                        T.C. Memo. 2005-246



                      UNITED STATES TAX COURT



                 GERALD W. KOZACK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13381-04L.            Filed October 24, 2005.



     Gerald W. Kozack, pro se.

     Robert W. Dillard, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Respondent sent petitioner a Notice Of

Determination Concerning Collection Action(s) under Section 63301

(Levy), in which respondent determined to proceed with collection


     1
        Unless otherwise stated, section references are to the
Internal Revenue Code.
                               - 2 -

by levy of petitioner’s income tax liability for 2000.   We

sustain respondent’s determination for reasons discussed below.

                        FINDINGS OF FACT

1.   Petitioner

     Petitioner resided in Florida when he filed his petition.

Petitioner was a professional pilot in 2000 and had the following

amounts of income:

         Payor                  Amount          Description

Bombardier Aerospace Corp.     $68,305    Nonemployee compensation
Bombardier Aerospace Corp       58,045    Wages
PE Corp. NY                      1,333    Nonemployee compensation
Florida Agency for Workforce       825    Unemployment compensation
   Innovation
Natl. Financial Services LLC       362    Dividends
Bank of America                    281    Interest
Space Coast Credit UN              145    Interest
First National Bank of
   Suffield                        140    Interest
     Total                     129,436

2.   Petitioner’s Form 1040 for 2000

     On August 17, 2001, petitioner submitted a Form 1040, U.S.

Individual Income Tax Return, for 2000 to respondent.    In it, he

stated that his filing status was married filing separately.   He

entered zeros on the lines provided for reporting his income and

tax and requested a refund of $9,316.    Petitioner attached to the

Form 1040 a document in which he claimed, inter alia, that:    (a)

No section of the Internal Revenue Code makes him liable for

income tax; (b) no section of the Internal Revenue Code requires
                               - 3 -

that income taxes be paid on the basis of a return; (c) the

“Privacy Act Notice” contained in the Form 1040 booklet does not

require petitioner to file a return; (d) no statute allows the

Internal Revenue Service (IRS) to change petitioner’s return; and

(e) petitioner had no income because income can be derived only

from corporate activity.

3.   Petitioner’s Letter to Respondent

     In response to a letter from respondent dated October 15,

2002, containing proposed income tax examination changes,

petitioner, in an undated letter to respondent, contended, for

example, that:   (a) Only petitioner can assess his tax liability;

and (b) Federal employees are not permitted to change his return

without proper authority.   He asked respondent to provide:   (a)

Any documents relating to the determination that his return was

not correct; (b) the regulation that requires petitioner to

“seriously treat” the adjustments proposed to his 2000 return;

(c) the statute and regulation that allow respondent to change

his 2000 return; and (d) the delegation order authorizing

respondent’s representative to act on respondent’s behalf.

4.   Notice of Deficiency

     On March 26, 2003, respondent sent petitioner a notice of

deficiency for 2000 in which respondent determined a $39,669

deficiency in petitioner’s Federal income tax.   Respondent also
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determined that petitioner is liable for additions to tax of

$7,588 for failure to timely file under section 6651(a)(1) and

$1,566 for failure to pay estimated tax under section 6654.

     Petitioner wrote to respondent on June 18, 2003, and

acknowledged that he had received the notice of deficiency.      In

the letter, petitioner questioned whether the notice of

deficiency was valid and whether respondent’s representative had

authority to send the notice of deficiency.

     Petitioner did not file a petition in the Tax Court for

2000.   Respondent assessed tax and additions to tax for

petitioner’s 2000 tax year on October 20, 2003.

