                        T.C. Memo. 2004-248



                      UNITED STATES TAX COURT



                 RICHARD REWERTS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.   2545-02L.            Filed November 1, 2004.



     Richard Rewerts, pro se.

     Rebecca S. Duewer-Grenville, for respondent.



                        MEMORANDUM OPINION


     HAINES, Judge:   This matter is before us on respondent’s

motion for summary judgment pursuant to Rule 121.1   The issue for

decision is whether there was an abuse of discretion in



     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code of 1986, as amended.
                               - 2 -

respondent’s determination that collection action could proceed

for Federal income tax liabilities for 1998.

                            Background

     At the time his petition was filed, petitioner resided in

Nice, California.

     On March 18, 1999, petitioner and his wife, Laura E.

Rewerts, filed a joint Federal income tax return for 1998 (1998

tax return), reporting a total income of zero.   Petitioner and

his wife attached to their 1998 tax return a 2-page letter that

asserted basic tax-protester arguments.   They also attached Forms

W-2, Wage and Tax Statement, for 1998 that reported wages

petitioner received from Stergion Construction and Lakeport

Unified School District of $30,032 and $733, respectively, and

wages petitioner’s wife received from Lakeport Unified School

District of $25,425.2   Petitioner and his wife claimed the

Federal income tax shown as withheld on the W-2s, totaling

$2,928, as a refund on the 1998 tax return.

     On September 3, 1999, respondent mailed petitioner and his

wife a letter requesting them to respond within 30 days to

proposed adjustments to their 1998 tax return (30-day letter).

The 30-day letter proposed an additional $4,928 in taxes,

additions to tax, penalties, and estimated interest being




     2
         Amounts are rounded to the nearest dollar.
                               - 3 -

claimed by respondent.   Petitioner responded to the 30-day letter

on September 24, 1999, by a letter in which he stated:

     I am requesting an office audit/meeting at which time
     you should have available:

     1.   The “text of any written determination and any
          background file documents relating to (the)
          determination” that my “zero” return was not
          correct as provided in 26 USC 6610.

     2.   Since Sections 6001 and 6011 (as referred to in
          the Privacy Act Notice that is contained in the
          1040 booklet) only direct me to comply with
          Treasury regulations, I will expect you to have
          the Treasury regulation that imposes upon me a
          legal obligation to treat seriously the “changes”
          you have proposed in my 1998 return.

     3.   The statute and implementing regulation that
          allowed you to “change” my 1998 return, and

     4.   Your Delegation Order from the Secretary of
          Treasury authorizing you to act in his behalf.

     On October 22, 1999, respondent mailed to petitioner and his

wife a notice of deficiency for 1998, in which respondent

determined that petitioner and his wife owed a deficiency of

$6,724, a $759 accuracy-related penalty under section 6662(a),

and a $191 addition to tax under section 6654(a) for failure to

pay estimated tax.

     Petitioner and his wife did not file a petition with the

Court to redetermine the deficiency.   Instead, petitioner mailed

a letter dated October 29, 1999, to the Director of the Internal

Revenue Service Center in Fresno, California, stating that he

would not file a petition with the Court until the director
                                - 4 -

established that respondent had the legal authority to send the

notice of deficiency in the first place.

     Respondent assessed the tax, addition to tax, penalty, and

interest on March 20, 2000, and issued a notice and demand for

balance due on the same date.

     On July 7, 2000, respondent mailed to petitioner and his

wife a Final Notice--Notice of Intent to Levy and Notice of Your

Right to a Hearing (Final Notice).      On August 7, 2000, respondent

received from petitioner a Form 12153, Request for Collection Due

Process Hearing, with a 2-page tax-protester statement attached.

Petitioner’s wife did not sign the Form 12153 and did not attend

the subsequent section 6330 hearing.

     A recorded section 6330 hearing was held on October 29,

2001, at the San Francisco Appeals Office.     At the hearing,

petitioner asserted that no section in the Internal Revenue Code

required him to pay tax, that he had filed a zero return which

required a zero assessment, that he had received no demand for

payment of the tax, and that the notice of deficiency he had

received was invalid because it was not issued by someone with

delegated authority.   Petitioner also demanded a Form 23C for a

record of his assessments and a copy of the delegation order

authorizing the issuance of the Final Notice.     At the hearing,

petitioner received Form 4340, Certificate of Assessments and

Payments, but did not receive a copy of the delegation order.
                               - 5 -

Petitioner was given the opportunity during the hearing to

present collection alternatives, but he refused.

     In the January 8, 2002, Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 for 1998

(notice of determination) sent to petitioner, the Appeals officer

determined that “all of the legal and procedural requirements for

taking levy action have been met”, and collection could proceed.

