                         T.C. Memo. 2011-213



                       UNITED STATES TAX COURT



                MERRITT LEE D’ARCY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13758-10L.                Filed August 31, 2011.



     Merritt Lee D’Arcy, pro se.

     James R. Bamberg and Mark J. Tober, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    Pursuant to section 6330(d)(1),1 petitioner

sought review of the Commissioner’s determination to proceed with

a proposed levy to collect petitioner’s unpaid Federal income tax

for 2004, 2005, and 2006 (years at issue).     This case is before


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code (Code), and all Rule references are to
the Tax Court Rules of Practice and Procedure.
                                - 2 -

us on respondent’s motion for summary judgment under Rule 121, to

which petitioner objects.   We conclude that there is no genuine

issue as to any material fact, and respondent is entitled to a

decision as a matter of law.

                              Background

     Petitioner did not file a Federal income tax return for

2004, 2005, or 2006.   Consequently, on November 26, 2008, the

Internal Revenue Service (IRS) prepared a substitute for return

for each year.   On May 4, 2009, the IRS mailed petitioner a

notice of deficiency for each of the years at issue.2   Petitioner

did not file a petition with the Court contesting the deficiency

determinations, and on September 14, 2009, the IRS assessed the

tax liabilities for those years.    Petitioner failed to pay the

assessed tax liabilities, and on December 28, 2009, the IRS sent

petitioner Letter 1058, Final Notice of Intent to Levy and Notice

of Your Right to a Hearing.




     2
        The notices of deficiency are not part of the record.
However, respondent attached to his motion for summary judgment
Forms 4340, Certificate of Assessments, Payments, and Other
Specified Matters for petitioner’s income tax accounts for the
years at issue stating that “additional tax assessed by
examination audit deficiency per default of 90 day letter”.
Respondent also attached to his motion for summary judgment
Substitute U.S. Postal Service Forms 3877 confirming that on May
4, 2009, the IRS mailed to petitioner at his last known address
(which is also his current address of record) notices of
deficiency for the years at issue. Petitioner does not deny
receiving the notices of deficiency.
                               - 3 -

     On January 4, 2010, petitioner submitted Form 12153, Request

for a Collection Due Process or Equivalent Hearing (CDP hearing

request).   Petitioner’s CDP hearing request stated that he

disagreed with the IRS’ proposed collection activity because he

is a “nontaxpayer”.   Petitioner attached a “rebuttal letter” to

his CDP hearing request declaring, among other statements, that

his “abode and dwelling is geographically located in the Republic

of Florida * * * entirely outside of Federal legislative

jurisdiction” and he has not been provided evidence that “the

Internal Revenue Code is ‘law’”.   He did not request a collection

alternative.

     On March 16, 2010, petitioner and Settlement Officer

Florence Barba (Ms. Barba) of the IRS Office of Appeals (Appeals)

sent letters to each other.   Petitioner’s letter requested a

face-to-face CDP hearing instead of a telephone conference.     Ms.

Barba’s letter notified petitioner that she had received his CDP

hearing request and scheduled a telephone conference for April

13, 2010.   She explained that he had raised only frivolous

arguments in his CDP hearing request and would not be allowed a

face-to-face conference unless within 30 days he withdrew, in

writing, his frivolous arguments and filed all required tax

returns.3   Ms. Barba further explained that in order for her to


     3
        Petitioner’s 2007 and 2008 Federal income tax returns had
not been filed. Petitioner’s 2009 Federal income tax return was
not yet due.
                               - 4 -

consider alternative collection methods, petitioner had to

provide her with Form 433-A, Collection Information Statement for

Wage Earners and Self-Employed Individuals, and all supporting

documentation.

     Petitioner did not participate in his scheduled telephone

conference with Ms. Barba, and she mailed petitioner a letter

notifying him that he had missed his telephone conference and

still had not provided her with Form 433-A or any other

information needed for her to consider collection alternatives.

On April 23, 2010, more than 30 days after Ms. Barba’s March 16,

2010, letter, petitioner mailed her a letter stating that he had

withdrawn his frivolous arguments in a letter sent to her on

April 1, 2010, but since it appeared that she had not received

it, his April 23, 2010, letter constituted his agreement to waive

his frivolous arguments.   His letter also stated that he did not

need to file Federal income tax returns for the years at issue

because his taxable income was below the amount for which filing

a tax return is required, and since he did not owe any tax “there

is no offer for payment of same”.

