                         T.C. Memo. 2005-89



                       UNITED STATES TAX COURT



                RONALD LEE SNYDER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6315-03L.             Filed April 25, 2005.



     Ronald Lee Snyder, pro se.

     Michelle M. Lippert, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).1    We

shall grant respondent’s motion.2


     1
      Although the Court ordered petitioner to file a response to
respondent’s motion, petitioner failed to do so.
     2
      Respondent concedes in respondent’s motion that the “col-
                                                   (continued...)
                               - 2 -

                            Background

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

following.

     At the time he filed the petition in this case, petitioner’s

mailing address was in Lancaster, Ohio.

     On or about November 7, 1997, petitioner filed a Federal

income tax (tax) return for his taxable year 1994 (1994 return).

In his 1994 return, petitioner reported, inter alia, taxable

income of $3,823 and tax of $574.   Petitioner did not remit any

payment with that return.

     On December 29, 1997, respondent assessed petitioner’s tax

as reported in his return, as well as additions to tax under

section 6651(a)(1)3 and (2), and interest as provided by law for

his taxable year 1994.   (We shall refer to any such unpaid

assessed amounts, as well as interest as provided by law accrued

after December 29, 1997, as petitioner’s unpaid liability for

1994.)


     2
      (...continued)
lection with respect to petitioner’s tax year 1991 should not
proceed” because the period of limitations for collection with
respect to that year has expired. Respondent further states in
respondent’s motion that “petitioner’s account was cleared to
zero balance upon expiration of the collection statute of limita-
tions”. In light of respondent’s concession with respect to
petitioner’s taxable year 1991, we shall address only peti-
tioner’s taxable years 1994, 1996, 1998, and 1999.
     3
      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.
                                - 3 -

     On December 29, 1997, respondent issued to petitioner a

notice of balance due with respect to petitioner’s unpaid liabil-

ity for 1994.

     On or about August 21, 1997, petitioner filed a tax return

for his taxable year 1996 (1996 return).    In his 1996 return,

petitioner reported, inter alia, taxable income of $26,117 and

tax of $4,195.    Petitioner did not remit any payment with that

return.

     On September 22, 1997, respondent assessed petitioner’s tax

as reported in his return, as well as additions to tax under

sections 6651(a)(1) and (2) and 6654(a), and interest as provided

by law for his taxable year 1996.    (We shall refer to any such

unpaid assessed amounts, as well as interest as provided by law

accrued after September 22, 1997, as petitioner’s unpaid liabil-

ity for 1996.)

     On May 5, 2003, respondent issued to petitioner a notice of

balance due with respect to petitioner’s unpaid liability for

1996.    On June 9, 2003, respondent issued to petitioner another

notice of balance due with respect to such unpaid liability.

     Petitioner filed a tax return for his taxable year 1998

(1998 return).4   On June 22, 2001, respondent prepared a substi-



     4
      The record does not establish what petitioner reported in
his 1998 return. The record does establish that respondent
imposed a frivolous return penalty on petitioner with respect to,
inter alia, that return.
                                    - 4 -

tute for return for that taxable year.

       On or about September 7, 2000, petitioner filed a tax return

for his taxable year 1999 (1999 return).            In his 1999 return,

petitioner reported taxable income of $0 and tax of $0.              Peti-

tioner remitted a $3 payment with that return.

       On October 9, 2001, respondent issued to petitioner a notice

of deficiency with respect to his taxable years 1998 and 1999,

which he received.      In that notice, respondent determined defi-

ciencies in, additions to, and an accuracy-related penalty on

petitioner’s tax, as follows:

                          Additions to Tax             Accuracy-Related Penalty
Year   Deficiency   Sec. 6651(a)(1)     Sec. 6654(a)         Sec. 6662(a)
1998     $8,080         $423.50           $45.03                  --
1999     11,766          687.25             --                 $549.80

       Petitioner did not file a petition with the Court with

respect to the notice of deficiency relating to his taxable years

1998 and 1999.      Instead, on December 17, 2001, in response to

that notice, petitioner sent a letter to Charles O. Rossotti, who

was at the time the Commissioner of the Internal Revenue.               That

letter stated in pertinent part:

       As the new Commissioner of Internal Revenue and one who
       is not a lawyer, you might still be shocked to discover
       that the payment of income tax is totally voluntary,
       and not mandatory - as you were probably misled to
       believe while employed in the private sector. If you
       don’t believe me, ask your legal counsel to show you a
       Code Section that established a “liability” for income
       taxes and a requirement “to pay” such a tax * * *.

