                      T.C. Memo. 2004-178



                   UNITED STATES TAX COURT



             JOSEPH W. MCBRIDE, Petitioner v.
       COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15990-03L.          Filed August 2, 2004.



     Joseph W. McBride, pro se.

     Pamela Karr Harrison, for respondent.



                       MEMORANDUM OPINION

     WHALEN, Judge:    This is a levy action commenced by

petitioner under section 6330(d) of the Internal Revenue

Code and Rule 331 of the Tax Court Rules of Practice and

Procedure.   Hereinafter, all section references are to the

Internal Revenue Code, and all Rule references are to the

Tax Court Rules of Practice and Procedure.   Petitioner
                           - 2 -

resided in Philadelphia, Pennsylvania, at the time he filed

the instant petition.

     The case is now before the Court to decide respondent’s

motion for summary judgment, filed April 2, 2004, and

petitioner’s motion for summary judgment, filed April 29,

2004.

     The pertinent facts, taken from the pleadings and

the motions filed by the parties, are summarized below.

During calendar year 1996, petitioner received wages of

$19,569 and unemployment compensation of $8,500, but he

failed to file an income tax return for the year.    As a

result, respondent determined a deficiency of tax and

additions to tax for the year and issued a notice of

deficiency to petitioner setting forth such determination.

     Petitioner did not petition this Court for redetermi-

nation of the deficiency and addition to tax.   Accordingly,

in due course, respondent assessed a deficiency in

petitioner’s 1996 income tax of $3,602, an addition to tax

under section 6651(a)(1) of $517.95, an addition to tax

under section 6651(a)(2) of $299.26, and an addition to tax

under section 6654(a) of $116.15.

     After petitioner failed to pay the amounts assessed,

respondent sent to petitioner Notice of Intent to Levy and

Notice of Your Right to a Hearing, on Internal Revenue
                            - 3 -

Service Form CP90.   In response, on or about January 2,

2003, petitioner filed Form 12153, Request for a Collection

Due Process Hearing.   In the space on the form which asks

“why you don’t agree” with the notice of levy/seizure,

petitioner stated as follows:   “Due to the fact that I

responded to every ‘notice’ with questions I needed to be

answered in order to proceed--I never received a response

to my questions.”

     A representative of the Internal Revenue Service Office

of Appeals contacted petitioner by letters dated June 9,

2003, and June 30, 2003, and spoke to petitioner by

telephone on June 30, 2003, and August 18, 2003.

Respondent’s motion for summary judgment states that the

“CDP hearing” took place during the telephone conversation

on June 30, 2003, and, during that conversation, “petitioner

inquired as to the legal definition of income.”    In

response, the Appeals officer sent to petitioner the letter

dated June 30, 2003, which enclosed a document entitled,

“The Truth about Frivolous Tax Arguments” to provide “an

explanation for the reasons to file a tax return”.      The

June 30, 2003, letter also states that petitioner’s account

balance for 1996 is $5,324.42 as of May 12, 2003.

The letter also refers to a letter from petitioner dated

June 24, 2003, which is not included in the record.
                             - 4 -

     According to respondent’s motion, during the telephone

conversation on August 18, 2003, “petitioner said he was not

sure he wanted an installment agreement and [petitioner]

would call the Appeals officer on August 19, 2003 if

interested”.   The motion states that “Petitioner did not

pursue this matter further.”

     Respondent’s motion is supported by the Declaration of

the Appeals officer.    Among the documents attached to the

Declaration, is the “Case Activity Records”, which purports

to show all of the actions taken by the Appeals officer

regarding the case.    That document refers to a conference

on June 17, 2003, and another contact with petitioner on

July 22, 2003 (“Requested additional info and TP wants an

IA”).   These items are not discussed in the Declaration or

in respondent’s motion.

     In any event, on August 29, 2003, the Commissioner

issued Notice of Determination Concerning Collection

Action(s) under Section 6320 and/or 6330 (referred to herein

as notice of determination), which contemplates permitting

the collection action to proceed.    The notice of

determination states as follows:


     Summary of Determination

     Although you wanted an installment agreement, you
     were not in compliance. In addition you never
                               - 5 -

     returned the waiver necessary to continue your
     case with the audit reconsideration unit.


An attachment to the notice of determination states as

follows:


     Applicable Law and Administrative Procedures

           *   *       *   *     *     *   *

     This Appeals Officer has had no prior involvement with
     this taxpayer with respect to these appealed
     assessments.

     Validity of the Assessment

     The assessment is valid.

     Challenges to the Existence or Amount of the Liability

     Taxpayer wanted to [sic] what is the definition of
     income. The Appeals Officer mailed the taxpayer the
     first 6 pages of the “THE TRUST ABOUT FRIVLLOUS [SIC]
     TAX ARGUMENTS” CHAPTER #1.

     SPOUSAL DEFENSES

     Not applicable.

