                        T.C. Memo. 2005-268



                      UNITED STATES TAX COURT



                 WESLEY SHERWOOD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21913-04L.             Filed November 21, 2005.



     Wesley Sherwood, pro se.

     S. Mark Barnes, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   On October 14, 2004, respondent sent

petitioner a Notice of Determination Concerning Collection

Action(s) Under Sections 6320 and/or 6330,1 in which respondent

determined that it was appropriate to file a notice of lien with


     1
        Unless otherwise stated, section references are to the
Internal Revenue Code.
                                - 2 -

respect to petitioner’s unpaid income taxes, penalties, and

interest for 1997-2002.

     The issues for decision are:

     1.   Whether we have jurisdiction to review respondent’s

determination to proceed with collection of penalties under

section 6682 for 2002 and under section 6702 for 1997-2001.     We

hold that we do not.

     2.   Whether petitioner may dispute his income tax liability

for 1998 in this proceeding.    We hold that he may not.

     3.   Whether petitioner is liable for tax in the amount

respondent contends for 2001 and 2002.    We hold that he is.

     4.   Whether respondent’s determination that it was

appropriate to file a notice of lien with respect to petitioner’s

income taxes, additions to tax, and penalties (other than those

under sections 6682 and 6702) for 1998, 2001, and 2002 was an

abuse of discretion.    We hold that it was not.

                          FINDINGS OF FACT

A.   Petitioner

     Petitioner resided in Salt Lake City, Utah, when the

petition was filed.    He was a driver for Viking Freight, Inc.

(Viking) in 1998, for which he received wages of $50,361.82 in

that year.
                                - 3 -

B.   Petitioner’s 1998 Return

     On April 14, 1999, petitioner signed and filed a Form 1040,

U.S. Individual Income Tax Return, for 1998, in which he reported

only zeros.   Petitioner attached to his 1998 return a Form W-2,

Wage and Tax Statement, from Viking which stated that he had been

paid $50,361.82 in wages and had no Federal income tax withheld,

$3,122.43 of Social Security tax withheld, and $730.25 Medicare

tax withheld.   Petitioner also attached several pages of

arguments, including:   (1) No section of the Internal Revenue

Code establishes an income tax liability, or requires that he pay

taxes on the basis of a return; (2) he did not file his return

voluntarily, he filed it to avoid prosecution; (3) the Privacy

Act provides that he is not required to file a return; (4) a Form

1040 with zeros is a valid return; (5) he had no income under the

definition of income in Merchant’s Loan & Trust Co. v. Smietanka,

255 U.S. 509 (1921); (6) income must be defined as in the

Corporation Excise Tax Act of 1909; (7) he would commit perjury

if he said that he had any income in 1998; (8) no IRS employee

has been delegated authority to impose a frivolous return

penalty; (9) the frivolous return penalty may not be applied to

him because no legislative regulation implements it; (10)

respondent has not assessed income taxes for 1998 as provided in

Chapter 63 of the Internal Revenue Code; (11) respondent lacks

authority to change his return; and (12) petitioner is entitled
                                - 4 -

to an office or field audit as required by the Administrative

Procedure Act and Treasury regulations.

C.   Respondent’s Examination of Petitioner’s 1997 and 1998
     Returns

     On June 1, 1999, respondent sent petitioner a 30-day letter

and an examination report in which respondent proposed changes

for petitioner’s 1997 return.   In the letter, respondent stated

that the U.S. Supreme Court has consistently held that Federal

income tax laws are constitutional and that persons who do not

timely file correct tax returns are subject to penalties in

addition to their tax liabilities.      On March 24, 2000, respondent

sent petitioner a 30-day letter and an examination report in

which respondent proposed changes for petitioner’s 1998 return

and reiterated that Federal income tax laws are constitutional

and that penalties may apply.

     On April 4, 2000, petitioner signed a power of attorney

giving John B. Kotmair, Jr. (Kotmair), the fiduciary of the Save-

A-Patriot Fellowship, the authority to represent him before

respondent.   On April 19, 2000, Kotmair wrote to the Director of

the Internal Revenue Service Center at Ogden, Utah (Ogden Service

Center), to protest respondent’s proposed adjustments for 1997

and 1998.   In the letter, Kotmair said that petitioner denies

that he is required to file a tax return because he did not have

foreign earned income and is not a nonresident alien, officer of

a foreign corporation, or involved with a foreign tax exempt
                                 - 5 -

organization.   Kotmair asked respondent to identify the statutory

authority to assess Federal income tax for 1997 and 1998.

