                        T.C. Memo. 2009-72


                      UNITED STATES TAX COURT



               GLEN ROBERT BROEMER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12000-07L.             Filed March 31, 2009.



     Glen Robert Broemer, pro se.

     Michael W. Tan, for respondent.



                        MEMORANDUM OPINION


     GERBER, Judge:   This matter is before the Court on

respondent’s motion for summary judgment under Rule 121.1



     1
      Petitioner also filed a motion to compel responses to
interrogatories pursuant to Rule 71, which is addressed in this
opinion. 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.
                                -2-

     Respondent seeks summary judgment on the question of whether

collection may proceed in accordance with notices of

determination sent to petitioner.     Respondent made the

determination to proceed to collect by levy petitioner’s 1990,

1993, and 2003 tax liabilities and a frivolous return penalty for

2004. Petitioner seeks review of that determination under

section 6330.

     The issues for consideration are:     (1) Whether respondent’s

determination to proceed with collection was an abuse of

discretion and (2) whether petitioner’s motion to compel

responses to interrogatories was timely or appropriate.

                            Background

     Petitioner resided in California at the time his petition

was filed.   He failed to file Forms 1040, U.S. Individual Income

Tax Return, for his 1990 and 1993 tax years.     For each year

respondent prepared substitutes for returns under section 6020(b)

and determined deficiencies in income tax with additions to tax.

Although petitioner was sent statutory notices of deficiency, he

did not petition this Court in response to those notices.

Respondent assessed the deficiencies with additions to tax and

interest and on March 16, 2001, filed notices of Federal tax

lien.   Petitioner did not seek review of respondent’s actions

under section 6320.   Respondent’s records indicate that
                                 -3-

collection due process (CDP) notices were mailed to petitioner on

March 11, 2001.

     Petitioner filed a late return for the 2003 tax year.

Respondent determined additions to tax and interest for that

year.    Petitioner did not fully pay the assessed tax liability.

On October 2, 2006, respondent sent petitioner a notice of intent

to levy for 2003.

     Petitioner filed a return for the 2004 tax year, but

respondent deemed the return and accompanying statements to be

frivolous.    Respondent accordingly assessed a $500 penalty under

section 6702.    On October 2, 2006, respondent sent petitioner a

notice of intent to levy for the 2004 frivolous return penalty.

     On October 10, 2006, petitioner requested a CDP hearing for

1990, 1993, 2003, and 2004.    The CDP hearing2 was conducted by

telephone on April 13, 2007.    At that time, petitioner’s total

unpaid tax liability for the 1990, 1993, 2001, 2002, 2003, 2004,

and 2005 tax years was $28,072.3



     2
      The hearing was treated as an equivalent hearing for 1990
and 1993. However, respondent was unable to produce a certified
mail list proving the CDP notices were sent and conceded the
timeliness of petitioner’s CDP request. Under Craig v.
Commissioner, 119 T.C. 252 (2002), the equivalent hearing is thus
treated as a collection due process hearing (CDP).
     3
      The record does not indicate whether CDP notices were given
to petitioner for the 2002 and 2005 tax years, and petitioner
apparently did not request a CDP hearing for those years. For
2001, petitioner’s CDP request was untimely, and respondent’s
determination is therefore not subject to review.
                                  -4-

     At the CDP hearing petitioner did not contest the amount or

existence of his tax liability.    He raised only the issue of

“estoppel”.   He argued that the proposed collection action should

not proceed while he had claims pending against the Government

and that the value of those claims far exceeded the amount of his

tax liability.    He further contended that the wrongful acts of

another Government agency “estopped” respondent from collecting

his unpaid tax.

     Petitioner’s alleged claims against the Government stem from

his belief that he is or was the victim of a far-reaching

Government conspiracy that began no later than the 1970s.

Petitioner has filed two suits in the U.S. District Court for the

Central District of California for constitutional violations and

torts allegedly committed by the Government and its employees in

furtherance of a conspiracy.    Petitioner’s District Court

proceedings were combined into a single case.    At the time of the

CDP hearing, the District Court had dismissed the majority of

petitioner’s claims, leaving only three causes of action:

Nuisance, intentional infliction of emotional distress, and

breach of fiduciary duty.

     Petitioner’s allegations in the District Court case are far

reaching and involve the Central Intelligence Agency (CIA).

Petitioner’s allegations against the Government do not involve

respondent or the Internal Revenue Service (IRS).    For purposes
                                  -5-

of deciding whether there was an abuse of discretion we need not

decide the issues pending in the District Court proceeding.

      At the CDP hearing, petitioner did not provide any

documentary proof of his allegations in the District Court case.

