                        T.C. Memo. 2003-264



                      UNITED STATES TAX COURT



                  JOHN J. GREEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13977-01L.            Filed September 10, 2003.


     Jerry Arthur Jewett, for petitioner.

     Robert T. Little, for respondent.



                        MEMORANDUM OPINION



     HAINES, Judge:   This case is before the Court on

respondent’s motion for summary judgment filed pursuant to Rule

121 .1


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure. Amounts are rounded to
the nearest dollar.
                               - 2 -

                             Background

     Petitioner resided in Steger, Illinois, at the time he filed

the petition in this case.

     On or about October 13, 1997, petitioner filed a Form 1040,

U.S. Individual Income Tax Return, for 1996, reporting total

income of zero and total tax of zero.

     On September 7, 1999, respondent issued a notice of

deficiency to petitioner for 1996 determining an income tax

deficiency of $38,005, an addition to tax under section

6651(a)(1) of $9,501, and an accuracy-related penalty under

section 6662 of $7,601.   The deficiency was based on respondent’s

determination that petitioner failed to report nonemployee

compensation of $115,234.

     Petitioner did not file a petition with respect to the

notice of deficiency.   Instead, on September 13, 1999, petitioner

sent a letter to the Internal Revenue Service which stated, in

part:

     Nothing in the Privacy Act Notice or in the above statutes
     informs me that I have to “comply” with, or pay attention
     to, letters and/or alleged “determinations” sent to me by
     various and sundry employees of the IRS.

     On April 10, 2000, respondent assessed petitioner’s tax,

addition to tax, penalty, and interest for a total unpaid
                              - 3 -

liability of $69,859, and mailed a notice of balance due to

petitioner.2

     On August 16, 2000, respondent issued a Notice of Federal

Tax Lien Filing and Your Right to a Hearing Under IRC 6320.

Petitioner filed Form 12153, Request for a Collection Due Process

Hearing (request), on September 8, 2000.   Attached to the request

was a letter from petitioner repeating his frivolous arguments,

including:

     I want to be given a copy of the Legislative, Treasury
     Department regulation which requires me to pay the
     $70,358.68 at issue and the legal authority that anybody at
     the IRS has to determine that figure and to threaten me with
     enforcement action if I don’t pay that amount. In order to
     have that authority that IRS agent would have to have a
     delegation order from the secretary. I will expect to be
     given a copy of any such delegation order.

     A hearing was held on June 19, 2001, which was recorded.

Petitioner continued his frivolous arguments by stating:

     And, [the request] also raises the issues that I’ve just
     stated that number one the verification of the Secretary has
     not been given and there’s not [sic] Record of Assessment
     because the Record of Assessment has to be made off of a
     return. The only records that you have from me on a return
     is zero. How can you come up with other numbers?

               *    *     *     *     *      *     *

     I’m willing to write out a check and pay the entire amount
     if you can sit down right now and take the code book out and
     show me anyplace in the code book that makes me liable to
     pay this tax.

               *    *     *     *     *      *     *

     2
        Respondent had also assessed a $500 frivolous return
penalty for 1997 which is not before the Court. See Van Es v.
Commissioner, 115 T.C. 324, 328-329 (2000).
                               - 4 -


     The point is that the only assessment that can be made is
     off of a return and the return that I gave you had zeros on
     it.

At the hearing, the settlement officer gave petitioner a literal

transcript of assessments and notices.   On October 5, 2001, a

Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters, was mailed to petitioner.

     On November 1, 2001, respondent issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 which stated:

     A review of the case history indicates a valid assessment
     was made, notice and demand was provided and a neglect or
     refusal to pay occurred. In December of 1999 the taxpayer
     responded to a request for payment of the subject assessment
     with a letter questioning the governments’ [sic] authority
     to assess and collect tax. The Federal Tax Lien was filed
     in accordance with established procedures.

     The Federal Tax Lien is sustained. Proper administrative
     procedures were followed by Service personnel. This
     recommendation balances the need for efficient tax
     administration. Mr. Green has not proposed alternatives to
     the lien.

     On November 30, 2001, petitioner filed a petition with the

Court in which he contended:   (1) There was “no valid assessment”

of taxes; (2) he did not receive the “statutory Notice and Demand

for payment” of the taxes at issue; (3) he did not receive a

valid notice of deficiency; and (4) he had no underlying tax

liability.   In the petition, petitioner argued that he did not

receive the following documents at the hearing:   (1) Verification
                               - 5 -

“that the requirements of any applicable law or administrative

procedure have been met”, for example, a copy of the statutory

notice and demand for payment; (2) a copy of Form 23C, Summary

Record of Assessment, and the “pertinent parts of the assessment

etc.etc.etc.”; (3) delegation of authority from the Secretary to

the person (other than the Secretary) who signed the verification

required under section 6330(c)(1); and (4) proof that notices of

deficiency were sent to petitioner.

     On December 14, 2001, petitioner filed a motion to dismiss

for lack of jurisdiction.   A hearing on the motion was held on

March 11, 2002, with Judge Arthur Nims presiding.   On January 8,

2003, this Court filed Green v. Commissioner, T.C. Memo. 2003-7,

holding that the Court had jurisdiction.