D.   Notice of Deficiency

     On May 19, 2000, respondent issued a notice of deficiency

for 1998 based on the Form W-2 attached to petitioner’s 1998

return.   In a letter to the Director of the Ogden Service Center

dated June 14, 2000, Kotmair said that the notice of deficiency

was invalid because it did not have a declaration under penalties

of perjury or meet the requirements of sections 6211 and 6212.

Kotmair attached to his letter the notice of deficiency and

copies of affidavits that he had drafted to be signed by the

Director of the Ogden Service Center and Commissioner of the

Internal Revenue Service and notarized.

     Petitioner wrote to respondent on June 16, 2000, and

attached a copy of the notice of deficiency for 1998.    In a

letter to the Director of the Ogden Service Center dated June 28,

2000, Kotmair asked the Appeals Office to consider petitioner’s

tax liability for 1997.     The letter included seven pages of tax

protestor rhetoric.   On July 3, 2000, respondent assessed

frivolous return penalties in the amount of $500 under section

6702 for 1997 and 1998.

E.   Respondent’s Levy

     On December 18, 2000, respondent sent petitioner a notice of

intent to levy with respect to his 1998 tax year.    The notice
                                - 6 -

stated that he owed $12,251, including $188.32 of interest, and

asked him to pay that amount immediately.   On January 10, 2001,

Kotmair responded to the notice of intent to levy by sending 5

pages of frivolous arguments to the Director of the Ogden Service

Center.

F.   Petitioner’s Tax Returns for 1999, 2000, and 2001

     On March 5, 2002, petitioner filed returns on which he

reported tax liabilities of $9,050 for 1999 and $11,211 for 2000.

Petitioner had no Federal income tax withheld and paid no Federal

income tax for 1999 or 2000.

     Petitioner filed a 2001 return before April 8, 2002.   In it,

he reported that he owed $9,787 in tax, had no Federal income tax

withheld, and paid no Federal income tax for 2001.   Respondent

assessed petitioner’s Federal income tax for 2001 in the amount

of $10,1862 on April 8, 2002.   On May 13, 2002, respondent issued

a notice and demand for payment of petitioner’s Federal income

tax for 2001.

G.   Petitioner’s 2002 Tax Year

     On June 9, 2003, respondent assessed against petitioner a

penalty in the amount of $500 under section 6682 for submitting




     2
        Respondent assessed the tax that petitioner reported and
did not pay and an additional amount not explained in the record.
                               - 7 -

false information with respect to petitioner’s Federal income tax

withholding for 2002.3

     Petitioner filed a Federal income tax return for 2002 on

August 15, 2003.   He reported that he:   (1) Had an unpaid Federal

income tax liability of $9,313 for 2002; (2) had no Federal

income tax withheld for 2002; and (3) paid no Federal income tax

for 2002.

     On September 8, 2003, respondent assessed frivolous return

penalties in the amounts of $500 under section 6702 for each of

petitioner’s tax years 1999-2001.   On September 22, 2003,

respondent assessed petitioner’s Federal income tax for 2002 in

the amount of $10,109.97.4   On October 13, 2003, respondent sent

a notice and demand for payment of petitioner’s Federal income

tax for 2002.

H.   Notice of Tax Lien, Request for Hearing, and Later Events

     By letter dated March 19, 2004, respondent told petitioner

that a notice of lien had been filed with respect to assessments

for unpaid tax, additions to tax, and interest for 1998, 2001,

and 2002, and civil penalties under section 6682 for 2002, and


     3
        Sec. 6682(a) generally provides that an individual shall
be liable for a civil penalty if the individual is found to have
made a false statement regarding the correct amount of income tax
withholding on wages and/or backup withholding and there was no
reasonable basis for the statement.
     4
        Respondent assessed the amount of tax that petitioner
reported but did not pay and additional amounts not explained in
the record.
                               - 8 -

under section 6702 for 1997-2001.   A Notice of Federal Tax Lien

was recorded in Salt Lake County, Utah.

     On April 22, 2004, petitioner requested a hearing under

section 6330.   In the hearing request, petitioner contended:

(1) No lien may be imposed because no valid assessment was made;

(2) he did not receive a statutory notice and demand as required;

(3) the Appeals officer must, but did not, give him the Treasury

directive or regulation that identifies the statutory notice and

demand for payment; (4) he may challenge the underlying tax

liabilities for 1998, 2001, and 2002, because he did not receive

a valid notice of deficiency for any of those years; (5) he is

entitled to, but did not, receive a copy of Form 23C; (6)

respondent must prove that respondent mailed a notice of

deficiency to him for each year in issue; and (7) the Appeals

officer must have at the hearing verification signed by the

Secretary showing that the requirements of any applicable law or

administrative procedure have been met.

