                         T.C. Memo. 2005-146



                       UNITED STATES TAX COURT



                  GREGORY MEEKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16865-04L.           Filed June 20, 2005.


     Gregory Meeker, pro se.

     Lauren B. Epstein, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion to dismiss for failure to state a claim upon

which relief could be granted.
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Background

     On February 5, 2004, respondent sent petitioner a notice of

intent to levy and right to a hearing regarding income taxes owed

for 2001.

     On June 3, 2004, respondent sent petitioner a notice of

intent to levy and right to a hearing regarding income taxes owed

for 1999 and 2000.

     On June 8, 2004, respondent sent petitioner a notice of

deficiency listing a deficiency of $21,518, an addition to tax

pursuant to section 6651(a)(1)1 of $6,240.22, and an addition to

tax pursuant to section 6654(a) of $719.07 for 2002.

     On or about June 11, 2004, respondent sent petitioner a

notice of Federal tax lien filing and right to a hearing

regarding income taxes for 1999, 2000, and 2001 and penalty

pursuant to section 6702 for 1999 and 2000.

     On June 16, 2004, petitioner requested a section 6330

hearing regarding the notice of Federal tax lien filing and the

notices of intent to levy for 1999, 2000, and 2001.

     During August 2004, petitioner and respondent conducted by

correspondence a section 6330 hearing regarding (1) the notice of

lien regarding income taxes for 1999, 2000, and 2001 and penalty

pursuant to section 6702 for 1999 and 2000, and (2)


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 3 -

the proposed levy regarding income taxes for 1999 and 2000.

During August 2004, petitioner and respondent conducted by

correspondence an equivalent hearing regarding the proposed levy

regarding income taxes for 2001.

     On August 26, 2004, respondent sent petitioner:   (1) A

decision letter concerning equivalent hearing under section 6320

and/or 6330 stating that the notice of intent to levy for income

taxes for 2001 would not be withdrawn; (2) a notice of

determination concerning collection action(s) under section 6320

and/or 6330 stating that the notice of intent to levy for income

taxes for 1999 and 2000 would not be withdrawn; (3) a notice of

determination concerning collection action(s) under section 6320

and/or 6330 stating that the notice of Federal tax lien for

income taxes for 1999, 2000, and 2001 would not be withdrawn; and

(4) a notice of determination concerning collection action(s)

under section 6320 and/or 6330 stating that the notice of Federal

tax lien regarding the section 6702 penalty for 1999 and 2000

would not be withdrawn.

     On September 9, 2004, petitioner submitted a document,

postmarked September 3, 2004, that the Court filed as a petition

for lien or levy action under section 6320(c) or 6330(d)

(petition).   Petitioner titled the petition “FIRST AMENDMENT

VERIFIED APPEAL OF ADMINISTRATIVE ACTIONS AND DETERMINATIONS

JURISDICTIONAL CHALLENGE MOTION FOR FINDINGS OF FACTS AND
                                - 4 -

CONCLUSIONS AT LAW TAX COURT JUDGE DEMANDED.”    Petitioner

attached to the petition:    (1) The first page of the notice of

deficiency for 2002; (2) the decision letter for 2001; (3) the

notice of determination regarding the proposed levy for income

taxes for 1999 and 2000; and (4) the notice of determination

regarding notice of Federal tax lien for the section 6702 penalty

for 1999 and 2000.

     On October 29, 2004, respondent filed a motion to dismiss

for failure to state a claim upon which relief could be granted.

     On November 15, 2004, petitioner filed an objection to

respondent’s motion to dismiss.

     On February 7, 2005, petitioner filed a motion to enforce

Rule 36.2    This motion contained frivolous and groundless

arguments.    The Court denied this motion.

     Petitioner attempted to file several other documents with

the Court that the Office of the Clerk of the Court returned to

petitioner as unfilable.    The returned documents included a

“motion to set aside defaults” and a “verified motion to enforce

default against IRS by summary judgement”.    These documents

contained frivolous and groundless arguments.




     2
        Rule 36(a) provides, in pertinent part, that “The
Commissioner shall have 60 days from the date of service of the
petition within which to file an answer, or 45 days from that
date within which to move with respect to the petition.”
                               - 5 -

     At the hearing on respondent’s motion, petitioner stated:

“Basically, the only thing I have before the Court, and the only

thing that’s--as far as I’m concerned, is the default I have

against them [the Internal Revenue Service] for not answering my

First Amendment complaint.”   Petitioner further stated:   “What

I’m saying is they [the Internal Revenue Service] don’t have

jurisdiction to issue anything to me.    I’m not under their

jurisdiction”.

Discussion

I.   Decision Letter

     A decision letter is not a determination letter pursuant to

section 6320 or 6330.   See Kennedy v. Commissioner, 116 T.C. 255,

263 (2001); Offiler v. Commissioner, 114 T.C. 492, 495 (2000).

Respondent did not issue a determination letter to petitioner

sufficient to invoke the Court’s jurisdiction to review the

notice of intent to levy for 2001.     Kennedy v. Commissioner,

supra.   Insofar as the petition filed herein purports to be a

petition for review pursuant to section 6330(d) of the notice of

intent to levy for 2001, we shall dismiss the petition as to the

notice of intent to levy for 2001 for lack of jurisdiction on the

ground that respondent did not make a determination pursuant to

section 6330 regarding the notice of intent to levy for 2001

because petitioner failed to file a timely request for an Appeals
                               - 6 -

Office hearing pursuant to section 6330(a)(2) and (3)(B) and (b).

Id.

