                         T.C. Memo. 2008-184



                       UNITED STATES TAX COURT



                  GARY CUMMINGS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21650-06L.              Filed July 30, 2008.


     Gary Cummings, pro se.

     Nancy P. Klingshirn, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion for summary judgment.

     Petitioner failed to file Federal income tax returns for

2002 and 2003.   Respondent issued statutory notices of deficiency

to petitioner determining deficiencies and additions to tax for

2002 and 2003.   Petitioner received the notices of deficiency but
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did not petition the Court for a redetermination of the tax

deficiencies and additions to tax determined in the notices of

deficiency for 2002 and 2003 (notices of deficiency).    After the

period for timely filing a petition with the Court regarding the

notices of deficiency elapsed, respondent assessed against

petitioner the amounts shown on the notices of deficiency.

     Respondent mailed petitioner Letter 1058, Final Notice of

Intent to Levy and Notice of Your Right to a Hearing (levy

notice).   The levy notice advised petitioner that respondent

intended to levy on petitioner’s property to secure payment of

his outstanding tax liabilities for 2002 and 2003.    The levy

notice also explained that petitioner had a right to request a

hearing with respondent’s Office of Appeals (Appeals) to appeal

the proposed collection action and to discuss payment method

options by submitting a Form 12153, Request for a Collection Due

Process Hearing, with respect to the proposed levy.

     Respondent mailed petitioner Letter 3172, Notice of Federal

Tax Lien Filing and Your Right to a Hearing Under IRC 6320, (lien

notice).   The lien notice advised petitioner that respondent had

filed a notice of Federal tax lien (NFTL) with respect to

petitioner’s unpaid tax liabilities for 2002 and 2003.    The lien

notice also explained that petitioner had a right to request a

hearing with Appeals to appeal the proposed collection action and
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to discuss payment method options by submitting a Form 12153 with

respect to respondent’s NFTL.

     Petitioner timely filed two Forms 12153--one regarding the

levy notice and one regarding the lien notice.   Petitioner’s

explanations of disagreement on both Forms 12153 were identical:

“INAPPROPRIATE COLLECTION ACTIVITY” and “INVALID ADMINISTRATIVE

RECORD”.   Petitioner did not explain on the Form 12153 or attach

any statement to the Form 12153 explaining what inappropriate

collection activity had taken place or why the administrative

record was invalid.

     Appeals acknowledged receipt of petitioner’s requests for a

hearing with respect to the levy notice and the lien notice for

2002 and 2003.   By letter, Appeals advised petitioner (1) that

Appeals would not provide a face-to-face hearing if the only

items he wished to discuss were those determined by the courts to

be frivolous or groundless, (2) that he could receive a face-to-

face hearing on any relevant, nonfrivolous issues if he informed

Appeals in writing or by phone of such nonfrivolous issues, (3)

that Appeals scheduled a telephone conference for July 19, 2006,

and (4) that Appeals would not consider alternative collection

methods unless petitioner filed his 2004 and 2005 income tax

returns and completed collection information statements.   The

letter further advised petitioner:
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     Before you decide whether to petition a notice of
     determination, you should know that the Tax Court is
     empowered to impose monetary sanctions up to $25,000
     for instituting or maintaining an action before it
     primarily for delay or for taking a position that is
     frivolous or groundless [Pierson v. Commissioner, 115
     T.C. 576 (2000); Forbes v. Commissioner, T.C. Memo.
     2006-10 ($20,000 penalty imposed); Aston v.
     Commissioner, T.C. Memo. 2003-128 ($25,000 penalty
     imposed)].

     Petitioner responded to Appeals by letter and requested a

face-to-face hearing.   Petitioner wrote that the issues that he

intended to raise at the hearing included:

          Challenging the validity of the allegations as to
     amounts allegedly owed due to the failure by the IRS to
     follow its own administrative procedures, including
     without limitation, violations of 26 USC 6065, pursuant
     to 5 USC 556(d) and the Administrative Procedures Act;

          Challenging whether or not a valid and properly
     completed ASSESSMENT and DEFICIENCY exist.

     As petitioner requested, Appeals provided him with a copy of

his administrative file for 2002.   Appeals did not send

petitioner a copy of his administrative file for 2003 as he had

already obtained a copy through a Freedom of Information Act

request.   Appeals offered to reschedule a telephone conference

with petitioner to discuss any relevant, nonfrivolous issues

regarding the $98,927.46 he owed (as of January 25, 2006) in tax,

penalties, and interest for 2002 and 2003.

     Petitioner replied that Appeals’ assertion that the issues

he raised were “frivolous” was “a lie and you should know it.”

