                          T.C. Memo. 2008-151



                        UNITED STATES TAX COURT



                WENZELL O. TAYLOR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4504-06L.                Filed June 12, 2008.



     Wenzell O. Taylor, pro se.

     Roger W. Bracken, for respondent.



                          MEMORANDUM OPINION


     WELLS, Judge:   This matter is before the Court on

petitioner’s and respondent’s cross-motions for summary judgment

pursuant to Rule 121.    The issues we must decide are:   (1)

Whether respondent’s Appeals Office abused its discretion in

determining to proceed with collection of petitioner’s income tax
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liabilities for taxable years 1998, 1999, 2000, 2001, and 2002,

and (2) whether the Court, sua sponte, should impose a penalty

under section 6673.1    After considering the parties’ cross-

motions for summary judgment, petitioner’s response, and

respondent’s response, we conclude that there remains no issue of

material fact that requires trial or hearing.    For the reasons

stated below, we shall grant respondent’s motion for summary

judgment.   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, as amended.

                             Background

     At the time of filing the petition, petitioner resided in

Washington, D.C.

     Petitioner filed purported Federal tax returns for taxable

years 1998, 1999, 2000, 2001, and 2002.    On each of the returns

petitioner indicated all zeros and showed no taxable income

received.   Attached to the individual income tax returns for

taxable years 1998, 1999, 2001 and 2002, petitioner included

frivolous statements.    Respondent did not accept petitioner’s

purported Federal income tax returns for taxable years 1998



     1
      Respondent also filed a motion to dismiss for lack of
jurisdiction and to strike as to the taxable year 1999.
Subsequently, respondent filed a motion to withdraw respondent’s
motion to dismiss for lack of jurisdiction and to strike as to
taxable year 1999. We find that there is jurisdiction regarding
taxable year 1999 and will grant respondent’s motion to withdraw.
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through 2002 and sent petitioner a notice of deficiency for those

years.    Petitioner did not petition this Court for

redetermination of the deficiencies and additions to tax for any

of the taxable years in the notice.     Respondent assessed tax

deficiencies and interest for taxable years 1998 through 2002.

Petitioner had withholding credits for taxable years 1998, 1999,

and 2000.    Respondent also assessed additions to tax and

penalties for taxable years 1999, 2000, and 2001 and a late

filing addition to tax and a failure to pay addition to tax for

taxable year 2002.     Respondent sent petitioner a notice and

demand for payment for taxable years 1998 through 2002.

     On April 1, 2005, respondent sent petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing for taxable

years 1998 and 2000 through 2002.    On August 5, 2005, respondent

received from petitioner a Form 12153, Request for Collection Due

Process Hearing, dated May 4, 2005, for taxable years 1998 and

2000 through 2002.    On Form 12153 petitioner’s only statement was

that “I do not believe that all of the requirements of applicable

law and administrative procedures have been met in my case.”      On

October 10, 2005, Settlement Officer D.W. DeVincentz (Settlement

Officer DeVincentz) was assigned petitioner’s appeal of the

proposed collection action for taxable years 1998, 2000 through

2002.    On November 4, 2005, as part of the Appeals hearing,

Settlement Officer DeVincentz reviewed petitioner’s request for a
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hearing for 1998 and 2000 through 2002; confirmed that notice and

demand for payment was made for each taxable year; confirmed that

petitioner owed income taxes for 1998 and 2000 through 2002; and

confirmed that the requirements of the applicable law and

administrative procedures had been met.

     On November 7, 2005, Settlement Officer DeVincentz sent a

letter to petitioner notifying him of the time and date of a

telephone conference.

     On November 14, 2005, respondent received a letter from

petitioner dated November 9, 2005, requesting an alternative date

for the conference and that the conference be conducted face-to-

face; petitioner also set forth frivolous arguments.   On

November 16, 2005, Settlement Officer DeVincentz sent petitioner

a letter stating that petitioner’s request for a hearing was

timely made.

     On review of petitioner’s November 9, 2005, letter,

Settlement Officer DeVincentz was of the view that petitioner’s

frivolous arguments did not justify an in-person hearing.    In a

December 5, 2005, letter, Settlement Officer DeVincentz set a

telephone conference for January 24, 2006.   In the December 5,

2005, letter, Settlement Officer DeVincentz also stated to

petitioner that if he had legitimate issues to discuss regarding

his unpaid tax liabilities, petitioner should send written

notification of the issues within 15 days of the letter.
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     On November 9, 2005, respondent sent petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing for taxable

year 1999.    On December 9, 2005, respondent received

correspondence dated December 5, 2005, requesting a hearing for

taxable year 1999.    Subsequently, Settlement Officer DeVincentz

incorporated that hearing request into petitioner’s hearing

request for taxable years 1998 and 2000 through 2002.

     On December 20, 2005, Settlement Officer DeVincentz received

a letter from petitioner dated December 16, 2005, that stated

that it was in reaction to respondent’s collections due process

hearing letter dated December 5, 2005.    This letter rejected the

January 24, 2006, telephone conference date and asserted

frivolous arguments.    Petitioner failed to call Settlement

Officer DeVincentz for the scheduled January 24, 2006, telephone

conference.

     Respondent sent petitioner a Notice of Determination

Concerning Collection Action, dated February 7, 2006, that

maintained the lien for taxable years 1998 through 2002.    On

March 3, 2006, petitioner filed a petition with this Court for

taxable years 1998, 1999, 2000, 2001, and 2002.    On October 19,

2006, petitioner filed an amended petition with this Court.      In

the amended petition, petitioner requested a face-to-face

collections hearing.
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                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and may be granted where

there is no genuine issue of material fact and a decision may be

rendered as a matter of law.   Rule 121(a) and (b); Fla. Peach

Corp. v. Commissioner, 90 T.C. 678, 681 (1988).     The moving party

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences are viewed in a light most

favorable to the nonmoving party.      Craig v. Commissioner, 119

T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).     The

party opposing summary judgment must set forth specific facts

that show that a genuine question of material fact exists and may

not rely merely on allegations or denials in the pleadings.

