                        T.C. Memo. 2003-11



                      UNITED STATES TAX COURT



                 ROBERT GUNSELMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6925-02L.                Filed January 9, 2003.


     Robert Gunselman, pro se.

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

to maintain a Federal tax lien filing and to proceed with a levy

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

petitioner resided in West Chester, 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).

     Petitioner filed joint income tax returns for taxable years

1995, 1996, 1997, 1998, and 1999.   Those returns reported income

taxes due; however, petitioner failed to pay the entire amounts

of those taxes.   Respondent assessed the taxes reported and also

assessed interest and penalties.    Respondent issued a notice of

deficiency with respect to the 1997 joint tax return.      Petitioner

failed to file a petition to the Tax Court with respect to that
                               - 3 -

notice of deficiency.   Respondent assessed the deficiency

determined in the notice of deficiency.2

     On March 1, 2001, respondent issued to petitioner a “Notice

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

6320”.3   The lien filing was made with respect to unpaid taxes

stated as follows:




     2
      After respondent assessed the taxes reported on
petitioner’s returns and the deficiency for 1997, petitioner
filed Forms 1040X, Amended U.S. Individual Income Tax Return, for
1997, 1998, and 1999. The returns for 1997 and 1998 state:

     Line #1: Due to ignorance, we reported as “income”
     sources of income as being “income” itself, when in
     fact we had no statutory income to report.

     Line #23: Apart from Line #1 above, we also had no
     statutory liability with respect to income taxes, and
     pursuant to our 1040X * * * [return] we would like a
     refund of all taxes paid with interest.

The amended return for 1999 adds:

     Line #10: Apart from #1 above, we also had no
     statutory liability with respect to income taxes, and
     pursuant to Code sec. 31(a.)(1.), we have a
     constitutional right to have the wage tax imposed in
     sec. 3402(a.)(1) refunded since it represents an
     unapportioned, direct tax on wages, and thus
     unconstitutional if we could not have them refunded
     because of the misleading caption on sec. 3402(a.)(1.)
     we did not realize that what was deducted from our pay
     was not income taxes but a direct tax on our wages.
     3
      Respondent filed a Form 668(Y)(c), Notice of Federal Tax
Lien, with the prothonotary of Montgomery County, Norristown,
Pennsylvania.
                               - 4 -

          Type of tax        Period            Amount

             1040          12/31/1995          $136.09
             1040          12/31/1996           287.98
             1040          12/31/1997        17,426.84
             1040          12/31/1998         2,620.07
             1040          12/31/1999        21,266.89

On February 15, 2001, respondent issued to petitioner a Letter

1058, Final Notice--Notice of Intent to Levy and Notice of Your

Right to a Hearing.   Petitioner filed Forms 12153, Request for a

Collection Due Process Hearing, with respect to the notice of

lien filing for the 1995, 1996, 1997, 1998, and 1999 tax

liabilities and with respect to the notice of intent to levy for

the 1997 and 1999 tax liabilities.     In those Forms 12153,

petitioner argued:

          Summarizing: I am requesting a “Due Process
     Hearing” as outlined in Form 12153. 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 for the initial “examinations” and
     “interviews” as provided for in Publications 1 & 5. In
     addition, no lien for taxes pursuant to Code Sections
     6321 and 6322 is possible because no valid, underlying
     assessment was ever made. In addition, I never
     received the 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
     Treas. Reg. 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
                               - 5 -


that the appeals officer have at the “Due Process Hearing” a copy
of the “Summary Record of Assessment” (Form 23C) 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 Treas. Reg. 301.6203-1.

          Also you are reminded that the Section 6330(c)(1)
     [sic] REQUIRES you to have “verification from the
     Secretary (or someone with delegated authority from
     him) that the requirements of any applicable law or
     administrative procedures have been met.” So unless
     you have, at the very least, that document, you should
     not even schedule a Due Process Hearing. In addition,
     don’t tell me at the hearing that any requested and/or
     required documents will be “sent to me later.” I
     expect that you will have all of these documents with
     you at the hearing.

          Also, I am again reiterating my request that if
     you claim an assessment was made, I expect that you
     will have at the Due Process Hearing a copy of the
     return from which the assessment was made.

