                         T.C. Memo. 2004-264



                       UNITED STATES TAX COURT



                    ROBERT LEE, JR., Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15735-03L.              Filed November 18, 2004.


     Robert Lee, Jr., pro se.

     Cindy Wofford, Alan Levine, and Erin K. Huss, for

respondent.



                          MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:      This collection review

case is before the Court on respondent’s Motion for Summary

Judgment.1    As discussed in detail below, we conclude that there


     1
        Section references are to sections of the Internal
Revenue Code, as amended, and Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 2 -

is no dispute as to a material fact and that respondent is

entitled to judgment as a matter of law.

Background2

     Petitioner, a retired Federal employee, is inveterately

opposed to paying Federal income taxes.    In Lee v. Commissioner,

T.C. Memo. 2002-95, affd. 61 Fed. Appx. 471 (9th Cir. 2003), we

observed that petitioner failed to file Federal income tax

returns for 1995, 1996, 1997, and 1998, and we sustained the

Commissioner’s determinations that petitioner was liable for

deficiencies and additions to tax for each of those taxable

years.   In addition, we imposed a penalty upon petitioner

pursuant to section 6673(a) in the amount of $10,000 on the

ground that his arguments were meritless and asserted solely for

purpose of delay.3

     The record in the present case includes a Form 4340

(Certificate of Assessments, Payments, and Other Specified

Matters) which demonstrates that, on September 9, 2002,

respondent entered assessments against petitioner for the taxable

year 1995 reflecting the tax deficiency, additions to tax, and

penalty under section 6673(a) set forth in the Court’s decision

at docket No. 6655-00, as well as statutory interest.   On


     2
        The record reflects and/or the parties do not dispute the
following facts.
     3
        The Court entered its decision at docket No. 6655-00 on
Apr. 10, 2002.
                               - 3 -

September 9, 2002, respondent issued to petitioner a notice of

balance due for the taxable year 1995.

     On January 21, 2003, respondent mailed to petitioner a Final

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

requesting that petitioner pay his outstanding tax liability for

1995.   On February 12, 2003, petitioner submitted to respondent a

Request for Collection Due Process Hearing challenging the

validity of the assessment for 1995.   Specifically, petitioner

argued that respondent failed to provide petitioner with either a

record of the assessment or a notice of the assessment.

     On July 22, 2003, the parties met for the purpose of

conducting an administrative hearing regarding respondent’s

proposed levy.   However, the hearing was terminated when the

Appeals officer informed petitioner that he would not be

permitted to make an audio recording of the hearing.

     On July 31, 2003, respondent mailed to petitioner a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330.   In the notice, respondent determined that it

was appropriate to proceed with the proposed levy because:    (1)

Petitioner had previously challenged respondent’s notice of

deficiency for 1995 in the Tax Court, and, therefore, he was

barred from challenging his underlying tax liability pursuant to

section 6330(c)(2)(B); (2) petitioner failed to file Federal

income tax returns from 1995 to 2002, and, therefore, he was not
                               - 4 -

eligible to make an offer in compromise or to pay his outstanding

tax liability in installments; and (3) the Appeals officer

reviewed petitioner’s administrative file and concluded that

respondent met all of the administrative and legal procedures

governing the assessment and collection of petitioner’s

outstanding tax liability for 1995.

     On September 8, 2003, petitioner filed with the Court a

Petition for Lien and Levy Action Under 26 USC §6330(d).4    Citing

the Court’s holding in Keene v. Commissioner, 121 T.C. 8 (2003),

petitioner’s sole contention in the petition is that respondent

abused his discretion in issuing a notice of determination to

petitioner without permitting petitioner to make an audio

recording of the administrative hearing.

     After filing an answer to the petition, respondent filed a

Motion for Summary Judgment.   Citing the Court’s holding in

Kemper v. Commissioner, T.C. Memo. 2003-195, respondent contends

that, considering the record as a whole (and particularly

petitioner’s predisposition to bring frivolous actions),

respondent’s decision to deny petitioner the opportunity to make

an audio recording of the administrative hearing was at most

harmless error.   Further, respondent argued that, under the

circumstances, it was not necessary, nor would it be productive,


     4
        At the time the petition was filed, petitioner resided in
Tempe, Arizona.
                              - 5 -

to remand the case to respondent’s Appeals Office for further

proceedings.

