                        T.C. Memo. 2006-149



                      UNITED STATES TAX COURT



              FERREL BENJAMIN GIBBS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24037-05L.               Filed July 24, 2006.



     Ferrel Benjamin Gibbs, pro se.

     Alisha M. Harper, for respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   This case is before the Court on respondent’s

motion for summary judgment pursuant to Rule 121.    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).   The issue for decision is whether

there was an abuse of discretion by the Internal Revenue Service
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(IRS) in determining that collection of petitioner’s unpaid

income tax liabilities for 2001 should proceed.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                            Background

     Petitioner resided at the Federal Correction Institution in

Ashland, Kentucky, at the time that he filed his petition.

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

Tax Return, for 2001.   A notice of deficiency was sent to

petitioner on January 21, 2004.   Petitioner never disputed the

determinations in the notice.   Instead, he repeatedly sent

letters to the IRS asserting that he wished to cooperate with the

IRS, but only upon receipt of written confirmation that the

information that he provided to the IRS would, at no time or in

any way, be used in a criminal investigation or criminal

prosecution against him.   After the time for filing a petition in

response to the statutory notice had passed, unpaid taxes,

penalties, and interest were assessed.

     On June 27, 2005, the IRS sent to petitioner a Final Notice

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

notice).   In response to the final notice, petitioner sent to the

IRS a Form 12153, Request for a Collection Due Process Hearing
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(request), dated July 2, 2005.    On that form, petitioner repeated

his request for written confirmation that the information sought

by the IRS “never be used against * * * [him] as a link in the

chain of evidence in a criminal investigation or as evidence

against * * * [him] in a criminal prosecution”.

     On July 14, 2005, the IRS sent a letter to petitioner,

informing him that his request for a CDP hearing had been

forwarded to Appeals for consideration.   In a letter dated

September 12, 2005, petitioner was given the name of Settlement

Officer Genene Hopkins (Hopkins), as the person to contact with

any questions.    On September 29, 2005, Hopkins sent to petitioner

a letter that informed him that the statements made in his

request are items that:   “1. Courts have determined are frivolous

or groundless, or 2. Appeals does not consider.   These are moral,

religious, political, constitutional, conscientious, or similar

grounds.”    Also in this letter, Hopkins described what she must

consider during the hearing, stating:

     Whether the IRS met all the requirements of any
     applicable law or administrative procedure

     Any relevant issues you wish to discuss.   These can
     include:

            1.   Collection alternatives to levy * * *.

            2.   Challenges to the appropriateness of
                 collection action. * * *

            3.   Spousal defenses, when applicable.
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       We may also consider whether you owe the amount due,
       but only if you have not otherwise had an opportunity
       to dispute it with Appeals or did not receive a
       statutory notice of deficiency.

       We will balance the IRS’ need for efficient tax
       collection and your legitimate concern that the
       collection action be no more intrusive than necessary.

Finally, Hopkins asked that petitioner forward to the IRS by

October 28, 2005, a statement providing specific reasons about

the IRS actions with which he disagrees and a collection

alternative; all appropriate documents necessary to consider any

collection alternative, including a completed Form 433-A,

Collection Information Statement for Wage-Earners and Self-

Employed Individuals; and copies of filed Federal income tax

returns for 1999, 2003, and 2004.    Petitioner was informed that,

if he did not respond to the letter by the deadline, the

determination would be based on his request, any information he

previously provided, and the IRS’s administrative file and

records.

       Petitioner did not send the required statement, collection

alternative, documents, or returns.     Instead, he sent a letter

dated October 8, 2005, with statements and requests nearly

identical to those made in his previous correspondence with the

IRS.    A notice of determination was sent to petitioner on

December 7, 2005.    The determination was summarized as follows:

       Our decision is not to grant you relief * * * from the
       proposed collection action. You failed to offer an
       acceptable alternative resolution.
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     Before you decide whether to petition this notice of
     determination, you should know that the Tax Court is
     empowered to impose monetary sanctions 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. It is our view that the
     positions you have taken have no merit and are
     groundless. [Citation omitted.]

