                         T.C. Memo. 2005-153



                       UNITED STATES TAX COURT



                 RANDY S. QUIGLEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7752-04L.              Filed June 23, 2005




     Randy S. Quigley, pro se.

     Russell K. Stewart, 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

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

motion.

     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 -

                            Background

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

following.

     Petitioner resided in Harleysville, Pennsylvania, at the

time he filed the petition in this case.

     On or about April 11, 2000, petitioner filed a Federal

income tax (tax) return for his taxable year 1999 (1999 return).

In his 1999 return, petitioner reported total income of $0 and

total tax of $0 and claimed a refund of $4,168.99 of tax with-

held.2   Petitioner attached to his 1999 return Form W-2, Wage and

Tax Statement, reporting wages, tips, and other compensation of

$58,436.12.   Petitioner also attached a document to his 1999

return (petitioner’s attachment to his 1999 return) that con-

tained statements, contentions, arguments, and requests that the

Court finds to be frivolous and/or groundless.3

     On July 29, 2002, respondent issued to petitioner a notice



     2
      Respondent treated petitioner’s 1999 return as a “math
error” return under sec. 6213(b)(2)(A) and issued a “math error”
letter to petitioner. Thereafter, although respondent had not
issued a notice of deficiency to petitioner with respect to his
taxable year 1999, respondent assessed a tax of $11,038 for that
year. An officer with respondent’s Appeals Office determined
that respondent improperly assessed the tax of $11,038 for
petitioner’s taxable year 1999, and respondent abated that tax.
     3
      Petitioner’s attachment to his 1999 return is very similar
to the documents that certain other taxpayers with cases in the
Court attached to their respective returns. See, e.g., Copeland
v. Commissioner, T.C. Memo. 2003-46; Smith v. Commissioner, T.C.
Memo. 2003-45.
                                - 3 -

of deficiency (notice of deficiency) with respect to his taxable

year 1999, which he received.   In that notice, respondent deter-

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

section 6662(a) on, petitioner’s tax for his taxable year 1999 in

the respective amounts of $11,038 and $2,207.60.4

     Petitioner did not file a petition in the Court with respect

to the notice of deficiency relating to his taxable year 1999.

Instead, on October 22, 2002, in response to the notice of

deficiency, petitioner sent a letter (petitioner’s October 22,

2002 letter) to the Internal Revenue Service (IRS) that contained

statements, contentions, arguments, and requests that the Court

finds to be frivolous and/or groundless.5

     On February 3, 2003, respondent assessed petitioner’s tax

for his taxable year 1999.6   (We shall refer to that unpaid

assessed amount, as well as interest as provided by law, as

petitioner’s unpaid liability for 1999.)

     Respondent issued to petitioner the notice and demand for

payment required by section 6303(a) with respect to petitioner’s


     4
      Thereafter, respondent conceded that petitioner is not
liable for the accuracy-related penalty under sec. 6662(a).
     5
      Petitioner’s October 22, 2002 letter is very similar to the
types of letters that certain other taxpayers with cases in the
Court sent to the IRS in response to the respective notices of
deficiency that respondent issued to them. See, e.g., Copeland
v. Commissioner, supra; Smith v. Commissioner, supra.
     6
      See supra note 4.
                               - 4 -

unpaid liability for 1999.

     On or about July 4, 2003, respondent issued to petitioner a

final notice of intent to levy and notice of your right to a

hearing (notice of intent to levy) with respect to petitioner’s

taxable year 1999.   On or about July 25, 2003, in response to the

notice of intent to levy, petitioner filed Form 12153, Request

for a Collection Due Process Hearing (Form 12153), and requested

a hearing with respondent’s Appeals Office (Appeals Office) with

respect to his taxable year 1999.   Petitioner attached a document

to his Form 12153 (petitioner’s attachment to Form 12153) that

contained statements, contentions, arguments, and requests that

the Court finds to be frivolous and/or groundless.7

     In response to petitioner’s Form 12153 and petitioner’s

attachment to Form 12153, an Appeals officer with the Appeals

Office (Appeals officer) sent a letter to petitioner on January

5, 2004 (Appeals officer’s January 5, 2004 letter), which stated

in pertinent part:

     Please note that during my preliminary review of your
     “Request for a Due Process Hearing” and other documents
     written by you, it was observed that you are raising
     points that are frivolous and without merit.