     Respondent filed an answer to the petition on January 23,

2003.   On May 7, 2003, respondent filed a motion for summary

judgment for all legal issues in controversy.   On May 22, 2003,

Jerry Arthur Jewett (Mr. Jewett) executed Form 2848, Power of

Attorney and Declaration of Representative, on behalf of

petitioner.

     On June 11, 2003, Mr. Jewett filed his entry of appearance

and, on June 29, 2003, filed a reply to respondent’s motion for

summary judgment, which contained tax-protester boilerplate

arguments, including:

     because petitioner assessed himself as owing “$0.00" in
     subtitle A taxes for 1996, pursuant to §6211, and because
                               - 6 -

     * * * the Secretary has no authority to assess a different
     figure than the “$0.00" which petitioner assessed himself as
     owing for 1996 subtitle A taxes, the Secretary had no
     authority to determine that there was a deficiency in
     respect of subtitle A taxes, pursuant to §6212. Therefore,
     the “notice of deficiency” was a legal nullity for that
     reason, as well as because there is no evidence in the
     record to establish that the person who sent the document on
     behalf of the Secretary was delegated to do so by a
     delegation order published in the Federal Register as
     required by 5 USC §553 and 44 USC §1505.

                            Discussion

     Respondent contends that there is no dispute as to any

material fact with respect to this collection action and that

respondent’s determination to proceed with collection of

petitioner’s outstanding tax for 1996 should be sustained as a

matter of law.

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    The Court may grant

summary judgment when there is no genuine issue of material fact

and a decision may be rendered as matter of law.   Rule 121(b);

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).   We conclude that there are no genuine issues of

material fact regarding the questions raised in respondent’s

motion, and a decision may be rendered as a matter of law.

     When, as is the case here, the taxpayer received a notice of

deficiency and did not petition the Court, the validity of the
                                - 7 -

underlying tax liability is not at issue, and the Court will

review the notice of 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 arguments raised by petitioner are identical to the

arguments raised by the taxpayer in Nestor v. Commissioner, 118

T.C. 162, 164 (2002), in which we held the arguments to be

frivolous, id. at 167.   Nestor and the cases cited therein

control our decision in the instant case, and we conclude

petitioner’s arguments are similarly frivolous and groundless.

There is “no need to refute these arguments with somber reasoning

and copious citation of precedent”.     Crain v. Commissioner, 737

F.2d 1417, 1417 (5th Cir. 1984).

     Based upon our examination of the entire record before us,

we hold that respondent did not abuse his discretion in

determining to proceed with the collection action with respect to

1996.   On the record before us, we shall grant respondent’s

motion for summary judgment.

     Respondent does not ask the Court to impose a penalty on

petitioner under section 6673(a)(1).    The Court may sua sponte

determine whether to impose such a penalty.     Frank v.

Commissioner, T.C. Memo. 2003-88; Robinson v. Commissioner, T.C.

Memo. 2003-77; Keene v. Commissioner, T.C. Memo. 2002-277;

Schmith v. Commissioner, T.C. Memo. 2002-252;     Schroeder v.
                                 - 8 -

Commissioner, T.C. Memo. 2002-190;       Williams v. Commissioner,

T.C. Memo. 2002-111.

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

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

to exceed $25,000 whenever it appears to the Court that the

taxpayer’s position in such a proceeding is frivolous or

groundless.   Sec. 6673(a)(1)(B).    In Green v. Commissioner,

supra, the Court directed petitioner to review cases in which

taxpayers had asserted frivolous and groundless arguments.

Moreover, the Court went on to specifically warn petitioner of

the possible imposition of a penalty under section 6673(a)(1)

should petitioner continue to advance frivolous arguments in the

instant case.   Id.    After citing the cases that had imposed

penalties against taxpayers advancing these types of arguments,

including Roberts v. Commissioner, 118 T.C. 365, 372-373 (2002),

affd. 329 F.3d 1224 (11th Cir. 2003), in which a $10,000 penalty

was imposed, the Court stated:      “Petitioner might therefore care

to review those cases and consider whether it is in his best

interest to persist in advancing such arguments.”       Green v.

Commissioner, supra.

     The taxpayer’s arguments in Roberts were substantially

similar to the frivolous arguments asserted by petitioner in the

instant case.   Despite the warning of this Court, petitioner has

continued to assert these groundless arguments.      Under the
                                 - 9 -

circumstances, we shall, on our own motion, impose a penalty on

petitioner pursuant to section 6673(a)(1) in the amount of

$5,000.

     We shall not impose a penalty on Mr. Jewett because of his

late entry into this case, but direct him to review the Court’s

comments in Brodman v. Commissioner, T.C. Memo. 2003-230, and its

companion cases.3

     We have considered all of petitioner’s contentions,

arguments, and requests that are not discussed herein, and we

conclude that they are without merit or irrelevant.

     To reflect the foregoing,

                                              An appropriate order

                                         and decision will be

                                         entered.




     3
        Dunham v. Commissioner, T.C. Memo. 2003-260; Brown v.
Commissioner, T.C. Memo. 2003-261.