          *         *        *         *        *         *         *
                               - 5 -

     In accordance with the above, I am bringing to your
     attention a Deficiency Notice that I received from one
     of your underlings, and my response to it. David C.
     Gardin, Technical Support Manager (area 6), seems
     poised to break the law (and a number of constitutional
     prohibitions) by attempting to intimadate [sic] me into
     paying a tax that no law requires me to pay. * * *

     On February 18, 2002, respondent assessed petitioner’s tax

and additions to tax as determined in the notice of deficiency,

as well as interest as provided by law, for his taxable year

1998.   On the same date, respondent assessed petitioner’s tax and

an addition to tax and an accuracy-related penalty as determined

in the notice of deficiency, as well as interest as provided by

law, for his taxable year 1999.   (We shall refer to any such

unpaid assessed amounts for petitioner’s taxable years 1998 and

1999, as well as interest as provided by law accrued after

February 18, 2002, as petitioner’s respective unpaid liabilities

for 1998 and 1999.)

     On February 18, 2002, respondent issued to petitioner a

notice of balance due with respect to petitioner’s respective

unpaid liabilities for 1998 and 1999.    On May 5, 2003, respondent

issued to petitioner a second notice of balance due with respect

to such respective unpaid liabilities.   On June 9, 2003, respon-

dent issued to petitioner a third notice of balance due with

respect to petitioner’s respective unpaid liabilities for 1998

and 1999.

     On May 29, 2002, respondent issued to petitioner a final
                               - 6 -

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

(notice of intent to levy) with respect to his taxable years

1991, 1994, 1996, 1998, and 1999.   On May 31, 2002, respondent

issued to petitioner a notice of Federal tax lien filing and your

right to a hearing (notice of tax lien) with respect to those

same taxable years.

     On or about June 27, 2002, in response to the notice of

intent to levy and the notice of tax lien, petitioner mailed Form

12153, Request for a Collection Due Process Hearing (Form 12153),

and requested a hearing with respondent’s Appeals Office (Appeals

Office).   The Internal Revenue Service (IRS) received that form

on July 1, 2002.   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.5

     The Appeals Office determined that petitioner’s Form 12153

was timely filed with respect to the notice of tax lien but was

not timely filed with respect to the notice of intent to levy.6


     5
      Petitioner’s attachment to Form 12153 contained statements,
contentions, arguments, and requests that are very 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., Copeland v. Commissioner, T.C. Memo. 2003-46; Smith v.
Commissioner, T.C. Memo. 2003-45.

     6
      As discussed below, respondent now acknowledges that peti-
                                                   (continued...)
                                - 7 -

     On January 16, 2003, a settlement officer with respondent's

Appeals Office (settlement officer) held one hearing with peti-

tioner that the settlement officer considered to be both an

Appeals Office hearing with respect to the notice of tax lien and

an equivalent hearing with respect to the notice of intent to

levy.    During that hearing, the settlement officer relied on a

transcript of petitioner’s account with respect to each of his

taxable years 1991, 1994, 1996, 1998, and 1999.

     On March 25, 2003, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6320 (notice of determination) in which that office

sustained the notice of tax lien.     An attachment to the notice of

determination stated in pertinent part:

                          BRIEF BACKGROUND

     The taxpayer filed voluntary income tax returns for
     1991, 1994, 1996. The Collection Statute has since
     expired on the 1991 tax liability. The taxpayer filed
     frivolous returns for 1997, 1998 and 1999. Frivolous
     return penalties were assessed for each of these three
     years. The taxpayer has filed no income tax returns
     since 1999 even though income information reported to
     the Internal Revenue Service indicates that he would
     have a filing requirement.

