                           T.C. Memo. 2002-3



                       UNITED STATES TAX COURT



               WALTHER GUERRIER, JR., Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4512-01L.                      Filed January 7, 2002.


     Walther Guerrier, Jr., pro se.

     Rosemarie D. Camacho and Lewis J. Abrahams, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:     This case is before us on petitioner’s

motion to dismiss for lack of jurisdiction (petitioner’s motion)

and respondent’s motion to dismiss for lack of jurisdiction

(respondent’s motion).    The Court held a hearing on each of those

motions.   We shall deny petitioner’s motion and grant respon-

dent’s motion.
                               - 2 -

Background

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

following:

     At the time the petition for lien or levy action under

section 6320(c) or 6330(d)1 was filed, petitioner resided in Far

Rockaway, New York.

     Respondent’s transcripts for petitioner’s taxable years 1994

and 1996 indicate that he did not file a Federal income tax

return (return) for either of those years and that respondent

prepared a substitute for return for each such year.   On a date

not disclosed by the record, respondent mailed to petitioner a

notice of deficiency (notice) with respect to his taxable years

1994 and 1996.   The U.S. Postal Service (Postal Service) returned

that notice to respondent because petitioner no longer resided at

the address for petitioner shown on the envelope in which the

notice was mailed and petitioner’s request to the Postal Service

to forward his mail to a new address had expired.

     On October 11, 1999, respondent assessed the Federal income

tax (tax) due for each of the petitioner’s taxable years 1994 and

1996, as shown in the substitute for return for each such year

that respondent had prepared, and issued notices and demands for

payment of such taxes.


     1
      All section references are to sections of the Internal
Revenue Code in effect at all relevant times. All Rule refer-
ences are to the Tax Court Rules of Practice and Procedure.
                              - 3 -

     On May 3, 2000, respondent issued to petitioner a notice of

intent to levy with respect to his assessed tax liability for

each of the years 1994 and 1996 (notice of intent to levy).

     On June 1, 2000, petitioner timely filed Form 12153, Request

for a Collection Due Process Hearing (request for Appeals Office

hearing), with respect to the notice of intent to levy.   In an

attachment to the request for Appeals Office hearing, petitioner

stated in pertinent part:

     I am “challenging the appropriateness of (the) collec-
     tion action” as specified in [section]6330(c)(2)(A)(ii)
     since the IRS denied all of my requests for the initial
     “examinations” and “interviews” as provided for in
     Publications 1 & 5. In addition, no lien for taxes
     pursuant to Code Sections 6321 and 6322 is possible
     because no valid, underlying assessment was ever made.
     In addition, I never received the statutory “notice and
     demand” for payment of the taxes at issue as required
     by Code Sections 6203, 6321, and 6331. If the appeals
     officer is going to claim that a particular document
     sent to me by the IRS was a “Notice and Demand” for
     payment, then I am requesting that he also provide me
     with a T.D. or Treas. Reg. which identifies that spe-
     cific document as being the official, statutory “Notice
     and Demand” for payment.

          In addition, I am “challenging the existence of
     the underlying tax liability” as I am authorized to do
     in Code Section 6330(c)(2)(B). In addition, I did not
     receive a (valid) notice of deficiency in connection
     with any of the years at issue. I am also requesting
     that the appeals officer have at the “Due Process
     Hearing” a copy of the “Summary Record of Assessment”
     (Form 23 C) together with the “pertinent parts of the
     assessment which set forth the name of the taxpayer,
     the date of the assessment, the character of the lia-
     bility assessed, the taxable period, and the amount
     assessed” as provided for in Treas. Reg. [section]
     301.6203-1.

          In addition, I want to see proof that a purported
                               - 4 -

     “Deficiency Notice” was actually sent to me. Also,
     since Section 6330(c)(1) requires that “The appeals
     officer shall at the hearing obtain verification from
     the Secretary that the requirements of any applicable
     law or administrative procedure have been met,” I am
     requesting that the Appeals Officer have such verifica-
     tion with him at the Appeals Conference. However, if
     the verification called for by [section] 6330(c)(1) is
     signed by someone other than the Secretary himself,
     than [sic] - in line with the Supreme Court’s holding
     in Federal Crop Ins. Corp. v. Merril, 92 L.Ed. 11 - I
     am requesting that the Appeals officer also have a
     Delegation Order from the Secretary delegating to that
     person the authority to prepare such a “verification.”

     In response to petitioner’s request for Appeals Office

hearing, on January 10, 2001, Appeals Officer Carol Berger

(Appeals Officer), who at that time was with respondent’s Appeals

Office in New York City, sent a letter (Appeals Officer’s January

10, 2001 letter) to petitioner, in which she scheduled an Appeals

Office hearing on February 12, 2001.   In the Appeals Officer’s

January 10, 2001 letter, the Appeals Officer asked petitioner to

bring to the scheduled Appeals Office hearing a completed return

for each of the years 1994 and 1996, as well as any other docu-

ments pertaining to petitioner’s tax liability for each of those

years.   The Appeals Officer made that request to petitioner

because any such returns and documents might have served as a

means of reducing or eliminating the amount of petitioner’s

respective tax liabilities for 1994 and 1996 that respondent had

assessed against him.

