                         T.C. Memo. 2005-109



                       UNITED STATES TAX COURT



                   MARY K. DUES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4370-03L.             Filed May 16, 2005.



     Mary K. Dues, pro se.

     John M. Tkacik, Jr., for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).1   We

shall grant respondent’s motion.




     1
      Although the Court ordered petitioner to file a response to
respondent’s motion, petitioner failed to do so.
                               - 2 -

                             Background

     The record establishes and/or the parties do not dispute the

following.

     Petitioner resided in St. Henry, Ohio, at the time she filed

the petition in this case.

     Petitioner and Carl L. Dues (Mr. Dues), who died on a date

not disclosed by the record before July 9, 2002, jointly filed a

Federal income tax (tax) return for each of the taxable years

1997 (1997 return) and 1998 (1998 return).   In the 1997 return,

petitioner and Mr. Dues reported, inter alia, total income of

$80,520, taxable income of $68,320, total tax of $13,775, tax

withheld of $0, and estimated tax payments of $13,889 and claimed

an overpayment of tax of $114 and a refund of tax of $114.   In

the 1998 return, petitioner and Mr. Dues reported, inter alia,

total income of $4,155, taxable income of $0, tax withheld of $0,

estimated tax payments of $0, and total tax of $0.

     Around April 2000, petitioner and Mr. Dues jointly filed an

amended tax return for each of the taxable years 1997 (amended

1997 return) and 1998 (amended 1998 return).   In the amended 1997

return, petitioner and Mr. Dues reported, inter alia, taxable

income of $0, total tax of $0, tax withheld of $0, estimated tax

payments of $13,889, and tax owed of $0.   In the amended 1998

return, petitioner and Mr. Dues reported, inter alia, taxable

income of $0, total tax of $0, tax withheld of $0, estimated tax
                                - 3 -

payments of $0, and tax owed of $0.

     In Part II, Explanation of Changes to Income, Deductions,

and Credits, of each of the amended tax returns for 1997 and 1998

and in an attachment to each such amended tax return, the expla-

nation that petitioner and Mr. Dues gave for amending the 1997

return and the 1998 return (explanation for the amended 1997

return and for the amended 1998 return) contained statements,

contentions, arguments, and requests that the Court finds to be

frivolous and/or groundless.2

     On September 20, 2000, respondent issued a notice of defi-

ciency (notice) to petitioner and Mr. Dues in which respondent

determined the following deficiencies in, and accuracy-related

penalties under section 6662(a)3 on, the tax of petitioner and

Mr. Dues for each of the taxable years 1997 and 1998:

                                   Accuracy-Related Penalty
         Year    Deficiency            Under Sec. 6662(a)
         1997      $41,648                   $8,330
         1998        3,821                      764




     2
      The explanation for the amended 1997 return and for the
amended 1998 return contained statements, contentions, arguments,
and requests that are very similar to the types of statements,
contentions, arguments, and requests contained in the documents
that certain other taxpayers with cases in the Court attached to
their tax returns. See, e.g., Copeland v. Commissioner, T.C.
Memo. 2003-46; Smith v. Commissioner, T.C. Memo. 2003-45.
     3
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 4 -

     Petitioner4 did not file a petition in the Court with re-

spect to the notice relating to taxable years 1997 and 1998.

     On February 5, 2001, respondent assessed petitioner’s tax,

as well as an accuracy-related penalty under section 6662(a) and

interest as provided by law, for each of the taxable years 1997

and 1998 (respondent’s assessment for each of the taxable years

1997 and 1998).   (We shall refer to any such unpaid assessed

amounts, as well as interest as provided by law accrued after

February 5, 2001, as petitioner’s respective unpaid liabilities

for 1997 and 1998.)

     On a date not disclosed by the record that was within 60

days after the date on which respondent made respondent’s assess-

ment for each of the taxable years 1997 and 1998, respondent

issued to petitioner a notice of balance due with respect to

petitioner’s respective unpaid liabilities for 1997 and 1998, as

required by section 6303(a).

     On May 11, 2001, respondent issued to petitioner a final

notice of intent to levy and notice of your right to a hearing

(notice of intent to levy) with respect to taxable years 1997 and

1998.