     Appeals Officer Bruce Skidmore (Skidmore) was assigned to

petitioner’s case.   On June 18, 2004, Skidmore obtained computer

transcripts (transcripts) of petitioner’s accounts.   In a letter

to petitioner dated August 30, 2004, Skidmore said:   (1) He had

received petitioner’s request for a hearing; (2) the issues that

petitioner had raised in his request for a hearing were

frivolous, and he might be subject to sanctions; (3) petitioner
                                - 9 -

could have a face-to-face hearing if, within 15 days, he

identified in writing relevant issues, such as appropriate

spousal defenses, challenges to the appropriateness of collection

actions or alternatives to collection; and (4) petitioner could

dispute the amount of his tax liabilities only if he did not

receive a notice of deficiency or otherwise have an opportunity

to dispute the liabilities.   Skidmore offered to discuss the case

by telephone with petitioner at 10 a.m. on September 21, 2004, or

2 p.m. on September 28, 2004.   On August 30, 2004, Skidmore

obtained more transcripts of petitioner’s accounts.

     On September 8, 2004, petitioner wrote Skidmore to request a

face-to-face hearing.   Petitioner said that he intended to raise

the following issues at the hearing:      (1) He did not receive any

notices from the Secretary; (2) no lien may be imposed because

there were no statutory notices and demands for payment and no

valid assessments were made; (3) persons who signed notices

lacked proper delegation of authority; and (4) the Secretary did

not verify that requirements of any applicable law or

administrative procedure were met.      In his September 8, 2004

letter, petitioner asked Skidmore for copies of:      (1) Delegations

of authority signed by the Secretary authorizing appropriate

individuals to send deficiency notices; (2) records of assessment

from the office of the Secretary; (3) the Code section and

regulations that make petitioner liable for tax; (4) notices and
                                - 10 -

demands for payment; (5) documents showing that notices of

deficiency were sent to petitioner; and (6) verification from the

Secretary that the requirements of any applicable law or

administrative procedure have been met.

     In a letter to petitioner dated September 10, 2004, Skidmore

said that he was no longer available for a telephone conference

on September 21, 2004, and that the Secretary need not personally

verify that requirements of any applicable law or administrative

procedure were met because the Secretary delegates that

responsibility.

     In a letter to petitioner dated September 13, 2004,

Skidmore said that there is evidence that petitioner had received

the notice of deficiency and notice of lien.    Skidmore also said

that petitioner challenged the underlying tax liabilities on the

grounds that he had not received a proper notice of deficiency

and that petitioner had requested but not received written

verification.   Skidmore said petitioner had not raised any proper

issues.   Skidmore offered to speak to petitioner by telephone

about the case on September 27 or 28, 2004.    Skidmore asked

petitioner to respond by 2:30 p.m. on September 28, 2004.

     On September 20, 2004, petitioner wrote Skidmore to say that

a telephone conference is not acceptable, and that respondent

must provide petitioner with:    (1) A notice of deficiency and

notice and demand for payment; (2) delegation orders from the
                              - 11 -

Secretary to the individuals who sign notices of deficiency and

demand for payment; (3) copies of the verification from the

Secretary that the requirements of any applicable law or

administrative procedure have been met; and (4) copies of the

record of assessment from the office of the Secretary.

Petitioner also asked Skidmore to identify any Internal Revenue

Code sections and regulations that create his tax liabilities.

Petitioner never spoke to Skidmore by telephone about the case.

     On October 14, 2004, respondent determined that it was

appropriate to file a lien with respect to petitioner’s unpaid

income taxes, penalties, and interest for 1997-2002 and that

petitioner must file a petition in this Court within 30 days if

he wanted to dispute the determination in the Tax Court.

                              OPINION

A.   Penalties for Providing False Withholding Information and
     for Filing a Frivolous Return

     The Court can, sua sponte, question its jurisdiction.     Smith

v. Commissioner, 124 T.C. 36, 40 (2005); Urbano v. Commissioner,

122 T.C. 384, 389 (2004); Raymond v. Commissioner, 119 T.C. 191,

193 (2002).   This Court lacks jurisdiction to review the penalty

for providing false withholding information under section 6682,

Weber v. Commissioner, 122 T.C. 258, 264 (2004); Castillo v.

