                         T.C. Memo. 2007-225



                       UNITED STATES TAX COURT



             JAMES BENJAMIN WOOD III, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5508-06L.               Filed August 13, 2007.



     James Benjamin Wood III, pro se.

     Jeffrey S. Luechtefeld, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case was commenced in response to a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.1   The issues for decision are:   (1)

Whether respondent may proceed with collection of petitioner’s


     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 -

1992 and 1993 income tax liabilities; and (2) whether petitioner

is liable for a penalty pursuant to section 6673.

                            Background

     At the time he filed the petition, petitioner resided in

Florida.

     Petitioner failed to file Federal income tax returns for

1992 and 1993.   On March 13, 1995, respondent prepared

substitutes for return for 1992 and 1993.   On August 26, 1996,

respondent assessed $15,343 of tax for 1992, $1,626 of tax for

1993, and interest and additions to tax for 1992 and 1993.    On

August 1, 2005, respondent issued to petitioner a Final Notice--

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

regarding petitioner’s outstanding 1992 and 1993 income tax

liabilities.

     On August 8, 2005, petitioner sent respondent a Form 12153,

Request for a Collection Due Process Hearing (section 6330

hearing request).   Petitioner attached to the Form 12153 several

documents containing frivolous and groundless arguments,

questions, and statements regarding his liability for income

taxes, the legality of imposing income taxes on individuals, and

respondent’s authority to collect income taxes.

     Settlement Officer James Feist was assigned to petitioner’s

case.   In a letter dated January 20, 2006, Settlement Officer

Feist acknowledged receipt of petitioner’s Form 12153 and other
                               - 3 -

materials (January 2006 letter).   In the January 2006 letter,

Settlement Officer Feist:   (1) Informed petitioner that the

arguments he advanced were frivolous, groundless, or arguments

that Appeals Office employees may not consider; (2) requested

petitioner submit relevant, nonfrivolous information (such as

petitioner’s signed tax returns for 1992 and 1993, challenges to

the appropriateness of collection actions, or proposals of

collection alternatives); (3) scheduled a phone conference with

petitioner for February 9, 2006; and (4) attached a copy of an

IRS document entitled “The Truth About Frivolous Tax Arguments”,

which detailed several of the frivolous and groundless arguments

that petitioner asserted in the materials he sent to respondent.

     On January 25, 2006, and numerous other dates, petitioner

sent to respondent additional materials containing frivolous and

groundless arguments, questions, and statements (additional

frivolous materials).   Settlement Officer Feist responded to

petitioner’s additional frivolous materials and requested

petitioner submit relevant, nonfrivolous information regarding

the years in issue.   Settlement Officer Feist:   (1) Informed

petitioner, again, that the arguments he advanced were frivolous,

groundless, or arguments that Appeals Office employees may not

consider; (2) advised petitioner to contact him by February 7,

2006, if petitioner wished to submit relevant, nonfrivolous

information for Settlement Officer Feist’s consideration or to
                                 - 4 -

reschedule the phone conference; and (3) informed petitioner that

if the Appeals Office did not receive any additional information

from petitioner, Appeals would review petitioner’s case based on

the information in petitioner’s file.

     On February 9, 2006, Settlement Officer Feist called

petitioner at the phone number petitioner had provided.     No one

answered Settlement Officer Feist’s call.   Settlement Officer

Feist left a voice message stating (1) that he could not

determine that the assessments or proposed collection actions

were incorrect based on the information petitioner had provided,

and (2) that respondent would issue a notice of determination in

petitioner’s case.

     Respondent issued to petitioner a Notice of Determination

Concerning Collection Action(s) under Section 6320 and/or 6330

(notice of determination) with respect to petitioner’s income tax

liabilities for 1992 and 1993.    In the notice of determination,

respondent determined that the proposed levy should be sustained

and that petitioner “failed to file outstanding U.S. Individual

Income Tax Returns, failed to make payments on the amounts

assessed, and failed to submit a viable collection alternative”.

     Petitioner timely filed a petition for lien or levy action

under section 6320(c) or 6330(d) regarding his 1992 and 1993 tax

liabilities.   In the petition, petitioner raised several
                                 - 5 -

frivolous and groundless arguments that he previously had raised

in his section 6330 hearing.

                             Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and may be granted where

there is no genuine issue of material fact and a decision may be

rendered as a matter of law.    Rule 121(a) and (b); Fla. Peach

Corp. v. Commissioner, 90 T.C. 678, 681 (1988).       The moving party

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences are viewed in a light most

favorable to the nonmoving party.        Craig v. Commissioner, 119

T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).       The

party opposing summary judgment must set forth specific facts

that show a genuine question of material fact exists and may not

rely merely on allegations or denials in the pleadings.        Grant

Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988);

Casanova Co. v. Commissioner, 87 T.C. 214, 217 (1986).

