                        T.C. Memo. 2003-17



                      UNITED STATES TAX COURT



                    JAN LISTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9173-02L.             Filed January 21, 2003.


     Jan Lister, pro se.

     Donald E. Edwards, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion for summary judgment, filed pursuant to Rule

121, and to impose a penalty under section 6673.1   Respondent



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

contends that there is no dispute as to any material fact

regarding this levy action and that respondent’s determination to

proceed with collection of petitioner’s outstanding Federal

income tax liabilities for 1993 and 1994 by levy should be

sustained as a matter of law.

     Summary adjudication is a procedure designed to expedite

litigation and avoid unnecessary, time-consuming, and expensive

trials.   Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681

(1988).   Summary adjudication may be granted with respect to all

or any part of the legal issues presented “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); see 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).   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 adjudication.    Dahlstrom

v. Commissioner, 85 T.C. 812, 821 (1985).

     As explained in detail below, there is no genuine issue as

to any material fact, and a decision may be rendered as a matter
                                 - 3 -

of law.    Consequently, we shall grant that part of respondent’s

motion as moves for summary adjudication under Rule 121.

                              Background

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

following facts.2

     Petitioner resided in Tulsa, Oklahoma, on the date

petitioner filed her petition in this case.

     Petitioner failed to file her Federal income tax return for

1993.     On January 18, 1996, respondent mailed a statutory notice

of deficiency to petitioner, in which he determined that

petitioner was liable for an income tax deficiency and additions

to tax for 1993.    Petitioner received the notice of deficiency

but did not petition this Court with respect to the notice of

deficiency.    Subsequently, respondent assessed the income tax

deficiency, additions to tax, and interest against petitioner on

July 22, 1996.

     Petitioner also failed to file her Federal income tax return

for 1994.    On October 22, 1996, respondent mailed a statutory

notice of deficiency to petitioner in which he determined that

petitioner was liable for an income tax deficiency and additions

to tax for 1994.    Petitioner received the notice of deficiency


     2
      The facts material to the Court’s disposition of the motion
for summary judgment are stated solely for purposes of deciding
the motion and are not findings of fact for this case. See
Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.
17 F.3d 965 (7th Cir. 1994)
                               - 4 -

but did not petition this Court with respect to the notice of

deficiency.   Subsequently, respondent assessed the income tax

deficiency, additions to tax, and interest against petitioner on

August 19, 1997.

     On December 17, 2001, respondent mailed to petitioner a

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

to a Hearing (Letter 1058) covering the taxable years 1993 and

1994 after identifying a potential levy source.    On December 29,

2001, petitioner timely submitted Form 12153, Request for a

Collection Due Process Hearing, to respondent requesting a

hearing under section 6330.   On Form 12153, petitioner identified

the taxable periods at issue as “beginning Jan. 1, 1993, ending

Dec. 31, 2001” and supplied the following reasons for contesting

the proposed collection action:

     Claimant never received cash. Claimant received bills
     of credit. Claimant provides noteable service.
     Claimant unable to meet cash demands. Claimant DNA is
     75+ years. Claimant did not file 1993 and 1994 1040A.
     Civil penalties don’t apply. See 1040 & Sched. R.

Attached to the Form 12153 was a Form 1040, U.S. Individual

Income Tax Return, for the period “Jan. 1, 1993, ending Dec. 31,

2001” containing handwritten entries claiming no gross income, no

taxable income, no tax payments, and no tax due.   On the Form

1040, petitioner wrote on line 61 (used for entering the amount

of tax overpaid), the word “UNKNOWN” and wrote “MAXIMUM” on line

62 (used to quantify the tax refund due).
                               - 5 -

     By letter dated April 5, 2002, Appeals Officer Brenda J.

Dodson advised petitioner that she had been assigned petitioner’s

case, and she explained the objective of a hearing under section

6330.   Ms. Dodson also stated the following with respect to

petitioner’s explanation of her disagreement with the proposed

collection action set forth in Form 12153:

     Based on your statement on the Form 12153, you are
     disputing the proposed levy action and that you had any
     taxable income for the periods in question. Based upon
     my review of the case administrative file and reviewing
     a transcript of the account in question it indicates
     assessments and balances due for the tax periods ending
     December 31, 1993 and December 31, 1994. You were
     afforded the opportunity to dispute the tax assessments
     upon issuance of the Notice of Deficiency. This notice
     afforded you 90 days to petition the United States Tax
     Court to contest the proposed tax determination. You
     did not exercise this right, prompting a default
     resulting in the assessments. Since you did not
     petition the United States Tax Court during this 90-day
     period you are not entitled to any further hearing
     relating to the amount of the liability for the 1993 or
     1994 year under the Collection Due Process Hearing
     procedures.

