                        T.C. Memo. 2004-204



                      UNITED STATES TAX COURT



                   KEVIN THOMPSON, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3947-03L.              Filed September 8, 2004.


     Kevin Thompson, pro se.

     John F. Driscoll, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     GOEKE, Judge:   This case arises from respondent’s issuance

of a Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330 for petitioner’s taxable year

1997.   Respondent has filed both a notice of Federal tax lien

filing and a notice of intent to levy against petitioner for his

1997 unpaid tax liability.   The issues for decision are:   (1)
                               - 2 -

Whether petitioner is entitled to a new Appeals Office hearing

because he was not permitted to make an audio or stenographic

recording of his hearing; and (2) whether respondent’s

determination to sustain the notice of intent to levy and the

notice of Federal tax lien filing for petitioner’s unpaid 1997

tax liability was an abuse of discretion.    Because petitioner has

not raised any relevant issues relating to the unpaid tax

liability, we hold that a new hearing is not necessary and

respondent’s determination to proceed with collection was not an

abuse of discretion.

                         FINDINGS OF FACT

     On April 30, 1998, petitioner filed his 1997 Federal income

tax return.   On the 1997 return, petitioner reported his total

income as zero and his total tax due as zero.    The return claimed

a refund of $1,086.82.   On May 12, 2000, respondent issued a

notice of deficiency to petitioner determining a deficiency of

$6,023 and additions to tax under sections 6651(a)(1)1 and

6654(a) of $1,493 (the 1997 liability).     On May 13, 2000,

petitioner sent a letter to respondent asserting various

frivolous and groundless arguments challenging respondent’s

determination and the validity of the notice of deficiency.

Petitioner did not petition this Court with respect to the notice


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended.
                               - 3 -

of deficiency.   On October 9, 2000, respondent assessed the

deficiency, additions to tax, and interest.   On October 9 and

November 13, 2000, respondent sent petitioner notices of balance

due with respect to the 1997 liability.   Petitioner responded to

the November 13, 2000, notice of balance due with a letter

containing frivolous and groundless arguments challenging the

deficiency and the additions to tax.

     On February 19, 2001, respondent issued a notice of intent

to levy to petitioner.   On February 26, 2001, petitioner replied

in a letter containing frivolous and groundless challenges to the

1997 deficiency and additions to tax.   On February 26, 2002,

respondent filed a notice of Federal tax lien with the Clerk of

Superior Court, Haralson County, Georgia.   On March 1, 2002,

respondent issued to petitioner a Notice of Federal Tax Lien

Filing and Your Right to a Hearing Under IRC 6320 with respect to

the 1997 liability.   On March 4, 2002, respondent sent to

petitioner a Final Notice--Notice of Intent to Levy and Notice of

Your Right to a Hearing.   On March 28, 2002, petitioner filed

Form 12153, Request for a Collection Due Process Hearing, and

attached five pages of frivolous and groundless arguments

challenging the 1997 liability and the validity of the various

notices respondent had sent him.

     Petitioner exchanged several letters with the Internal

Revenue Service (IRS) Appeals officer assigned to his case to
                               - 4 -

schedule his hearing.   In a letter dated August 4, 2002,

petitioner informed the Appeals officer that he intended to audio

record his hearing and bring a court reporter to make a

stenographic recording of the hearing.   On August 15, 2002, the

Appeals officer sent petitioner a letter informing him that as of

May 2, 2002, the Appeals Office no longer allowed taxpayers to

make audio or stenographic recordings of hearings.   The Appeals

officer also sent him a copy of a Memorandum for All Appeals Area

Directors dated May 2, 2002, from the Acting Chief of the Office

of Appeals outlining the new policy.   See Keene v. Commissioner,

121 T.C. 8, 12 (2003), for the text of the memorandum.

     On September 9, 2002, petitioner’s hearing was held.

Petitioner was not permitted to audio record or stenograph the

hearing.   At the hearing, the Appeals officer provided petitioner

with a copy of Form 4340, Certificate of Assessments, Payments,

and Other Specified Matters, for his 1997 year.   The Appeals

officer also explained to petitioner that he could offer

collection alternatives at his hearing, which would be considered

only if he was current in his filing requirements for years other

than 1997.   On September 10, 2002, the Appeals officer sent

petitioner a letter addressing some issues raised during the

hearing and a copy of Delegation Order No. 196 (Rev. 4), which

delegates the authority to sign notices of Federal tax liens to

IRS Compliance Managers.   Petitioner replied in a letter dated
                                - 5 -

September 15, 2002, continuing to challenge the validity of

respondent’s notice of Federal tax lien filing, notice of intent

to levy, and notice of deficiency.      On October 25, 2002, the

Appeals officer issued a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination), sustaining the proposed levy action and the

notice of Federal tax lien filing for the 1997 liability.      The

notice of determination stated that petitioner was not in

compliance with his filing requirements for certain years other

than 1997.   Petitioner timely filed a petition with this Court.