     On May 24, 2001, respondent issued to petitioner a notice of

Federal tax lien filing and your right to a hearing (notice of

     4
      This case involves only petitioner, and not Mr. Dues. For
convenience, we shall hereinafter refer only to petitioner, and
not to petitioner and Mr. Dues.
                                 - 5 -

tax lien) with respect to taxable years 1997 and 1998.

     In early June 2001, in response to the notice of intent to

levy and the notice of tax lien, petitioner, through her autho-

rized representative, mailed to respondent Form 12153, Request

for a Collection Due Process Hearing (Form 12153), and requested

a hearing with respondent’s Appeals Office (Appeals Office).    In

her Form 12153, petitioner raised various challenges to respon-

dent’s collection activity that respondent determined to be

frivolous.

     A settlement officer with respondent’s Appeals Office

(settlement officer) scheduled several hearings (Appeals Office

hearings) with petitioner and her authorized representative with

respect to the notice of intent to levy and the notice of tax

lien.   Petitioner and her authorized representative refused to

attend any of the Appeals Office hearings that the settlement

officer had scheduled.   That was because the settlement officer

refused to allow petitioner and her authorized representative to

audio record any such hearing.

     On February 14, 2003, the Appeals Office issued to peti-

tioner a notice of determination concerning collection action(s)

under section 6320 and/or 6330 (notice of determination).    That

notice stated in pertinent part:

     It has been determined that the lien filing and pro-
     posed levy action are sustained. The Internal Revenue
     Service has complied with code and procedural require-
     ments in collecting the tax.
                                - 6 -

An attachment to the notice of determination stated in pertinent

part:

                       DISCUSSION AND ANALYSIS

     WERE THE REQUIREMENTS OF ANY APPLICABLE LAW OR PROCE-
     DURE MET?

     Based upon the best information available, the Service
     complied with the applicable laws and procedures in
     pursuing collection of the tax liabilities.

     •    The assessments were made per IRC §§ 6201, 6203,
          6211, 6212, and 6213.

     •    The notice and demand for payment letter was
          mailed to the last known address, within 60 days
          of the assessment, as required by IRC § 6303.

     •    IRC §   6321 provides a statutory lien when a tax-
          payer   neglects or refuses to pay a tax liability
          after   notice and demand. To be valid against
          third   parties, except for other government enti-
          ties,   a notice of lien must be filed in the proper
          place   for filing per IRC §§ 6323(a) and (f).

     •    IRC § 6320 requires the IRS to give notice to a
          taxpayer in writing no later than five working
          days after filing a notice of lien of the tax-
          payer’s right to request a hearing. This notice
          was mailed to you.

     •    IRC [§] 6330 requires the IRS to give notice to a
          taxpayer in writing at least thirty days prior to
          levy action of the taxpayer’s right to request a
          hearing.

     •    There was a balance due when the CDP notice was
          issued per IRC § 6322. The CDP notice was sent by
          certified mail return receipt requested to your
          last known address.

     •    The collection statute has been suspended as the
          result of your CDP request.

     The above information was verified through a review of
     computer transcripts and information contained in the
                               - 7 -

     case file.

     WHAT ISSUES WERE RAISED BY THE TAXPAYER?

     Your representative declined the opportunity for a
     face-to-face or telephone conference because Appeals
     does not permit recording. You and your representative
     raised a multitude of issues in your CDP request and
     subsequent correspondence. Your primary arguments
     appear to be the following.

     You are not liable for the “so-called” income tax.
     This is a frivolous position.

     The IRS has no legal authority to change the returns or
     to assess an amount other than what is shown on the
     filed returns.
     This is a frivolous position.

     The assessments are not valid because there is no
     Summary Record of Assessment.
     Certified transcripts reflect that the additional taxes
     were properly assessed.

     You never received the required notice and demand.
     Transcripts show that the notice and demand was sent to
     the taxpayers within 60 days of the assessments as
     required by IRC § 6303.

     No Treasury Department Delegation of Authority has been
     issued, delegating any authority, from the Secretary of
     the Treasury, to any IRS employee to summons, assess,
     lien, or levy the property of a Citizen of the 50
     Republic states.
     This is a frivolous position.

     CONSIDER WHETHER ALTERNATIVE COLLECTION ACTION WOULD BE
     LESS INTRUSIVE TO THE PROPOSED ENFORCEMENT ACTION.

