                        T.C. Memo. 2004-288



                      UNITED STATES TAX COURT



                 LIONEL D. KOLKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5724-04L.            Filed December 29, 2004.


     Lionel D. Kolker, pro se.

     Karen Nicholson Sommers, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion for summary judgment, filed pursuant to Rule

121,1 and to impose a penalty under section 6673.




     1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code.
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     Summary judgment is a procedure designed to expedite

litigation and avoid unnecessary, time-consuming, and expensive

trials.   Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681

(1988).   Summary judgment may be granted with respect to all or

any part of the legal issues presented “if the pleadings, answers

to interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law.”   Rule 121(a) and

(b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.

Commissioner, 90 T.C. 753, 754 (1988).   The moving party bears

the burden of proving that there is no genuine issue of material

fact, and factual inferences will be drawn in a manner most

favorable to the party opposing summary judgment.     Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985).

                            Background

     This is an appeal from respondent’s determination upholding

the proposed use of a levy to collect petitioner’s unpaid Federal

income tax liability for 1993 (the 1993 liability).    When the

petition in this case was filed, petitioner resided in San Diego,

California.
                               - 3 -



     Petitioner and Cheryl Kolker filed a joint Federal income

tax return for 1993 showing a balance due.    Respondent assessed

the income tax liability shown on the return as well as interest

and penalties/additions to tax.

     Respondent sent petitioner a notice and demand for payment,

but petitioner did not pay the 1993 liability.   Consequently,

respondent mailed to petitioner a Final Notice--Notice of Intent

to Levy and Notice of Your Right to a Hearing, dated September

11, 2000, that, among other things, informed petitioner that

respondent intended to levy to collect the 1993 liability and

that petitioner could request a hearing with respondent’s Appeals

Office.   On September 19, 2000, petitioner submitted a Form

12153, Request for a Collection Due Process Hearing (hearing

request), but respondent has no record of having received it.

     On May 21, 2003, petitioner sent respondent a copy of the

hearing request.   Because respondent had no record of having

received the original request, respondent treated the May 21,

2003, correspondence as an equivalent hearing request.

     Petitioner’s equivalent hearing request was assigned to

Settlement Officer Cynthia Chadwell (Ms. Chadwell).   Ms. Chadwell

had had no prior involvement with respect to petitioner’s 1993

liability.   By letter dated November 13, 2003, Ms. Chadwell

scheduled a telephone hearing for December 4, 2003, and advised

petitioner, among other things, as follows:
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     (1) The Appeals Office would not offer a face-to-face

hearing if the only issues that petitioner wanted to address were

frivolous or groundless;

     (2) the hearing request was not received within the 30-day

period provided in section 6330(a)(3)(B), but petitioner could

raise the issue of the timeliness of his request at the hearing;

     (3) petitioner should complete and submit Form 433-A,

Collection Information Statement for Individuals, with the

documents required by the form; and

     (4) petitioner should provide proof that he filed his 2001

and 2002 Federal income tax returns.

     Petitioner responded to the November 13, 2003, letter by

letter dated November 20, 2003.   In that letter, petitioner

requested a face-to-face hearing and stated that he had post

office receipts to prove that he had timely requested a hearing

under section 6330.   By letter dated January 6, 2004, Ms.

Chadwell scheduled a face-to-face hearing for January 21, 2004.

The hearing date was subsequently changed to February 23, 2004,

at petitioner’s request.

     Petitioner’s hearing under section 6330 was held on February

23, 2004.   The hearing was audiotaped and transcribed.   At the

hearing, Ms. Chadwell reminded petitioner of her prior requests

for information, including a completed Form 433-A, and of her

admonition that she would not consider frivolous or groundless
                               - 5 -

arguments.   Petitioner stated that he had not completed Form 433-

A but that he was interested in resolving the collection issue.

Although petitioner produced documentation to show that he had

timely requested a hearing pursuant to section 6330, petitioner

raised no other relevant issue and presented no evidence to prove

either that he did not owe the 1993 liability, that the 1993

liability had been paid, or that a collection alternative was

appropriate.   Instead, petitioner and a “friend” whom he had

brought to the hearing pressed Ms. Chadwell to discuss whether

petitioner had an “obligation” to file a return and pay tax.

When petitioner and his friend refused to discuss collection

alternatives, Ms. Chadwell terminated the hearing.

     Respondent subsequently issued a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330,

dated March 3, 2004, which sustained the proposed levy action.

In the notice of determination, respondent concluded that

petitioner had not raised any valid issue regarding the merits of

the underlying tax liability or the appropriateness of the

proposed levy action and determined that all of the requirements

imposed by section 6330 for a valid levy had been satisfied.    In

the notice of determination, respondent concluded that the

proposed levy balanced the need for the efficient collection of

tax with the concern that the collection action be no more

intrusive than necessary, warned petitioner that this Court was
                               - 6 -

authorized to impose “monetary sanctions of up to $25,000 for

instituting or maintaining an action before it primarily for

delay or for taking a position that is frivolous or groundless”,

and stated that petitioner’s positions in this case had no merit

and were groundless.