At the time he filed his petition, petitioner resided in

Buchanan, Georgia.

                               OPINION

     Petitioner’s primary argument is that the refusal by the

Appeals Office to permit him to make an audio recording of his

September 9, 2002, Appeals Office hearing was improper pursuant

to this Court’s holding in Keene v. Commissioner, supra.       In

Keene, we held that section 7521(a)(1) requires the IRS to allow

taxpayers to audio record hearings held pursuant to sections 6320

and 6330.    The Court remanded the taxpayer’s case to the Appeals

Office for a hearing in part because as a result of the

taxpayer’s not being allowed to audio record his hearing, the

taxpayer had chosen not to have a hearing.      Id. at 19.   However,

in Kemper v. Commissioner, T.C. Memo. 2003-195, issued on the
                               - 6 -

same day as Keene, we held that it was not necessary to remand

the taxpayers’ case to the Appeals Office for a second hearing

even though the taxpayers were not permitted to record their

hearing.   The Court found that all the taxpayers’ arguments,

other than their section 7521 argument, were frivolous or

groundless arguments that the Court had previously rejected.    The

Court found that a new hearing was unnecessary because the

pleadings were sufficient to enable the Court to address all of

the non-section 7521 issues raised by the taxpayers.    In Keene,

the Court distinguished Kemper by making it clear that its remand

of the Keene case to the Appeals Office was the result of the

pleadings’ being limited to the section 7521 issue, the

Commissioner’s acknowledgment that remand would be the proper

remedy if the taxpayer prevailed, and the fact that the taxpayer

had not received an Appeals Office hearing before trial.     Keene

v. Commissioner, supra at 19-20.

     Aside from petitioner’s assertion that he should have been

allowed to audio record his hearing, petitioner has raised only

contentions, arguments, and questions that this Court has

previously found to be frivolous and/or groundless.    Unlike the

taxpayers in Keene, petitioner did receive a hearing, and the

Appeals officer’s notes of that hearing are a part of the record.

At trial the Court provided petitioner an opportunity to raise

any relevant issues that he might have raised at the hearing,
                                - 7 -

such as spousal defenses or collection alternatives, but he chose

not to do so.   Instead, petitioner stated that his position was

summarized in his request for a hearing, which is part of the

record and contains five pages of frivolous and groundless

arguments.    Petitioner’s posttrial brief also fails to raise any

relevant issues.   Consequently, even though we held in Keene that

section 7521(a)(1) requires the Appeals Office to allow a

taxpayer to make an audio recording of a hearing, we conclude

that it is not necessary and would not be productive to remand

this case to the Appeals Office for another hearing in order to

allow petitioner to make such an audio recording.   See Lunsford

v. Commissioner, 117 T.C. 183, 189 (2001).   The record is

sufficient for us to address petitioner’s arguments without an

additional hearing.

     Petitioner admits that he received the notice of deficiency

issued to him for 1997 but claims that the notice of deficiency

is invalid because it was not signed by the Secretary of the

Treasury himself or his delegate.   We reject petitioner’s

contention.   The Secretary’s authority to issue notices of

deficiency was delegated to the Service Center Directors.

Delegation Order No. 77 (Rev. 28), effective May 17, 1996; secs.

301.6212-1(a), 301.7701-9(b), Proced. & Admin. Regs.; see also

Nestor v. Commissioner, 118 T.C. 162, 165 (2002).    The notice of
                                 - 8 -

deficiency petitioner received was signed by the Service Center

Director in Atlanta.   Therefore, we conclude that petitioner did

receive a valid notice of deficiency for 1997.

     Petitioner also contends that the final notice of intent to

levy and the notice of Federal tax lien filing that he received

are invalid because they were not signed by the Secretary as

required by sections 6330(a)(1) and 6320(a)(1).       We disagree.