     7
      Petitioner’s attachment to Form 12153 contained statements,
contentions, arguments, and requests that are similar to the
statements, contentions, arguments, and requests contained in the
attachments to respective Forms 12153 filed with the IRS by
certain other taxpayers who commenced proceedings in the Court.
See, e.g., Flathers v. Commissioner, T.C. Memo. 2003-60; Copeland
v. Commissioner, supra.
                              - 5 -

     Please be advised the courts have consistently and
     repeatedly rejected the arguments expressed in your
     letters and in many cases have imposed sanctions. In
     Pierson v. Commissioner [Dec. 54, 152], * * * [115 T.C.
     576 (2000)], the Court issued fair warning of penalties
     under section 6673 to all those taxpayers who, in the
     future, institute or maintain a lien or levy action
     primarily for delay or whose position in such a pro-
     ceeding is frivolous or groundless and has in fact
     imposed a penalty in a number of such cases.   (Please
     see enclosed Exhibit A) [list of cases showing imposi-
     tion of section 6673]

     Pursuant to Sections 6320 and 6330 of the Internal
     Revenue Code, Section 6320(c) discusses matters consid-
     ered at the hearing. Section 6330(c)(2)(B) precludes
     any challenge to the underlying liability, at the
     hearing, for any period, if the person received a
     statutory notice of deficiency or otherwise had an
     opportunity to dispute the liabilities.

The Appeals officer enclosed with the Appeals officer’s January

5, 2004 letter a copy of a TXMODA transcript with respect to

petitioner’s taxable year 1999.

     On February 4, 2004, petitioner sent a letter (petitioner’s

February 4, 2004 letter) to respondent’s Appeals Office, which

stated in pertinent part:

          In my numerous responses to the IRS I have re-
     quested to have a hearing, as provided for in proce-
     dures and Regulations (601.105(b)(1) thru
     601.105(d)(2)(i)) but as of yet I have been offered
     none. Now for exact purpose that the ‘Restructuring
     and Reform Act of 1998' was enacted into law, I am
     again being denied.

          A hearing as called for in IRC Sec 6330(b)(1) “if
     the person requests a hearing under subsection
     (a)(3)(B), such hearing shall be held by the Internal
     Revenue Service Office of Appeals.”. Further more in
     the US District Court Case of ‘MESA OIL, INC., Plain-
     tiff, v. UNITED STATES OF AMERICA, Defendant. Civil
     Action No. 00-B-851', Nov. 21, 2000 wherein I quote
                              - 6 -

     “Tax Law: Federal Tax Administration & Procedure: Tax
     Liabilities & Credits: Levy & Distraint (IRC secs.
     6331-6344, 7429) With respect to a hearing concerning
     the proposed levy of a taxpayer’s property, the tax-
     payer is to have a meaningful hearing, followed by
     judicial review. IRC Sec 6330(d)(1)(B).”. A hearing
     where I can present evidence, ask questions and view
     the verification documents called for in the law.
     [Reproduced literally.]

     In response to petitioner’s February 4, 2004 letter and a

prior telephone call that petitioner made on a date not disclosed

by the record, the Appeals officer sent a letter to petitioner on

February 6, 2004 (Appeals officer’s February 6, 2004 letter),

which stated in pertinent part:

     I’ve received your call and letter requesting a face-
     to-face Hearing. The items that you mention in your
     CDP request are items that:

          •    Courts have determined are frivolous or
               groundless, or
          •    Appeals does not consider. These are moral,
               religious, political, constitutional, consci-
               entious, or similar grounds.

     Examples of arguments that are considered frivolous or
     groundless are provided in “The Truth About Frivolous
     Tax Arguments” on the IRS Internet website at
     http://www.irs.gov/pub/irs-utl/friv tax.pdf. It is not
     a complete list of frivolous and groundless arguments.
     I previously provided a list of cases in the Collection
     Due Process forum in which the arguments you are rais-
     ing were considered frivolous and irrelevant.

     Appeals does not provide a face-to-face conference if
     the only items you wish to discuss are those mentioned
     above. You may, however, have a telephone conference
     or discuss with us by correspondence any relevant
     challenges to the filing of the notice of federal tax
     lien or the proposed levy.

     If you are still interested in receiving a face-to-face
     conference, you must be prepared to discuss issues
                                - 7 -

     relevant to paying your tax liability. These include,
     for example, offering other ways to pay the taxes you
     owe, such as an installment agreement or offer in
     compromise. The Internal Revenue Manual determines
     whether Appeals can accept your proposal. If you wish
     to have a face-to-face conference, please write me
     within 15 days from the date of this letter or February
     23, 2004 and describe the legitimate issues you will
     discuss.

Petitioner did not respond to the Appeals officer’s February 6,

2004 letter.