Ms. Dodson also advised petitioner of collection alternatives but

pointed out that two of those alternatives, an installment

agreement and the offer in compromise, required that the

taxpayer’s filing obligations be current.    Ms. Dodson emphasized

that petitioner had not filed Federal income tax returns for any

of the years 1995 through 2000.   She advised petitioner that

before the Service could evaluate any collection alternative,

petitioner must submit current financial information, must

indicate the monthly installment payment petitioner believed she
                              - 6 -

could afford, and must file all delinquent tax returns.     Ms.

Dodson requested that petitioner submit the requested information

by April 24, 2002, and stated that she would contact petitioner

to schedule the hearing under section 6330 after she had an

opportunity to review the information petitioner submitted.

     Petitioner did not supply the information enumerated in Ms.

Dodson’s April 5, 2002, letter.   Instead, petitioner sent a

letter dated April 10, 2002, to the Internal Revenue Service in

Oklahoma City, OK and Kansas City, MO, the pertinent part of

which stated as follows:

     Claimant waives personal appearance. Claimant has not
     waived 60 day due process and the administration is in
     default. Claimant is verily aggrieved. The IRS, OTC
     has all the books and records that indicate that
     Claimant has no gainful activity. Claimant filed IRS
     1040 and OTC 511 beginning January 1 1993 ending
     December 31, 2001 no Federal income. Claimant never
     received cash and the administration books and records
     do indicate no cash receipts before the tax and liens.
     Claimant is unable to do gainful work.

Although the Appeals Office in Oklahoma City received the letter

on April 12, 2002, the record is silent as to when Ms. Dodson

actually received and reviewed the letter.

     By letter dated April 25, 2002, Ms. Dodson advised

petitioner that she had not received petitioner’s response to the

April 5, 2002, letter and set a new deadline of May 9, 2002, for

submitting the requested information.   Ms. Dodson warned

petitioner that she would make a determination based on the

existing administrative record if she did not receive
                               - 7 -

petitioner’s response by May 9, 2002.   Petitioner responded in a

letter to Ms. Dodson dated April 30, 2002.   Although several

exhibits were attached to the letter, none of the exhibits

supplied the information requested by Ms. Dodson.   Petitioner’s

April 30, 2002, letter demanded that respondent pay her “all

allowances, credits, standard deductions, benefits 1993 through

2001.”

     On May 9, 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 had no

previous involvement with respect to petitioner’s 1993 and 1994

income tax liabilities.

     3.   None of the issues raised by petitioner were

meritorious.

     4.   Petitioner did not raise any spousal defenses.

     5.   Petitioner was not entitled to challenge the underlying

liabilities for 1993 and 1994 because she had received notices of

deficiency for those years.

     6.   The proposed levy action balanced the need for efficient

collection of taxes with the legitimate concern of the taxpayer
                               - 8 -

that the collection action be no more intrusive than necessary

and was appropriate under the circumstances.

     Petitioner mailed a letter dated May 19, 2002, to this Court

which this Court treated as a timely, but imperfect, petition

appealing respondent’s determination for 1993 and 1994.    This

Court then mailed petitioner an order requiring her to file a

proper amended petition.   On June 17, 2002, this Court received

and filed petitioner’s amended petition, which purported to cover

the period from “1993 through present”.

     In her original petition, petitioner alleged, among other

things, that she had no money and requested that the Court send

her a form petition and “Pauper’s Affidavit”.    Petitioner did not

make any allegations in either her original petition or in her

amended petition that the proposed levy was improper, nor did she

raise any justiciable issue regarding the collection of the

assessed liabilities other than a general assertion that she had

no money.

