                        T.C. Memo. 2010-127



                      UNITED STATES TAX COURT



               FRANK ANTHONY MATTINA, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21851-08L.             Filed June 14, 2010.



     Frank Anthony Mattina, pro se.

     Nicholas D. Doukas, for respondent.


                        MEMORANDUM OPINION


     MORRISON, Judge:   The respondent (the Commissioner of

Internal Revenue, referred to here as the IRS) has filed three

motions:   a motion for summary judgment, a motion to impose a
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penalty under section 6673,1 and a motion to permit the levy.

All three motions are meritorious and will be granted.

     The petitioner, Frank Mattina, did not file income-tax

returns for the tax years 2001, 2002, 2003, and 2004.    The IRS

mailed a deficiency notice (or deficiency notices) for these four

tax years.2   The date of the mailing is not reflected in the

motion papers.

     Mattina says that on January 17, 2007, the IRS sent him a

document purporting to be a deficiency notice.   Mattina failed to

include the document in his court papers.   As will be discussed

later, Mattina’s description of the document is imperfect.      We

cannot be sure that the document was a deficiency notice and,

even if it was, whether it corresponded to the four years from

2001 to 2004, or to a subset of these years, or to a year outside

of these four years (such as 2005).


     1
      All section references are to the Internal Revenue Code
unless otherwise indicated.
     2
      The IRS attached to its summary judgment papers the
following documents concerning its dealings with Mattina:

     •   Form 4340--2001 Year
     •   Form 4340--2002 Year
     •   Form 4340--2003 Year
     •   Form 4340--2004 Year
     •   TXMOD-A Transcript
     •   IRPTRN

The Forms 4340, Certificate of Assessments, Payment, and Other
Specified Matters, refer to “default[ed]” deficiency notices for
all four years.
                                 - 3 -

     It appears that on April 9, 2007, the IRS sent to Mattina a

notice that he had not filed a 2005 income-tax return.    Our

description of the notice is based on an April 17, 2007, letter

that Mattina sent to the IRS’s Austin office.    The letter said

that it was a response to an “IRS notice dated 4/9/07 for the

year 2005”--a “CP-515”.3    Mattina’s April 17, 2007 letter

presented the following spurious arguments about the legality of

the income-tax system:     (1) that no one is liable for the income

tax; and (2) that wages are not income.

     On October 15, 2007, the IRS sent Mattina a notice informing

him that it intended to levy to collect his tax liabilities for

2001, 2002, 2003, and 2004.     Mattina requested an administrative

hearing to challenge the proposed levy.4    The IRS assigned

Mattina’s request to an Appeals officer in its San Francisco

Appeals Office.    The officer refused to meet Mattina face to



     3
      The notice referred to in the letter is therefore probably
a warning that the IRS has not received a tax return. See
Schmidt v. United States, 92 AFTR 2d 2003-6468, 2003-6468 (E.D.
Wash. 2003) (“Defendant sent Plaintiffs ‘Letter CP-515,’
demanding that Plaintiffs file a 1998 Tax Return.”). Such a form
is different from a deficiency notice. A notice of deficiency is
an official determination by the IRS that a taxpayer has an
underreported tax liability. The mailing of a deficiency notice
gives the taxpayer the right to challenge the determination by
filing a petition with the Tax Court. Our records indicate that
we have not received a petition from Mattina to redetermine a
deficiency for the 2005 income-tax year.
     4
        His request did not explain why he wished to challenge the
levy.    He wrote merely: “Reasons will be discussed at hearing.”
                                 - 4 -

face.     After learning this, Mattina requested that the hearing be

conducted by mail instead of by telephone.

         Mattina wrote a letter to the IRS on June 24, 2008,

explaining why the levy was inappropriate.     The letter did not

refer to a notice dated January 17, 2007, or to any deficiency

notice.5

     On August 4, 2008, the San Francisco Appeals Office issued a

written determination that sustained the proposed levy to collect

Mattina’s 2001-2004 tax liabilities.     The determination

acknowledged, but implicitly dismissed, the arguments that

Mattina had made in his June 24, 2008, letter.     The determination

also asserted generally that “[T]he requirements of applicable

law or administrative procedure have been met”.     The


     5
      Instead, the letter made the following claims, which we
summarize:

     • The IRS did not legitimately record assessments for tax
     years 2001, 2002, 2003, and 2004, because the Code forbids
     the use of computer-generated assessments;
     • The IRS failed to mail a valid notice of assessment and
     demand for payment under sec. 6303(a);
     • A notice of levy must be followed by a notice of seizure,
     • A notice of levy procedure can be used only against
     employees of the federal government;
     • A notice of levy is not the same thing as a levy;
     • Congress did not authorize the assessment or collection of
     income taxes on individuals, and
     • The levy would create significant hardship.

The letter asked the IRS for various documents, including “all
the documents upon which you rely and which were used to verify
that the requirements of all applicable law and administrative
procedures have been and will be met” and documents related to
the correctness of the assessments.
                                   - 5 -

determination listed some specific requirements that had been

satisfied.    However, it did not expressly address whether the IRS

had issued deficiency notices for 2001-2004.      The Appeals officer

was not aware of the April 17, 2007 letter that Mattina had

written to the Austin IRS office.

