                        T.C. Memo. 2006-161



                      UNITED STATES TAX COURT



                 MARC A. CLAMPITT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1555-06L.               Filed August 14, 2006.



     Marc A. Clampitt, pro se.

     Daniel N. Price, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   This matter is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121 and

to impose a penalty pursuant to section 6673.    The issue we must

decide is whether respondent’s Appeals Office abused its

discretion in determining to proceed with collection of
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petitioner’s tax liability for taxable year 1998.     After

considering respondent’s motion and petitioner’s response, we

conclude that there remain no issues of material fact that

require trial or hearing.   For the reasons stated below, we shall

grant respondent’s motion for summary judgment and to impose a

penalty pursuant to section 6673.1     Unless otherwise indicated,

all Rule references are to the Tax Court Rules of Practice and

Procedure, and all section references are to the Internal Revenue

Code, as amended.

                            Background

     At the time of filing the petition in the instant case,

petitioner resided in Pflugerville, Texas.     During 1998,

petitioner worked as a self-employed real estate agent but did

not timely file a Federal income tax return for that year or pay

any tax.   Revenue Agent Lynn Smalls (Ms. Smalls) contacted

petitioner during the course of examining his 1998 taxable year.

Petitioner hired a return preparer to complete his 1998 tax

return and submitted to Ms. Smalls on January 18, 2005, a return

showing a $19,389 tax.   Petitioner did not remit any payment with

his return and had no withholding credits.     Ms. Smalls accepted



     1
      Respondent also filed a motion to permit levy pursuant to
sec. 6330(e)(1). We do not need to address that motion because
we conclude, for reasons stated below, that respondent’s
determination to proceed with collection of petitioner’s 1998 tax
liabilities was not an abuse of discretion and therefore shall
grant respondent’s motion for summary judgment.
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petitioner’s return as filed and made the appropriate assessments

of tax, additions to tax, and interest.

     On or about May 24, 2005, petitioner filed a purported

amended tax return for 1998 on which he claimed that his self-

employment income, reported on Schedule C, Profit or Loss From

Business, was not taxable, and he reported no tax liability.

Ms. Smalls informed petitioner that his purported amended return

provided no basis for changing his original 1998 return submitted

on January 18, 2005.   Petitioner supported his purported amended

return citing numerous typical frivolous tax protester type

arguments.

     On June 18, 2005, respondent sent petitioner a Final Notice

of Intent to Levy and Your Right to a Hearing, advising

petitioner that respondent intended to collect by levy

petitioner’s unpaid tax liability for 1998.    In a letter dated

June 28, 2005, petitioner requested a section 6330 hearing with

respondent’s Appeals Office, raising numerous frivolous tax

protester type arguments.   In letters dated September 30 and

October 18, 2005, petitioner again raised his frivolous tax

protester arguments and attached copies of his frivolous amended

return claiming he did not owe tax for 1998.

     Petitioner’s section 6330 hearing was assigned to Settlement

Officer Robert Bethea (Mr. Bethea).    In a letter dated November

7, 2005, Mr. Bethea warned petitioner that his claims were
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frivolous and directed petitioner to a publication entitled “The

Truth About Frivolous Tax Arguments” available on the Internal

Revenue Service’s Web site.    Petitioner quickly responded to Mr.

Bethea, and in a letter dated November 11, 2005, raised his

frivolous tax protester arguments and attached his frivolous

amended return claiming he did not owe taxes for 1998.

Petitioner also informed Mr. Bethea in this letter:   “I have

responded to you with this letter so a telephone conference is

not necessary.”   Mr. Bethea considered the documents petitioner

sent during the section 6330 administrative process, concluded

that petitioner’s contentions were frivolous and that petitioner

did not offer any collection alternatives, and on December 22,

2005, sent petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330, sustaining

the proposed levy to collect petitioner’s 1998 tax liabilities.

Petitioner timely petitioned this Court.   On May 18, 2006,

respondent filed the instant motion for summary judgment and to

impose a penalty pursuant to section 6673.   On June 15, 2006,

petitioner filed a response.

                              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
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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 that 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 taxpayer unless the Secretary

first notifies him 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, the

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 taxpayer may

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

only if he did not receive any statutory notice of deficiency for
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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 in 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).

     A taxpayer may challenge a self-assessed liability reported

on his return where he has not had the opportunity to dispute the

liability.   Montgomery v. Commissioner, 122 T.C. 1, 9 (2004).

However, section 6330(c)(2) only allows the taxpayer to raise

“any relevant issue relating to the unpaid tax or the proposed

levy”, not “any” issue.   Frivolous challenges to the underlying

liability are not “relevant issues”.   Hathaway v. Commissioner,

T.C. Memo. 2004-15.

     In the instant case, the record indicates that the only

issues petitioner raised throughout the section 6330

administrative process, in his petition to this Court, and in his

response to respondent’s motions for summary judgment, were

frivolous tax protester type arguments.   We do not address

petitioner’s frivolous arguments with somber reasoning and

copious citations of precedent, as to do so might suggest that
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these arguments possess some degree of colorable merit.   See

Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).

Petitioner had the opportunity to challenge the correctness of

his tax liability for 1998 but instead chose not to do so.

Therefore petitioner’s underlying tax liability for 1998 was not

properly in issue.   Accordingly, we hold that no genuine issue of

material fact exists requiring trial and that respondent is

entitled to summary judgment.   Respondent’s determination to

proceed with the proposed levy to collect petitioner’s tax

liability for 1998 was not an abuse of discretion.

     Section 6673(a)(1) provides that this Court may require the

taxpayer to pay a penalty not in excess of $25,000 whenever it

appears to this Court:   (a) The proceedings were instituted or

maintained by the taxpayer primarily for delay; (b) the

taxpayer’s position is frivolous or groundless; (c) or the

taxpayer unreasonably failed to pursue available administrative

remedies.   Respondent has moved that the Court impose a penalty

in the instant case.   The record indicates that petitioner

received several warnings that this Court could impose a penalty

if he persisted in raising his frivolous tax protester arguments.

Despite being warned, petitioner raised his frivolous arguments

throughout the section 6330 administrative process, in his

petition to this Court, and in his response to respondent’s
                                 - 8 -

motion.   Accordingly, we shall impose a $10,000 penalty on

petitioner pursuant to section 6673.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