         *       *       *        *       *       *       *




     6
      (...continued)
tioner’s Form 12153 was timely filed with respect to the notice
of intent to levy.
                             - 8 -

I.       Verification of Legal and Procedural Requirements

The required notice and demand was sent for each period
on the same date as the assessment.

     *        *       *        *         *     *       *

With the best information available including computer
records and the administrative file it has been deter-
mined that all applicable legal and administrative
requirements have been met.

This settlement officer has had no known previous
dealings with this taxpayer for the tax liability for
the periods listed above.

     *        *       *        *         *     *       *

II.      Issues Raised by the Taxpayer

The taxpayer had an earlier opportunity to raise issues
concerning the underlying tax liability for the 1998
and 1999 tax liability. A Statutory Notice of Defi-
ciency (SND) was issued for these assessments. It is
known that the taxpayer received a copy of this notice
because he provided a copy of it with his appeal re-
quest. The tax liability on earlier periods [including
1994 and 1996] is based upon voluntarily filed tax
returns.

The taxpayer has not filed delinquent returns for 2000
and 2001. This precluded discussion of collection
alternatives.

     *        *       *        *         *     *       *

The taxpayer did not raise any relevant issues to
challenge the appropriateness of the NFTL and none of
the conditions for considering withdraw [sic] of the
NFTL exist in this case.

The taxpayer has raised only frivolous arguments.
During the hearing, the taxpayer was unwilling to
discuss the legitimate issues.

The taxpayer did not raise any other relevant issues.
                              - 9 -

     III. Balancing the Need for Efficient Collection with the
          Taxpayer’s Concern that the Collection Action be no
          More Intrusive than Necessary

     Has efficient tax collection been balanced with concern
     regarding intrusiveness of the proposed collection
     action?

     IRC §6330 requires that the Settlement   Officer consider
     whether any collection action balances   the need for
     efficient collection of taxes with the   taxpayer’s
     legitimate concern that any collection   action be no
     more intrusive than necessary.

     The taxpayer has not participated meaningfully in
     trying to resolve his tax liability and has insisted
     instead on using frivolous arguments, which have re-
     peatedly been dismissed by the courts.

     Appeals sustains Collection’s decision to file the
     NFTL.

     On March 25, 2003, respondent issued to petitioner a deci-

sion letter concerning equivalent hearing under section 6330

(decision letter) with respect to the notice of intent to levy.

That letter stated in pertinent part:

     We have reviewed the proposed collection action for the
     period(s) shown above [including 1994, 1996, 1998, and
     1999]. This letter is our decision on your case. A
     summary of our decision is stated below and the en-
     closed statement shows, in detail, the matters we
     considered at your Appeals hearing and our conclusions.

     Your due process hearing request was not timely filed
     within the time prescribed under Section 6330. How-
     ever, you received a hearing equivalent to a due pro-
     cess hearing except that there is no right to dispute a
     decision by the Appeals Office in court under IRC
     section 6330.

     A statement attached to the decision letter provided in

pertinent part:
                            - 10 -

                       BRIEF BACKGROUND

The taxpayer filed voluntary income tax returns for
1991, 1994, 1996. The Collection Statute has since
expired on the 1991 tax liability. The taxpayer filed
frivolous returns for 1997, 1998 and 1999. Frivolous
return penalties were assessed for each of these three
years. The taxpayer has filed no income tax returns
since 1999 even though income information reported to
the Internal Revenue Service indicates that he would
have a filing requirement.

     *        *       *       *          *    *       *

I.       Verification of Legal and Procedural Requirements

The required notice and demand was sent for each period
on the same date as the assessment.

     *        *       *        *         *    *       *

With the best information available including computer
records and the administrative file it has been deter-
mined that all applicable legal and administrative
requirements have been met.

This settlement officer has had no known previous
dealings with this taxpayer for the tax liability for
the periods listed above.

II.      Issues Raised by the Taxpayer

The taxpayer had an earlier opportunity to raise issues
concerning the underlying tax liability for the 1998
and 1999 tax liability. A Statutory Notice of Defi-
ciency (SND) was issued for these assessments. It is
known that the taxpayer received a copy of this notice
because he provided a copy of it with his appeal re-
quest. The tax liability on earlier periods [including
1994 and 1996] is based upon voluntarily filed tax
returns.

