                        T.C. Memo. 2003-147



                      UNITED STATES TAX COURT



               THOMAS V.F. STRUHAR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6116-02L.                Filed May 22, 2003.


     Thomas V.F. Struhar, pro se.

     Mark D. Petersen, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     MARVEL, Judge:   Pursuant to section 6330(d), petitioner

seeks review of respondent’s determination to proceed with the

collection of petitioner’s 1997, 1998, and 1999 Federal income

tax liabilities.1



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue.
                                 - 2 -

                         FINDINGS OF FACT

     Some of the facts have been stipulated.    We incorporate the

stipulated facts and accompanying exhibits into our findings by

this reference.   Petitioner resided in Milwaukee, Wisconsin, at

the time of filing the petition.

     Although petitioner filed his Federal income tax returns for

1997, 1998, and 1999,2 petitioner failed to pay the amounts of

tax shown as due for each year.    Petitioner did not receive a

notice of deficiency.   On October 4, 1999, November 27, 2000, and

December 11, 2000, respondent assessed the unpaid income tax

shown on petitioner’s returns as well as additions to tax and

interest against petitioner and sent to petitioner notices of

balance due for 1997, 1998, and 1999, respectively.

Subsequently, from October 25, 1999, through April 16, 2001,

respondent sent to petitioner additional notices of balance due

and notices of intent to levy.    Petitioner failed to make

payments on the outstanding liabilities.

     On August 11, 2001, respondent mailed to petitioner a Final

Notice - Notice of Intent to Levy and Notice of Your Right to a

Hearing covering the taxable years 1997, 1998, and 1999.      On

August 20, 2001, petitioner timely submitted Form 12153, Request

for a Collection Due Process Hearing, requesting a hearing under

section 6330 (the hearing).   During a telephone call on January


     2
      Petitioner filed as “single” for all 3 years.
                                - 3 -

31, 2002, petitioner and Appeals Officer Isela H. Strong (Mrs.

Strong) agreed upon February 7, 2002, as the date for the

hearing.    In a letter to petitioner dated February 1, 2002, Mrs.

Strong confirmed the hearing date and enclosed Form 656, Offer in

Compromise, and Form 433-A, Collection Information Statement for

Individuals.    Petitioner did not return the forms.

     On February 7, 2002, petitioner attended the hearing.

During the hearing, Mrs. Strong explained the purpose of the

hearing, provided petitioner the opportunity to raise any

relevant issues regarding his income tax liabilities, and asked

petitioner whether he was interested in alternative collection

methods.    Petitioner argued that he did not owe taxes for 1997,

1998, and 1999 and refused to discuss alternative collection

methods.

     On February 28, 2002, the Appeals Office issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 in which it determined the following:

     1.    All legal and procedural requirements for the issuance

of the Notice of Intent to Levy had been met.

     2.    Prior to the Appeals Officer’s consideration of the

issues raised by petitioner, the Appeals Officer had no previous

involvement with respect to petitioner’s 1997, 1998, and 1999

income tax liabilities.
                                 - 4 -

     3.    None of the issues raised by petitioner were

meritorious.

     4.    No spousal defenses applied because petitioner filed as

“single”.

     5.    The proposed levy action balanced the need for efficient

collection of taxes with the legitimate concern of the taxpayer

that the collection action be no more intrusive than necessary

and was appropriate under the circumstances.

     Petitioner mailed a letter dated March 3, 2002, to this

Court that this Court treated as a timely, but imperfect,

petition appealing respondent’s determination for 1997, 1998, and

1999.     This Court then mailed petitioner an order requiring him

to file a proper amended petition.       On April 26, 2002, petitioner

filed the amended petition.

     In his original and amended petitions, petitioner alleged

that he was denied a “fair and impartial hearing” under section

6330.     Specifically, petitioner claimed that (1) he was denied

the opportunity to “raise any relevant issue concerning the

appropriateness of collection”, in violation of section

6330(c)(2)(A)(ii), and (2) he was denied the opportunity to

properly challenge the existence or amount of the underlying tax

liability, in violation of section 6330(c)(2)(B).      Additionally,

in his amended petition, petitioner disputed the existence of his
                               - 5 -

income tax liabilities for 1997, 1998, and 1999.3

                              OPINION

     Section 6330(a) provides that no levy may be made on any

property or right to property of any person unless the Secretary

has notified such person in writing of the right to a hearing

before the levy is made.   If the person makes a request for a

hearing, a hearing shall be held by the Internal Revenue Service

Office of Appeals.   Sec. 6330(b)(1).   At the hearing, a taxpayer

may contest the existence and amount of the underlying tax

liability if the taxpayer did not receive a notice of deficiency

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

opportunity to dispute the tax liability.   Sec. 6330(c)(2)(B);

see also Sego v. Commissioner, 114 T.C. 604, 609 (2000).