Respondent, however, examined documents from the District Court

and noted that the court had dismissed the majority of

petitioner’s claims.     Respondent determined that the District

Court case was not close to resolution and was unlikely to

produce a monetary award to petitioner.     Because petitioner had

not submitted any financial data and had not proposed any

alternatives, respondent decided to proceed with collection and

issued notices of determination for the years in issue.4

      Petitioner filed a petition with the Court to seek review of

respondent’s determination to proceed with collection of the

unpaid tax liabilities for the years in issue.     Respondent moved

for summary judgment, and a hearing was held on September 8,

2008.     Subsequently, on October 27, 2008, petitioner filed a

motion to compel responses to interrogatories.

                              Discussion

I.   Respondent’s Motion for Summary Judgment

      Summary judgment may be granted when there is no genuine

issue of material fact and a decision may be rendered as a matter



      4
      The decision letters issued for 1990 and 1993 are treated
as notices of determination under Craig v. Commissioner, supra.
                                 -6-

of law.   Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C.

518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).    The opposing

party cannot rest upon mere allegations or denials in his

pleadings and must “set forth specific facts showing that there

is a genuine issue for trial.”   Rule 121(d).   The moving party

bears the burden of proving there is no genuine issue of material

fact, and factual inferences will be read 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).    In this case, there is no dispute about

a material fact and, accordingly, the issues may be decided on

the basis of a summary judgment motion.

     If a taxpayer neglects or refuses to pay a Federal income

tax liability within 10 days after notice and demand for payment,

the Commissioner may collect the tax by levy upon the person's

property.   Sec. 6331(a).   The Commissioner generally must provide

the taxpayer written notice of the right to a hearing before the

levy is made.   Sec. 6330(a).   Upon a timely request, the taxpayer

is entitled to an administrative hearing before an impartial

officer or employee of the Appeals Office.   Sec. 6330(b).

     Following the hearing, the Appeals officer must determine

whether the collection action is to proceed, taking into account

the verification the Appeals officer has made, the issues raised

by the taxpayer at the hearing, and whether the collection action
                                -7-

balances the need for the efficient collection of taxes with the

legitimate concern of the taxpayer that any collection action be

no more intrusive than necessary.     Sec. 6330(c)(3).

     We have jurisdiction to review the determination if we have

jurisdiction over the type of tax involved in the case.     Sec.

6330(d)(1); Iannone v. Commissioner, 122 T.C. 287, 290 (2004).

Under section 6330(d), as recently amended, we have jurisdiction

to consider the intent to levy for a frivolous return penalty

even though such penalties remain outside of our established

jurisdiction for deficiency cases.     We review on an abuse of

discretion standard when the underlying tax liability is not in

issue.   Goza v. Commissioner, 114 T.C. 176, 182 (2000).

Petitioner did not contest the existence or amount of his

underlying tax liability at the CDP hearing, so we need not

consider that issue.   See Giamelli v. Commissioner,

129 T.C. 107 (2007); Magana v. Commissioner, 118 T.C. 488, 493-

494 (2002); sec. 301.6330-1(f)(2), Q&A-F5, Proced. & Admin. Regs.

     Under the abuse of discretion standard, petitioner is

required to show that respondent’s actions were arbitrary,

capricious, or without sound basis in fact.     See Knorr v.

Commissioner, T.C. Memo. 2004-212.

     Respondent’s determination to proceed with collection was

based on petitioner’s failure to present viable alternatives.

The only issue or alternative petitioner raised at the CDP
                                  -8-

hearing was “estoppel”.     Petitioner contends that the Appeals

officer was dismissive of his “estoppel” claim and refused to

consider the relevant facts and arguments.     Though the notices of

determination state “Evaluation of * * * [petitioner’s] claims is

beyond the scope of this hearing”, the Appeals officer’s

declaration and the notices of determination themselves confirm

that the claim was indeed considered.     In determining whether

that treatment of petitioner’s “estoppel” claim was arbitrary or

capricious, we note that petitioner has couched his claim in the

form of two separate theories:     Offset and equitable estoppel.

     A.     Offset

     Petitioner had pending tort claims against various

Government officials and agencies (which did not include the

IRS).     The argument petitioner presented to the Appeals officer

was that the value of those claims exceeds and fully offsets the

amount of his tax liabilities.     He therefore claimed that

respondent should be estopped from collecting his unpaid tax

liabilities.