     On November 25, 2002, respondent filed a motion for summary

judgment and to impose a penalty under section 6673.    In that

motion, respondent contends that he is entitled to summary

adjudication as a matter of law, and he supports his contention

with a declaration from Appeals Officer Dodson, signed under

penalties of perjury, and related exhibits.    Respondent also

moves for the imposition of a penalty under section 6673 because
                                - 9 -

he alleges that petitioner instituted this proceeding primarily

for delay and her position is frivolous and groundless.     By order

dated November 27, 2002, we directed petitioner to file a

response to respondent’s motion on or before December 27, 2002.

Petitioner’s response, which we received on December 18, 2002,

and filed as of that date, merely asserts that she is unable to

pay and appears to maintain that respondent owes her money.

Petitioner, however, did not support her contentions with any

documentation of her alleged inability to pay or of her

entitlement to a refund.

                             Discussion

I.   Jurisdiction

      Respondent’s notice of determination addressed only

respondent’s proposed levy action with respect to the taxable

years 1993 and 1994.   Petitioner’s original petition referenced

only 1993 and 1994.    In her amended petition, however, petitioner

identified the periods at issue as 1993 through the present.     In

order to avoid any confusion regarding the periods at issue, we

consider, on our own initiative, our jurisdiction over years

other than 1993 and 1994.

      It is well settled that questions of jurisdiction may be

raised by either party or the Court at any stage of a proceeding.

Moorhous v. Commissioner, 116 T.C. 263, 272 (2001) (citing Smith

v. Commissioner, 96 T.C. 10, 13-14 (1991)).   Our jurisdiction
                                  - 10 -

under section 6330(d) “is dependent on the issuance of a valid

notice of determination and a timely petition for review.”

Offiler v. Commissioner, 114 T.C. 492, 498 (2000).       If the

Appeals Office did not make a determination with respect to a

particular taxable period under section 6330, the absence of a

determination is grounds for dismissal of a petition regarding

such period.    See id.

      In this case, petitioner’s amended petition covered the

period from 1993 to the present.      Respondent’s determination

under section 6330, however, only addressed 1993 and 1994, the

only years as to which respondent issued final notices of intent

to levy.    Respondent issued no notices of intent to levy and made

no determination under section 6330 for years after 1994.         We

hold, therefore, that we lack jurisdiction under section 6330

over any taxable years other than 1993 and 1994.

II.   Respondent’s Motion

      A.   Summary Adjudication

      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 their 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
                              - 11 -

liability only 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

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.

The Court reviews any other administrative determination

regarding the proposed levy action for abuse of discretion.     Sego

v. Commissioner, supra at 610.
                                - 12 -

            1.   Petitioner’s Underlying Tax Liabilities
                 for 1993-94

     In her original petition and in her amended petition,

petitioner has asserted various arguments, most of which are

confused and sometimes unintelligible.    As best we understand

them, however, the arguments appear to be directed to the

existence of the underlying tax liabilities for 1993 and 1994 and

are summarized below:

     a.    Petitioner never received wages because wagering on the

job is illegal.

     b.    Petitioner did not receive any payments in cash or

property; she received only Federal Reserve notes, which are not

cash, property, or assets of any kind.

     c.    The U.S. Government owes petitioner money in the form of

allowances and credits to which she is entitled which the

Government has failed and refused to pay.

Each of the above-described arguments challenges the existence or

amount of the underlying tax liabilities for 1993 and 1994.     See

sec. 6330(c)(2)(B).

     The undisputed facts in this case establish that petitioner

received a notice of deficiency for each of the years 1993 and

1994.     Petitioner did not file any petition in this Court seeking

a redetermination of the proposed deficiencies.    As a result,

upon the expiration of the statutory restriction on assessment
                                - 13 -

set forth in section 6213(a), respondent assessed the disputed

liabilities.

     A taxpayer may contest his or her underlying tax liability

in a section 6330 proceeding only if he or she did not receive a

notice of deficiency for the taxes at issue or did not otherwise

have an opportunity to dispute the tax liability.      Sec.

6330(c)(2)(B).    Petitioner received notices of deficiency for

1993 and 1994.    Consequently, petitioner, as a matter of law, was

not entitled to dispute the existence or amount of the underlying

tax liabilities for those years in a section 6330 proceeding.

           2.    The Appropriateness of the Proposed Collection
                 Action

     Petitioner does not allege that the administrative

proceeding in this case was defective.      She alleges only that she

has no money.    We interpret petitioner’s allegation as a

contention that the liabilities are uncollectible due to her

inability to pay.