Grant Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325

(1988); Casanova Co. v. Commissioner, 87 T.C. 214, 217 (1986).

     Section 6321 imposes a lien in favor of the United States

upon all property and rights to property of a taxpayer liable for

tax where there exists a failure to pay the tax liability after

demand for payment.   The lien generally arises at the time the

assessment is made.   Sec. 6322.   Section 6323, however, provides

that such lien shall not be valid against any purchaser, holder

of a security interest, mechanic’s lienor, or judgment lien

creditor until the Secretary files a notice of lien with the
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appropriate public officials.    Section 6320 then sets forth

procedures applicable to afford protections for taxpayers in lien

situations.

     Section 6320 requires that the Secretary give the taxpayer

written notice of the filing of a tax lien.    Section

6320(a)(3)(B) and (b)(1) provides that the notice shall inform

such persons of the right to request a hearing in the

Commissioner’s Appeals office.

     Section 6320(c) provides that an Appeals Office hearing

generally should be conducted consistently with the procedures

set forth in section 6330(c), (d), and (e).    The officer must

verify at the hearing that the applicable laws and administrative

procedures have been followed.    Sec. 6330(c)(1).   At the hearing,

the person against whom the lien is made may raise any relevant

issues relating to the unpaid tax or lien including appropriate

spousal defenses, challenges to the appropriateness of collection

actions, and collection alternatives.    Sec. 6330(c)(2)(A).    The

person may challenge the existence or amount of the underlying

tax liability, however, only if the person did not receive any

statutory notice of deficiency for such tax liability or did not

otherwise have an opportunity to dispute such tax liability.

Sec. 6330(c)(2)(B).

     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.
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Where the validity of the underlying tax is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.   Sego v.

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

T.C. 176, 181-182 (2000).

     The record indicates that petitioner raised frivolous

arguments throughout the section 6320 administrative process and

in his petition and amended petition to this Court.   We do not

address petitioner’s frivolous arguments with somber reasoning

and copious citations to precedent, as to do so might suggest

that these arguments possess some degree of colorable merit.

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

     Respondent argues that section 6330(c)(2)(B) precludes

petitioner from challenging the underlying tax liabilities for

taxable years 1998 through 2002 because petitioner received a

notice of deficiency for those years and failed to timely

petition this Court.   In his response to respondent’s motion for

summary judgment, petitioner’s only legitimate argument is that

respondent never provided him with an opportunity to participate

in a CDP hearing.

     Once a taxpayer has been given a reasonable opportunity for

a hearing but has failed to avail himself or herself of that

opportunity, we have approved the making of a determination to

proceed with collection on the basis of the Appeals officer’s
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review of the case file.   See, e.g., Taylor v. Commissioner, T.C.

Memo. 2004-25, affd. 130 Fed. Appx. 934 (9th Cir. 2005);

Leineweber v. Commissioner, T.C. Memo. 2004-17; Armstrong v.

Commissioner, T.C. Memo. 2002-224; Gougler v. Commissioner, T.C.

Memo. 2002-185; Mann v. Commissioner, T.C. Memo. 2002-48.

      We note that respondent offered a face-to-face hearing to

allow petitioner to raise any meaningful issues regarding his tax

liability or the proposed lien, which petitioner failed to do.

     As to petitioner’s claim that he is entitled to an in-person

hearing, this Court has noted on a number of occasions that

hearings conducted under sections 6320 and 6330 are informal

proceedings, not formal adjudications.   Katz v. Commissioner, 115

T.C. 329, 337 (2000); Davis v. Commissioner, 115 T.C. 35, 41

(2000).   There inheres no right to subpoena witnesses or

documents in connection with these hearings.   Roberts v.

Commissioner, 118 T.C. 365, 372 (2002), affd. 329 F.3d 1224 (11th

Cir. 2003); Nestor v. Commissioner, 118 T.C. 162, 166-167 (2002);

Davis v. Commissioner, supra at 41-42; see sec. 301.6320-1(d)(2),

Q&A-D6, Proced. & Admin. Regs.

     Consequently, we find that petitioner was given a hearing

for taxable years 1998 through 2002 and failed to raise any

legitimate arguments or collection alternatives.   Accordingly, we

hold that no genuine issue of material fact exists requiring

trial and that respondent is entitled to summary judgment.
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Respondent’s determination to maintain the lien to collect

petitioner’s tax liabilities for 1998, 1999, 2000, 2001, and 2002

was not an abuse of discretion.

     Section 6673(a)(1) provides that this Court may require the

taxpayer to pay a penalty not in excess of $25,000 whenever it

appears to this Court that:   (a) The proceedings were instituted

or maintained by the taxpayer primarily for delay; (b) the

taxpayer’s position is frivolous or groundless; or (c) the

taxpayer unreasonably failed to pursue available administrative

remedies.

     Respondent has not sought a section 6673 penalty, however,

the Court considers the issue sua sponte.   Although we do not

impose a penalty on petitioner, we take this opportunity to

admonish petitioner that the Court will consider imposing such a

penalty should he return to the Court in the future in an attempt

to delay collection or advance frivolous or groundless arguments.

     We have considered the parties’ remaining arguments and

conclude that the arguments are either without merit or

unnecessary to reach.

     To reflect the foregoing,


                                         An appropriate order and

                                    decision will be entered.