     Your frivolous arguments, especially your position that
     you are not liable for the income tax, preclude the
     consideration of a collection alternative.

     In response to the notice of determination, petitioner filed

with the Court a petition with attachments that we consider to be

part of the petition.   Except for an argument under section
                               - 8 -

7521(a)(1), the petition and the attachments thereto contained

statements, contentions, arguments, and requests that the Court

finds to be frivolous and/or groundless.5   With respect to sec-

tion 7521(a)(1), petitioner alleged that the refusal by the

Appeals Office to allow her to make an audio recording of any

Appeals Office hearing was improper under that section.

                            Discussion

     The Court may grant summary judgment where there is no

genuine issue of 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 are no genuine issues of material fact

regarding the questions raised in respondent’s motion.

     Respondent issued a notice of deficiency to petitioner with

respect to taxable years 1997 and 1998, but petitioner did not

file a petition with the Court with respect to that notice.   On

the instant record, we find that petitioner may not challenge the

existence or the amount of petitioner’s respective unpaid liabil-

ities for 1997 and 1998.   Sec. 6330(c)(2)(B); Sego v. Commis-

sioner, 114 T.C. 604, 610-611 (2000); Goza v. Commissioner, 114


     5
      The frivolous and/or groundless statements, contentions,
arguments, and requests in petitioner’s petition and the attach-
ments to that petition are similar to the frivolous and/or
groundless statements, contentions, arguments, and requests in
the respective petitions filed with the Court by certain other
taxpayers. See, e.g., Copeland v. Commissioner, T.C. Memo. 2003-
46.
                               - 9 -

T.C. 176, 181-182 (2000).

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the determination of the Commissioner of the Internal

Revenue for abuse of discretion.   Sego v. Commissioner, supra at

610; Goza v. Commissioner, supra at 182.

     We turn now to petitioner’s argument under section

7521(a)(1) that the refusal by the Appeals Office to permit

petitioner to make an audio recording of any Appeals Office

hearing was improper.   Before she filed the petition in this

case, petitioner made statements and requests and advanced

contentions and arguments that the Court has found to be frivo-

lous and/or groundless.   In the petition and the attachments

thereto, petitioner persisted in advancing such frivolous and/or

groundless statements, contentions, arguments, and requests.

Consequently, even though we held in Keene v. Commissioner, 121

T.C. 8, 19 (2003), that section 7521(a)(1) requires the Appeals

Office to allow a taxpayer to make an audio recording of an

Appeals Office hearing under section 6330(b), we conclude that

(1) it is not necessary and will not be productive to remand this

case to the Appeals Office for a hearing under sections 6320(b)

and 6330(b) in order to allow petitioner to make such an audio

recording, see Lunsford v. Commissioner, 117 T.C. 183, 189

(2001), and (2) it is not necessary or appropriate to reject
                               - 10 -

respondent’s determinations to proceed with the collection action

as determined in the notice of determination with respect to

petitioner’s respective unpaid liabilities for 1997 and 1998, see

id.6

       Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioner’s

taxable years 1997 and 1998.

       Although respondent does not ask the Court to impose a

penalty on petitioner under section 6673(a)(1), we now consider

sua sponte whether the Court should impose a penalty on peti-

tioner under that section.    Section 6673(a)(1) authorizes the

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

in an amount not to exceed $25,000 whenever it appears that a

taxpayer instituted or maintained a proceeding in the Court

primarily for delay or that a taxpayer's position in such a

proceeding is frivolous or groundless.

       Although we shall not impose a penalty under section

6673(a)(1) on petitioner in the instant case, we caution her that

she may be subject to such a penalty if in the future she insti-

tutes or maintains a proceeding in this Court primarily for delay

and/or her position in any such proceeding is frivolous or


       6
        See Kemper v. Commissioner, T.C. Memo. 2003-195.
                              - 11 -

groundless.   See Abrams v. Commissioner, 82 T.C. 403, 409-413

(1984); White v. Commissioner, 72 T.C. 1126, 1135-1136 (1979).

     We have considered all of petitioner’s statements, conten-

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

and, to the extent we have not found them to be frivolous and/or

groundless, we find them to be without merit and/or irrelevant.

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

     To reflect the foregoing,



                                      An order granting respondent's

                                 motion and an appropriate decision

                                 will be entered.
