                         T.C. Memo. 2002-268



                      UNITED STATES TAX COURT



      CARLIN BARTSCHI AND JOYCE A. BARTSCHI, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12729-01L.              Filed October 22, 2002.



     Carlin Bartschi and Joyce A. Bartschi, pro sese.

     Anne W. Durning, for respondent.


                         MEMORANDUM OPINION


     LARO, Judge:   Petitioners, while residing in Gilbert,

Arizona, petitioned the Court under section 6330(d) to review

respondent’s determination as to his proposed levy upon

petitioners’ property.   Respondent proposed the levy to collect

Federal income taxes of approximately $19,884.28 for 1993,
                               -2-

$80,453.10 for 1995 and 6,617.30 for 1997.1    Currently, the case

is before the Court on respondent’s motion for summary judgment

under Rule 121 and to impose a penalty under section 6673(a).

Petitioners have filed with the Court a response to respondent’s

motion.2

     We shall grant respondent’s motion for summary judgment and

shall impose a $2,500 penalty against petitioners.    Unless

otherwise noted, section references are to the applicable

versions of the Internal Revenue Code.   Rule references are to

the Tax Court Rules of Practice and Procedure.

                           Background

     Petitioners filed Federal income tax returns for 1993, 1995,

and 1997, and respondent assessed the Federal income tax

liabilities shown on those returns.   Respondent assessed the 1993

liability on May 16, 1994, the 1995 liability on March 10, 1997,

and the 1997 liability on December 28, 1998.

     On November 7, 1999, respondent mailed to petitioners a

letter, “Final Notice - Notice of Intent to Levy and Notice of


     1
       We use the term “approximately” because these amounts were
computed before the present proceeding and have since increased
on account of interest.
     2
       As part of their response, petitioners challenge as
improper a declaration of respondent’s counsel that accompanied
respondent’s motion for summary judgment. The declaration
describes certain documents contained in respondent’s
administrative file, all of which were submitted to the Court as
part of respondent’s motion for summary judgment. We find
petitioners’ challenge disingenuous.
                                -3-

Your Right to a Hearing” (final notice).   The final notice

informed petitioners of (1) respondent’s intent to levy upon

their property pursuant to section 6331 and (2) petitioners’

right under section 6330 to a hearing with respondent’s Office of

Appeals (Appeals).   Enclosed with the final notice was a copy of

Form 12153, Request for a Collection Due Process Hearing.     On

December 6, 1999, petitioners mailed to respondent a Form 12153

requesting the referenced hearing.    Petitioners attached to the

form an explanation of their disagreement with the proposed levy.

The explanation stated:

          Income. (1) There was a failure to generate an
     assessment list; (2) There was a failure of the
     Commissioner to certify and transmit the assessment
     list (3) There was a failure to record the assessment;
     (4) failure to provide record of assessment; and,
     (5) failure to send Notice of Assessment.

     On May 4, 2000, the Appeals officer sent to Carlin Bartschi

(Mr. Bartschi) a letter informing him that Appeals had scheduled

the requested face-to-face hearing for May 19, 2000.   The Appeals

officer also sent a copy of this letter to Joyce Bartschi.     On

May 13, 2000, Mr. Bartschi, a medical doctor, responded to the

Appeals officer with a letter requesting that Appeals reschedule

the hearing for the last week of July.   Mr. Bartschi stated in

his letter that he and his wife would be out of town on May 19,

2000.   Mr. Bartschi also stated in his letter that petitioners

could subsequently be requesting an even later hearing date

because they were:   (1) Waiting on responses to their requests
                                -4-

for records made under the Freedom of Information Act, 5 U.S.C.

sec. 552 (2000), records he stated were necessary to prove the

disagreements set forth in petitioners’ request for the hearing,

and (2) anticipating challenging in court a statement by the

Appeals officer that only an attorney, certified public

accountant, or enrolled agent could represent them at the

hearing.