     On April 8, 2004, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination).   The notice

of determination stated in pertinent part:

     Summary of Determination

          •    A review of the administrative file
               indicated that all statutory and admin-
               istrative requirements that needed to be
               met with respect to the Notice of Intent
               to Levy being issued were in fact met in
               your case.
          •    All relevant issues raised by you were
               addressed.
          •    You suggested no collection alterna-
               tives.
          •    IRC Sections 6320 and 6330 require that
               the Appeals Officer consider whether any
               collection action balance the need for
               efficient tax collection with the legit-
               imate concern that any collection action
               be no more intrusive than necessary.
               The proposed levy action appears appro-
               priate in that your liabilities are
               based on your non-compliance with the
               tax laws and that you continue attempt-
               ing to circumvent the tax system with
               various time worn frivolous arguments.
                                 - 8 -

     An attachment to the notice of determination stated in

pertinent part:

     Legal and Procedural Requirements

        *         *       *       *       *       *          *

     This Appeals Officer has had no prior involvement with
     respect to these liabilities; all relevant legal and
     procedural requirements were reviewed and verified as
     being met also no spousal issues are applicable.

     Validity of the Assessment

     The assessments for all tax years and liabilities
     therein are valid. Various transcripts were reviewed
     and all assessments were appropriate. For the Income
     Tax liability for tax year 1999 you were issued a
     Notice of Deficiency on 7/29/2003 [sic]. You did not
     petition the Tax Court for re-determination and the tax
     was appropriately assessed by default procedures.

     Based on the above[,] Section 6330(c)(2)(B) precludes
     any challenge to the underlying liability, at the
     hearing, for any period, if the person received a
     statutory notice of deficiency or otherwise had an
     opportunity to dispute the liabilities. For the income
     tax liability you received the Notice of Deficiency.

        *         *       *       *       *       *          *

     Challenges to the Appropriateness of the Collection
     Actions

     Your only challenge to the appropriateness of the
     collection actions is documented in your request for
     the hearing and other documents received by the Ser-
     vice. Those challenges are submitted below in perti-
     nent part:

            •     Quotations form [sic] Senator Roth’s
                  book “The Power to Destroy” specifically
                  page 73;
            •     Disputes the validity of the “Final
                  Notice of Intent to Levy and Notice of
                  your Right to a Hearing” pursuant to IRC
                  6330, because no one signed it.
                          - 9 -

       •   Verification from the Secretary that the
           requirements of any applicable law or
           administrative procedure have been met.
           Transcripts of any kind are not accept-
           able. And any claims that the court
           have held that an unsigned, computer
           printout satisfies the legal require-
           ments will no [sic] be acceptable. That
           an Appeals Officer “shall hew to the
           law”, in accordance with Reg. 601.106(f)
           that there is no Treasury Regulation
           that state [sic] the appeals officers
           “shall hew to court decisions”;
       •   Proof of Notice and Demand and proof
           that it is a statutory notice and demand
           via a Treasury Decision or Regulation;
       •   There is no underlying liability -- That
           “The index of the IR Code lists some 60
           taxes under the caption “Liability for
           tax”; however he can find no entry for
           “income taxes”;
       •   One (nonsensical) excuse the appeals
           officer might offer is that the underly-
           ing liability is not at issue due to the
           fact that the taxpayer received a Notice
           of Deficiency. The notice is invalid
           since it was prepared and sent by a
           Service Center Employee and it must be
           sent and determined by the Secretary
           unless there is a delegation authority
           to do so IRC Sec. 6330(c)(2)(B) does not
           apply;
       •   Citation from Federal Crop Insurance v.
           Merrill, 332 U.S. 380;
       •   Disputes the existence of an Income Tax
           Liability -- The Tax Court not being a
           court of law -- has no jurisdiction to
           consider such a question;
       •   There is no statute requiring him to pay
           the income taxes;

   *       *       *       *       *       *          *

None of the above arguments are relevant for purposes
of the hearing.
                              - 10 -

     Collection Alternatives Considered

     You have not suggested any viable alternatives. On
     January 5, 2004 (note: typo error on letter has 2003)
     you were sent a contact letter informing you that the
     hearing was being conducted by correspondence and
     telephone, you were advised that your irrelevant,
     frivolous, meritless arguments were not acceptable and
     that the hearing was being limited to discussions of
     alternatives to the proposed levy. You were further
     notified that you were not in compliance with the
     filing of your 2000, 2001, and 2002 tax returns. You
     were directed to forward completed returns for these
     years along with financial statements.

     In response you wrote a letter dated February 4, 2004
     insisting upon a “hearing where I can present evidence,
     ask questions and view the verification documents
     called for in the law. Awaiting your response for the
     date and time of such in person hearing.”

     On February 6, 2004 this Appeals Officer responded to
     your correspondence informing you of the conditions
     under which you would be given an in person hearing,
     otherwise we would continue with correspondence or by
     telephone. You did not respond to this letter.