     On February 12, 2001, petitioner attended an Appeals Office

hearing with the Appeals Officer with respect to the notice of
                               - 5 -

intent to levy regarding petitioner’s tax liabilities for 1994

and 1996 (February 12, 2001 Appeals Office hearing).   At that

hearing, petitioner showed the Appeals Officer Form 1040A, U.S.

Individual Income Tax Return (Form 1040A), that he had prepared

for each of his taxable years 1994 and 1996.   Petitioner’s

signature appeared on each of those forms.   Next to petitioner’s

signature in Form 1040A for 1994 was the date May 3, 2000.    Next

to petitioner’s signature in the Form 1040A for 1996 was the date

April 1, 2000.   In Form 1040A for each of the years 1994 and

1996, petitioner (1) reported $0 of wage or any other income,

(2) claimed no deductions or exemptions, and (3) requested a

refund in an amount equal to the total tax that he claimed was

withheld for each of those years.   Attached to Form 1040A for

each of petitioner’s taxable years 1994 and 1996 was a two-page

document.   That document stated in part:

     I, Walther Guerrier, Jr., am submitting this as part of
     my * * * return, even though I know that no section of
     the Internal Revenue Code:

     1) Establishes an income tax “liability” as, for exam-
     ple, Code Sections 4401, 5005, and 5703 do with respect
     to wagering, alcohol, and tobacco taxes;

     2) Provides that income taxes “have to be paid on the
     basis of a return” as, for example, Code Sections 4374,
     4401(c), 5061(a) and 5703(b) do with respect to other
     taxes; I am filing anyway because I know the government
     has prosecuted others for failing to file income tax
     returns by (erroneously) invoking Code Sections 7201
     and 7203. Therefore, this return is not being filed
     voluntarily, but is being filed out of fear that if I
     did not file this return I could also be (illegally)
     prosecuted for failing to file income tax return * * *.
                           - 6 -

3) In addition to the above, I am filing even though
the “Privacy Act Notice” as contained in a 1040 booklet
clearly informs me that I am not required to file. It
does so in at least two places.

       a) In one place, it states that I need only file a
       return for “any tax” I may be “liable” for. Since
       no Code Section makes me “liable” for income
       taxes, this provision notifies me that I do not
       have to file an income tax return.

       b) In another place, it directs me to Code Section
       6001. This section provides, in relevant part,
       that “Whenever in the judgment of the Secretary it
       is necessary, he may require any person by notice
       served on such person or by regulations, to make
       such returns, render such statements, or keep such
       records, as the Secretary deems sufficient to show
       whether or not such person is liable for tax under
       this title.” Since the Secretary of the Treasury
       did not “serve” me with any such “notice” and
       since no legislative regulation exists requiring
       anyone to file an income tax return, I am again
       informed by the “Privacy Act Notice” that I am not
       required to file an income tax return.

4) With respect to the information I included in my
return, I wish to point out that the courts have ruled
that: “A (1040) form with ‘zeros’ inserted in the
space provided * * * qualified as a return.” * * *

   *        *       *        *       *       *       *

6) It should also be noted that I had “zero” income
according to the Supreme Court’s definition of income
* * * since in Merchant’s Loan & Trust C. V. Smietanka,
255 U.S. 509 (at pages 518 & 519) that court held that
“The word (income) must be given the same meaning in
all the Income Tax Acts of Congress that was given to
it in the Corporation Excise Tax Act of 1909.” There-
fore, since I had no earnings * * * that would have
been taxable as “income” under the Corporation Excise
Tax Act of 1909, I can only swear to having “zero”
income * * *. Obviously, since I know the legal defi-
nition of “income,” if I were to swear to having re-
ceived any other amount of “income,” I would be commit-
ting perjury * * *. Therefore, not wishing to commit
                                - 7 -

     perjury * * *, I can only swear to having “zero” income
     * * *.

     In addition to the foregoing contentions and arguments of

petitioner that appeared in the two-page document that he

attached to each of the Forms 1040A for 1994 and 1996 that he

prepared, petitioner advanced additional contentions and argu-

ments in that document, all of which the Court finds to be

groundless and frivolous.

     At the February 12, 2001 Appeals Office hearing, petitioner

informed the Appeals Officer that he had filed returns for each

of the years 1994 and 1996 and that he had received a notice from

respondent in which respondent indicated that respondent consid-

ered each of those returns to be frivolous.