     This matter was called for hearing at the Court’s motions

session held in Washington, D.C., on July 21, 2004.   Counsel for

respondent appeared at the hearing and offered argument in

support of respondent’s motion.   No appearance was entered by or

on behalf of petitioner at the hearing.   However, on July 26,

2004, petitioner filed with the Court a written statement under

Rule 50(c) in opposition to respondent’s motion.

     Following the hearing, the Court issued an Order directing

petitioner to file with the Court an amended petition setting

forth a valid claim for relief under section 6330(c).   The Court

subsequently granted petitioner’s motion for an extension of time

to comply with the Court’s Order.   Nevertheless, petitioner

failed to file an amended petition as directed.5

Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   See Florida Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988).   Summary judgment may

be granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,



     5
      Had petitioner filed an amended petition setting forth a
valid claim for relief under sec. 6330, it might have been
appropriate to remand the case to respondent’s Appeals Office.
                                - 6 -

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(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);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).   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 judgment.    Dahlstrom

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

Commissioner, 79 T.C. 340, 344 (1982).   Based on our review of

the record, we are satisfied that there is no genuine issue as to

any material fact and that respondent is entitled to judgment as

a matter of law.

     Petitioner’s conduct in his earlier deficiency case at

docket No. 6655-00, coupled with the arguments that he made in

his request for collection due process hearing, clearly

demonstrate that petitioner initiated the collection review

procedures set forth in section 6330 solely for the purpose of

delay.   As discussed below, the arguments that petitioner

included in his request for a collection due process hearing have

no merit.   Moreover, petitioner ignored the opportunity that the

Court extended to him to file an amended petition setting forth a
                               - 7 -

legitimate claim for relief.

     Considering all the facts and circumstances, we agree with

respondent that the Appeals officer’s decision to preclude

petitioner from making an audio recording of the administrative

hearing was at most harmless error.    Moreover, petitioner has

given us no reason to believe that remanding this matter to

respondent’s Appeals Office would be productive or otherwise

advance the policies underlying section 6330.    Consistent with

our reasoning in Kemper v. Commissioner, supra, we conclude that

a remand is unwarranted.6

     The Form 4340 attached to respondent’s motion in this case

shows that respondent properly assessed the tax liability that

respondent intends to collect and respondent properly notified

petitioner of the assessment by way of a notice of balance due.

See, e.g., Hughes v. United States, 953 F.2d 531, 536 (9th Cir.

1992).

     Numerous cases establish that no particular form of

verification of an assessment is required, that no particular

document need be provided to a taxpayer at an administrative

hearing conducted under section 6330, and that a Form 4340 (such

as that included in this record) and other transcripts of account


     6
      As previously discussed, petitioner was given every
opportunity to file a proper amended petition setting forth a
valid claim for relief. However, petitioner failed to comply
with the Court’s Order to file an amended petition.
                                 - 8 -

satisfy the verification requirements of section 6330(c)(1).    See

Roberts v. Commissioner, 118 T.C. 365, 371 n.10 (2002), affd. 329

F.3d 1224 (11th Cir. 2003); Nestor v. Commissioner, 118 T.C. 162,

166 (2002); Lunsford v. Commissioner, 117 T.C. 183 (2001).

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the

Form 4340.   Moreover, petitioner has failed to raise a spousal

defense, make a valid challenge to the appropriateness of

respondent’s intended collection action, or offer alternative

means of collection.   These issues are now deemed conceded.   Rule

331(b)(4).

     The record reflects that respondent has complied with all

applicable laws and administrative procedures in this case.

Consistent with the preceding discussion, it follows that

respondent is entitled to judgment as a matter of law sustaining

respondent’s determination to proceed with collection.

     To reflect the foregoing,

                                 An Order and Decision will

                          be entered granting respondent’s

                          Motion for Summary Judgment.
