                         T.C. Memo. 2005-161



                       UNITED STATES TAX COURT



                     MICHAEL BALICE, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.    15016-04L.                Filed July 5, 2005.



     Michael Balice, pro se.

     Kathleen K. Raup, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on

respondent’s motion for summary judgment (respondent’s motion).

We shall grant respondent’s motion.

                                Background

     The record establishes and/or the parties do not dispute the

following.
                               - 2 -

     Petitioner resided in Metuchen, New Jersey, at the time he

filed the petition in this case.

     Petitioner and Marion Balice (Ms. Balice) jointly filed a

Federal income tax (tax) return for the taxable year 1996 (1996

return).   In the 1996 return, petitioner and Ms. Balice reported,

inter alia, total income of $51,842, taxable income of $36,644,

total tax of $6,710, and tax withheld of $8,296 and claimed an

overpayment of tax of $1,586 and a refund of tax of $1,586.

     On February 14, 2003, respondent issued to petitioner and

Ms. Balice a notice of deficiency (notice) with respect to their

taxable year 1996, which they received.   In that notice,

respondent determined a deficiency in, and an accuracy-related

penalty under section 6662(a)1 on, the tax of Ms. Balice and

petitioner for that year in the respective amounts of $28,625 and

$5,725.

     Petitioner2 did not file a petition in the Court with

respect to the notice relating to his taxable year 1996.

     On July 21, 2003, respondent assessed petitioner’s tax, as

well as an accuracy-related penalty under section 6662(a) and

interest as provided by law, for his taxable year 1996.     (We


     1
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
     2
      This case involves only petitioner, and not Ms. Balice.
For convenience, we shall hereinafter refer only to petitioner,
and not to petitioner and Ms. Balice.
                               - 3 -

shall refer to any such unpaid assessed amounts, as well as

interest as provided by law accrued after July 21, 2003, as

petitioner’s unpaid liability for 1996.)

     Respondent issued to petitioner the notice and demand for

payment required by section 6303(a) with respect to petitioner’s

unpaid liability for 1996.

     On November 6, 2003, respondent issued to petitioner a

notice of Federal tax lien filing and your right to a hearing

(notice of tax lien) with respect to his taxable year 1996.

     On December 9, 2003, in response to the notice of tax lien,

petitioner filed a request for a collection due process hearing

(petitioner’s request for an Appeals Office hearing) and

requested a hearing with respondent’s Appeals Office (Appeals

Office).3   Petitioner’s request for an Appeals Office hearing

contained statements, contentions, arguments, and requests that

the Court finds to be frivolous and/or groundless.4

     By letter dated May 19, 2004, an Appeals officer with

respondent’s Appeals Office (Appeals officer) informed petitioner


     3
      Petitioner did not use Form 12153, Request for a Collection
Due Process Hearing.
     4
      Petitioner’s request for an Appeals Office hearing
contained statements, contentions, arguments, and requests that
are similar to the statements, contentions, arguments, and
requests contained in the respective Appeals Office hearing
requests filed under sec. 6320(b) and/or sec. 6330(b) with the
Internal Revenue Service by certain other taxpayers who commenced
proceedings in the Court. See, e.g., Guerrier v. Commissioner,
T.C. Memo. 2002-3.
                              - 4 -

that he had scheduled a telephonic Appeals Office hearing with

petitioner on June 9, 2004, at 10 a.m., with respect to the

notice of tax lien (scheduled Appeals Office hearing).   On June

8, 2004, the day before the scheduled Appeals Office hearing,

petitioner and petitioner’s authorized representative telephoned

the Appeals officer (June 8, 2004 telephone call).

     On July 19, 2004, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6230 and/or 6330 (notice of determination).   The notice

stated in pertinent part:

     Based on the available facts Compliance followed the
     applicable procedures and the issuance of the Notice of
     Federal Tax Lien was proper and appropriate.

     An attachment to the notice of determination stated in

pertinent part:

     Summary and Recommendation

     Collection Due Process--Lien

     You submitted a timely Request for a Collection Due Process
     Hearing under Internal Revenue Code Section 6320 in
     response to a Notice of Federal Tax Lien Filing against
     a 1040 (Individual Income tax) liability for the year
     ending 12/31/96.