     A hearing was held on February 22, 2002.4   In that

proceeding, petitioner did not propose any collection

alternatives.   Instead, petitioner insisted repeatedly that the

Appeals officer present to him a “pocket commission”5 and

demanded to see the statutory notice and demand for payment and

“the verification” of the Secretary or his delegate.    The Appeals

officer used Forms 4340, Certificate of Assessments and Payments,

to verify that the taxes were properly assessed and were unpaid



     4
      The Appeals hearing was transcribed by a court reporter.
The transcript is a part of the record before us.
     5
      See Organization, Finance, and Management, Internal Revenue
Manual, handbk. 1.16.4, ch. 3 (Feb. 19, 1999).
                                - 6 -

and that a notice and demand for payment had been made.    The

Appeals officer reviewed petitioner’s joint returns for the

relevant years, the notice of deficiency for 1997, the Forms

12153 that petitioner had filed, the administrative files for the

years 1995 through 1999, the case history, and a 14-page fax

transmittal from petitioner.    The Appeals officer determined that

all applicable laws and administrative procedures had been met.

On March 12, 2002, the Internal Revenue Service (IRS) Office of

Appeals issued a notice of determination sustaining the lien

filings6 and the proposed levy action.

     Petitioner filed a petition on April 3, 2002, in which he

alleges:

          a) At the CDP hearing the appeals officer provided
     no proof that the notice sent to the plaintiff
     notifying him of his right to a CDP hearing was sent by
     anyone delegated by the Secretary to do so (as required
     by 6330(a)(1)[)], and it is the plaintiff’s contention
     that no such delegation of authority exists.

          b) At the hearing the appeals officer violated the
     law by not “presenting” plaintiff with the
     “verification from the secretary” as required by the
     Code Sections 6330(c)(1) and 6330(c)(3)(A), and it is
     the plaintiff’s contention that no such “verification
     exists.”

          c) No statutory Notice and Demand for payment was
     ever sent to plaintiff in connection with the taxes and
     or penalty at issue in accordance with the provisions


     6
      The notice of   determination released the lien filing with
respect to the 1995   and 1996 tax liabilities since those taxes
were paid in full.    The notice determined that the lien filing
with respect to the   1997, 1998, and 1999 tax liabilities should
be maintained.
                                - 7 -

       and requirements of Code Sections 6303, 6321, and 6331.
       * * *

            d) No statute in the Internal Revenue Code
       establishes the “existence ...of the underlying (income
       tax) liability” as referred to in 6330(c)(2)(B), and
       the United States will not be able to identify for this
       Court any statute that establishes any such tax
       liability as for example Code sections 4401(c), 5005(a)
       and 5703(a) impose liabilities to wagering, alcohol and
       tobacco taxes.

            e) L.G. Dowd who signed the Deficiency Notice at
       issue was never delegated by the Secretary to prepare
       and send out Deficiency Notices as required by 26
       USC6212, and the United States will not be able to
       supply this Court with any such Delegation of Authority
       emanating from the Secretary.

            f) The United States will not be able to identify
       or produce a legislative regulation that would have
       required Petitioner to petition [the] Tax Court in
       order to avoid the assessment of the deficiency at
       issue.

            g) It is a fact that the United States will not be
       able to identify for this Court any statute that allows
       IRS employees to attribute to the petitioner an amount
       of tax greater than what petitioner showed on his 1997,
       1998 and 1999 tax returns.

            h) At the CDP hearing the appeals officer produced
       no delegation order from the Secretary and no
       enforcement “pocket commission” that would support the
       authority of those who signed the Notice of Lien at
       issue to do so, and petitioner contends that no such
       material documentation exists.

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.
                               - 8 -

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

to the existence or amount of their underlying tax liability if

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

have an opportunity to dispute that tax liability.7    In the

course of the Appeals Office proceedings, in his petition filed

with this Court, and in his notice of objection to respondent’s

motion for summary judgment, petitioner did not raise any

legitimate issues regarding his underlying tax liabilities.

Instead, petitioner contends that there is no Internal Revenue

Code section that makes him liable for taxes.8   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 also

find frivolous and groundless petitioner’s argument that the


     7
      Petitioner received a notice of deficiency for his 1997
taxable year. His remaining tax liabilities are attributable to
amounts which were reported on joint tax returns for 1997, 1998,
and 1999. 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.
     8
      In the proceedings before IRS Appeals, petitioner
challenged the “existence” of an income tax liability. He stated
that he was not disputing the “amount” of the alleged income tax
liabilities. Indeed, he repeatedly exclaimed that he would pay
the tax liabilities at issue if the Appeals officer showed him
the Code section(s) that makes him “liable” for, or requires him
to “pay”, income taxes.
                                 - 9 -

notice of deficiency for 1997 is invalid because the

Commissioner’s representative who signed the notice did not have

a delegation of authority from the Secretary.9      Nestor v.

Commissioner, 118 T.C. 162 (2002); Davich v. Commissioner, T.C.

Memo. 2002-255.    We address petitioner’s remaining contentions to

determine whether the Appeals officer abused his discretion.

