                        T.C. Memo. 2009-110



                      UNITED STATES TAX COURT



                 MARIAN L. MOLINE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 171-07L.                 Filed May 20, 2009.



     Marian L. Moline, pro se.

     Steven M. Webster, for respondent.



                        MEMORANDUM OPINION


     JACOBS, Judge:   This case arises from a petition for

judicial review pursuant to section 6330(d) of respondent’s

determination to proceed with collection of petitioner’s unpaid

Federal income taxes for 2001 by levy.    The sole issue involved

is whether respondent’s determination constitutes an abuse of
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discretion.   All section references are to the Internal Revenue

Code in effect for 2001.

                             Background

     At the time she filed her petition, petitioner resided in

Kansas.

     Petitioner failed to file Federal income tax returns for

2000 and 2001.    As a consequence, respondent prepared substitutes

for returns pursuant to authority granted under section 6020(b).

On June 4, 2004, separate notices of deficiency for the 2000 and

2001 tax years were mailed to petitioner.    Petitioner sent copies

of the notices of deficiency for 2000 and 2001 to the Court, each

containing a handwritten notation stating:   “I hereby refute and

invalidate this unsigned presentment, without dishonor.   I do not

owe this money!   All rights reserved, Without Prejudice, UCC 1-

207.”   The Court received the documents on September 1, 2004, and

the matter was assigned docket No. 16198-04.

     On September 7, 2004, the Court ordered petitioner to file a

proper amended petition and pay the filing fee on or before

October 22, 2004.   On January 4, 2005, the Court dismissed the

case for lack of jurisdiction when no response was received.

     On November 7, 2005, respondent sent petitioner written

notice that respondent intended to levy on petitioner’s assets to

collect her unpaid tax liability for 2000.   Petitioner did not

respond to that notice.
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     On April 5, 2006, respondent sent petitioner written notice

that respondent intended to levy on petitioner’s assets to

collect her unpaid tax liability for 2001.   In response,

petitioner timely filed Form 12153, Request for a Collection Due

Process Hearing (section 6330 hearing).    On this form petitioner

wrote:

     -This process is not legal according to the highest law of
     the land!

     -You have no legal authority to levy/seizure.

Attached to petitioner’s request for a hearing were two printed

form documents, one indicating that petitioner was not a resident

of the United States, but rather was a resident of one of the 50

republic sovereign States, and the other demanding identification

information of respondent’s representative who issued the notice

of intent to levy, as well as copies of his driver’s license,

Social Security card, and IRS identification card.

     The case was assigned to Settlement Officer Bart Hill of

respondent’s Appeals Office.   On October 12, 2006, Settlement

Officer Hill sent petitioner a letter scheduling a telephone

section 6330 hearing with petitioner on November 15, 2006, at 1

p.m. central standard time.    The letter informed petitioner that

the issues she raised “are those that Courts have determined are

frivolous or Appeals does not consider.”   Respondent advised

petitioner she was not entitled to a face-to-face hearing as to

the positions set forth in her request for a section 6330 hearing
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because they were frivolous.   However, she was advised that she

would be allowed a face-to-face conference with respect to any

nonfrivolous issue.   Petitioner was informed that she had to set

forth the nonfrivolous issue in writing or call Settlement

Officer Hill within 14 days from the date of the letter to

qualify for a face-to-face conference.   Petitioner was also

informed that if she wished to discuss collection alternatives to

the intended levy, such as an installment agreement or an offer-

in-compromise, she had to (1) submit certain documents to

Settlement Officer Hill, such as Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals, (2) file as yet unfiled Federal income tax returns

for 2003, 2004, and 2005, and (3) submit proof that all required

estimated tax payments had been fully paid.   Finally, petitioner

was informed that she was not entitled to a section 6330 hearing

regarding the intended levy with respect to tax year 2000 but

that she could have a hearing equivalent to a section 6330

hearing with respect to that matter.

     Petitioner faxed a 12-page response to Settlement Officer

Hill.   Petitioner raised numerous frivolous arguments including

(1) that she was a resident of a State and not of the United

States and (2) that the Supreme Court in Pollock v. Farmers’ Loan

& Trust Co., 158 U.S. 601 (1895), held that the income tax was
                               - 5 -

unconstitutional.   At trial petitioner disavowed all of the

arguments set forth in her fax.

     During the November 15, 2006, telephone hearing, petitioner

continued to assert frivolous arguments.   She did not propose any

collection alternatives (i.e., an offer-in-compromise or an

installment agreement).   On November 30, 2006, respondent’s

Appeals Office issued a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330.   In the

notice of determination, respondent sustained the proposed levy

and rejected petitioner’s arguments.   An attachment to the notice

of determination (written by Settlement Officer Hill) noted that

petitioner did not offer any collection alternatives, that

Settlement Officer Hill reviewed the administrative file

transcripts and verified that the requirements of all applicable

law and administrative procedures were met, and that the proposed

levy action with respect to the collection of petitioner’s unpaid

Federal income tax for 2001 appropriately balanced the need for

efficient collection of the taxes with the legitimate concerns of

the taxpayer that the collection action be no more intrusive than

necessary.

     On January 3, 2007, petitioner filed a petition in this

Court to review respondent’s intended collection action.1


     1
      Petitioner also requested the Court to review respondent’s
determination to proceed with collection of petitioner’s unpaid
                                                   (continued...)
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                            Discussion

A. Standard of Review

     This case involves a review of respondent’s determination to

proceed with collection of petitioner’s unpaid Federal income

tax, penalties, and interest for 2001 by way of levy.    Section

6330 hearings concerning levies are conducted in accordance with

section 6330(c).   After the Commissioner issues his notice of

determination following an administrative hearing, a taxpayer has

the right to petition this Court for judicial review of the

Commissioner’s determination.   Sec. 6330(d)(1).   Our review of

the Commissioner’s determination is subject to the provisions of

section 6330.