     We begin by noting that the material facts are not in

dispute.   Petitioner has unpaid Federal income tax liabilities

for 1993 and 1994.    Respondent issued a notice of intent to levy

to petitioner and advised her of her right to request a section

6330 hearing.    Because petitioner had received notices of

deficiency for the years at issue, petitioner was not entitled to

contest the underlying liabilities.      Sec. 6330(c)(2)(B).

Petitioner’s only recourse was to demonstrate that the proposed
                              - 14 -

levy action was inappropriate, another collection alternative was

more appropriate, an appropriate spousal defense applied, or some

other relevant issue adversely affected respondent’s proposed

collection activity.   Sec. 6330(c)(2).   Nevertheless,

petitioner’s only contentions before the Appeals Office and

before this Court regarding the appropriateness of respondent’s

proposed collection action were that she is disabled and unable

to pay any liability and that she is entitled to a refund of

allowances and credits.   Petitioner waived her right to appear

personally at the hearing under section 6330 and submitted no

information whatsoever to either the Appeals Office or this Court

documenting her assertion that she is unable to pay the subject

liabilities or that she is entitled to any refunds or credits.

     Petitioner supplied us with no factual record on which we

could conclude that the Appeals Office’s determination permitting

the levy to proceed was an abuse of discretion.    Consequently, we

shall grant respondent’s motion as to the summary adjudication

under Rule 121.

     B.   Respondent’s Request for Section 6673 Penalty

     We turn now to that part of respondent’s motion that seeks a

penalty against petitioner under section 6673.    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
                              - 15 -

proceeding that is frivolous or groundless, or unreasonably

failed to pursue administrative remedies.

     While we acknowledge respondent’s concerns regarding

petitioner’s arguments in this case, we are unable to conclude on

this record that petitioner instituted or maintained these

proceedings primarily for delay or that petitioner unreasonably

failed to pursue available administrative remedies.    Petitioner

timely filed her petition in this case and has not taken any

steps to unduly prolong this proceeding.    She has responded to

this Court’s orders by filing a timely response to respondent’s

motion, and she has even prepared and submitted a trial

memorandum required by the Court’s standing pretrial order issued

on October 10, 2002.   In addition, at the administrative level,

petitioner made several attempts to communicate with respondent

although the letters that she sent were confused, uninformative,

and not helpful in determining whether a levy was an appropriate

collection activity.   The letters reflected a profound confusion

on the part of petitioner regarding her entitlement to refunds

and credits arising from such things as the personal exemption

and the credit for the disabled and elderly.    We are not prepared

on this record to equate petitioner’s apparent confusion with a

deliberate attempt on her part to delay or obfuscate.

     We also note that the record fails to establish that all of

petitioner’s claims were frivolous or groundless.    While
                                  - 16 -

petitioner’s filings were confused, often unintelligible, and

sometimes reminiscent of protester rhetoric, not all of the

arguments contained in those filings were frivolous or groundless

on their face.       Petitioner’s principal claim was that she is

impoverished.       In fact, she may well be.   Unfortunately,

petitioner did nothing to prove her financial condition at the

section 6330 hearing before the Appeals Office.        Although we have

no record before us to review for abuse of discretion, that same

lack of a record forecloses any conclusion we might otherwise

have reached that petitioner’s claim of poverty was either

frivolous or groundless.3      Consequently, we shall deny that part

of respondent’s motion that seeks a penalty under section 6673.

We warn petitioner, however, that most of her arguments in this

case were, to the extent that we understood them, of the type

that might justify the imposition of a section 6673 penalty if

petitioner were to assert those arguments again in another

judicial proceeding in this Court.

Conclusion

       We hold that the material facts are not in dispute and that

respondent is entitled to a summary adjudication as a matter of

law.       We further hold that respondent correctly determined that



       3
      We also note that the administrative record contains no
indication that respondent warned petitioner that her arguments
were frivolous or groundless or that her arguments might result
in the imposition of a sec. 6673 penalty.
                              - 17 -

collection by levy should proceed.     We shall grant that part of

respondent’s motion seeking summary adjudication, deny that part

of respondent’s motion requesting the imposition of a penalty

under section 6673, and enter a decision upholding respondent’s

proposed collection action.

     To reflect the foregoing,

                                           An appropriate order and

                                     decision will be entered.