Additionally, petitioner wrote:
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          Raising issues of IRS failure to follow its own
     administrative procedures is absolutely a valid reason
     and evokes a requirement for a face-to-face hearing.
     Be advised that I refuse to accept your “offer” of a
     telephone hearing and if you continue to fail or refuse
     to grant me a face-to-face hearing, and should you
     attempt to proceed with collection of a disputed
     assessment without providing me a face-to-face hearing
     to discuss your failure to follow your own
     administrative procedures, then I will bring a lawsuit
     against you in U.S. District Court. Under current law,
     you can be fired for your failure to perform your
     duties in accordance with Internal Revenue laws.

     Subsequently, Appeals issued petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 with respect to petitioner’s 2002 and 2003 taxable

years (notice of determination).   Appeals determined that the

proposed levy and the NFTL were appropriate collection actions in

petitioner’s case.

     Petitioner filed a petition challenging the notice of

determination.   At the time he filed the petition, petitioner

resided in Ohio.   Petitioner claimed inter alia:   (1) “IRS has

other irregular and interesting preconditions such as filling out

forms and submitting a payment schedule.   These requirements are

impossible since Petitioner does not know what the IRS wants

until he meets with it.   Petitioner is not required to do these

and did not.”; (2) “The IRS illegally and wrongfully withheld a

hearing and has violated his statutory rights and administrative

due process rights to appear at a hearing.”; (3) “IRS was

notified that Petitioner challenged the validity of this alleged
                               - 6 -

debt, of a related procedural deficiency (lack of required

certification, per 26 USC 6065) and of Petitioner’s demand for

proper certification of lawful assessment.”; (4) “The IRS refused

to acknowledge Petitioner’s demand, nor did it offer any evidence

of lawful verification of their assessment at any time.”; (5)

“Petitioner requested a face to face hearing within the legal

time period and therefore is entitled to an in-person hearing.”;

(6) “Under IRC 6330, Petitioner is entitled to a CDPH at a

location convenient to them [sic].     Taxpayer was not given the

opportunity to raise any relevant issue relating to the unpaid

tax or the proposed levy at a hearing in accordance with IRC

§6330.”; (7) and that the Internal Revenue Service violated

petitioner’s Fifth and Fourteenth Amendment rights.

Motion for Summary Judgment

     Rule 121(a)1 provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Summary judgment may be granted if it is demonstrated that no

genuine issue exists as to any 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).   We conclude that there is no genuine issue as to any



     1
        All Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to the
Internal Revenue Code.
                                 - 7 -

material fact and that a decision may be rendered as a matter of

law.

Determination To Proceed With Collection

       Section 6320(a)(1) provides that the Secretary shall furnish

the person described in section 6321 with written notice (i.e.,

the hearing notice) of the filing of a notice of lien under

section 6323.    Section 6320(a) and (b) further provides that the

taxpayer may request administrative review of the matter (in the

form of a hearing) within a 30-day period.    The hearing generally

shall be conducted consistent with the procedures set forth in

section 6330(c), (d), and (e).    Sec. 6320(c).

       Section 6330(a) provides that the Secretary shall furnish

taxpayers with written notice of their right to a hearing before

any property is levied upon.    Section 6330 further provides that

the taxpayer may request administrative review of the matter (in

the form of a hearing) within a prescribed 30-day period.    Sec.

6330(a) and (b).

       Pursuant to section 6330(c)(2)(A), a taxpayer may raise at

the section 6330 hearing any relevant issue with regard to the

Commissioner’s collection activities, including spousal defenses,

challenges to the appropriateness of the Commissioner’s intended

collection action(s), and alternative means of collection.    Sego

v. Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner,

114 T.C. 176, 180 (2000).    If a taxpayer received a statutory
                                - 8 -

notice of deficiency for the years in issue or otherwise had the

opportunity to dispute the underlying tax liability, the taxpayer

is precluded from challenging the existence or amount of the

underlying tax liability.    Sec. 6330(c)(2)(B); Sego v.

Commissioner, supra at 610-611; Goza v. Commissioner, supra at

182-183.

     Petitioner received the notices of deficiency for 2002 and

2003.   Accordingly, he cannot challenge his underlying

liabilities.    See sec. 6330(c)(2)(B); Sego v. Commissioner, supra

at 610-611; Goza v. Commissioner, supra at 182-183.      Therefore,

we review respondent’s determination for an abuse of discretion.

See Sego v. Commissioner, supra at 610.

     Petitioner claims that Appeals did not verify the

assessments.    Petitioner is wrong.    Appeals verified the

assessment of petitioner’s taxes for 2002 and 2003, and

petitioner received a copy of his administrative file for 2002

and 2003.