     On January 31, 2002, petitioner and his wife filed a

petition with the Court for judicial review of respondent’s

notice of determination.   The petition contained only tax-

protester arguments.   On April 16, 2002, the Court granted

respondent’s motion to dismiss for lack of jurisdiction as to

petitioner’s wife because she failed to sign the Form 12153 and

the notice of determination only pertained to petitioner.

     Sometime before February 3, 2003, petitioner submitted an

offer in compromise, which was rejected by respondent’s Offer in

Compromise Group.

     On August 17, 2004, respondent filed a motion for summary

judgment.   By order dated August 18, 2004, petitioner was given

until September 10, 2004, to file a response to the motion for

summary judgment.   To date, no response has been received by the

Court from petitioner.
                               - 6 -

                            Discussion

     A decision on a motion for summary judgment may be rendered

if the pleadings and other materials in the record 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(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994).   We have considered the pleadings

and other materials in the record and conclude that there is no

genuine issue of any material fact and that a decision may be

rendered as a matter of law.

     Petitioner received a notice of deficiency but did not

petition the Court for a redetermination of the deficiency.

Petitioner claims that the person who sent the notice of

deficiency did not have delegated authority.   We have held in

numerous cases that an argument such as petitioner’s is without

merit.   See, e.g., Nestor v. Commissioner, 118 T.C. 162, 165

(2002); Israel v. Commissioner, T.C. Memo. 2003-338; Bethea v.

Commissioner, T.C. Memo. 2003-278; Fink v. Commissioner, T.C.

Memo. 2003-61; Koenig v. Commissioner, T.C. Memo. 2003-40.     Where

the underlying tax liability is not at issue, we review

respondent’s determination to proceed with collection for abuse

of discretion.   Sego v. Commissioner, 114 T.C. 604, 610 (2000).

     Petitioner has presented only tax-protester arguments to

respondent and the Court.   We have held in previous cases that
                               - 7 -

petitioner’s arguments are without merit.   See, e.g., Roberts v.

Commissioner, 118 T.C. 365, 371 (2002); Nestor v. Commissioner,

supra at 167 (as to the argument that assessments are improper

because the tax return reported zero taxable income); Davis v.

Commissioner, 115 T.C. 35, 41 (2000) (as to the argument that a

Form 23C is necessary and that a Form 4340 does not suffice to

verify respondent’s assessments); Dashiell v. Commissioner, T.C.

Memo. 2004-210 (as to petitioner’s claim that no Internal Revenue

Code section makes him liable).   We reject these boilerplate tax-

protester arguments as frivolous and without merit.

     Petitioner was asked on several occasions in his section

6330 hearing whether he wished to propose any collection

alternatives.   Petitioner refused the opportunity.   Rather, in

the section 6330 hearing, petitioner continued to assert a

“hodgepodge of unsupported assertions, irrelevant platitudes, and

legalistic gibberish” similar to those previously rejected by the

Court.   Crain v. Commissioner, 737 F.2d 1417, 1418 (5th Cir.

1984); Dunham v. Commissioner, T.C. Memo. 2003-260.    Although

petitioner subsequently submitted an offer in compromise to

respondent, it was rejected by respondent’s Offer in Compromise

Group. Petitioner has not presented any evidence or persuasive

arguments to convince us that respondent abused his discretion.

As a result, we hold the issuance of the notice of determination
                                - 8 -

was not an abuse of respondent’s discretion, and respondent may

proceed with collection.

     Respondent, in his motion for summary judgment, has not

asked the Court to impose a penalty under section 6673(a) against

petitioner.   The Court, however, may sua sponte impose a penalty.

Pierson v. Commissioner, 115 T.C. 576, 580 (2000); Jensen v.

Commissioner, T.C. Memo. 2004-120; Frey v. Commissioner, T.C.

Memo. 2004-87.

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

taxpayer to pay the United States a penalty in an amount not to

exceed $25,000 whenever it appears to the Court the taxpayer’s

position in such a proceeding is frivolous or groundless.    Sec.

6673(a)(1)(B).    In the present case, there is no evidence that

petitioner has previously been a litigant in the Court.

Moreover, there is no evidence that a warning was given to

petitioner of the possible imposition of a penalty if he

continued making his arguments.    Therefore, we decline to impose

a penalty under section 6673(a), but admonish petitioner that if

he persists in pursuing frivolous arguments before the Court in

the future, we may not be so favorably inclined.    See Sides v.

Commissioner, T.C. Memo. 2004-141; Kaeckell v. Commissioner, T.C.

Memo. 2002-114.
                              - 9 -

     In reaching our holding herein, we have considered all

arguments made, and, to the extent not mentioned above, we

conclude that they are irrelevant and without merit.

                                           An appropriate order and

                                      decision will be entered.