5.   Respondent’s Notice of Intent To Levy and Petitioner’s
     Request for a Hearing

     On December 13, 2003, respondent issued to petitioner a

Notice of Intent to Levy and Notice of Your Right to a Hearing

relating to his 2000 tax liability.    Petitioner requested a

hearing.   In his request, petitioner contended that:   (a) No

statute requires him to pay income tax; (b) no law authorizes

respondent to claim that he owes any income tax for 2000; (c) the

“IRS Decoding Manual” establishes that he owes no income tax for

2000; and (d) the Secretary has not authorized any action for the

collection of taxes and penalties as required by section 7401.
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     On April 20, 2004, respondent’s Appeals Office sent

petitioner a copy of Form 4340, Certificate of Assessments,

Payments and Other Specified Matters, for 2000 and told him that:

(a) Petitioner could not challenge his underlying tax liability

as determined by respondent because he had previously been given

the opportunity to dispute it, and (b) the Appeals Office does

not consider challenges based on constitutional, religious,

political, or moral grounds.

     On June 2, 2004, Settlement Officer Joe M. Breazeale

(Breazeale) reviewed respondent’s administrative file and

telephoned petitioner.   Petitioner requested a face-to-face

hearing.   Breazeale told petitioner that he would not offer him a

face-to-face hearing unless he had nonfrivolous issues to

discuss.   In a telephone call on June 10, 2004, Breazeale told

petitioner that petitioner could not challenge his underlying tax

liability because he had received the notice of deficiency and

failed to petition the Tax Court.   Breazeale and petitioner also

discussed the process for an offer-in-compromise.   Petitioner

told Breazeale he would call him on June 18, 2004, and tell him

how he wanted to proceed.   Petitioner did not contact Breazeale

on June 18, 2004, or thereafter.
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6.   Notice of Determination and Petition

     On June 25, 2004, respondent sent petitioner a notice of

determination with respect to the levy for 2000.    Petitioner

timely filed a petition to review that determination with this

Court.

                              OPINION

     Petitioner contends that respondent’s determination to

proceed with collection by levy was an abuse of discretion

because respondent failed to provide petitioner an opportunity

for a face-to-face hearing.   We disagree.

     Where the taxpayer’s underlying tax liability is not at

issue, we review the Commissioner’s administrative determination

under section 6330 for abuse of discretion.2    Goza v.

Commissioner, 114 T.C. 176 (2000).     Treasury regulations state

that if a taxpayer wants a face-to-face hearing, the taxpayer

must be offered an opportunity for a hearing at the Appeals

Office closest to the taxpayer’s residence.    Sec. 301.6330-

1(d)(2), Q&A-D7, Proced. & Admin. Regs.    However, in Lunsford v.



     2
        Petitioner contends that he is not liable for income tax
for 2000. A taxpayer may dispute his or her underlying tax
liability at the sec. 6330 hearing if he or she did not receive a
notice of deficiency or did not otherwise have an opportunity to
dispute the tax liability. Sec. 6330(c)(2)(B). Petitioner may
not dispute the underlying tax liability because he received a
notice of deficiency.
                               - 7 -

Commissioner, 117 T.C. 183, 189 (2001), the Court declined to

remand the case to the Appeals Office for a hearing because the

taxpayer could not prevail on any of the issues he had raised in

the proceeding.   As a result, we held that it was neither

necessary nor productive to remand the case to the Appeals

Office.   Id.; see Kemper v. Commissioner, T.C. Memo. 2003-195

(remand to record face-to-face hearing denied); see also Keene v.

Commissioner, 121 T.C. 8, 19-20 (2003).

     The same reasoning applies here.    During the trial,

petitioner stated that his only arguments for overturning

respondent’s determination were those stated in his request for a

collection due process hearing and a letter petitioner wrote to

the Director of the Internal Revenue Service Center on June 18,

2003, challenging the Government’s authority to issue a notice of

deficiency to him.   Petitioner cannot prevail on any of those

arguments.   His arguments about respondent’s assessment

procedures are frivolous.   We conclude that it is not necessary

and would not be productive to remand the case to the Appeals

Office to hold a face-to-face hearing.    Thus, respondent may

proceed with a levy with respect to petitioner’s 2000 tax year.
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To reflect the foregoing,


                                        Decision will be

                                    entered for respondent.