     Petitioner also argues that he was not required to file

collection information statements with Appeals, that he was

entitled to a face-to-face hearing, that Appeals illegally and

wrongfully withheld a hearing and violated his statutory rights

and administrative due process rights, and that the Internal

Revenue Service violated his Fifth and Fourteenth Amendment

rights.    These are shopworn arguments characteristic of tax-
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protester rhetoric that has been universally rejected by this and

other courts.    See Wilcox v. Commissioner, 848 F.2d 1007 (9th

Cir. 1988), affg. T.C. Memo. 1987-225; Carter v. Commissioner,

784 F.2d 1006, 1009 (9th Cir. 1986).      We will not painstakingly

address these assertions “with somber reasoning and copious

citation of precedent; to do so might suggest that these

arguments have some colorable merit.”      Crain v. Commissioner, 737

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

     At the hearing petitioner stated:     “I don’t have collection

alternatives”.   Petitioner has failed to raise a spousal defense

or make a valid challenge to the appropriateness of respondent’s

intended collection actions.   These issues are now deemed

conceded.   See Rule 331(b)(4).

     Accordingly, we conclude that respondent did not abuse his

discretion, and we will grant respondent’s motion for summary

judgment sustaining respondent’s determination to proceed with

collection.

Section 6673

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

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous or groundless positions in

the proceedings or instituted the proceedings primarily for

delay.   A position maintained by the taxpayer is “frivolous”

where it is “contrary to established law and unsupported by a
                               - 10 -

reasoned, colorable argument for change in the law.”      Coleman v.

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); see also Hansen v.

Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673

penalty upheld because taxpayer should have known claim was

frivolous).

     Petitioner’s objection to respondent’s motion for summary

judgment, petition, Forms 12153, and correspondence with

respondent contain frivolous and groundless statements and

arguments.    Petitioner’s answers to the Court’s questions at the

hearing on respondent’s motion for summary judgment were evasive

and/or nonresponsive.    At the hearing the Court inquired as to

what issues petitioner wanted to raise in his section 6330 case.

Petitioner stated that he wanted a face-to-face hearing.

Additionally, the following colloquy took place:

          THE COURT: The Court asked you what nonfrivolous
     arguments you had --

          MR. CUMMINGS: I’m not prepared, at this Court,
     for such a thing. * * *

          THE COURT:    You’re not offering waht [sic] those
     arguments were.

          MR. CUMMINGS: I’m offering my nonfrivolous
     issues, and that’s --

          THE COURT:    I’m sorry?

          MR. CUMMINGS:    I’m offering my nonfrivolous
     issues.

          THE COURT:    I’m asking you, what are they?

          MR. CUMMINGS:    Inappropriate collection activity.
                                - 11 -

            THE COURT:   Like what?

            MR. CUMMINGS:   I’m not prepared for that right
     now.

            THE COURT:   And what else?

            MR. CUMMINGS:   And invalid administrative record.

          THE COURT:     And what’s your argument on that?    Any
     specifics?

          MR. CUMMINGS: I want it on the record at a
     collection due process hearing. I’m not prepared to
     argue these matters before the Court today.

Additionally, the Court asked petitioner what collection

alternatives he wanted to raise.      Petitioner tried to avoid

answering the question but eventually stated that he had none.

     In the notice of determination petitioner was warned that

the Court is empowered to impose monetary sanctions up to $25,000

for instituting or maintaining an action before us that is

primarily for delay, frivolous, or groundless.      Respondent cited

Pierson v. Commissioner, 115 T.C. 576 (2000), Forbes v.

Commissioner, T.C. Memo. 2006-10 ($20,000 penalty imposed), and

Aston v. Commissioner, T.C. Memo. 2003-128 ($25,000 penalty

imposed), to petitioner, warning him of the consequences he could

face for taking frivolous or groundless positions in these

proceedings or instituting the proceedings primarily for delay.

     We conclude petitioner’s position was frivolous and

groundless and that he instituted and maintained these

proceedings primarily for delay.      Appeals and the Court gave
                             - 12 -

petitioner multiple opportunities to state any nonfrivolous

issues he wished to raise at a section 6330 hearing.   Petitioner

repeatedly refused to state any nonfrivolous issues he would

assert.

     Via raising frivolous and groundless arguments and

petitioning this Court, petitioner has sought to delay the

collection of a total of approximately $83,000 of deficiencies

and penalties for 2002 and 2003 (by February 2006 this amount,

including interest, totaled almost $100,000).   Accordingly,

pursuant to section 6673(a) we hold petitioner is liable for a

$2,500 penalty.

     To reflect the foregoing,


                                        An appropriate order and

                                   decision will be entered.