     The Tax Court is a Court of limited jurisdiction lacking

general equitable powers.     Commissioner v. McCoy, 484 U.S. 3, 7

(1987).     While we may apply equitable principles in deciding

matters over which we are specifically granted jurisdiction, we

may not exercise general equitable powers to expand that
                                -9-

statutorily prescribed jurisdiction.    Woods v. Commissioner, 92

T.C. 776, 784-787 (1989).

     At the time of the CDP hearing petitioner’s tort claims had

not been liquidated or established.    Evaluating the Appeals

officer’s decision to reject his offset argument would require us

to determine the merits and value of the underlying claims.     None

of the cases petitioner cites give the Court jurisdiction to

adjudicate torts.   Furthermore, we have previously held that we

do not have jurisdiction to hear these types of offset claims.

Watts v. Commissioner, T.C. Memo. 1995-196 (claim that taxpayer

was given the office of president and owed “presidency wages”);

Akins v. Commissioner, T.C. Memo. 1993-256 (claim that the

Federal Government was liable for taxpayer’s injuries due to

negligent enforcement of criminal laws), affd. without published

opinion 35 F.3d 577 (11th Cir. 1994); Randall v. Commissioner,

T.C. Memo. 1993-207 (taxpayer-doctor’s claim that another

Government agency acted as third party’s insurer and was liable

for services rendered), affd. without published opinion 29 F.3d

621 (2d Cir. 1994).

     Petitioner argues that declining to hear the offset claim

denies him an opportunity to be fully heard and deprives him of

due process.   In the case of an IRS levy, review is accomplished

through the procedures provided in section 6330.    Petitioner did

receive the hearing he was entitled to and was therefore given
                               -10-

the opportunity to present whatever arguments he may have had.

Having chosen not to avail himself of that opportunity and

present any supporting evidence, petitioner cannot now complain

that he is being denied due process.   Even if petitioner had

presented evidence of his tort claims against other Government

agencies, those claims were unproven and unliquidated and, at the

time of his Appeals hearing, pending in the District Court.

     Though petitioner phrases his offset claim in terms of

equity, essentially he is pursuing a claim for damages against

the Government.   His only venue for relief on such a claim is in

District Court, where he already has two cases pending.    We lack

jurisdiction to consider such claims, and neither section 6320

nor 6330 provides jurisdiction to hear such claims.   Likewise,

the Appeals officer was not in a position to adjudicate whether

petitioner’s claims, against the Government had merit.    More

importantly, being unliquidated, petitioner’s claims could not be

considered as assets that would be part of a collection

alternative.

     B.   Equitable Estoppel

     Petitioner also argued that respondent was equitably

estopped from collecting the unpaid tax because of the wrongful

actions of the CIA.   Petitioner did not claim that respondent had

directly engaged in any wrongdoing.    Thus, the Appeals officer’s

decision to reject the equitable estoppel argument was not
                                -11-

arbitrary or capricious because petitioner did not allege any

affirmative misconduct by respondent.    See Wilkins v.

Commissioner, 120 T.C. 109, 112 (2003); Norfolk S. Corp. v.

Commissioner, 104 T.C. 13, 60 (1995), affd. 140 F.3d 240 (4th

Cir. 1998).    Petitioner presented several extraordinary theories

attributing the CIA’s alleged wrongdoing to respondent under

color of agency law, but he provided no evidence to support his

wild assertions.    In sum, petitioner’s allegations were unfounded

and remained part of a plenary proceeding which, at the time of

the Appeals hearing, had no bearing on the question of whether

respondent could proceed with collection.

      C.   Conclusion

      We lack the jurisdiction to consider petitioner’s offset

claim, and petitioner did not present the Appeals officer with a

plausible claim for asserting offset or equitable estoppel.

Because petitioner presented no other viable alternatives,

respondent’s determination to proceed with

collection was not an abuse of discretion.   For the reasons

stated, we shall grant respondent’s motion for summary judgment.

II.   Petitioner’s Motion To Compel

      Petitioner served interrogatories on respondent after the

filing of the summary judgment motion.   He then moved to enforce

responses to the interrogatories.
                                 -12-

     A motion to compel discovery must be filed no later than 45

days before the date set for call of the case from a trial

calendar, unless otherwise authorized by the Court.      Rule

70(a)(2).   The date set for calendar call was September 8, 2008.

Petitioner filed his motion to compel after that date.       Because

petitioner’s motion to compel was untimely, his motion will be

denied.   Significantly, a factual basis sufficient to decide the

merits of this case is contained in the Court’s official record,

which includes pleadings, respondent’s summary judgment motion

and petitioner’s response, trial transcript, and exhibits.

     To reflect the foregoing,


                                             An appropriate order and

                                        decision will be entered for

                                        respondent.