     Section 6330 provides that no levy may be made on any

property or right to property of a person unless the Secretary

first notifies him or her in writing of the right to a hearing

before the Appeals Office.     The Appeals officer must verify at

the hearing that the applicable laws and administrative

procedures have been followed.    Sec. 6330(c)(1).     At the hearing,
                                - 6 -

a taxpayer may raise any relevant issues relating to the unpaid

tax or the proposed levy, including appropriate spousal defenses,

challenges to the appropriateness of collection actions, and

collection alternatives.    Sec. 6330(c)(2)(A).   The person may

challenge the existence or amount of the underlying tax, however,

only if he or she did not receive any statutory notice of

deficiency for the tax liability or did not otherwise have an

opportunity to dispute the tax liability.    Sec. 6330(c)(2)(B).

     Where the validity of the underlying tax liability is

properly at issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.     Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 181-182 (2000).

     Settlement Officer Feist could not determine whether

petitioner received notices of deficiency for 1992 and 1993.

Accordingly, Settlement Officer Feist allowed petitioner to

challenge the validity of the underlying tax liability for 1992

and 1993 as part of the section 6330 hearing.     Petitioner,

however, failed to raise a nonfrivolous challenge to his

underlying tax liability.    Instead, petitioner chose to advance

frivolous and groundless arguments.
                                - 7 -

     Throughout his section 6330 hearing, the petition, and

several pounds of spurious materials that petitioner filed in

this case2 petitioner advanced shopworn arguments characteristic

of tax-protester rhetoric that has been universally rejected by

this and other courts.   See Wilcox v. Commissioner, 848 F.2d 1007

(9th Cir. 1988), affg. T.C. Memo. 1987-225; Carter v.

Commissioner, 784 F.2d 1006, 1009 (9th Cir. 1986); Charczuk v.

Commissioner, 771 F.2d 471 (10th Cir. 1985), affg. T.C. Memo.

1983-433; Michael v. Commissioner, T.C. Memo. 2003-26; Knelman v.

Commissioner, T.C. Memo. 2000-268, affd. 33 Fed. Appx. 346 (9th

Cir. 2002).   We shall not painstakingly address petitioner’s

assertions “with somber reasoning and copious citation of

precedent; to do so might suggest that these arguments have some

colorable merit.”   Crain v. Commissioner, 737 F.2d 1417, 1417

(5th Cir. 1984) (per curiam).

     Petitioner has failed to make a valid challenge of his

underlying tax liabilities or to the appropriateness of

respondent’s intended collection action, offer alternative means




     2
        For example, among other things, petitioner filed “Sworn
Suggestions of Intentional Policies and Practices of Jural Deceit
Evidenced by Consistent and Repeated Use of Unverified Process in
Response to Petitioner’s Verified Challenge” and “Notice of
Corrections to Sworn Motion to Vacate Order Dated May 31, 2006
For Failure to Prove the Indispensable Prerequisite
Jurisdictional Fact Following Petitioner’s Repeatedly Set Forth
Undisputedly Relevant and Verifiable Challenge”.
                                - 8 -

of collection, or offer any spousal defenses.    These issues are

now deemed conceded.    Rule 331(b)(4).

      Accordingly, we sustain respondent’s determination to

proceed with collection for 1992 and 1993.

II.   Section 6673(a)

      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.      A

position maintained by the taxpayer is “frivolous” if it is

“contrary to established law and unsupported by a reasoned,

colorable argument for change in the law.”   Coleman v.

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986).

      Settlement Officer Feist repeatedly informed petitioner that

petitioner’s arguments were frivolous and groundless and provided

petitioner “The Truth About Frivolous Tax Arguments”, which

explains the defects in several of petitioner’s arguments.

Settlement Officer Feist also prepared and sent petitioner

several documents addressing petitioner’s frivolous and

groundless arguments with citations to the Constitution, the

Internal Revenue Code, and cases from the Supreme Court of the

United States, the U.S. Courts of Appeals, and the Court.     At

trial, the Court informed petitioner that the arguments he was
                                 - 9 -

advancing had been universally rejected by the courts that have

considered them.

     Petitioner’s positions, based on stale and meritless

contentions, are manifestly frivolous and groundless.    This has

caused the Court to waste limited resources.    Accordingly, we

shall impose a penalty of $5,000 pursuant to section 6673.

     To reflect the foregoing,


                                           An appropriate order and

                                      decision will be entered.