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 Code 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, supra at 166.   In the

instant case, the Appeals officer relied upon Forms 4340 to

verify that the assessments were made, that notice and demand for

payment was sent to petitioner, and that the tax liabilities

remained unpaid.    At the hearing, the Appeals officer provided

petitioner with copies of the Forms 4340.



     9
      The Secretary or his delegate is authorized by statute to
issue a notice of deficiency. Secs. 6212(a), 7701(a)(11)(B) and
(12)(A)(i). The notice of deficiency herein was signed by
Deborah Reilly, Director, Philadelphia Customer Service Center.
                              - 10 -

     Petitioner has not alleged any irregularities with respect

to respondent’s assessment procedures, and the Forms 4340 provide

at least presumptive evidence that the taxes were validly

assessed.   Nicklaus v. Commissioner, supra at 121.    The Forms

4340 herein contain all the information prescribed in section

301.6203-1, Proced. & Admin. Regs., including identification of

the taxpayer, the character of the liability assessed, the

taxable period, and the amount of the assessment.     The Appeals

officer did not abuse his discretion in relying on the Forms 4340

to verify the validity of the assessments.   Roberts v.

Commissioner, 118 T.C. 365, 371 n.10 (2002); Davis v.

Commissioner, 115 T.C. 35, 40 (2000).10

     The Forms 4340 show that respondent issued to petitioner

notices of balance due for the 1997, 1998, and 1999 tax

liabilities on September 18, 2000, June 7, 1999, and June 5,

2000, respectively.   The notices of balance due constitute a




     10
      Petitioner contends, however, that the Commissioner does
not have authority to determine deficiencies in amounts exceeding
those amounts which were reported on a taxpayer’s income tax
returns. Presumably, petitioner is relying on the amended
returns which he filed and on which he reported no taxes owing.
It is clear that the assessments were based on the taxes
petitioner reported on his original returns. See sec.
6211(a)(1)(A). Those assessments were valid, and the subsequent
filing of amended returns does not result in those assessments’
being invalid. We also reject as frivolous petitioner’s argument
that he was not required to file a petition with the Tax Court in
order to avoid the assessment of the deficiency determined in the
notice of deficiency for 1997. See sec. 6213(c).
                              - 11 -

notice and demand for payment for purposes of section 6303(a).11

Hughes v. United States, 953 F.2d 531, 536 (9th Cir. 1992);

Weishan v. Commissioner, T.C. Memo. 2002-88.   The Appeals officer

did not abuse his discretion in relying on the Forms 4340 to

verify compliance with section 6303(a).   The Appeals officer was

not required to produce copies of the notices of balance due at

the hearing.

     The Appeals officer did not abuse his discretion in refusing

to produce his enforcement pocket commission at the Appeals

hearing.   Further, he did not abuse his discretion in refusing to

produce the enforcement pocket commission of the IRS

representative who signed the notice of lien filing.   We

similarly reject petitioner’s contentions that the IRS

representative who signed the notices sent to petitioner did not

have a delegation of authority from the Secretary.12




     11
      Petitioner argued at the Appeals hearing that a notice and
demand for payment must comply with a 1914 Treasury decision,
which requires a Form 17 be used. We have previously rejected
that 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.
     12
      The Secretary or his delegate, including the Commissioner,
is authorized by statute to issue a notice of Federal tax lien, a
notice of Federal tax lien filing and right to a hearing under
sec. 6320, and a notice of intent to levy and right to a hearing
under sec. 6330. Secs. 6320(a), 6323(a), 6330(a), 6331(d),
7701(a)(11)(B) and (12)(A)(i); see also Wilson v. Commissioner,
T.C. Memo. 2002-242; secs. 301.6320-1(a)(1), 301.6330-1(a)(1),
Proced. & Admin. Regs.
                               - 12 -

     Petitioner has failed to raise a spousal defense, and he

does not suggest any collection alternatives.     He has conceded

those matters.   See Rule 331(b)(5).    We find that no genuine

issue as to any material fact remains and, accordingly, we

sustain the Appeals officer’s determination to maintain the lien

filing and proceed with the proposed levy.

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

taxpayer to pay to the United States a penalty not in excess of

$25,000 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.

In the instant case, petitioner has raised the same tax protester

arguments that we have previously and consistently rejected as

frivolous and groundless.    At the Appeals hearing, petitioner was

given a copy of our opinion in Pierson v. Commissioner, 115 T.C.

576 (2000), and he was warned against asserting those arguments

in the Tax Court.    Petitioner stated in response:      “I don’t have

to abide by any Tax Court decision, and you know that.”       We are

convinced that petitioner instituted and maintained these

proceedings primarily for delay, and, accordingly, we impose a

penalty of $1,000.


                                              An appropriate order

                                       and decision will be entered

                                       for respondent.