     On May 18, 2000, the Appeals officer mailed to petitioners a

letter stating that the hearing had been rescheduled for June 20,

2000.   The letter also stated that, if petitioners desired, the

Appeals officer would reschedule the hearing for a date before,

but not after, June 20, 2000.   The letter informed petitioners

that the Appeals officer would make his determination on the

basis of the information in the file if petitioners were unable

to attend a face-to-face hearing before June 21, 2000.    Enclosed

with the letter were certified transcripts, Forms 4340,

Certificate of Assessments and Payments, of petitioners’ accounts

for 1993, 1995, and 1997, and a copy of Circular 230 which, the

letter stated, “presents the Regulations governing practice

before the Internal Revenue Service.”

     On June 3, 2000, Mr. Bartschi responded to the Appeals

officer’s latest correspondence with a letter requesting again

that the Appeals officer reschedule the hearing for the last week

of July.   This letter stated that petitioners were anticipating
                               -5-

making several Freedom of Information requests due, in part, to

the documents enclosed with the May 18, 2000, letter.   This

letter also stated that petitioners had contacted someone to

represent them at the hearing but that this person had not as of

yet agreed to represent them and had informed them that he could

not represent them until after July 15, 2000.

     Appeals never responded to Mr. Bartschi’s June 3, 2000,

letter, or held a face-to-face hearing with either petitioner.

Instead, on the basis of the above-mentioned letters and attached

documents, Appeals issued to petitioners on July 13, 2000, a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 for 1993, 1995, and 1997.    This notice

reflected the determination of Appeals to sustain the proposed

levy and advised petitioners that this Court is the proper forum

in which to file a petition should petitioners decide to seek

judicial review of the determination.

     On August 11, 2000, petitioners filed a Complaint with the

United States District Court for the District of Arizona.   The

Court dismissed that Complaint on September 5, 2001, for lack of

subject matter jurisdiction.   Bartschi v. Tracy, 88 AFTR 2d

2001-6223, 2001-2 USTC par. 50,672 (D. Ariz. 2001).
                                 -6-

                             Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, 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(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994).    The moving party bears the burden of proving

that there is no genuine issue of material fact, and factual

inferences are drawn in a manner most favorable to the party

opposing summary judgment.    Dahlstrom v. Commissioner, 85 T.C.

812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).

     Petitioners have raised no genuine issue as to any material

fact.   Accordingly, we conclude that this case is ripe for

summary judgment.

     Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after
                                -7-

notice and demand for payment, the Secretary may collect such tax

by levy on the person’s property.     Section 6331(d) provides that

at least 30 days before enforcing collection by levy on the

person’s property, the Secretary must provide the person with a

final notice of intent to levy, including notice of the

administrative appeals available to the person.

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the person has been given

notice and the opportunity for an administrative review of the

matter (in the form of a hearing before Appeals) and, if

dissatisfied, with judicial review of the administrative

determination.   Davis v. Commissioner, 115 T.C. 35, 37 (2000);

Goza v. Commissioner, 114 T.C. 176, 179 (2000).     In the event of

such a judicial review, the Court’s standard of review depends on

whether the underlying tax liability is at issue.    The Court

reviews a taxpayer’s liability under the de novo standard where

the validity of the underlying tax liability is at issue.    The

Court reviews other administrative determinations for abuse of

discretion.   Sego v. Commissioner, 114 T.C. 604, 610 (2000).      A

taxpayer’s underlying tax liability may be at issue if he or she

“did not receive any statutory notice of deficiency for such tax

liability or did not otherwise have an opportunity to dispute

such tax liability.”   Sec. 6330(c)(2)(B).
                                  -8-

     Petitioners assert in their petition two allegations of

error in the Appeals officer’s determination.3   First,

petitioners argue that the Appeals officer failed to obtain

verification from the Secretary that the requirements of all

applicable laws and administrative procedures were met as

required by section 6330(c)(1).    We disagree with this argument.

Section 6330(c)(1) does not require the Appeals officer to rely

upon a particular document (e.g., the summary record itself

rather than transcripts of account) in order to satisfy this

verification requirement.   Kuglin v. Commissioner, T.C. Memo.

2002-51; see also Weishan v. Commissioner, T.C. Memo. 2002-88.

Nor does it mandate that the Appeals officer actually give a

taxpayer a copy of the verification upon which the Appeals

officer relied.   Sec. 6330(c)(1); sec. 301.6330-1(e)(1), Proced.

