neglected to do so. You have neglected or refused to
     pay. The government should be allowed to proceed with
     its proposed enforcement action, the lien. Lacking
     your cooperation, the proposed collection action bal-
     ances the need for efficient collection with your
     concern that any collection action be no more intrusive
     than necessary.

     On July 22, 2002, petitioners filed a petition with the

Court for review of respondent’s notice of determination with

respect to petitioners’ unpaid liability for 1998.   Except for an

argument under section 7521(a)(1), the petition contains state-

ments, contentions, arguments, and requests that the Court finds

to be frivolous and/or groundless.5   With respect to section

7521(a)(1), petitioners allege in the petition that the Appeals

Office refused to allow them to make an audio recording of the

Appeals Office hearing held on May 15, 2002, and that that

refusal was improper under that section.

                           Discussion

     The Court may grant summary judgment where there is no

genuine issue of material fact and a decision may be rendered as



     5
      The frivolous and/or groundless statements, contentions,
arguments, and requests in petitioners’ petition are very similar
to the frivolous and/or groundless statements, contentions,
arguments, and requests in petitions filed by certain other
taxpayers with cases in the Court. See, e.g., Copeland v.
Commissioner, T.C. Memo. 2003-46; Smith v. Commissioner, T.C.
Memo. 2003-45.
                                - 7 -

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).   We

conclude that there are no genuine issues of material fact

regarding the questions raised in respondent’s motion.

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the determination of the Commissioner of Internal Revenue

for abuse of discretion.    Sego v. Commissioner, 114 T.C. 604, 610

(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

     As was true of petitioners’ attachment to their 1998 return

and petitioners’ attachment to Form 12153, petitioners’ petition,

except for an argument under section 7521(a)(1), contains state-

ments, contentions, arguments, and requests that the Court finds

to be frivolous and/or groundless.

     We turn to petitioners’ argument under section 7521(a)(1)

that the refusal by the Appeals Office to permit petitioners to

make an audio recording of the Appeals Office hearing held on May

15, 2002, was improper.    Throughout the period commencing with

petitioners’ filing their 1998 joint return with respondent and

ending with their filing the petition with the Court, petitioners

have made statements and requests and advanced contentions and

arguments that the Court has found to be frivolous and/or ground-

less.   Consequently, even though we recently held in Keene v.

Commissioner, 121 T.C. __ (2003), that section 7521(a)(1) re-
                               - 8 -

quires the Appeals Office to allow a taxpayer to make an audio

recording of an Appeals Office hearing held pursuant to section

6330(b), we conclude that (1) it is not necessary and will not be

productive to remand this case to the Appeals Office for another

hearing under section 6320(b) in order to allow petitioners to

make such an audio recording, see Lunsford v. Commissioner, 117

T.C. 183, 189 (2001), and (2) it is not necessary or appropriate

to reject respondent’s determination to proceed with the collec-

tion action as determined in the notice of determination with

respect to petitioners’ unpaid liability for 1998, see id.6

     Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioners’

taxable year 1998.

     In respondent’s motion, respondent requests that the Court

require petitioners to pay a penalty to the United States pursu-

ant to section 6673(a)(1).   Section 6673(a)(1) authorizes the

Court to require a taxpayer to pay to the United States a penalty

in an amount not to exceed $25,000 whenever it appears to the

Court, inter alia, that a proceeding before it was instituted or

maintained primarily for delay, sec. 6673(a)(1)(A), or that the

taxpayer’s position in such a proceeding is frivolous or ground-


     6
      See Kemper v. Commissioner, T.C. Memo. 2003-195.
                                 - 9 -

less, sec. 6673(a)(1)(B).

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

issued an unequivocal warning to taxpayers concerning the imposi-

tion of a penalty under 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.

     In the instant case, petitioners advance, we believe primar-

ily for delay, frivolous and/or groundless contentions, argu-

ments, and requests, thereby causing the Court to waste its

limited resources.   We shall impose a penalty on petitioners

pursuant to section 6673(a)(1) in the amount of $1,600.

     On the record before us, we shall grant respondent’s motion.

     To reflect the foregoing,

                                         An order granting respondent’s

                                 motion and decision will be entered

                                 for respondent.
