                        T.C. Memo. 2008-153



                       UNITED STATES TAX COURT



               KATHLEEN M. WOLCOTT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16103-07L.                Filed June 12, 2008.



     Kathleen M. Wolcott, pro se.

     Beth A. Nunnink, for respondent.



                         MEMORANDUM OPINION


     GOEKE, Judge:    The instant matter is before the Court on

respondent’s motion for summary judgment and to impose a penalty

under section 6673.   The issue for decision is whether

respondent’s Appeals Office abused its discretion in determining
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to proceed with the collection action with respect to

petitioner’s unpaid income tax liabilities for the taxable years

1999, 2000, and 2001.   In addition respondent requests that the

Court impose a penalty in an appropriate amount, pursuant to

section 6673, on the ground that petitioner instituted these

proceedings primarily for delay and that petitioner’s position is

frivolous and groundless.   As explained herein, we will grant

respondent’s motion.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code, and all Rule references are to the Tax

Court Rules of Practice and Procedure.

                            Background

     At the time of filing the petition, petitioner resided in

Tennessee.

Petitioner’s Previous Tax Court Case

     Petitioner failed to file income tax returns for the 1999,

2000, and 2001 tax years (the years at issue) and for the tax

year 2002.   Respondent mailed petitioner notices of deficiency

for the tax years 1999, 2000, 2001, and 2002, but the notices of

deficiency for 1999, 2000, and 2001 were returned undelivered.

Petitioner did not allege that the notices of deficiency were not

mailed to her last known address.   Petitioner did not file a

petition challenging the deficiencies, and on July 19, 2004,

respondent assessed the deficiencies along with additions to tax
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and interest.   However, the record demonstrates that petitioner

received the notice of deficiency for 2002 but failed to file a

petition for redetermination challenging the notice.

     On January 11, 2006, respondent’s Appeals Office issued to

petitioner:   (1) A Decision Letter Concerning Equivalent Hearing

Under Section 6320 and/or 6330 concerning a proposed levy with

respect to petitioner’s 1999, 2000, and 2001 tax years (decision

letter); (2) a Notice of Determination Concerning Collection

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

Federal tax lien for the 1999, 2000, and 2001 tax years; and (3)

a Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 concerning a lien and proposed levy with

respect to petitioner’s 2002 tax year.

     On February 14, 2006, petitioner timely filed a petition,

Wolcott v. Commissioner, docket No. 3258-06L, challenging those

notices.   However, the petition contained nothing but frivolous

and groundless arguments.

     On March 24, 2006, respondent filed a motion to dismiss for

failure to state a claim upon which relief can be granted and to

impose a penalty under section 6673.   Petitioner filed an

objection thereto.   Respondent’s motion was heard, and during the

hearing the question arose whether the Court had jurisdiction

over the decision letter.   The Court directed respondent to file

a report addressing the Court’s jurisdiction with regard to the
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decision letter and specifically whether the final notice of

intent to levy underlying the decision letter was mailed to

petitioner’s last known address.   Respondent filed a status

report stating that a copy of the final notice of intent to levy

for 1999, 2000, and 2001 could not be found.   Although a copy of

a certified mailing list was attached indicating that a document

was mailed to petitioner at Henderson, North Carolina, on

November 24, 2004, respondent was unable to provide the Court

with a copy of the last tax return that petitioner filed before

November 2004.

     On July 14, 2006, the Court issued an order which dismissed

for lack of jurisdiction and deemed stricken so much of the

petition as pertained to the decision letter because respondent

did not make a determination under section 6330 in that he failed

to send the written notice required under section 6330(a) to

petitioner at her last known address.

     On July 18, 2006, the Court entered an order of dismissal

and decision granting respondent’s motion to dismiss the case on

the ground that the petition failed to state a claim for relief

concerning respondent’s notices of determination pertaining to

the liens for 1999, 2000, 2001, and 2002 and the levy for 2002.

Although the Court found that petitioner was not liable for a

penalty pursuant to section 6673, the Court stated:   “we

nevertheless will take this opportunity to admonish petitioner
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that the Court will consider imposing such a penalty should she

return to the Court and advance similar arguments in the future.”

Petitioner did not appeal, and on October 16, 2006, the decision

became final.

Petitioner’s Present Case

     On August 9, 2006, respondent sent petitioner a Final

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

Hearing, advising petitioner that respondent intended to levy to

collect the unpaid liabilities for the years at issue and that

petitioner could receive a collection hearing with respondent’s

Appeals Office.1

     On September 8, 2006, petitioner sent respondent a Form

12153, Request for a Collection Due Process Hearing.   On March

12, 2007, the settlement officer assigned to the case requested

information from petitioner and requested a telephone conference

with petitioner.   On April 2, 2007, petitioner faxed a packet of

documents to the settlement officer raising the underlying

liability and expressing an interest in collection alternatives.