& Admin. Regs.; see also Nestor v. Commissioner, 118 T.C. 162

(2002).   Given the additional fact that petitioners were actually

given copies of the relevant Forms 4340, which are a valid

verification that the requirements of any applicable law or

administrative procedure have been met, Roberts v. Commissioner,

118 T.C. 365 (2002); Mudd v. Commissioner, T.C. Memo. 2002-204;

Howard v. Commissioner, T.C. Memo. 2002-81; Mann v. Commissioner,



     3
       Petitioners attempted to raise in their response to
respondent’s motion for summary judgment new issues as to the
Appeals officer’s determination. Those issues are frivolous.
Moreover, they are not properly before the Court for decision.
                                  -9-

T.C. Memo. 2002-48, we hold that:       (1) The assessments were

valid, Kuglin v. Commissioner, supra; see also Duffield v.

Commissioner, T.C. Memo. 2002-53, and (2) the Appeals officer

satisfied the verification requirement of section 6330(c)(1),

Yacksyzn v. Commissioner, T.C. Memo. 2002-99; cf. Nicklaus v.

Commissioner, 117 T.C. 117, 120-121 (2001).      Petitioners have not

demonstrated in this proceeding any irregularity in the

assessment procedure that would raise a question about the

validity of the assessment or the information contained in Forms

4340.     See Mann v. Commissioner, supra.

        Second, petitioners argue that the Appeals officer made his

determination without affording them a hearing.      Respondent

replies that petitioners “were given ample opportunity for a

face-to-face hearing.”

        Because petitioners allege that a hearing under section 6330

was not properly held, the question arises whether this Court

should remand the case to Appeals to hold the hearing.      Such a

question is the subject of Lunsford v. Commissioner, 117 T.C. 183

(2001).     There, the Court declined to remand the case to Appeals

to hold a hearing at which to consider the taxpayer’s arguments.

The Court stated that the Court believed it neither “necessary or

productive” to do so because “the only arguments that * * * [the

taxpayers] presented to this Court were based on legal

propositions which we have previously rejected.”      Id. at 189.
                                 -10-

     The same is true here.    Apart from their contention about

being denied a hearing, petitioners’ only argument in this

proceeding, as gleaned from the allegations of error that they

set forth in their petition, is that the Appeals officer did not

perform the required verification.      For the reasons stated above,

we have rejected that argument in accordance with our firmly

established jurisprudence.    Thus, as was true in Lunsford v.

Commissioner, supra, and pursuant thereto, we consider it neither

necessary or productive to remand this case to Appeals to hold a

hearing.   We sustain respondent’s determination as to the

proposed levy as a permissible exercise of discretion.

     We now turn to the requested penalty under section 6673.

Section 6673(a)(1) authorizes the 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 such proceeding is frivolous or

groundless.   We have repeatedly indicated our willingness to

impose such penalties in lien and levy review proceedings.

Roberts v. Commissioner, supra.     Moreover, we have imposed

penalties in such proceedings when the taxpayer raised frivolous

and groundless arguments.     Yacksyzn v. Commissioner, supra;

Watson v. Commissioner, T.C. Memo. 2001-213; Davis v.

Commissioner, T.C. Memo. 2001-87.
                               -11-

     In accordance with the firmly established law set forth

above, we conclude that petitioners’ positions in this proceeding

are frivolous.4   We also conclude from the facts of this case

that petitioners have instituted and maintained this proceeding

primarily for delay.5   Accordingly, pursuant to section 6673, we

require them to pay to the United States a penalty of $2,500.

     We have considered all arguments and have found those

arguments not discussed herein to be irrelevant and/or without

merit.   To reflect the foregoing,

                                           An appropriate order and

                                      decision will be entered for

                                      respondent.




     4
       We also note that we recognize petitioners’ response to
respondent’s motion for summary judgment as generally a
repetition of the same language set forth in similar responses
filed in this Court by other taxpayers challenging a lien or
proposed levy.
     5
       The fact that petitioners are not indifferent to wasting
the judiciary’s resources in an attempt to delay the respondent’s
collection of their tax liability is further evidenced by their
having commenced an action first in Federal District Court.
Petitioners commenced that action there after having received a
notice of determination which recited that this Court, not a
District Court, is the proper forum in which to litigate this
matter.