     Petitioner filed a petition disputing the determination.     In

his objections to respondent’s motion for summary judgment,

petitioner attached copies of letters dated December 22, 2005,

that he allegedly sent to the IRS.     In these letters, petitioner

stated that he was invoking the protection of the Fifth Amendment

regarding “each and every item, question, and or portion of an

item and or question” because he had not received any response

regarding his request for written confirmation that information

sought would not be used against him in any criminal

investigation or criminal prosecution.    In a supplemental

objection filed on June 21, 2006, petitioner alleged his

“separation of citizenship with the corporate United States”.

Attached to the supplemental objection were letters dated April 5

and May 21, 2006, addressed to the Social Security Administration

(SSA) and the IRS, respectively.   In his letter to the SSA,

petitioner asserted that it was by mistake, coercion,

misrepresentation, and intimidation that he obtained a Social

Security number and that he has changed his “Citizenship to South

Carolina Republic”.   Petitioner further stated, in an attached

affidavit: “I Rescind, Terminate, Reject, Forfeit and Waive any
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and all benefits from the Social Security Administration”.    He

also asserted that any and all funds held by the SSA for him must

immediately be refunded in full and that anything less would be

fraud.   Petitioner stated in his letter to the IRS that it was

“NOTICE to the Internal Revenue Service * * * that I no longer

wish to be associated with the Mark of the Beast and have no

desire to participate in the Social Security System.”

                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary 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 in

controversy “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(b).   Petitioner has not

identified any facts or evidence that would be presented at trial

to controvert the undisputed facts already in the record.    See

Rule 121(d) (providing, in pertinent part, that a response “must

set forth specific facts showing that there is a genuine issue

for trial.”).   Petitioner’s objection to respondent’s motion for

summary judgment does not allege any factual errors with regard

to the Appeals’ determination that the collection action against
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him was appropriate.   See Rule 331(b)(4) and (5).   We conclude

that the material facts are not disputed and that judgment may be

rendered as a matter of law.

     Section 6330 generally provides that the IRS cannot proceed

with the collection of taxes by way of a levy on a taxpayer’s

property until the taxpayer has been given notice of and the

opportunity for an administrative review of the matter (in the

form of an IRS Office of Appeals hearing).   Section 6330(c)(1)

provides that the Appeals officer shall obtain verification that

the requirements of any applicable law or administrative

procedure have been met.   Section 6330(c)(2)(A) provides that the

taxpayer may raise "any relevant issue relating to the unpaid

tax" including spousal defenses, challenges to the

appropriateness of collection actions, and alternatives to

collection.   The taxpayer may also raise challenges to the

existence or amount of the underlying tax liability if he or she

did not receive a statutory notice of deficiency with respect to

the underlying tax liability or did not otherwise have an

opportunity to dispute that liability.   Sec. 6330(c)(2)(B).

     Petitioner received a notice of deficiency and may not

contest the amount of the underlying tax liability.    Therefore,

the Court will review respondent’s determination only for abuse

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

Goza v. Commissioner, 114 T.C. 176, 179-181 (2000).    In order to
                                 - 8 -

prevail, a taxpayer must prove that the Commissioner exercised

this discretion arbitrarily, capriciously, or without sound basis

in fact or law.   Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

     Petitioner never challenged the appropriateness of the

collection action, and he did not offer any collection

alternative.   His objections to the motion for summary judgment

were frivolous.   Additionally, petitioner did not properly assert

the Fifth Amendment privilege.    But in any event, in a civil tax

case, the taxpayer must accept the consequences of asserting the

Fifth Amendment and cannot avoid the burden of proof by claiming

the privilege and attempting to convert “the shield * * * which

it was intended to be into a sword”.     United States v. Rylander,

460 U.S. 752, 758 (1983); see Steinbrecher v. Commissioner, 712

F.2d 195, 198 (5th Cir. 1983), affg. T.C. Memo. 1983-12;

Traficant v. Commissioner, 89 T.C. 501 (1987), affd. 884 F.2d 258

(6th Cir. 1989); see also Wheelis v. Commissioner, T.C. Memo.

2002-102, affd. 63 Fed. Appx. 375 (9th Cir. 2003).

      Petitioner did not raise any factual dispute showing that

respondent’s determination was arbitrary, capricious, or without

sound basis in law.   We conclude that there was no abuse of

discretion when respondent sustained the proposed levy to collect

petitioner’s unpaid income tax liability for 2001.
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To reflect the foregoing,


                                         An appropriate order

                                    and decision will be entered

                                    for respondent.