     Petitioner submitted a timely petition appealing

respondent’s determination, which we filed on April 1, 2004.    In

an addendum attached to the petition, petitioner asserted, inter

alia, that the Internal Revenue Service (IRS) had not established

that he was a taxpayer, that the hearing was a sham, that Ms.

Chadwell was biased, and that the law did not create the alleged

obligation.

     On October 6, 2004, we received and filed respondent’s

summary judgment motion.   By order dated October 6, 2004, we

ordered petitioner to file a response to respondent’s motion on

or before October 27, 2004.   Petitioner did not do so.2   On

November 3, 2004, we received and filed petitioner’s motion to

strike respondent’s motion for summary judgment, which we denied

on November 4, 2004.




     2
      Petitioner submitted a response to respondent’s motion on
Dec. 1, 2004, but it was returned to petitioner as untimely. On
Dec. 17, 2004, petitioner submitted a document entitled
“Petitioner’s motion accept response as timely”, which we filed
as of that date and denied on Dec. 23, 2004. The response that
was attached repeated the arguments contained in the petition and
other submissions.
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                               Discussion

A.   Section 6330

      Section 6330(a) provides that no levy may be made on any

property or right to property of any person unless the Secretary

has notified such person in writing of the right to a hearing

before the levy is made.      If the person makes a request for a

hearing, a hearing shall be held before an impartial officer or

employee of the IRS Office of Appeals.      Sec. 6330(b)(1), (3).    At

the hearing, a taxpayer may raise any relevant issue, including

appropriate spousal defenses, challenges to the appropriateness

of the collection action, and collection alternatives.      Sec.

6330(c)(2)(A).      Additionally, at the hearing, a taxpayer may

contest the existence or amount of the underlying tax liability

if the taxpayer did not receive a notice of deficiency for the

tax in question or did not otherwise have an earlier opportunity

to dispute the tax liability.      Sec. 6330(c)(2)(B); see also Sego

v. Commissioner, 114 T.C. 604, 609 (2000).

      Following a hearing, the Appeals Office must make a

determination whether the proposed levy action may proceed.        In

so doing, the Appeals Office is required to take into

consideration the verification presented by the Secretary, the

issues raised by the taxpayer, and whether the proposed levy

action appropriately balances the need for efficient collection

of taxes with a taxpayer’s concerns regarding the intrusiveness
                                 - 8 -

of the proposed levy action.    Sec. 6330(c)(3).   The determination

of the Appeals officer under section 6330, except a determination

regarding the underlying tax liability that is made pursuant to

section 6330(c)(2)(B), is reviewed for abuse of discretion.       Sego

v. Commissioner, supra at 610.    Where the underlying tax

liability is properly at issue, the Court reviews any

determination regarding the underlying tax liability de novo.

Id.

      A hearing officer may rely on a computer transcript or Form

4340, Certificate of Assessments, Payments and Other Specified

Matters, to verify that a valid assessment was made and that a

notice and demand for payment was sent to the taxpayer in

accordance with section 6303.     Nestor v. Commissioner, 118 T.C.

162, 166 (2002).   Absent a showing of irregularity, a transcript

that shows such information is sufficient to establish that the

procedural requirements of section 6330 have been met.       Id. at

166-167.

      In this case, the undisputed facts set forth in respondent’s

motion, declarations in support of the motion, and attached

exhibits establish that respondent has satisfied the requirements

of section 6330.   Ms. Chadwell, who had had no prior involvement

with respect to the unpaid tax liabilities before the section

6330 hearing as required by section 6330(b)(3), verified that

proper assessments were made, as reflected on computer
                                - 9 -

transcripts attached to the motion for summary judgment and in

the notice of determination, and that the requisite notices had

been sent to petitioner.    Ms. Chadwell also considered

petitioner’s argument and rejected it as not relevant and

frivolous.    Following the hearing, Ms. Chadwell made a

determination upholding the proposed levy action, after

concluding that the proposed levy action appropriately balanced

the need for efficient collection of taxes with petitioner’s

concerns regarding the intrusiveness of the proposed levy action.