     Balancing Efficient Collection and Intrusiveness

     IRC Sec. 6330 requires that the Appeals Officer con-
     sider whether any collection action balance the need
     for efficient tax collection with the legitimate con-
     cern that any collection action be no more intrusive
     than necessary. The levy action is appropriate in that
     you have only made time worn arguments against the tax
     laws to evade the payment of tax nor are you in compli-
     ance with the filing of your returns. It is inappro-
     priate to allow you to ignore his [sic] tax obligations
     any longer.

     Petitioner filed a petition with the Court with respect to

the notice of determination relating to petitioner’s unpaid

liability for 1999.   The petition contained statements, conten-

tions, arguments, and requests that the Court finds to be frivo-
                              - 11 -

lous and/or groundless.8

                            Discussion

     The Court may grant summary judgment where there is no

genuine issue of material fact and 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).     We

conclude that there are no genuine issues of material fact

regarding the questions raised in respondent’s motion.

     Petitioner did not file a petition with the Court with

respect to the notice of deficiency that respondent issued to him

relating to his taxable year 1999.     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 the Internal Revenue for abuse of discretion.

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

sioner, 114 T.C. 176, 182 (2000).

     As was true of, inter alia, petitioner’s 1999 return,

petitioner’s attachment to his 1999 return, petitioner’s attach-

ment to Form 12153, and the petition, petitioner’s position in

petitioner’s response to respondent’s motion (petitioner’s



     8
      The frivolous and/or groundless statements, contentions,
arguments, and requests in petitioner’s petition are similar to
the frivolous and/or groundless statements, contentions, argu-
ments, and requests in respective petitions filed by certain
other taxpayers with cases in the Court. See, e.g., Copeland v.
Commissioner, T.C. Memo. 2003-46.
                              - 12 -

response) is frivolous and/or groundless.9

     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 petitioner’s

unpaid liability for 1999.

     In respondent’s motion, respondent requests that the Court

require petitioner to pay a penalty to the United States pursuant

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 main-

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

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

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

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

an unequivocal warning to taxpayers concerning the imposition of

a penalty under section 6673(a)(1) on those taxpayers who abuse

the protections afforded by sections 6320 and 6330 by instituting



     9
      The statements, contentions, arguments, and requests set
forth in petitioner’s response are similar to the statements,
contentions, arguments, and requests set forth in the respective
responses by certain other taxpayers with cases in the Court to
the motions for summary judgment and to impose a penalty under
sec. 6673 filed by the Commissioner of Internal Revenue in such
other cases. See, e.g., Smith v. Commissioner, T.C. Memo. 2003-
45.
                              - 13 -

or maintaining actions under those sections primarily for delay

or by taking frivolous or groundless positions in such actions.

In the Appeals officer’s January 5, 2004 letter, the Appeals

officer advised petitioner that “the courts have consistently and

repeatedly rejected the arguments expressed in your letters and

in many cases have imposed sanctions.”   In that letter, the

Appeals officer also advised petitioner of the holding in Pierson

v. Commissioner, supra, and provided petitioner with a list of

other cases in which a penalty under section 6673(a)(1) had been

imposed.   Nonetheless, in the instant case, petitioner alleged in

the petition and advances in petitioner’s response, we believe

primarily for delay, frivolous and/or groundless statements,

contentions, arguments, and requests, thereby causing the Court

to waste its limited resources.   We shall impose a penalty on

petitioner pursuant to section 6673(a)(1) in the amount of

$1,000.

     We have considered all of petitioner’s statements, conten-

tions, arguments, and requests that are not discussed herein, and

we find them to be without merit and/or irrelevant.10


     10
      We shall, however, address one of petitioner’s contentions
in petitioner’s response. Petitioner contends in petitioner’s
response that the Appeals officer refused “to afford petitioner
the CDP hearing". On the record before us, we disagree. In the
Appeals officer’s February 6, 2004 letter, the Appeals officer
informed petitioner that “If you wish to have a face-to-face
conference, please write me within 15 days from the date of this
letter * * * and describe the legitimate issues you will dis-
                                                   (continued...)
                             - 14 -

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

     To reflect the foregoing,


                                      An order granting respondent’s

                                 motion and decision for respondent

                                 will be entered.




     10
      (...continued)
cuss.” Petitioner did not respond to that letter. Even if
respondent’s Appeals officer had not offered petitioner an
Appeals Office hearing, on the instant record we would hold that
(1) it is not necessary and will not be productive to remand this
case to the Appeals Office for a hearing under sec. 6330(b), 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 collection action as determined in the notice
of determination with respect to petitioner’s unpaid liability
for 1999, see id.
