                           T.C. Memo. 2009-310



                        UNITED STATES TAX COURT



                    IVAN GALE CARNEY, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1318-07L.                Filed December 30, 2009.



     Ivan Gale Carney, pro se.

     G. Chad Barton, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


        THORNTON, Judge:   Pursuant to section 6330(d), petitioner

seeks review of respondent’s determination to proceed with a

levy.    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 -

                         FINDINGS OF FACT

     On June 21, 2006, respondent sent petitioner a final notice

of intent to levy and of the right to a hearing (the notice) with

respect to petitioner’s unpaid employment tax liability as

reported on Form 941, Employer’s Quarterly Federal Tax Return,

for the quarter ending March 31, 2003.   In response, petitioner

timely submitted to respondent a Form 12153, Request for a

Collection Due Process Hearing.   On the Form 12153 he stated, as

the reasons he did not agree with the notice, that he was

“unaware of these quarterlys”, that he “want[ed] to review my

papers on the 1040’s”, and that he was incarcerated and would not

be able to respond until after August 24, 2006.

     On November 7, 2006, the settlement officer sent a letter to

petitioner at three separate addresses listed in respondent’s

records acknowledging receipt of the Form 12153 and scheduling a

telephone conference for November 28, 2006.   Between November 17

and 20, 2006, the settlement officer received all three letters

back from the U.S. Postal Service with notations that the letters

were undeliverable.   After searching respondent’s records and

finding a new address for petitioner, on November 21, 2006, the

settlement officer sent another letter to petitioner with the

same hearing date.

     By a faxed letter dated November 26, 2006, petitioner

requested that the hearing be rescheduled because he did not
                                - 3 -

receive notice of the hearing until November 25, 2006, and needed

more time to prepare.   On November 28, 2006, the settlement

officer spoke with petitioner by telephone and proposed

rescheduling the hearing to December 15, 2006.      Petitioner told

the settlement officer that he would contact him the following

day, November 29, 2006, to let him know whether December 15,

2006, was an acceptable date.    The settlement officer advised

petitioner that if he failed to call back, the appeal would be

closed.

     Petitioner did not call back.      By notice of determination

(the determination) dated December 13, 2006, and signed by Sue D.

Cody, Appeals Team Manager, the Appeals Office sustained the

proposed levy.   Petitioner filed a timely petition in this Court

to review the determination.    As assignment of error, the

petition states:

     The redetermination that I received was found to be
     totally in error. I am not in receipt of any document
     that establishes that I had taxable income for the year
     2003. The letter I received from Sue D. Cody, agent
     for the Internal Revenue Service on December 13, 2006
     for tax period ending 3/31/03 for tax debt was
     completely fabricated.

     Petitioner refused to enter into stipulations for trial as

required by Rule 91(a) and this Court’s standing pretrial order.1


     1
      Petitioner refused to stipulate, among other things, his
place of residence and refused to affirm to the Court that he
resided in Kansas when he filed his petition, although his
petition shows a Kansas mailing address.
                               - 4 -

At trial he declined the opportunity to testify.   He objected

unsuccessfully to respondent’s introduction into evidence of the

administrative record.   After trial petitioner submitted a brief

reiterating his evidentiary objection, asserting that he had

insufficient “taxable income for the years in question to warrant

the filing of a tax return”, and making various frivolous

arguments.

                              OPINION

     Construed liberally, petitioner’s assignments of error seek

to challenge his underlying liability, as respondent concedes he

is entitled to do under section 6330(c)(2)(B).   The transcript of

account, included in the administrative record, shows that

respondent has assessed petitioner’s unpaid employment tax

liabilities that are the subject of respondent’s collection

action.2   Petitioner has neither alleged nor shown facts that

would suggest that these transcripts are in error and has not

otherwise raised an issue before us regarding the underlying

liability that we can properly adjudicate.3   See Poindexter v.

Commissioner, 122 T.C. 280, 285-286 (2004), affd. 132 Fed. Appx.

919 (2d Cir. 2005).   Nor has petitioner raised any legitimate

     2
      None of petitioner’s objections cast doubt on the
admissibility of the administrative record or the propriety of
considering it for the purposes for which respondent offered it.
     3
      Petitioner’s assertions regarding his “taxable income” are
immaterial to his employment tax liabilities that are the subject
of this collection proceeding.
                                 - 5 -

issue or alleged or shown facts to prove that the Appeals Office

otherwise erred in making its determination.       See Rule 331(b)(4)

(“Any issue not raised in the assignments of error shall be

deemed to be conceded.”).

     Section 6673(a)(1) authorizes this Court to impose a penalty

not in excess of $25,000 whenever it appears to the Court that

proceedings have been instituted or maintained primarily for

delay or that the taxpayer’s position in such proceedings is

frivolous or groundless.    Respondent has not asked that we impose

a section 6673 penalty.    We strongly warn petitioner that he may

be subject to a section 6673 penalty, even upon the Court’s own

motion, if he persists in maintaining proceedings in this Court

primarily for delay or continues to press frivolous arguments.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