For purposes of sections 6330(a) and 6320(a), the Secretary

delegated the authority to issue notices of levy or lien to

certain IRS employees.   Secs. 7701(a)(11)(B) and (12)(A)(i),

7803(a)(2); see also secs. 301.6330-1(a)(1), 301.6320-1(a)(1),

Proced. & Admin. Regs.   The authority to levy on taxpayers’

property was delegated to the “Automated Collection Branch

Chiefs” in Delegation Order No. 191 (Rev. 2), effective Oct. 1,

1999.   Wilson v. Commissioner, T.C. Memo. 2002-242.      Consistent

with this delegation of authority, the final notice of intent to

levy in this case, which was executed by the chief of the

Automated Collection Branch in Kansas City, Missouri, was valid.

See Wilson v. Commissioner, supra.       The authority to sign notices

of Federal tax lien was delegated to the compliance managers

responsible for collection matters in Delegation Order No. 196

(Rev. 4), effective Oct. 4, 2000.        Hathaway v. Commissioner, T.C.

Memo. 2004-15.   Petitioner’s Notice of Federal Tax Lien Filing

and Your Right to a Hearing Under Section 6320 was executed by

the Compliance Technical Support Territory Manager for Kansas

City, Missouri, and was valid.
                                - 9 -

     Section 6330(c)(2)(B) provides that a taxpayer may challenge

the existence or amount of his underlying tax liability if the

taxpayer “did not receive any statutory notice of deficiency for

such tax liability or did not otherwise have an opportunity to

dispute such tax liability.”    Because petitioner received a

notice of deficiency for 1997, he may not challenge his

underlying tax liability for that year in either an Appeals

Office hearing or this Court.    See id.

     Petitioner next argues that the assessment against him was

invalid.   The Appeals officer provided petitioner with a copy of

the Form 4340, a computer-generated transcript of petitioner’s

account.   Absent a showing by the taxpayer of some irregularity

in the assessment procedure that would raise a question about the

validity of the assessments, a Form 4340 is presumptive evidence

that a tax has been validly assessed.      Davis v. Commissioner, 115

T.C. 35, 40 (2000).   Petitioner has not shown, or even alleged,

any irregularities in respondent’s assessment procedures that

would cast doubt on the accuracy of the Form 4340 or the validity

of the assessment.

     Petitioner next argues that the Appeals officer did not

produce verification from the Secretary that the requirements of

any applicable law or administrative procedures were met.

Section 6330(c)(1) requires the Appeals officer to obtain such

verification, but it does not require the Appeals officer to
                               - 10 -

provide the verification to the taxpayer.    Nestor v.

Commissioner, supra at 166; sec. 301.6330-1(e)(1), Proced. &

Admin. Regs.    As stated above, the Appeals officer did review

Form 4340 for petitioner’s 1997 account.    This was sufficient to

fulfill the requirement of section 6330(c)(1).    See Nestor v.

Commissioner, supra at 166.

       Petitioner next contends that he did not receive a valid

notice and demand for payment for 1997 as required by section

6303(a).    However, the Form 4340 reviewed by the Appeals officer

showed that notices of balance due were sent to petitioner on

October 9 and November 13, 2000.    Petitioner’s response to the

November 13, 2000, notice of balance due is proof that he

received it.    A notice of balance due constitutes the notice and

demand for payment required by section 6303(a).    Standifird v.

Commissioner, T.C. Memo. 2002-245, affd. 72 Fed. Appx. 729 (9th

Cir. 2003); see also Tornichio v. Commissioner, T.C. Memo. 2002-

291.

       Section 6673(a) authorizes this Court to impose a penalty of

up to $25,000 if a taxpayer institutes or maintains proceedings

that are primarily for delay, or if the taxpayer’s position is

frivolous or groundless.    While we shall not impose a penalty

under section 6673(a) today, we admonish petitioner that we will

consider imposing such a penalty in the future if he continues to

make frivolous and groundless arguments in this Court.
                             - 11 -

     In conclusion, petitioner was given an opportunity to raise

relevant issues at his hearing, at trial, and on brief.    In his

correspondence with the Appeals Office petitioner maintained

frivolous and groundless arguments.    Petitioner has not raised a

spousal defense, made a valid challenge to the appropriateness of

the collection action, or offered any collection alternatives.

We hold that a remand for a new hearing is unnecessary, and that

respondent’s determination to proceed with collection was not an

abuse of discretion.


                                           Decision will be entered

                                      for respondent.