     At the February 12, 2001 Appeals Office hearing, the Appeals

Officer attempted to discuss with petitioner the amount of tax

that he owed for each of the years 1994 and 1996 and the proper

way to prepare Form 1040 for each of those years.    Petitioner did

not provide the Appeals Officer with a return for each of the

years 1994 and 1996, in which he reported his wage and any other

income and claimed deductions or a filing status different from

that shown in the substitute for return that respondent prepared

for each of those years.    If he had, the Appeals Officer would

have sent such returns and any other information that petitioner

provided to her to respondent’s examination division for review

in order to determine whether petitioner’s tax liability for each
                               - 8 -

of the years 1994 and 1996 should be reduced from the respective

tax liabilities for those years which respondent had computed and

assessed and to which the notice of intent to levy pertained.

     At the February 12, 2001 Appeals Office hearing, the Appeals

Officer attempted to explain to petitioner respondent’s basis for

the tax assessment against him for each of the years 1994 and

1996.   The Appeals Officer explained to petitioner that respon-

dent calculated his tax liability for each of the years 1994 and

1996 by preparing a substitute for return for each of those years

on the basis of the information reflected in Form W-2, Wage and

Tax Statement (Form W-2), and Form 1099 that certain payors

issued to petitioner for each of those years.     The Appeals

Officer further explained to petitioner that, in preparing each

such substitute for return in order to arrive at petitioner’s tax

liability for each of the years 1994 and 1996, respondent deter-

mined petitioner’s tax bracket and the amount of tax due and

subtracted any credits to which he was entitled.

     Petitioner did not want to discuss at the February 12, 2001

Appeals Office hearing the amount of tax that he owed for each of

the years 1994 and 1996 or the proper way in which to prepare

Form 1040 for each of those years.     Nor did petitioner wish to

discuss collection alternatives at the February 12, 2001 Appeals

Office hearing.

     At the February 12, 2001 Appeals Office hearing, petitioner
                                - 9 -

advised the Appeals Officer that he did not believe that wages

are income.2   At that hearing, petitioner raised various matters

with the Appeals Officer relating to why he had to pay tax, why

he had to file a return, who had the authority to sign a notice

of deficiency, and what provision of the law made him liable for

tax.

       At the conclusion of the February 12, 2001 Appeals Office

hearing, the Appeals Officer advised petitioner that she intended

to sustain the proposed levy action and that he would have the

right to appeal her decision to this Court.

       On February 21, 2001, respondent’s Appeals Office sent

petitioner a “NOTICE OF DETERMINATION CONCERNING COLLECTION

ACTION(S) UNDER SECTION 6320 and/or 6330" with respect to his

taxable years 1994 and 1996 (notice of determination).    The

notice of determination stated in pertinent part:    “If you want

to dispute this determination in court, you must file a petition

with the United States Tax Court for a redetermination within 30

days from the date of this letter.”

       On April 2, 2001, petitioner filed a petition in response to

the notice of determination.    That petition was mailed to the


       2
      At the hearing that the Court held on petitioner’s motion,
petitioner conceded that he received Form W-2 for each of the
years 1994 and 1996 and that each of those forms correctly
reflected the amount of wages that he received during each of
those years. According to petitioner, Form 1040A that he pre-
pared for each of the years 1994 and 1996 reported $0 of wage
income because wages are not income.
                               - 10 -

Court via Postal Service Express Mail.    The Postal Service

postmark for that mailing bore the date March 31, 2001.

Discussion

     Petitioner’s Motion

     In petitioner’s motion, petitioner asks the Court to dismiss

this case for lack of jurisdiction on the ground that the notice

of determination is invalid because he did not have an Appeals

Office hearing.    In addition to petitioner’s motion, petitioner

filed a document entitled “MEMORANDUM OF LAW IN SUPPORT OF

PETITIONER’S MOTION TO DISMISS FOR LACK OF JURISDICTION” (peti-

tioner’s memorandum).    We believe that petitioner’s memorandum is

a document that was used in another context and that it is not

pertinent or relevant to the instant case.     By way of illustra-

tion, petitioner’s memorandum refers consistently throughout to

petitioner as being a woman, and not a man.3    In addition, peti-

tioner’s memorandum identifies respondent’s Appeals Officer who


     3
        For example, petitioner’s memorandum states in pertinent
part:

     Petitioner refused to waive her right to the CDP hear-
     ing referred to over and over again in both the law and
     its implementing regulation. In addition, Petitioner
     expected her daughter (to whom she had given her power
     of attorney) to represent her at the hearing since her
     daughter is far more articulate then [sic] is peti-
     tioner, and she also has a greater understanding of the
     laws at issue. * * * Petitioner also wanted a court
     reporter present at her hearing, so she would have an
     official transcript to support any Petition she might
     subsequently file with the Tax Court to contest any
     adverse CDP determination. * * * [Emphasis added.]
                              - 11 -

held the hearing with petitioner as “Jose Gonzales”, and not

Carol Berger.   Petitioner’s memorandum also indicates that

“Petitioner has an anxiety disorder and suffers from depression

and so could not effectively represent herself at a CDP ‘hear-

ing,’ especially an ersatz one, conducted over the telephone.”