     Following a hearing, the Appeals Office must make a

determination whether the proposed levy action may proceed.    In

so doing, the Appeals Office is required to take into

consideration the verification presented by the Secretary, the

issues raised by the taxpayer, and whether the proposed

collection action appropriately balances the need for efficient

collection of taxes with a taxpayer’s concerns regarding the


     3
      Petitioner also asserted in his amended petition that (1)
Mrs. Strong had prior involvement with respect to his income tax
liabilities, in violation of sec. 6330(b)(3), and (2) Mrs. Strong
did not obtain verification from the Secretary that the
requirements of any applicable law or administrative procedure
were met, in violation of sec. 6330(c)(1). Petitioner later
conceded these allegations at trial.
                                 - 6 -

intrusiveness of the proposed collection action.      Sec.

6330(c)(3).   The taxpayer may petition the Tax Court or, in

limited cases, a Federal District Court for judicial review of

the Appeals Office’s determination.      Sec. 6330(d).

      If the taxpayer files a timely petition for judicial review,

the applicable standard of review depends on whether the

underlying tax liability is at issue.      Where the underlying tax

liability is properly at issue, the Court reviews any

determination regarding the underlying tax liability de novo.

Sego v. Commissioner, supra at 610.      The Court reviews any other

administrative determination regarding the proposed levy action

for abuse of discretion.   Id.

      With respect to petitioner’s 1997, 1998, and 1999 income tax

liabilities, petitioner did not receive a notice of deficiency.

We assume arguendo that petitioner’s underlying tax liabilities

are properly at issue, and we review his challenge to the

underlying tax liabilities de novo.      See Horn v. Commissioner,

T.C. Memo. 2002-207.

A.   Petitioner’s Challenge to the Underlying Tax Liabilities

      Petitioner contends that he is not subject to Federal income

taxes for the taxable years 1997, 1998, and 1999.        In support of

his position, petitioner advances only frivolous4 arguments.       We


      4
       Petitioner’s arguments included the following:

                                                         (continued...)
                               - 7 -

will not 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 is liable for the 1997, 1998, and 1999 underlying

tax liabilities.

B. Petitioner’s Challenge to Respondent’s Determination To
Proceed With the Collection Action

     Petitioner asserts that he did not receive a fair hearing

and that respondent’s decision to proceed with collection of his

1997, 1998, and 1999 income tax liabilities was an abuse of

discretion.   Petitioner contends that Mrs. Strong did not permit

him to challenge the appropriateness of the collection action or

the existence of the underlying tax liabilities.   According to

petitioner, Mrs. Strong repeatedly interrupted him during the



     4
      (...continued)
     (1) Former President Bill Clinton made a “presidential
campaign promise” that for people who “make $25,000.00 a year or
less, no taxes at all”. If respondent can collect taxes from
petitioner, a taxpayer who made less than $25,000 during the
years 1997, 1998, and 1999, then President Clinton’s campaign
promise was “vote fraud * * * making [his] presidency a fraud.”
Petitioner based this argument in part on a newspaper article in
the Milwaukee Journal Sentinel about a Texas mail fraud case that
arose out of the 2000 presidential election.
     (2) Respondent owes petitioner at least $5,000 for reporting
suspected tax criminals.
     (3) The IRS has stalked petitioner, “illegally [viewed] into
[petitioner’s] apartment”, and is part of a “United States
Government conspiracy” against petitioner that has caused
petitioner to experience “criminal harassment and criminal
humiliation”.
                               - 8 -

hearing and then abruptly terminated the hearing before

petitioner could present his arguments.   Petitioner also contends

that during their January 31, 2002, telephone call, Mrs. Strong

told petitioner that the only matter she would discuss with

petitioner at the hearing would be “payment” of his income tax

liabilities.

      After listening to Mrs. Strong’s testimony at trial and

reviewing petitioner’s tape recording of the hearing, we disagree

with petitioner’s characterization of the hearing.    Throughout

the hearing, Mrs. Strong made several patient attempts to keep

petitioner focused and invited petitioner to raise issues

relevant to his income tax liabilities.   When petitioner

eventually digressed into frivolous5 challenges to the underlying

tax liabilities, Mrs. Strong concluded the hearing.    Petitioner

had a fair opportunity to fully address all relevant issues

pursuant to section 6330(c)(2) and failed to take advantage of

it.

      Petitioner has failed to demonstrate that the proposed levy

action is inappropriate, another collection alternative is more

appropriate, or some other relevant issue adversely affects

respondent’s proposed collection activity.   We therefore conclude

that respondent’s determination to proceed by levy with the

collection of petitioner’s 1997, 1998, and 1999 income tax


      5
       See supra note 4.
                                  - 9 -

liabilities was not an abuse of discretion.

C.   Section 6673 Penalty

      Section 6673(a) authorizes this Court to impose a penalty

not in excess of $25,000 on any taxpayer who institutes or

maintains proceedings in this Court primarily for delay, asserts

a position in such proceeding that is frivolous or groundless, or

unreasonably fails to pursue administrative remedies.        It does

not appear from the record in this case that respondent warned

petitioner about section 6673 during the course of these

proceedings, and respondent does not request that we impose a

section 6673 penalty.   However, we caution petitioner that his

arguments in this case were frivolous and that any reliance upon

those arguments in future tax disputes may result in the

imposition of the section 6673 penalty.

      We have considered the remaining arguments of both parties

for results contrary to those expressed herein and, to the extent

not discussed above, find those arguments to be irrelevant, moot,

or without merit.

      To reflect the foregoing,


                                               Decision will be entered

                                          for respondent.