The taxpayer was given an opportunity to raise the
issue of the underlying tax liability with regards to
the Frivolous Income Tax Return Civil Penalty under IRC
§ 6702 for the tax periods listed above. The taxpayer
did not present any relevant, non-frivolous documenta-
tion to challenge the liability.
                              - 11 -

     The taxpayer has not filed delinquent returns for 2000
     and 2001. This precluded discussion of collection
     alternatives.

     The taxpayer has raised only frivolous arguments.
     During the hearing, the taxpayer was unwilling to
     discuss the legitimate issues.

     The taxpayer did not raise any other relevant issues.

     III. Balancing the Need for Efficient Collection with the
          Taxpayer’s Concern that the Collection Action be no
          More Intrusive than Necessary

     Has efficient tax collection been balanced with concern
     regarding intrusiveness of the proposed collection
     action?

     IRC §6330 requires that the Settlement   Officer consider
     whether any collection action balances   the need for
     efficient collection of taxes with the   taxpayer’s
     legitimate concern that any collection   action be no
     more intrusive than necessary.

     The taxpayer has not participated meaningfully in
     trying to resolve his tax liability and has insisted
     instead on using frivolous arguments, which have re-
     peatedly been dismissed by the courts.

     Appeals sustains Collection’s decision to issue a levy
     as its next collection tool for resolving the tax-
     payer’s tax account.

     Summary of Decision

     Appeals sustains Collection’s decision to levy to
     collect the balance due on the taxpayer’s account. The
     taxpayer is not in compliance with filing requirements
     for individual income tax returns. The taxpayer raised
     no relevant issues with regards to collection alterna-
     tives.

     On April 28, 2003, petitioner filed a petition with the

Court in response to the notice of determination and the decision

letter.   Except for an argument under section 7521(a)(1), the
                               - 12 -

petition and a supplement attached to the petition that we

consider to be part of the petition contain statements, conten-

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

lous and/or groundless.7   With respect to section 7521(a)(1),

petitioner alleges in the supplement attached to the petition

that the Appeals Office refused to allow him to make an audio

recording of the hearing held with that office on January 16,

2003, and that that refusal was improper under that section.

                             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.

     We turn first to whether the Court’s jurisdiction is invoked

with respect to the decision letter that the Appeals Office

issued to petitioner with respect to the notice of intent to

levy.    Respondent acknowledges that petitioner’s Form 12153 was



     7
      The frivolous and/or groundless statements, contentions,
arguments, and requests in petitioner’s petition and the supple-
ment to that petition are very similar to the frivolous and/or
groundless statements, contentions, arguments, and requests in
the respective petitions filed with the Court by certain other
taxpayers. See, e.g., Copeland v. Commissioner, T.C. Memo. 2003-
46; Smith v. Commissioner, T.C. Memo. 2003-45.
                                - 13 -

timely filed with the IRS with respect to the notice of intent to

levy.     Respondent concedes that the decision letter that the

Appeals Office issued to petitioner with respect to that notice

constitutes a “determination” for purposes of section 6330(d)(1).

We agree with respondent’s concession.     Craig v. Commissioner,

119 T.C. 252, 259 (2002).     We conclude that the determination

reflected in the decision letter coupled with petitioner’s timely

filed petition with the Court with respect to, inter alia, that

determination invokes the Court’s jurisdiction under section

6330(d)(1).     Moorhous v. Commissioner, 116 T.C. 263, 269 (2001).

     We turn now to the determinations with respect to the notice

of tax lien and the notice of intent to levy relating to peti-

tioner’s taxable years 1994, 1996, 1998, and 1999.      A taxpayer

may raise challenges to the existence or the amount of the

taxpayer’s underlying liability if the taxpayer did not receive a

notice of deficiency 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 placed at

issue, the Court will review the matter on a de novo basis.        Sego

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

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

        With respect to petitioner’s taxable years 1994 and 1996,

respondent based the assessment with respect to each of those

years on the tax shown in petitioner’s return for each such year.
                              - 14 -

At the hearing held by the Appeals Office, petitioner did not

raise any relevant issues challenging the appropriateness of the

notice of tax lien or the notice of intent to levy relating to

his taxable years 1994, 1996, 1998, and 1999.   In the notice of

determination and the decision letter, the Appeals Office con-

cluded that the petitioner advanced only frivolous arguments at

that hearing.   Petitioner does not claim here that the amount of

tax reported in his return for each of his taxable years 1994 and

1996 is not correct.   Instead, he advances statements, conten-

tions, arguments, and requests in his petition and the supplement

to that petition that we have found to be frivolous and/or

groundless.