     Letter 3172, (Notice of Federal Tax Lien Filing) was
     issued by the Compliance Division of the Cherry Hill,
     New Jersey Field Office on November 6, 2003. Form
     12153, (Request for a Collection Due Process Hearing)
     was received by Compliance on December 9, 2003.

     Summary of Issues

     You have raised no specific issues other than frivolous
     and groundless arguments.
                         - 5 -

Brief Background

Your liability is the result of an audit deficiency.
As a result of an audit it was determined that an
additional tax was due to omitted income related to
what was determined to be an abusive trust.

Your account was subsequently assigned to Compliance
for collection of the unpaid tax. Attempts were made
by Compliance to resolve your liability. As one of its
subsequent case actions Compliance filed a Notice of
Federal Tax Lien. You responded by submitting a
Request for a Collection Due Process hearing.

Compliance forwarded your case file along with all
supporting documentation to the Newark, New Jersey
Office of Appeals for consideration where your hearing
request was assigned to a Settlement Officer who had no
previous involvement with your account.

Requirement of Law and Administrative Procedures

Law

IRC Section 6321 provides for a statutory lien when a
taxpayer neglects or refuses to pay a tax liability
after notice and demand. A review of your account
transcript indicates that Notice and Demand for payment
was made on the amount due for the year ending 12/31/96
and the obligation remained unpaid.

IRC Section 6320(a) provides that the Internal Revenue
Service will notify a taxpayer of the filing of a
Notice of Lien and of the Right to a Hearing before the
Internal Revenue Service Office of Appeals with respect
to the filing of a Notice of Federal Tax Lien. Such
notification was given to you by Compliance by the
issuance of Letter 3172 by certified mail, return
receipt requested, on November 6, 2003.

In accordance with IRC Section 6330(c) you were given
the opportunity to raise any relevant issue relating to
the unpaid tax or the Notice of Federal Tax Lien at a
telephone held on June 8, 2003.

A review of your account transcript indicates that the
assessment was made on the applicable collection due
process notice period in accordance with IRC Section
                         - 6 -

6201.

   *       *       *       *       *        *      *

Relevant issues presented by the taxpayer

You have raised no specific issues other than frivolous
and groundless arguments.

On June 8, 2004 a telephone conference was held with
your Representative, Yourself and the Settlement Office
in attendance. At that conference your representative
continued to raise frivolous arguments and was advised
that those arguments would not be considered within the
context of the Collection Due Process Hearing.

In addition, in accordance with IRC Section 6330(2)(B),
you are prohibited from disputing the underlying
liability within the context of a Collection Due
Process Hearing because you had a prior opportunity to
do so, which you did not avail yourself of. Upon the
completion of your audit a Statutory Notice of
Deficiency was issued which remained unanswered.

At the same conference you stated that you would like
to file an amended income tax return and was advised to
file such return through the Philadelphia Service
Center or through the Office of Appeals. A date of
June 22, 2004 was established to submit the return.

As of the date of this letter you have not submitted
any information to assist in resolving your account.

   *       *       *       *       *        *      *

Does the proposed collection action balance the need
for the efficient collection of taxes with the
taxpayer’s legitimate concern that the collection
action be no more intrusive than necessary?

The proposed Lien action balanced the need for the
efficient collection of taxes and is no more intrusive
than necessary.

Based on a review of the case activity records and case
transcripts the proposed lien action was necessary in
order to protect the government’s interest. Notice and
demand was given and the liability remained unpaid.
                                 - 7 -

     Determination

     Based on the facts of the case, the collection action
     taken was proper and appropriate. Compliance followed
     the applicable law and administrative procedures.

     It is recommended that your account be reassigned to
     the Compliance for further collection action.
     [Reproduced literally.]

     In response to the notice of determination, petitioner filed

a petition with the Court.    The petition contained statements,

contentions, arguments, and requests that the Court finds to be

frivolous and/or groundless.5

                              Discussion

     The Court may grant summary judgment where there is no

genuine issue of 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).

     Although not altogether clear, petitioner may be taking the

position that the Court should deny respondent’s motion because

there is a genuine issue of material fact, viz, whether the June

8, 2004 telephone call constituted petitioner’s Appeals Office

hearing under section 6320(b).    Petitioner contends that it did

not and that the Court should remand this case to the Appeals



     5
      The frivolous and/or groundless statements, contentions,
arguments, and requests in petitioner’s petition are similar to
the frivolous and/or groundless statements, contentions,
arguments, and requests in the respective petitions filed with
the Court by certain other taxpayers. See, e.g., Copeland v.
Commissioner, T.C. Memo. 2003-46.
                                - 8 -

Office for a hearing under that section.     Respondent disagrees on

both points.