     In an addendum to his petition, petitioner listed the

following reasons why the proposed levy should not be sustained:

       (1) Respondent issued “arbitrary legal opinions” in that:

            (a) Respondent determined that petitioner had not made

a timely hearing request under section 6330;

            (b) despite repeated requests, respondent failed to

produce any facts to support his opinion that petitioner was a

taxpayer;

            (c) petitioner was not permitted to inquire at the

hearing what in the Constitution created his alleged obligation

to file a return and pay tax;

            (d) there is no evidence that the law created any

obligation to file a return and pay tax;

     (2) respondent asserted the same arguments in motions to

dismiss filed in other cases;
                               - 10 -

     (3) respondent delayed 3 years in providing the “sham”

hearing in this case; and

     (4) without facts, an assessment is arbitrary; an arbitrary

assessment presents a justiciable controversy that the Court must

decide.

     With the exception of the argument regarding the timeliness

of his hearing request,3 all of petitioner’s arguments are

frivolous and groundless.   See United States v. Studley, 783 F.2d

934, 937 (9th Cir. 1986) (taxpayer’s argument that he is not a

taxpayer is frivolous); Tolotti v. Commissioner, T.C. Memo. 2002-

86 (taxpayer’s argument that Commissioner must identify

constitutional and statutory provisions that make taxpayer liable

for Federal income tax is frivolous), affd. 70 Fed. Appx. 971

(9th Cir. 2003).   It is well established that we need not refute

frivolous arguments with copious citation and extended

discussion.    Williams v. Commissioner, 114 T.C. 136, 138-139

(2000) (citing Crain v. Commissioner, 737 F.2d 1417, 1417 (5th

Cir. 1984)).

     Petitioner complains about the alleged bias of Ms. Chadwell

and describes the hearing as a sham because Ms. Chadwell would

not engage in a discussion of the legal basis for his


     3
      After reviewing petitioner’s mailing receipts at the
hearing, Settlement Officer Chadwell conceded at the hearing that
petitioner had filed a timely hearing request under sec. 6330 and
that petitioner is entitled to a hearing under sec. 6330 and to
appeal the determination that resulted therefrom.
                              - 11 -

“obligation” to file a tax return and pay tax.    The transcript of

the hearing amply demonstrates that Ms. Chadwell provided a

meaningful opportunity to present relevant, nonfrivolous

arguments why the levy should not be allowed to proceed, but

petitioner repeatedly refused to provide any such arguments and

the information necessary to support them.   For example, despite

several requests for information regarding petitioner’s financial

condition made both before and during the hearing, petitioner

failed to provide it.   When petitioner did not cooperate, Ms.

Chadwell justifiably terminated the hearing.   Her decision to

terminate the hearing was not evidence of bias; rather, it

demonstrated that there is a limit to the tax system’s tolerance

for unproductive and frivolous exchanges regarding a taxpayer’s

obligations to file returns and pay tax.

      On this record, we conclude that there is no genuine issue

of material fact requiring a trial in this case, and we hold that

respondent is entitled to the entry of a decision sustaining the

proposed levy as a matter of law.

B.   Section 6673 Penalty

      Section 6673(a)(1) authorizes this Court to require a

taxpayer to pay to the United States a penalty, not to exceed

$25,000, if it appears that the taxpayer has instituted or

maintained a proceeding primarily for delay, or that the

taxpayer’s position is frivolous or groundless.   Section
                              - 12 -

6673(a)(1) applies to proceedings under section 6330.     Pierson v.

Commissioner, 115 T.C. 576, 581 (2000).    In proceedings under

section 6330, we have imposed the penalty on taxpayers who have

raised frivolous and groundless arguments with respect to the

legality of the Federal tax laws.    See, e.g., Roberts v.

Commissioner, 118 T.C. 365, 372-373 (2002), affd. 329 F.3d 1224

(11th Cir. 2003); Eiselstein v. Commissioner, T.C. Memo. 2003-22;

Yacksyzn v. Commissioner, T.C. Memo. 2002-99.

     This is not the first time that petitioner has wasted the

time of the Federal courts and the Commissioner with arguments

like the ones made in this case.    Petitioner attached to his

petition a copy of a motion to dismiss for failure to state a

claim upon which relief can be granted, which was filed by

respondent in Kolker v. Commissioner, docket No. 567-03, another

case commenced by petitioner in this Court.    In docket No. 567-

03, petitioner made arguments identical in most respects to those

raised in this case.   We granted respondent’s motion to dismiss

and imposed a penalty of $10,000 under section 6673 because of

petitioner’s frivolous arguments.    The U.S. Court of Appeals for

the Ninth Circuit affirmed our order in an unpublished opinion

and imposed an additional penalty of $1,500 under section 6673.

Kolker v. Commissioner, No. 03-74029 (9th Cir. July 26, 2004).

     Petitioner has had plenty of warning that he risked

incurring a monetary penalty by making these arguments.
                              - 13 -

Petitioner has repeatedly wasted the Federal tax system’s

resources, and his conduct deserves an appropriate and severe

sanction.   We shall require petitioner to pay to the United

States a penalty under section 6673(a)(1) of $25,000.


                                    An appropriate order and

                               decision will be entered.