     With respect to petitioner’s taxable years 1998 and 1999,

respondent issued, and petitioner received, a notice of defi-

ciency for those years, but he did not file a petition with

respect to that notice.   On the instant record, we find that

petitioner may not challenge the existence or the amounts of

petitioner’s respective unpaid liabilities for 1998 and 1999.

     We turn now to petitioner’s argument under section

7521(a)(1) that the refusal by the Appeals Office to permit

petitioner to make an audio recording of the hearing held by that

office on January 16, 2001, was improper.8   Before he filed the


     8
      We note that the record does not establish that petitioner
complied with the requirement of sec. 7521(a)(1) that he present
                                                   (continued...)
                               - 15 -

petition in this case, petitioner made statements and requests

and advanced contentions and arguments that the Court has found

to be frivolous and/or groundless.      In that petition and the

supplement thereto, petitioner persists in advancing such frivo-

lous and/or groundless statements, requests, contentions, and

arguments.    Consequently, even though we held in Keene v. Commis-

sioner, 121 T.C. 8, 19 (2003), that section 7521(a)(1) requires

the Appeals Office to allow a taxpayer to make an audio recording

of an Appeals Office hearing held pursuant to section 6330(b), we

conclude that (1) it is not necessary and will not be productive

to remand this case to the Appeals Office for another hearing

under sections 6320(b) and 6330(b) in order to allow petitioner

to make such an audio recording, see Lunsford v. Commissioner,

117 T.C. 183, 189 (2001), and (2) it is not necessary or appro-

priate to reject respondent’s determinations to proceed with the

collection action as determined in the notice of determination

and in the decision letter with respect to petitioner’s unpaid

liability for 1994, petitioner’s unpaid liability for 1996, and

petitioner’s respective unpaid liabilities for 1998 and 1999, see

id.9

       Based upon our examination of the entire record before us,


       8
      (...continued)
to respondent his request to make an audio recording of his
hearing with the Appeals Office in advance of that hearing.
       9
        See Kemper v. Commissioner, T.C. Memo. 2003-195.
                                - 16 -

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 and in the decision letter with

respect to petitioner’s taxable years 1994, 1996, 1998, and 1999.

     Although respondent does not ask the Court to impose a

penalty on petitioner under section 6673(a)(1), we now consider

sua sponte whether the Court should impose a penalty on peti-

tioner under that section.    Section 6673(a)(1) authorizes the

Court to require a taxpayer to pay a penalty to the United States

in an amount not to exceed $25,000 whenever it appears that a

taxpayer instituted or maintained a proceeding in the Court

primarily for delay or that a taxpayer's position in such a

proceeding is frivolous or groundless.

     In an Order dated February 23, 2004, the Court cautioned

petitioner that in the event he were to advance in this matter or

any future matter arguments that the Court finds to be frivolous

and/or without merit, it is likely that the Court would impose a

penalty on him under section 6673(a)(1).    Since that time,

petitioner has not advanced any contentions or arguments in this

case.   See supra note 1.    Although we shall not impose a penalty

under section 6673(a)(1) on petitioner in the instant case, we

caution him that he may be subject to such a penalty if in the

future he institutes or maintains a proceeding in this Court

primarily for delay and/or his position in any such proceeding is
                              - 17 -

frivolous or groundless.   See Abrams v. Commissioner, 82 T.C.

403, 409-413 (1984); White v. Commissioner, 72 T.C. 1126,

1135-1136 (1979).

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

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

and, to the extent we have not found them to be frivolous and/or

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

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

     To reflect the foregoing and the concession of respondent,


                                    An order granting respondent's

                               motion and an appropriate decision

                               will be entered.
