                       T.C. Memo. 2002-93



                     UNITED STATES TAX COURT



                  DEBRA L. CHASE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7206-01L.             Filed April 8, 2002.



     Debra L. Chase, pro se.

     Sheara L. Gelman, for respondent.



                       MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:   This matter is before

the Court on the parties cross-motions for summary judgment

pursuant to Rule 121(a).1


     1
        Rule references are to the Tax Court Rules of Practice
and Procedure. Unless otherwise indicated, section references
                                - 2 -

       Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”    Rule 121(a) and (b); Sundstrand

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

(7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).    The moving

party bears the burden of proving that 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).

       We are satisfied that there is no genuine issue as to any

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

law.    As explained in detail below, we shall grant respondent’s

motion for summary judgment and deny petitioner’s motion for

summary judgment.


are to sections of the Internal Revenue Code, as amended.
                                 - 3 -

Background

     Petitioner failed to file tax returns for 1995 and 1996.      On

March 12, 1999, respondent issued notices of deficiency to

petitioner determining deficiencies in and additions to her

Federal income taxes for 1995 and 1996.    Respondent determined

that petitioner failed to report wage income during the years in

question based upon information provided to respondent by third-

party payors.

     On July 5, 2000, respondent mailed to petitioner a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing.

On July 31, 2000, petitioner filed with respondent a Request for

a Collection Due Process Hearing that included a request that

respondent provide petitioner with a summary record of

assessment, and any documents showing that petitioner is liable

for a specific tax.

     On September 18, 2000, Appeals Officer Gerald D. Sackett

wrote a letter to petitioner enclosing transcripts of her

accounts to demonstrate that tax assessments had been entered

against her for 1995 and 1996.    Petitioner’s case was

subsequently transferred to Appeals Officer Nancy D. Johnson.

Appeals Officer Johnson concluded that it was unclear whether

petitioner received the notices of deficiency dated March 12,

1999, and, therefore, informed petitioner that she would be
                               - 4 -

permitted to offer documentation to the Appeals Office

challenging the amount of the wage income attributed to her in

the notices of deficiency.

     In early February 2001, Appeals Officer Johnson conducted an

administrative hearing in petitioner’s case.   By letter to

petitioner dated February 22, 2001, Appeals Officer Johnson

provided petitioner with “certificates of official record”, i.e.,

Forms 4340, Certificate of Assessments, Payments, and Other

Specified Matters, dated February 2, 2001, and informed

petitioner that she should immediately submit any additional

information regarding her case.   Petitioner did not provide the

Appeals Office with any additional information.

     The Forms 4340 show that, on August 9, 1999, respondent

entered assessments against petitioner for taxes and additions to

taxes set forth in the notices of deficiency for 1995 and 1996,

and statutory interest and penalties for failure to pay the

taxes.   In addition, on August 9, September 13, and October 18,

1999, respondent issued to petitioner Notices of Balance Due for

1995 and 1996.

     On April 26, 2001, the Appeals Office issued to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 stating that respondent would proceed

with collection against petitioner for 1995 and 1996.    The notice
                              - 5 -

of determination stated in pertinent part that the Secretary had

complied with all applicable laws and administrative procedures

in the examination, assessment, and collection actions taken in

the matter, the Appeals officer assigned to the matter had no

prior involvement with respect to petitioner’s tax liabilities,

and the Appeals Office would not consider petitioner’s challenge

to the existence of her tax liabilities because her arguments

were based on political, constitutional, conscientious, or

similar grounds.

     Petitioner filed with the Court a Petition for Lien or Levy

Action Under Code Section 6320(c) or 6330(d) seeking review of

respondent’s notice of determination.2   Petitioner subsequently

filed an amended petition that included allegations that

respondent failed to obtain verification from the Secretary that

the requirements of any applicable law or administrative

procedure were met as required under section 6330(c)(1) and

respondent failed to consider whether petitioner is liable for

Federal income taxes.

     After respondent filed an answer to the amended petition,

petitioner filed a motion for summary judgment asserting that

there is no dispute as to a material fact and petitioner is



     2
        At the time the petition was filed, petitioner was
residing in Allen, Tex.
                               - 6 -

entitled to judgment as a matter of law.   Petitioner maintains

that respondent’s notice of determination is arbitrary and

capricious and that the Appeals officer failed to consider

properly petitioner’s assertion that she did not receive income

from a taxable source during 1995 and 1996.

     Respondent filed an objection to petitioner’s motion.

Respondent also filed a motion for summary judgment.    Respondent

contends that petitioner failed to raise any valid claims with

respect to the existence or amount of her tax liabilities for

1995 and 1996.   Respondent further asserts that the Appeals

officer properly verified that the requirements of all applicable

laws and administrative procedures were met with regard to the

assessment and collection actions taken in this case.   Petitioner

filed an objection to respondent’s motion.