On April 3, 2007, the settlement officer offered a face-to-face

conference with petitioner and requested a Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals, to consider collection alternatives.   Petitioner did


     1
      The Aug. 9, 2006, notice was within 90 days of our order of
July 14, 2006, but the notice does not violate sec. 6330(e). See
McGowen v. Commissioner, T.C. Memo. 2008-125.
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not respond to the settlement officer’s request, provide any

information regarding collection alternatives, or request a face-

to-face conference with the settlement officer.     On June 12,

2007, respondent’s Appeals Office issued to petitioner a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330 (notice of determination).

     On July 17, 2007, petitioner filed a petition with this

Court seeking relief from respondent’s notice of determination.

The reasons petitioner set forth were frivolous and groundless.

     On April 2, 2008, respondent filed the motion for summary

judgment and to impose a penalty under section 6673.     Petitioner

filed a notice of objection thereto.

                            Discussion

Summary Judgment

     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 where there is no genuine issue of material fact and a

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

(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992),

affd. 17 F.3d 965 (7th Cir. 1994).     The moving party bears the

burden of proving that there is no genuine issue of material

fact.   Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985);

Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).     When a motion
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for summary judgment is made and supported as provided in Rule

121, the party opposing summary judgment must set forth specific

facts which show that a question of genuine material fact exists

and may not rely merely on allegations or denials in the

pleadings.    Grant Creek Water Works, Ltd. v. Commissioner, 91

T.C. 322, 325 (1988); Casanova Co. v. Commissioner, 87 T.C. 214,

217 (1986).

     Respondent argues that since the prior case (Wolcott v.

Commissioner, docket No. 3258-06L) involved petitioner and the

same years at issue as the present case, and because the Court

issued a final judgment as to the merits, section 6330(c)(2)(B)

prevents petitioner from raising the underlying liability in this

case because petitioner already had a chance to do so.

Petitioner may not raise the underlying tax liability in this

case because she has already had an opportunity to challenge it.

See sec. 6330(c)(2)(B).   This Court reviews the Appeals Office’s

administrative determination with respect to nonliability issues

for an abuse of discretion.    Goza v. Commissioner, 114 T.C. 176

(2000).

     On the undisputed facts respondent did not abuse his

discretion in determining to proceed with the collection action

in the notice of determination with respect to the years at

issue.
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Section 6673 Penalty

     As discussed earlier in the Court’s order of dismissal and

decision entered July 18, 2006, in Wolcott v. Commissioner,

docket No. 3258-06L, petitioner was admonished that the Court

would consider imposing a penalty should she return to this Court

and continue to advance frivolous arguments.

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

taxpayer to pay a penalty to the United States in an amount not

to exceed $25,000 whenever it appears that a taxpayer instituted

or maintained a proceeding in the Court primarily for delay or

that a taxpayer’s position in such a proceeding is frivolous or

groundless.    Section 6673(a)(1) applies to collection

proceedings.    See Pierson v. Commissioner, 115 T.C. 576 (2000);

Hoffman v. Commissioner, T.C. Memo. 2000-198.

     Petitioner’s request for a hearing, her petition, and her

reply make arguments under the “public protection clause” of the

Paperwork Reduction Act.    See United States v. Dawes, 951 F.2d

1189, 1193 (10th Cir. 1991) (“Congress enacted the PRA [Paperwork

Reduction Act] to keep agencies, including the IRS, from deluging

the public with needless paperwork.     It did not do so to create a

loophole in the tax code.”); Wheeler v. Commissioner, 127 T.C.

200, 208 (2006) (“The Paperwork Reduction Act is not a defense *

* * nor does it create a loophole in the Code.”), affd. 521 F.3d

1289 (10th Cir. 2008).    In addition, petitioner’s notice of
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objection contained statements, contentions, and arguments that

the Court finds to be frivolous and/or groundless.    Petitioner

raises the same frivolous arguments that she raised in her prior

case.   See Wolcott v. Commissioner, docket No. 3258-06L; supra

pp. 3-5.

     Petitioner has failed to set forth any genuine issue of

material fact.   In her petition, reply, and notice of objection

to respondent’s motion, petitioner raises the same frivolous

arguments.   Petitioner’s actions establish that she is using the

collection proceedings primarily for delay.

     We cautioned petitioner in her prior case that she might be

subject to a penalty if in the future she instituted or

maintained a proceeding in this Court primarily for delay or her

position in any such proceeding was frivolous or groundless.      We

find that petitioner is liable for a penalty under section 6673

in the amount of $1,000.

     To reflect the foregoing,


                                           An appropriate order and

                                      decision will be entered.