Commissioner, 84 T.C. 405, 411 (1985); and the frivolous return

penalty under section 6702, Johnson v. Commissioner, 117 T.C.

204, 209 (2001), Van Es v. Commissioner, 115 T.C. 324, 328-329
                              - 12 -

(2000), and Moore v. Commissioner, 114 T.C. 171, 175 (2000).

Thus, we lack jurisdiction to review respondent’s determination

relating to the penalties under section 6682 for 2002 and section

6702 for 1997-2001, and we dismiss for lack of jurisdiction the

portion of this case that pertains to those penalties.

B.   Whether Respondent’s Determination Relating to the Lien
     Imposed on Petitioner for 1998, 2001, and 2002 Was Correct

     Petitioner contends that respondent’s determination relating

to the lien imposed on petitioner for 1998, 2001, and 2002 was

incorrect because:   (1) Respondent did not give him a copy of

Form 23C; (2) there was no valid assessment of tax for 1998,

2001, and 2002; (3) he did not receive a notice and demand for

payment for 1998, 2001, and 2002; (4) respondent did not produce

verification from the Secretary that requirements of applicable

law and administrative procedures have been met or that

respondent’s employees had authority from the Secretary to

collect tax from petitioner; (5) he is not liable for the tax for

1998, 2001, and 2002 that respondent contends he owes; and (6)

respondent improperly failed to give petitioner the opportunity

to have a face-to-face hearing.   We disagree.   Petitioner’s

contentions are frivolous for reasons stated next.

     1.   Whether Respondent Was Required To Provide Form 23C for
          1998, 2001, and 2002

     Section 6330(c)(1) requires the Appeals officer to verify

that the requirements of any applicable law or administrative
                               - 13 -

procedure have been met.    However, section 6330(c)(1) does not

specify which documents the Commissioner must use to meet the

verification requirement.    See, e.g., Kuglin v. Commissioner,

T.C. Memo. 2002-51.    It was not an abuse of discretion for

respondent not to give petitioner the Forms 23C that he had

requested.    See Hughes v. United States, 953 F.2d 531, 535-536

(9th Cir. 1992); Roberts v. Commissioner, 118 T.C. 365, 371

(2002), affd. 329 F.3d 1224 (11th Cir. 2003); Nestor v.

Commissioner, 118 T.C. 162, 166 (2002).

     2.   Whether Respondent Properly Assessed Petitioner’s Tax
          for 1998, 2001, and 2002

     Petitioner contends that respondent did not properly assess

petitioner’s tax for 1998, 2001, and 2002 because he did not

receive copies of Form 23C.    We disagree.   Respondent makes an

assessment of Federal tax on a record of assessment.     Sec. 6203.

The Commissioner is not required to use Form 23C in making an

assessment.    Roberts v. Commissioner, supra at 369-371.   The

record of assessment must identify the taxpayer, the taxable

period, and the character and amount of the liability assessed.

Sec. 301.6203-1, Proced. & Admin. Regs.    Skidmore reviewed

transcripts that appeared to him to show that petitioner’s tax

for 1998, 2001, and 2002 had been validly assessed.     Petitioner

has not shown that there was any irregularity in the assessment

procedure.    We hold that the assessments are valid.
                                - 14 -

     3.   Whether Respondent Issued a Notice and Demand for
          Payment of Petitioner’s Tax for 1998, 2001, and 2002

     Petitioner contends that respondent did not issue the notice

and demand for payment that section 6303(a) requires to be issued

within 60 days of assessment.    We disagree.   The notices of

demand for payment and of intent to levy that respondent sent to

petitioner fulfill the notice and demand for payment requirement

of section 6303(a).   See Henderson v. Commissioner, T.C. Memo.

2004-157; Tornichio v. Commissioner, T.C. Memo. 2002-291;

Standifird v. Commissioner, T.C. Memo. 2002-245, affd. 72 Fed.

Appx. 729 (9th Cir. 2003).    Respondent assessed tax for

petitioner and issued a notice and demand for payment to

petitioner as follows:

          Year           Assessment        Notice and Demand

          1998        Nov. 27, 2000          Dec. 18, 2000
          2001        Apr. 8, 2002           May 13, 2002
          2002        Sep. 22, 2003          Oct. 13, 2003

     4.   Whether Respondent Verified That Requirements of
          Applicable Law and Administrative Procedures Had Been
          Met and That Respondent’s Employees Had Authority From
          the Secretary To Collect Tax

     The Appeals officer must obtain verification that respondent

met requirements of applicable law and administrative procedures

before issuing the determination.     Sec. 301.6320-1(e)(1), Proced.

