                     T.C. Summary Opinion 2007-71



                       UNITED STATES TAX COURT



                 JASON HARRINGTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16382-05S.               Filed May 7, 2007.


     Jason Harrington, pro se.

     Beth A. Nunnink, for respondent.




     WELLS, Judge:    This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1    Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
      Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all subsequent
section references are to the Internal Revenue Code, as amended.
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this opinion shall not be treated as precedent for any other

case.

     This matter is before the Court on respondent’s motion for

summary judgment pursuant to Rule 121.   The issue we must decide

is whether respondent’s Appeals Office abused its discretion in

determining to proceed with collection of petitioner’s tax

liabilities for taxable years 1998, 2000, 2001, and 2002 by lien.

                            Background

     At the time of filing the petition, petitioner resided in

Clarksdale, Mississippi.

     Petitioner filed an income tax return for taxable year 1998,

but failed to pay all of the liability reported on the return.

Petitioner failed to file income tax returns for 2000, 2001, and

2002.   On October 27, 2003, respondent sent petitioner two

letters requesting that petitioner file income tax returns for

2000 and 2001.   On November 26, 2003, respondent received from

petitioner returns for taxable years 2000 and 2001, which

reported zeros on every line of the return.   Attached to the

returns for 2000 and 2001 were letters containing frivolous

arguments.

     On February 27, 2004, respondent sent petitioner notices of

deficiency for 2000 and 2001.   On July 19, 2004, respondent

assessed the tax liabilities, along with additions to tax and
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interest.   Respondent sent petitioner a Notice of Federal Tax

Lien Filing and Your Right to a Hearing Under I.R.C. 6320 (CDP

Notice), dated January 7, 2005, advising petitioner that a notice

of Federal tax lien had been filed with respect to his unpaid

liabilities for taxable years 1998, 2000, 2001, and 2002, and

that petitioner could receive a hearing with respondent’s Office

of Appeals.

     On February 16, 2005, petitioner timely submitted a Form

12153, Request for a Collection Due Process Hearing.   On Form

12153, petitioner states only “I DONOT [sic] UNDERSTAND!”

Petitioner did not suggest any collection alternatives.

Petitioner was not current in filing his income tax returns,

having failed to file returns for 1999, 2003, and 2004.

     On June 7, 2005, Settlement Officer Suzanne Magee (Mrs.

Magee) set up a telephonic conference for June 28, 2005,

requested returns for the 1999, 2003, and 2004 tax years,

requested the collection information statement, requested proof

of payment of estimated taxes for 1999, 2003, and 2004, and

provided information on what could be discussed during the

collection due process hearing.   Mrs. Magee requested that such

information be provided by July 21, 2005.

     By letter dated June 17, 2005 (June 17 letter), petitioner

requested a conference at a later date.   The June 17 letter also

requested a face-to-face hearing and contained frivolous
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arguments.   Finally, the letter threatened that petitioner would

file a claim for damages of $200,000 against the Settlement

Officer personally.

     By letter dated June 21, 2005, Mrs. Magee responded to

the June 17 letter, rescheduling the telephonic conference for

July 12, 2005, at 3 p.m.   Mrs. Magee also informed petitioner

that the arguments in the June 17 letter were ones that courts

had held to be frivolous and would not be considered by

respondent’s Appeals Office.    Mrs. Magee directed petitioner to

“The Truth About Frivolous Tax Arguments” on the IRS Web site.

In her letter, Mrs. Magee also explained that respondent’s

Appeals Office does not provide a face-to-face hearing if the

only items a taxpayer wishes to discuss are frivolous arguments.

     Petitioner replied by letter, again requesting a face-to-

face hearing but not specifying any nonfrivolous issues to

discuss.   Petitioner stated in the letter that he wished to

discuss the underlying liabilities.

     On July 12, 2005, Mrs. Magee attempted a telephonic

conference with petitioner.    Petitioner indicated that he was

speaking via a cell phone and said very little.    The call was cut

off prematurely.   When Mrs. Magee attempted to call petitioner

immediately thereafter, petitioner did not answer.    Mrs. Magee

called three more times on July 12, 2005, and received no answer.
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Mrs. Magee could not leave a message because petitioner did not

have functioning voicemail.    Additionally, petitioner, who had

Mrs. Magee’s telephone number, did not contact her after their

telephone call was cut off.