     Collection Alternative Considered

     Taxpayer stated he wanted an Installment Agreement,
     [sic] However since the taxpayer is not in compliance.
     [sic]

     Balancing Efficient Collection Intrusiveness

     IRC§6330 requires that the Appeals Officer consider
     whether any collection action balance the need for
     efficient tax collection with the legitimate concern
     that any collection action be no more intrusive than
     necessary. The levy action is appropriate.
                             - 6 -

     Within 30 days of the notice of determination,

petitioner filed a petition with the Court commencing this

levy action.    Paragraph 4 of the amended petition sets forth

the reasons for petitioner’s belief that he is entitled to

relief.   It states as follows:


     4.    Set forth the relief requested and the reasons why
           you believe you are entitled to such relief.

           1)    I interpreted the “relief” to mean why I
                 couldn’t pay the $60 Court Cost.

           2)    I have responded to every letter the IRS
                 has sent with questions and the only
                 response was more intimidating letters
                 until 2002, when I received “Frivolous
                 questions” - “frivoulous [sic] - meaning
                 without serious attention.

                 One of the questions is where is the
                 legislative regulation that requires
                 individuals [sic] taxpayers to file.
                 I can’t locate it.


     After respondent filed his motion for summary judgment,

the Court gave petitioner a period of time in which to

respond to respondent’s motion.      Petitioner chose to file

his own motion for summary judgment in response to

respondent’s motion.   In that document, petitioner

acknowledges that he received the notice of deficiency dated

October 13, 1998, issued for taxable year 1996, but he does

not address any other facts of the case.      Significantly,

petitioner’s motion takes issue with none of the facts set
                             - 7 -

forth in respondent’s motion nor does it allege any new

facts.   Thus, in responding to respondent’s motion,

petitioner did not set forth specific facts showing that

there is a genuine issue for trial.   See Rule 121(d).

Furthermore, petitioner’s motion does not take issue with

the Appeals officer’s determination that petitioner is not

eligible for an installment agreement.

     Petitioner’s motion for summary judgment consists of

a series of legal statements that raise frivolous and

groundless issues.   First, petitioner’s motion states that

“unless an ‘assessment’ of an ‘imposed’ tax ‘has been made’

the imposed tax cannot be ‘collected by levy or by a

proceeding in court’.”   While we agree that, generally, the

tax must be assessed as a liability of the taxpayer before

there can be a levy on the taxpayer’s property to collect

the tax, see secs. 6303(a), 6330, 6501(a), and 6502, there

is ample evidence in the record of this case to show that

the subject tax determined by respondent was properly

assessed.   The notice of determination issued on August 29,

2003, sets forth the statement of the Appeals officer that

“the assessment is valid.”   Furthermore, attached to the

Declaration of the Appeals officer is a copy of the

transcript of petitioner’s account, dated May 12, 2003,

showing that the subject tax was assessed on June 7, 1999.
                             - 8 -

     Petitioner’s motion gives the Court no reason to

conclude that the subject tax was not properly assessed.

It simply disregards both the statement in the notice of

determination that the assessment is valid and the

transcript attached to the Declaration of the Appeals

officer that shows that the subject tax was assessed.

     Petitioner’s motion makes three other frivolous

arguments.   The motion states:   “that withholding has

nothing to do with income taxes and/or the 16th Amendment”;

that “corporations only pay income taxes on their profit;

this must also apply to individuals”; and that “no law makes

anyone ‘liable’ for income taxes and no law required them

‘to pay’ income taxes and they have no income in the

‘constitutional sense’.”    We reject these arguments as

patently spurious.   See, e.g., Jacobs v. Commissioner,

100 Fed. Appx. 126 (3d Cir. 2004) (per curiam).

     Finally, we note that petitioner has failed to assign

error to any of the additions to tax determined by

respondent in the notice of deficiency.    Accordingly,

petitioner is deemed to have conceded the additions to tax

determined by respondent.    See Swain v. Commissioner, 118

T.C. 358, 363 (2002).

     On the basis of our review of the entire record in

this case, we find no abuse of discretion in respondent’s

determination to proceed with collection with respect to
                             - 9 -

petitioner’s 1996 taxable year as set forth in the notice

of determination.

     We note that section 6673(a)(1) authorizes the Court to

require a taxpayer to pay to the United States a penalty of

up to $25,000 whenever it appears that the proceeding has

been instituted or maintained by the taxpayer primarily for

delay or that the taxpayer’s position in such proceedings is

frivolous or groundless.   In this case, we conclude that the

position advanced by petitioner is frivolous and groundless.

Nevertheless, respondent has not asked for penalties under

section 6673 to be imposed, and we choose not to do so at

this time.   We caution petitioner that such penalties under

section 6673 may be imposed if he continues to advance the

same frivolous and groundless arguments in the future.

     Upon consideration of the above,



                                An appropriate Order and

                           Decision authorizing respondent

                           to proceed with collection will

                           be entered.