     This matter was called for hearing at the Court’s motions

session held in Washington, D.C.    Counsel for respondent appeared

at the hearing and presented argument in support of respondent’s

motion.   No appearance was made by or on behalf of petitioner at

the hearing, nor did petitioner file with the Court a written

statement pursuant to Rule 50(c).

Discussion

     Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after
                                - 7 -

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon the person’s property.    Section

6331(d) provides that, at least 30 days before enforcing

collection by way of a levy on the person’s property, the

Secretary is obliged to provide the person with a final notice of

intent to levy, including notice of the administrative appeals

available to the person.

     Sections 6320 and 6330 generally provide that the

Commissioner cannot proceed with collection by way of a lien or

levy action until the person has been given notice and the

opportunity for an administrative review of the matter (in the

form of an Appeals Office hearing), and, if dissatisfied, the

person has an opportunity for judicial review of the

administrative determination.   See Davis v. Commissioner, 115

T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179

(2000).

     Section 6330(c) prescribes the matters a person may raise at

an Appeals Office hearing.   In sum, section 6330(c) provides that

a person may raise collection issues such as spousal defenses,

the appropriateness of the Commissioner’s intended collection

action, and possible alternative means of collection.    Section

6330(c)(2)(B) provides that the existence and amount of the

underlying tax liability can be contested at an Appeals Office
                               - 8 -

hearing only if the person did not receive a notice of deficiency

for the taxes in question or did not otherwise have an earlier

opportunity to dispute the tax liability.    See Sego v.

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

supra.   Section 6330(d) provides for judicial review of the

administrative determination in either the Tax Court or Federal

District Court.

     Petitioner challenges the existence of the asserted tax

liabilities for 1995 and 1996 on the grounds that she did not

receive income from a taxable source and respondent failed to

demonstrate that she is liable for Federal income taxes.

Although respondent determined that the income in question is

attributable to taxable wages, petitioner never identified the

alleged nontaxable source of the income, nor did she expressly

deny receiving the wages in question.    The record shows that

Appeals Officer Johnson gave petitioner every opportunity to

produce documentation in support of her position.

     Petitioner’s arguments that she is not subject to Federal

income taxes and that she did not earn taxable income during 1995

and 1996 are frivolous and groundless.    Goza v. Commissioner,

supra.   As the Court of Appeals for the Fifth Circuit has

remarked:   “We perceive no need to refute these arguments with

somber reasoning and copious citation of precedent; to do so
                                - 9 -

might suggest that these arguments have some colorable merit.”

Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).

     Petitioner next contends that the Appeals officer failed to

obtain verification from the Secretary that the requirements of

all applicable laws and administrative procedures were met as

required under section 6330(c)(1).      We reject petitioner’s

argument inasmuch as the record shows that the Appeals officer

obtained, reviewed and provided petitioner with copies of Forms

4340 with regard to petitioner’s account for 1995 and 1996.

     Federal tax assessments are formally recorded on a record of

assessment.   Sec. 6203.   The summary record of assessment,

through supporting records, must “provide identification of the

taxpayer, the character of the liability assessed, the taxable

period, if applicable, and the amount of the assessment.”        Sec.

301.6203-1, Proced. & Admin. Regs.      We have held that Forms 4340

are presumptive evidence on which an Appeals officer may rely to

verify that an assessment was made against a person for purposes

of sections 6320 and 6330.    Davis v. Commissioner, 115 T.C. 35,

40-41 (2000); see Nestor v. Commissioner, 118 T.C. 162, 166-167

(2002).

     Petitioner has not demonstrated any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the
                                - 10 -

Forms 4340.   Davis v. Commissioner, supra at 41.      Accordingly, we

hold that the Appeals officer satisfied the verification

requirement of section 6330(c)(1).       Cf. Nicklaus v. Commissioner,

117 T.C. 117, 120-121 (2001).

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.      Rule 331(b)(4).    In the

absence of a valid issue for review, and there being no dispute

as to a material fact, it follows that respondent is entitled to

judgment as a matter of law sustaining the notice of

determination dated April 26, 2001.

     Section 6673(a)(1) authorizes the Tax Court to require a

taxpayer to pay to the United States a penalty not in excess of

$25,000 whenever it appears that proceedings have been instituted

or maintained by the taxpayer primarily for delay or that the

taxpayer’s position in such proceeding is frivolous or

groundless.   The Court has indicated its willingness to impose

such penalties in collection review cases.       Pierson v.

Commissioner, 115 T.C. 576 (2000).       Although we shall not impose

a penalty upon petitioner pursuant to section 6673(a)(1), we

admonish petitioner that the Court will consider imposing such a

penalty should she return to the Court and advance similar

arguments in the future.
                        - 11 -

To reflect the foregoing,

                                 An order and decision will be

                            entered granting respondent’s

                            motion for summary judgment and

                            denying petitioner’s motion for

                            summary judgment.