II.   Section 6702 Notice of Determination

      The Court’s jurisdiction to review the Commissioner’s

determinations respecting collection matters is limited to cases

where the underlying tax liability is of a type over which the

Court normally has jurisdiction.   See Moore v. Commissioner, 114

T.C. 171 (2000).   We lack jurisdiction under section

6330(d)(1)(A) to review the Commissioner’s determinations

regarding the section 6702 frivolous return penalty.    Johnson v.

Commissioner, 117 T.C. 204, 208 (2001); Van Es v. Commissioner,

115 T.C. 324, 329 (2000) (“we do not * * * have jurisdiction to

redetermine the frivolous return penalties assessed pursuant to

section 6702”).

      Accordingly, we shall dismiss the petition as to the notice

of Federal tax lien regarding the section 6702 penalty for 1999

and 2000 on the ground that we lack jurisdiction to review

respondent’s determinations regarding the section 6702 penalty.

Johnson v. Commissioner, supra; Van Es v. Commissioner, supra.

Pursuant to section 6330(d), petitioner has 30 days after the

entry of our order to file his appeal with the appropriate U.S.

District Court regarding the notice of determination that

pertains to the notice of Federal tax lien for the section 6702

penalty for 1999 and 2000.
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III. Notice of Deficiency and Income Tax Notices of Determination

     Rule 34(b)(4) requires that a petition filed in this Court

shall contain clear and concise assignments of each and every

error that the taxpayer alleges to have been committed by the

Commissioner in the determination of the deficiency and the

additions to tax or penalties in dispute.    Rule 34(b)(5) further

requires that the petition shall contain clear and concise

lettered statements of the facts on which the taxpayer bases the

assignments of error.    Funk v. Commissioner, 123 T.C. 213, 215

(2004); Jarvis v. Commissioner, 78 T.C. 646, 658 (1982); Stearman

v. Commissioner, T.C. Memo. 2005-39.     Any issue not raised in the

pleadings is deemed to be conceded.     Rule 34(b)(4); Funk v.

Commissioner, supra; Jarvis v. Commissioner, supra at 658 n.19;

Gordon v. Commissioner, 73 T.C. 736, 739 (1980); Stearman v.

Commissioner, supra.    Further, the failure of a party to plead or

otherwise proceed as provided in the Court’s Rules may be grounds

for the Court to hold such party in default, either on the motion

of another party or on the initiative of the Court.    Rule 123(a);

Stearman v. Commissioner, supra; Ward v. Commissioner, T.C. Memo.

2002-147.   The Court also may dismiss a case and enter a decision

against a taxpayer for his failure properly to prosecute or to

comply with the Rules of this Court.    Rule 123(b); Stearman v.

Commissioner, supra; Ward v. Commissioner, supra.
                                - 8 -

      We agree with respondent that petitioner has failed to state

a claim upon which relief can be granted.    See Funk v.

Commissioner, supra at 216-217; Stearman v. Commissioner, supra.

Accordingly we shall dismiss petitioner’s case and enter a

decision sustaining respondent’s determinations contained in the

notice of deficiency for 20023 and respondent’s determinations

sustaining the notice of intent to levy for 1999 and 2000 and the

notice of Federal tax lien regarding income taxes for 1999, 2000,

and 2001.4   Rules 34(a), 123; Funk v. Commissioner, supra at 218;

Stearman v. Commissioner, supra.

IV.   Section 6673

      Section 6673(a)(1) authorizes this Court to require a

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous or groundless positions in

the proceedings or instituted the proceedings primarily for

delay.    A position maintained by the taxpayer is “frivolous”

where it is “contrary to established law and unsupported by a

reasoned, colorable argument for change in the law.”       Coleman v.


      3
        Where a petition fails to state a claim in respect of
additions to tax, the Commissioner incurs no obligation to
produce evidence in support of such determinations pursuant to
sec. 7491(c). Funk v. Commissioner, 123 T.C. 213, 218 (2004).
      4
        Although petitioner did not attach the notice of
determination sustaining the notice of Federal tax lien for
income taxes for 1999, 2000, and 2001 to the petition, he did
refer to it in the petition. Respondent attached this notice to
his motion to dismiss.
                               - 9 -

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); see also Hansen v.

Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673

penalty upheld because taxpayer should have known claim was

frivolous).

     Petitioner’s petition, objection, and motion to enforce Rule

36 are replete with tax-protester rhetoric, including but not

limited to arguments regarding the 16th Amendment.   The same is

true for (1) the two documents received at the hearing on

respondent’s motion that the Court previously refused to file and

(2) petitioner’s arguments at the hearing on respondent’s motion.

     Petitioner has advanced shopworn arguments characteristic of

tax-protester rhetoric that has been universally rejected by this

and other courts.   Wilcox v. Commissioner, 848 F.2d 1007 (9th

Cir. 1988), affg. T.C. Memo. 1987-225; Carter v. Commissioner,

784 F.2d 1006, 1009 (9th Cir. 1986).    We shall not painstakingly

address petitioner’s assertions “with somber reasoning and

copious citation of precedent; to do so might suggest that these

arguments have some colorable merit.”    Crain v. Commissioner, 737

F.2d 1417, 1417 (5th Cir. 1984).

     We conclude that petitioner’s position was frivolous and

groundless and that petitioner instituted and maintained these

proceedings primarily for delay.   We take this opportunity to

warn petitioner that the Court will impose a penalty pursuant to
                             - 10 -

section 6673 if he returns to the Court and proceeds in a similar

fashion in the future.

     To reflect the foregoing,


                                        An appropriate order of

                                   dismissal and decision will

                                   be entered.