     Mattina filed a petition with the Tax Court in which he

challenged the IRS’s determination to sustain the levy for 2001-

2004.   Mattina gave several reasons for his disagreement with the

determination.    The first was:    “In issuing me its notice of

deficiency in 1/2007, the IRS failed to follow the procedure in

Chapter 63 of the IRC or the relevant regulations.”      The petition

did not specify the tax year to which this January 2007 notice of

deficiency corresponded.

     On September 9, 2009, the IRS filed a motion for summary

judgment.    The motion urged the Court to sustain the

determination made by the Appeals officer.      The motion did not

specifically discuss whether the IRS had issued valid notices of

deficiency to Mattina.

     Mattina filed an objection to the motion.      He made the

following statements in the objection:

     In late January, 2007, I received a letter from the IRS
     purporting to be a statutory notice of deficiency
     (SND), and giving me ninety days to petition Tax Court
     if I wanted to challenge the assessment. On April 12,
     2007, I responded to the IRS letter by pointing out
     that it failed to meet the requirements of an SND. An
     SND must include a statement from the IRS that the IRS
     has examined a return.
                                - 6 -

And:

       The real issue is whether the alleged statutory notice
       of deficiency satisfied the minimum requirements for a
       statutory notice of deficiency.

And:

       I ask the court * * * to determine whether the SND
       issued to me on January 17, 2007, was valid or not.

Plainly, Mattina is saying that the January 17, 2007 notice was

not a valid deficiency notice because it did not say that the IRS

had audited a return.    What is not so evident is which tax year

the January 17, 2007 notice addresses.    We do not have a copy of

the notice to refer to.    Mattina’s objection says that the notice

in question is discussed in a letter attached to his objection:

       My letter of April 12, 2007, pointed out a number of
       other problems with the alleged SND. My letter is
       attached to this Response as Exhibit A.

Mattina tells us to look at his attachment, and so we do.      The

attachment is Mattina’s letter to the IRS’s Austin center.      This

letter is dated April 17, 2007, not April 12, 2007, and purports

to respond to a notice CP-515, not a deficiency notice.      These

inconsistencies are significant because the attachment is our

only clue as to what year’s deficiency notice Mattina is

challenging in this case.    The attachment refers to the 2005 tax

year and no other tax year.    It is no surprise, then, that the

IRS construes Mattina’s objection to be that the January 17

notice was not a valid notice of deficiency for the tax year

2005.    Construing Mattina’s objection to be a challenge to a 2005
                                 - 7 -

deficiency notice, the IRS observes that such a challenge is not

relevant to the determination of its Appeals office that the IRS

should levy to collect income tax from tax years 2001-2004.        We

do not disagree with the IRS’s response, given the confusion in

the papers that Mattina filed.    However, it is sufficient here to

address Mattina’s theory that the notice of deficiency had to

assert that the IRS had examined a return.     That theory is

incorrect.    A taxpayer who has failed to file a tax return cannot

fault the IRS for failing to examine a tax return.     See Fox v.

Commissioner, T.C. Memo. 1993-277, affd. without published

opinion 69 F.3d 543 (9th Cir. 1995).     Thus, even if Mattina is

challenging the validity of the 2001, 2002, 2003, and 2004

deficiency notices, his challenge is unpersuasive.     The

determination of the Appeals officer was not erroneous.      The

IRS’s motion for summary judgment will be granted.

     The IRS has moved to impose a penalty under section 6673

because Mattina’s position in the case is groundless and because

he instituted the case primarily for the purpose of delay.      See

sec. 6673(a)(1).    Mattina’s position in this case is indeed

groundless.   We have rejected Mattina’s sole argument made in his

objection to the IRS’s motion for summary judgment.     Also, we are

convinced that Mattina filed his Tax Court petition for the

purpose of delay.    This conclusion follows from a combination of

facts, including that:    (1) Mattina failed to file tax returns
                               - 8 -

for several years, and (2) Mattina asserted frivolous arguments,

both in his April 17, 2007 letter to the IRS’s Austin office, and

at the administrative hearing that is the subject of this case.

The IRS’s motion to impose a penalty will be granted.     An

appropriate penalty for Mattina’s misconduct is $5,000.

     The IRS has also asked the Court to remove the suspension of

the levy under section 6330(e)(2).     Such a request should be

granted only if “good cause” exists to remove the suspension.

Sec. 6330(e)(2).   Good cause exists where “the taxpayer has used

the collection review procedure to espouse frivolous and

groundless arguments and otherwise needlessly delay collection.”

Burke v. Commissioner, 124 T.C. 189, 197 (2004).     We find that

this condition is satisfied.   An additional condition for

removing the suspension is that the underlying tax liability not

be at issue in the Tax Court proceeding.     Sec. 6330(e)(2)

(removal of suspension authorized only when underlying tax

liability “not at issue in the appeal” to the Tax Court).      The

underlying tax liability is not at issue in this proceeding.

Mattina failed to raise arguments and provide evidence regarding

his tax liability at the hearing level.     This failure bars him

from asking the Court to make determinations regarding his tax

liability.   See Giamelli v. Commissioner, 129 T.C. 107, 115

(2007) (“In seeking Tax Court review of * * * [Appeals’] Notice

of Determination, the taxpayer can only ask the court to consider
                                 - 9 -

an issue, including a challenge to the underlying tax liability,

that was properly raised in the taxpayer’s CDP hearing.”); sec.

301.6330-1(f)(2) Q&A-F3, Proced. & Admin. Regs.     The IRS’s motion

to remove the suspension of levy will be granted.

     To reflect the foregoing,


                                 An appropriate order and decision

                         will be entered for respondent.