Appeals Officer Carol Berger held a face-to-face hearing, and not

a hearing conducted over the telephone, with petitioner on

February 12, 2001.   Moreover, there is no suggestion in the

record that petitioner was suffering from any kind of anxiety

disorder or depression at that hearing.4   A final illustration

that petitioner’s memorandum is a document that was used in

another context and that is not pertinent or relevant to the

instant case is the reference in that memorandum to taxable years

that are not involved in the instant case and to other informa-

tion that is inapplicable to this case.

     At the Court’s hearing on petitioner’s motion, petitioner

testified that he did not have an Appeals Office hearing.     In

support of that position, petitioner further testified that the

Appeals Officer did not discuss with him the issues that he

wanted to raise, such as what law makes him liable for tax, how

respondent calculated his tax liability for each of the years

1994 and 1996, and similar matters.


     4
      At the Court’s hearing on petitioner’s motion, petitioner
did not appear to the Court to have any kind of disorder whatso-
ever, whether due to anxiety, depression, or any other cause.
                                - 12 -

     We recently held that, in determining the validity of a

notice of determination for jurisdictional purposes, we shall not

look behind such a notice in order to ascertain whether the

taxpayer was afforded an appropriate hearing with respondent’s

Appeals Office.5     Lunsford v. Commissioner, 117 T.C. ___ (2001).

In so holding in Lunsford, we overruled Meyer v. Commissioner,

115 T.C. 417 (2000), to the extent that it required the Court to

look behind a notice of determination to ascertain whether a

proper hearing opportunity was given in order to decide whether

such a notice was valid.     Lunsford v. Commissioner, supra.

     In the instant case, we are not required to look behind the

notice of determination in order to determine the validity of

that notice.   Id.    Without looking behind the notice of determi-

nation in the instant case, we find on the record before us that

that notice is facially valid.     We shall deny petitioner’s

motion.

     Respondent’s Motion

     In respondent’s motion, respondent asks the Court to dismiss


     5
      Although under Lunsford v. Commissioner, 117 T.C. ___
(2001), we shall not look behind a notice of determination in
order to ascertain whether the taxpayer was afforded an appropri-
ate hearing with respondent’s Appeals Office, on the record
before us, we reject petitioner’s contention that the Appeals
Office did not hold the hearing to which he was entitled under
sec. 6330(b)(1). On that record, we find that on Feb. 12, 2001,
the Appeals Office held the hearing with petitioner that sec.
6330(b)(1) requires and allowed petitioner to raise at that
hearing relevant issues relating to the proposed levy for each of
his taxable years 1994 and 1996.
                              - 13 -

this case for lack of jurisdiction on the ground that petitioner

filed the petition in this case after the 30-day period pre-

scribed by section 6330(d).   Petitioner does not dispute that his

petition in response to the notice of determination was mailed

via Postal Service Express Mail on March 31, 2001, or that the

petition was filed on April 2, 2001, both of which dates exceed

the 30-day period prescribed by section 6330(d).    Instead,

petitioner argues that respondent’s motion should be denied

because it was not clear to him whether, in calculating the 30-

day period prescribed by section 6330(d), the days to which that

section refers and to which the notice of determination refers

are calendar days or business days.

     We conclude that the 30 days provided in section 6330(d) for

timely filing a petition in the Tax Court with respect to a

determination under section 6330 (and section 6320) are 30

calendar days, and not 30 business days.   See McGuire v. Commis-

sioner, 52 T.C. 468 (1969).   On the record before us, we find

that petitioner was required to file a petition in response to

the notice of determination on or before March 23, 2001,    which

was not a Saturday, a Sunday, or a legal holiday in the District

of Columbia and which is 30 calendar days after February 21,

2001, the date on which respondent issued the notice of determi-

nation.   See sec. 6330(d); see also Rule 25.   Petitioner filed
                             - 14 -

the petition in this case on April 2, 2001.6   On the instant

record, we find that petitioner did not file the petition within

the 30-day period prescribed by section 6330(d).   We shall grant

respondent’s motion.



                              An appropriate order denying

                         petitioner’s motion and granting respon-

                         dent’s motion will be entered.




     6
      Petitioner is not considered to have filed the petition on
Mar. 31, 2001, the date of the Postal Service postmark on the
envelope in which he mailed his petition to the Court. That is
because Mar. 31, 2001, does not fall within the 30-day period
prescribed by sec. 6330(d). See sec. 7502(a)(1) and (2)(A).