& Admin. Regs.   Internal revenue laws and regulations do not

require the Appeals officer to give the taxpayer a copy of the

delegation of authority from the Secretary to the person (other
                               - 15 -

than the Secretary) who signed the verification required under

section 6330(c)(1).   Nestor v. Commissioner, supra at 166-167.

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

the taxpayer a copy of the verification that the requirements of

any applicable law or administrative procedure have been met.

Id. at 166.

     An Appeals officer may use computer transcripts of account

for a taxpayer to verify that requirements of applicable law and

administrative procedure have been met.    Keene v. Commissioner,

T.C. Memo. 2002-277 n.10; Hack v. Commissioner, T.C. Memo.

2002-243; Hauck v. Commissioner, T.C. Memo. 2002-184, affd. 64

Fed. Appx. 492 (6th Cir. 2003).    Skidmore reviewed transcripts of

account for petitioner for 1998, 2001, and 2002, and concluded

that the requirements of applicable law and administrative

procedure had been met.

     5.   Whether Petitioner May Dispute Respondent’s Conclusion
          Regarding His Tax Liability for 1998 in This Proceeding

     Petitioner contends that he may dispute respondent’s

conclusion regarding his tax liability for 1998 in this

proceeding.   We disagree.   Petitioner gave the notice of

deficiency for 1998 to Kotmair; thus, it is clear that petitioner

had received it.   A taxpayer may dispute respondent’s conclusion

regarding his or her tax liability at the section 6330 hearing if

he or she did not receive a notice of deficiency or otherwise

have an opportunity to dispute the tax liability.    Sec.
                              - 16 -

6330(c)(2)(B).   Thus, petitioner may not challenge his underlying

tax liability for 1998.

     6.   Whether Petitioner Is Liable for Tax for 2001 and 2002
          in the Amounts Respondent Contends

     Respondent does not contend, and the record does not show,

that petitioner received a notice of deficiency for 2001 or 2002.

Thus, petitioner may dispute respondent’s conclusions regarding

his tax liabilities for those years.    Id.    At trial, petitioner

testified that the issues he would have raised at a face-to-face

hearing are the issues that he described in his letters to

respondent and in the petition.    We conclude that petitioner is

liable for the taxes that were the subject of the Federal tax

lien for 2001 and 2002.

     7.   Whether To Remand This Case to Appeals for a Face-to-
          Face Hearing

     Petitioner cites Treasury regulations which state that if a

taxpayer wants a face-to-face hearing, the taxpayer must be

offered an opportunity for a hearing at the Appeals Office

closest to the taxpayer’s residence.    Sec. 301.6320-1(d)(2),

Q&A-D7, Proced. & Admin. Regs.    Petitioner contends he was

entitled to have a face-to-face hearing.      We disagree.

     In Lunsford v. Commissioner, 117 T.C. 183, 189 (2001), the

Court declined to remand the case to the Appeals Office for a

hearing because the taxpayer could not prevail on any of the

issues he had raised in the proceeding.    We held that it was
                              - 17 -

neither necessary nor productive to remand the case to the

Appeals Office.   Id.; see Kemper v. Commissioner, T.C. Memo.

2003-195 (remand to record face-to-face hearing denied); see also

Keene v. Commissioner, 121 T.C. 8, 19-20 (2003).   The same

reasoning applies here because petitioner is liable for the

underlying income tax and his other arguments are frivolous.

     During trial, petitioner was given the opportunity to raise

the arguments that he would have made at a face-to-face hearing.

Petitioner stated that the issues that he would have raised were

included in his letters to respondent and in the petition.

During the trial, petitioner stated that his only arguments for

overturning respondent’s determination, other than seeking a

face-to-face hearing, were included in his correspondence to

respondent and in the petition.   Those arguments were frivolous.

Thus, it is neither necessary nor productive to remand the case

to the Appeals Office.

     8.   Conclusion

     We sustain respondent’s determination to proceed with

collection of income taxes, additions to tax, and penalties other

than those under sections 6682 and 6702, and interest by lien

from petitioner for 1998, 2001, and 2002.
                        - 18 -

To reflect the foregoing,


                                 An appropriate order will be

                            issued, and decision will be

                            entered.