     A taxpayer is precluded from contesting the existence or

amount of the underlying tax liability if he/she received a

notice of deficiency for the tax year in question or otherwise

had an opportunity to dispute the underlying tax liability.     Sec.

6330(c)(2)(B).   In such a case, we review the Commissioner’s

determination for abuse of discretion.   See Sego v. Commissioner,

114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176

(2000).   An abuse of discretion is defined as any action that is



     1
      (...continued)
Federal income taxes for 2000 as set forth in respondent’s
decision letter. The Court’s copy of respondent’s decision
letter is undated. By Order dated Apr. 27, 2007, the Court
dismissed tax year 2000 from consideration of this case and
struck all references to that year from the petition.
                                - 7 -

unreasonable, arbitrary or capricious, clearly unlawful, or

lacking sound basis in fact or law.      Thor Power Tool Co. v.

Commissioner, 439 U.S. 522, 532-533 (1979); Woodral v.

Commissioner, 112 T.C. 19, 23 (1999).

     Petitioner was issued a notice of deficiency for 2001, which

she received.    She did not file a proper petition in this Court

and did not pay the required filing fee.     Petitioner was given an

opportunity to file a proper amended petition and pay the

required filing fee, but she failed to do so and her suit at

docket No. 16198-04 was dismissed.      Petitioner is therefore not

entitled to raise her underlying tax liability for 2001, and we

review respondent’s proposed collection action for abuse of

discretion.

B. Petitioner’s Request for a Face-to-Face Section 6330 Hearing

     Petitioner’s main argument is that her section 6330 hearing

was invalid and unlawful because it was held by way of a

teleconference and not a face-to-face conference.

     Although a section 6330 hearing may consist of a face-to-

face conference, a proper hearing may also occur by telephone or

by correspondence under certain circumstances.     See Katz v.

Commissioner, 115 T.C. 329, 337-338 (2000); sec. 301.6330-

1(d)(2), Q&A-D6, Proced. & Admin. Regs.     Section 6330 hearings

have historically been informal.     Davis v. Commissioner, 115 T.C.

35, 41 (2000).   We have held that it is not an abuse of
                                - 8 -

discretion if an Appeals officer denies a taxpayer’s request for

a face-to-face section 6330 hearing after determining that the

hearing would not be productive because of the taxpayer’s

frivolous or groundless arguments.      See Summers v. Commissioner,

T.C. Memo. 2006-219; Ho v. Commissioner, T.C. Memo. 2006-41.

Moreover, we have held it is not an abuse of discretion to

proceed with collection where the taxpayer has not filed all

required tax returns for prior years.     See Summers v.

Commissioner, supra; Collier v. Commissioner, T.C. Memo. 2004-

171.

       The record demonstrates that a face-to-face conference would

not have been productive.    Petitioner’s meeting request contained

only arguments challenging the legality of the tax law itself,

arguments that we have long considered frivolous.     Respondent

granted petitioner a telephone conference and informed her that

she could still qualify for a face-to-face conference if she

would first identify any relevant nonfrivolous matter she

intended to discuss.    Despite being given this second

opportunity, petitioner presented no such matter.     Instead,

petitioner replied with arguments regarding how she was not

subject to Federal income tax and that the income tax was

unconstitutional.    Furthermore, petitioner did not file her

unfiled income tax returns for 2003-05.     Under these

circumstances, it was not an abuse of discretion for Settlement
                                - 9 -

Officer Hill to conclude that a face-to-face meeting would not

have been productive.   Thus, Settlement Officer Hill was not

required to offer petitioner a face-to-face conference.    See

Clark v. Commissioner, T.C. Memo. 2008-155; Summers v.

Commissioner, supra; see also Lunsford v. Commissioner, 117 T.C.

183 (2001).

     On December 27, 2006, nearly 1 month after respondent issued

the notice of determination, petitioner wrote Settlement Officer

Hill stating:   “If any of my correspondence contains frivolous

arguments, I now withdraw them.”   Petitioner submitted a new Form

12153 to respondent and requested a face-to-face section 6330

hearing.   Petitioner maintains that on the basis of her

submission of this second Form 12153, respondent’s notice of

determination is no longer material and/or relevant.

Consequently, petitioner posits that (1) the notice of

determination, dated November 30, 2006, should be considered

nullified, (2) she be given an opportunity for a face-to-face

section 6330 hearing, and (3) a new notice of determination

should be issued.

     Petitioner cannot undo that which has occurred.   Her

position change, assuming there truly is a position change, is

too late to alter the disposition of this case.   When making his

determination, respondent could only review the existing facts

and those arguments advanced.   On the basis of petitioner’s
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submissions during the hearing provided by section 6330, we hold

that respondent did not abuse his discretion in (1) refusing to

offer petitioner a face-to-face hearing, and (2) sustaining the

proposed levy collection.

C. Other Matters Petitioner Raised

     Petitioner argues that the tax liability respondent

determined for 2001 is grossly overstated, and she requests that

we redetermine the amount she owes.    We cannot accede to

petitioner’s request.   See sec. 6330(c)(2)(B); see also Sego v.

Commissioner, 114 T.C. at 610.   Petitioner received a notice of

deficiency for 2001, and she had an opportunity to contest

respondent’s determination before this Court.    Petitioner failed

to properly do so.

     We have considered all of petitioner’s arguments and to the

extent not discussed herein, we find them to be groundless and/or

without merit.

     To reflect the foregoing,


                                           Decision will be entered

                                      for respondent.