     On August 3, 2005, respondent sent petitioner a Notice of

Determination Concerning Collection Actions under Section 6320

and/or 6330.   On September 2, 2005, petitioner timely filed a

petition with this Court.   In the petition, petitioner claims

that he did not receive a collection due process hearing.

                              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).   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
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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 6320(a)(1) requires the Secretary to give persons

liable to pay taxes 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

respondent’s Appeals Office.

     Section 6320(c) provides that an Appeals Office hearing

generally shall be conducted consistently with the procedures set

forth in section 6330(c), (d), and (e).    The Appeals 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 filed may raise any relevant

issues relating to the unpaid tax or the 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, however, only if he did not receive any

statutory notice of deficiency for the tax liability or did not

otherwise have an opportunity to dispute the tax liability.    Sec.

6330(c)(2)(B).
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     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly in

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).

     Petitioner has not alleged that he did not receive the

notices of deficiency.   Petitioner had an opportunity to

challenge the correctness of his tax liabilities for 2000 and

2001 by petitioning this Court from the notice of deficiency but

failed to do so.   Therefore, petitioner’s underlying tax

liabilities were not properly in issue.   Accordingly, we review

respondent’s determination for an abuse of discretion.

     Petitioner did not receive notices of deficiency for 1998

and 2002.   Petitioner could have challenged the underlying

liabilities for those years.    However, section 6330(c)(2) allows

the taxpayer to raise only “any relevant issue relating to the

unpaid tax or the proposed levy”, not “any” issue.   Frivolous

challenges to the underlying liability are not “relevant issues”.

Hathaway v. Commissioner, T.C. Memo. 2004-15.

     In the instant case, the record indicates that the only

issues petitioner raised throughout the section 6320
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administrative process and in his petition to this Court were

frivolous tax protester type arguments.   We do not address

petitioner’s frivolous arguments with somber reasoning and

copious citations of 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).

     To the extent petitioner complains of not receiving a face-

to-face hearing, this Court has held that it is neither necessary

nor productive to remand cases to an Appeals Office for face-to-

face hearings when a taxpayer raises only frivolous arguments.

Lunsford v. Commissioner, 117 T.C. 183, 189 (2001).

     Petitioner was not current in filing his income tax returns,

having failed to file for taxable years 1999, 2003, and 2004.

Petitioner was not eligible for, nor did he submit, any

collection alternatives.

     We conclude that, although the telephonic conference

terminated prematurely, petitioner did receive a hearing as

required by sections 6320(b) and 6330(c)(3).2   Mrs. Magee

verified that all applicable laws and administrative procedures

had been met, that she had not had any prior involvement with

respect to petitioner’s tax liability, and that the proposed

collection activity was no more intrusive than necessary.


     2
      Although petitioner’s request for a hearing was pursuant to
sec. 6320, sec. 6320(c) provides that sec. 6330(c) applies.
                               - 9 -

     Accordingly, we hold that no genuine issue of material fact

exists requiring trial and that respondent is entitled to summary

judgment.   Respondent’s determination to proceed with the

proposed lien to collect petitioner’s tax liabilities for 1998,

2000, 2001, and 2002 was not an abuse of discretion.

     Section 6673(a)(1) authorizes the Court to impose a penalty

not in excess of $25,000 when it appears to the Court that, inter

alia, proceedings have been instituted or maintained by the

taxpayer primarily for delay or that the position of the taxpayer

in such proceeding is frivolous or groundless.   In Pierson v.

Commissioner, 115 T.C. 576, 581 (2000), we issued a warning

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

on those taxpayers abusing the protections afforded by sections

6320 and 6330 through the bringing of dilatory or frivolous lien

or levy actions.   The Court has since repeatedly disposed of

cases premised on arguments akin to those raised herein summarily

and with imposition of the section 6673 penalty.   See, e.g.,

Craig v. Commissioner, 119 T.C. at 264-265 (and cases cited

therein).

     Respondent has moved for the imposition of a section 6673

penalty in the instant case.   Petitioner has raised only

frivolous arguments, both before and after being warned about
                              - 10 -

the possibility of a section 6673 penalty and being directed to

“The Truth About Frivolous Tax Arguments.”    Accordingly, we shall

impose a penalty of $1,000.

     To reflect the foregoing,


                                            An appropriate order and

                                       decision will be entered.