     On May 20, 2010, Ms. Barba mailed petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination) sustaining the proposed

levy.   The notice of determination stated that petitioner did not

offer any collection alternatives and disagreed that he owed
                               - 5 -

Federal income tax for the years at issue.   The notice of

determination further stated that petitioner’s request for a

face-to-face conference could not be granted because he did not

withdraw his frivolous arguments within 30 days of receiving Ms.

Barba’s request to do so or file his Federal income tax returns

for 2007 and 2008.

     On June 16, 2010, petitioner filed a petition4 with the

Court in which he argued:   “I have determined that I have not had

sufficient taxable income to require the filing of a return” and

“the IRS had no reason to charge interest” and “no reason to

penalize me.”   On March 18, 2011, respondent filed a motion for

summary judgment arguing that petitioner’s opportunity to

challenge the underlying tax liability had passed and petitioner

had raised only frivolous arguments in his CDP hearing request

and correspondence with Ms. Barba.

     On April 7, 2011, petitioner filed his objection to

respondent’s motion for summary judgment.    Petitioner’s objection

argued that the Government lacked standing, acted in bad faith,

failed to state a claim upon which relief could be granted, and

filed its motion for summary judgment “for the purpose of

defrauding this petitioner out of a fair and impartial hearing on

the merits of the issues that have been placed before it on the



     4
        Petitioner resided in Florida at the time he filed his
petition.
                                - 6 -

petition.”    On April 25, 2011, we held a hearing on respondent’s

motion for summary judgment.

                             Discussion

I.    Summary Judgment

       Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Summary judgment may be granted if it is demonstrated that no

genuine issue exists as to any material fact and a decision may

be rendered as a matter of law.    Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994).    We conclude that there is no issue as to any

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

law.

II.    Determination To Proceed With Collection

       Section 6330(a) provides that the Secretary shall furnish

taxpayers with written notice of their right to a hearing before

any property is levied upon.    Section 6330 further provides that

the taxpayer may request administrative review of the matter (in

the form of a hearing) within a prescribed 30-day period.     Sec.

6330(a) and (b).

       Pursuant to section 6330(c)(2)(A), a taxpayer may raise at

the section 6330 hearing any relevant issue with regard to the

Commissioner’s collection activities, including spousal defenses,

challenges to the appropriateness of the Commissioner’s intended
                               - 7 -

collection action(s), and alternative means of collection.     Sego

v. Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner,

114 T.C. 176, 180 (2000).   If a taxpayer received a notice of

deficiency for the year in issue or otherwise had the

opportunity to dispute the underlying tax liability, the taxpayer

is precluded from challenging the existence or amount of the

underlying tax liability.   Sec. 6330(c)(2)(B); Sego v.

Commissioner, supra at 610-611; Goza v. Commissioner, supra at

182-183.

     Petitioner argues that the amounts respondent determined to

be his underlying tax liabilities for the years at issue are

incorrect.   The IRS issued petitioner a notice of deficiency for

each year at issue.   Petitioner does not deny receiving the

notices of deficiency, and respondent attached to his motion for

summary judgment Forms 3877 confirming that the IRS had mailed

each notice of deficiency to petitioner’s last known address

(which is also petitioner’s current address of record).

Therefore petitioner is precluded from challenging the existence

or amounts of the underlying tax liabilities.   See sec.

6330(c)(2)(B); Sego v. Commissioner, supra at 610-611; Goza v.

Commissioner, supra at 182-183.

     Where, as here, the amounts of petitioner’s underlying tax

liabilities are not at issue, we review the Commissioner’s

determination for abuse of discretion.   Petitioner did not
                                 - 8 -

request that Ms. Barba consider collection alternatives, failed

to provide her with the financial information that she requested

or file all required tax returns, and raised only frivolous

arguments in his CDP hearing request and correspondence with Ms.

Barba.   Accordingly, the Commissioner did not abuse his

discretion in determining that collection activity should

proceed.

     We take this opportunity to warn petitioner that the Court

may impose a penalty pursuant to section 6673(a)(1) if he returns

to the Court and proceeds in a similar fashion in the future.

See Pierson v. Commissioner, 115 T.C. 576 (2000).

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
