                        T.C. Memo. 2006-99



                      UNITED STATES TAX COURT



               CHARLES A. SCHNELLER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14477-05L.             Filed May 11, 2006.



     Charles A. Schneller, pro se.

     John W. Sheffield, for respondent.



                        MEMORANDUM OPINION


     GOEKE, Judge:   The petition in this case was filed in

response to a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of

determination).1   At issue is (1) whether respondent abused his


     1
      Unless otherwise indicated, all section references are to
                                                   (continued...)
                                - 2 -

discretion in allowing the collection action to proceed, and (2)

whether frivolous arguments advanced by petitioner warrant the

imposition by the Court of a section 6673(a) penalty.    We hold

that respondent did not abuse his discretion and that a penalty

under section 6673 is not warranted at this time.

                            Background

     At the time the petition in this case was filed, petitioner

resided in Kathleen, Georgia.

     In the taxable year 2001, the year at issue, petitioner

earned income of approximately $70,000, mostly consisting of

wages he earned as an over-the-road driver for Frito-Lay North

America (Frito Lay).   Petitioner stipulated receiving this

income.   Petitioner did not file a Form 1040, U.S. Individual

Income Tax Return, for the taxable year 2001.    Nor did petitioner

file Forms 1040 for the taxable years 2002 to 2004 even though

Frito Lay continued to report wages for those years.    Respondent

prepared a substitute for return (SFR).    The SFR reflected a

taxable income to petitioner of $72,182.    On August 4, 2003,

respondent issued a notice of deficiency to petitioner for 2001.

Petitioner thereafter filed a petition with this Court, which was

dismissed on March 29, 2004, because petitioner never perfected

the petition as directed of the Court.    In response to a notice



     1
      (...continued)
the Internal Revenue Code, as amended.
                               - 3 -

of intent to levy, petitioner timely filed Form 12153, Request

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

petitioner listed his reason for disagreeing with the proposed

levy action as “SFR Program--Math error, Disputed Income 26 USC

7214-7123-7491.”   An Appeals officer contacted petitioner to

schedule a conference via telephone.     Petitioner advised Appeals

that he was unwilling to communicate via telephone.     Petitioner’s

hearing was held via correspondence.     Petitioner did not offer

any collection alternatives, nor did he raise any spousal

defenses.   On June 30, 2005, petitioner received a notice of

determination upholding the proposed levy action and subsequently

filed a timely petition in this Court.     Petitioner was

cooperative throughout the stipulation and hearing process.

                            Discussion

     Petitioner advances a plethora of tax protester arguments

that attack the underlying tax liability rather than respondent’s

collection actions.   In particular, petitioner argues that the

exemption amount, pursuant to section 6012(a)(1)(A), is not

defined by statute, and that a lack of a valid control number

from the Office of Management and Budget (OMB), as required by

the Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. secs. 3501-

3520 (2000), excuses a failure to file returns.

     Where the validity of the underlying tax liability is

properly at issue, the Court will review the matter de novo.
                                - 4 -

Where the validity of the underlying tax liability is not

properly at issue, however, the Court will review the

Commissioner’s administrative determination for an abuse of

discretion.    Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza

v. Commissioner, 114 T.C. 176, 181 (2000).

       Petitioner received a statutory notice of deficiency for the

year at issue, which is evidenced by his previous petition for

redetermination of deficiency with this Court, pursuant to

section 6213(a).    Thus, his underlying tax liability is not

properly at issue in this proceeding.    Accordingly, we review

respondent’s determination for an abuse of discretion.    See Sego

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

181.

       Nevertheless, petitioner continues to assert frivolous

claims.    See, e.g., Pond v. Commissioner, T.C. Memo. 2005-255

(rejecting taxpayer’s argument that exemption amount is not

defined by statute); Saxon v. Commissioner, T.C. Memo. 2006-52

(taxpayer’s contention that OMB control No. 1545-0074, on the

Form 1040 is invalid and does not comply with the requirements of

the PRA is groundless (citing James v. United States, 970 F.2d

750, 753 n.6 (10th Cir. 1992); United States v. Neff, 954 F.2d

698, 699 (11th Cir. 1992)).    Petitioner does not challenge the

appropriateness nor the intended method of collection.    Neither

does petitioner offer any alternative means of collection or
                                 - 5 -

raise any spousal defenses.   Petitioner’s only argument relating

to respondent’s collection actions is that respondent abused his

discretion in relying on the Form 4340, Certificates of

Assessments, Payments, and Other Specified Matters, to verify the

assessment, an argument we have previously rejected.        Davis v.

Commissioner, 115 T.C. 35, 40 (2000).2       Petitioner has not

presented any evidence or arguments to convince us that

respondent abused his discretion.    As a result, we hold

respondent’s determination was not an abuse of discretion, and

respondent may proceed with the proposed collection actions.       See

Sego v. Commissioner, supra at 612.

     Respondent has asked the Court to impose a penalty under

section 6673(a).   Although petitioner has presented frivolous

arguments, we find that petitioner’s cooperation in the

stipulation process mitigated the delay, and therefore we choose

not to impose the penalty at this time.       However, petitioner is

warned that we may do so in the future if he continues to assert

such frivolous claims before this Court.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.




     2
      Petitioner stated this argument in his Motion For
Production of Summary Record of Assessment, which this Court
denied on Apr. 18, 2006.