     We need not resolve the issue of whether the June 8, 2004

telephone call constituted an Appeals Office hearing under

section 6320(b).    We conclude that that issue is not material to

our determining whether to grant respondent’s motion.     Throughout

the period starting at least as early as petitioner’s filing with

respondent petitioner’s request for an Appeals Office hearing and

ending with his filing with the Court petitioner’s response to

respondent’s motion (petitioner’s response), petitioner has made

statements, contentions, arguments, and requests that the Court

finds to be frivolous and/or groundless.     We conclude that (1) it

is not necessary and will not be productive to remand this case

to the Appeals Office for a hearing under section 6320(b), see

Lunsford v. Commissioner, 117 T.C. 183, 189 (2001), and (2) it is

not necessary or appropriate to reject respondent’s determination

to proceed with the collection action as determined in the notice

of determination with respect to petitioner’s unpaid liability

for 1996, see id.

     We conclude that there are no genuine issues of material

fact regarding the questions raised in respondent’s motion.

     Petitioner did not file a petition with the Court with

respect to the notice of deficiency that respondent issued to him

relating to his taxable year 1996.      Where, as is the case here,
                                 - 9 -

the validity of the underlying tax liability is not properly

placed at issue, the Court will review the determination of the

Commissioner of the Internal Revenue for abuse of discretion.

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

Commissioner, 114 T.C. 176, 182 (2000).

     Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioner’s

taxable year 1996.

     Although respondent does not ask the Court to impose a

penalty on petitioner under section 6673(a)(1), we now consider

sua sponte whether the Court should impose a penalty on

petitioner under that section.    Section 6673(a)(1) authorizes the

Court to require a taxpayer to pay a penalty to the United States

in an amount not to exceed $25,000 whenever it appears that a

taxpayer instituted or maintained a proceeding in the Court

primarily for delay or that a taxpayer’s position in such a

proceeding is frivolous or groundless.

     Although we shall not impose a penalty under section

6673(a)(1) on petitioner in the instant case, we caution him that

he may be subject to such a penalty if in the future he

institutes or maintains a proceeding in this Court primarily for

delay and/or his position in any such proceeding is frivolous or
                             - 10 -

groundless. See Abrams v. Commissioner, 82 T.C. 403, 409-413

(1984); White v. Commissioner, 72 T.C. 1126, 1135-1136 (1979).

     We have considered all of petitioner’s statements,

contentions, arguments, and requests that are not discussed

herein, and, to the extent we have not found them to be frivolous

and/or groundless, we find them to be without merit and/or

irrelevant.6

     On the record before us, we shall grant respondent’s motion.

     To reflect the foregoing,

                                      An order granting respondent’s

                                 motion and decision for respondent

                                 will be entered.


     6
      We shall, however, address one of petitioner’s arguments in
petitioner’s response. Petitioner argues in petitioner’s
response that the Appeals officer did not provide him with the
summary record of assessment with respect to petitioner’s unpaid
liability for 1996. Respondent is not required to provide
petitioner with the summary record of assessment. See Koff v.
United States, 3 F.3d 1297, 1298 (9th Cir. 1993); Roberts v.
Commissioner, 118 T.C. 365, 370 n.7 (2002), affd. 329 F.3d 1224
(11th Cir. 2003).

     While not altogether clear, petitioner may also be arguing
that respondent’s collection action with respect to petitioner’s
taxable year 1996 may not be valid because he did not receive
certain documentation to which he is entitled under sec. 6203 and
sec. 301.6203-1, Proced. & Admin. Regs. On the record before us,
we reject any such argument. On Nov. 6, 2003, respondent issued
to petitioner a notice of tax lien. The third page of the notice
of tax lien set forth, inter alia, petitioner’s name, the date of
assessment, the character of the liability assessed, the taxable
period, and the total of the amounts assessed. We conclude that
petitioner received the documentation to which he is entitled
under sec. 6203 and sec. 301.6203-1, Proced. & Admin. Regs. See
Roberts v. Commissioner, supra.
