                                T.C. Memo. 2013-73



                         UNITED STATES TAX COURT



  THOMAS EUGENE SATKIEWICZ AND MARLENE KAY SATKIEWICZ,
   Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 27857-11L.                         Filed March 12, 2013.



      Thomas Eugene Satkiewicz and Marlene Kay Satkiewicz, pro sese.

      Rebecca M. Clark, for respondent.



                           MEMORANDUM OPINION


      CHIECHI, Judge: This case is before us on respondent’s motion for

summary judgment (respondent’s motion). We shall grant respondent’s motion.

                                     Background

      The record establishes and/or the parties do not dispute the following.

      Petitioners resided in Michigan at the time they filed the petition.
                                           -2-

[*2] Petitioners filed a Federal income tax (tax) return for each of their taxable

years 2003, 2004, 2005, 2006, and 2010. Petitioners did not pay any tax shown

due in each of those returns.

       After correcting certain mathematical errors, as defined in section

6213(g)(2),1 that required the recalculation of the total tax and tax due for certain

of petitioners’ taxable years in question, respondent assessed on various dates tax

and certain additions to tax, as well as interest as provided by law as of the

respective dates of assessment, for petitioners’ taxable years 2003, 2004, 2005,

2006, and 2010. (We shall refer to the respective amounts of tax, additions to tax,

and interest that respondent assessed for each of petitioners’ taxable years 2003,

2004, 2005, 2006, and 2010, as well as interest as provided by law accrued after

the respective dates of assessment, as petitioners’ unpaid liabilities at issue.)

       On various dates, respondent issued to petitioners notices of balance due

with respect to petitioners’ unpaid liabilities at issue.

       On July 28, 2011, respondent issued to each petitioner a notice of Federal

tax lien filing and your right to a hearing under IRC 6320 (notice of tax lien) with

respect to petitioners’ unpaid liabilities at issue.

       1
       All section references are to the Internal Revenue Code in effect at all
relevant times. All Rule references are to the Tax Court Rules of Practice and
Procedure.
                                          -3-

[*3] Petitioners timely filed with respondent Form 12153, Request for a Collection

Due Process or Equivalent Hearing (petitioners’ Form 12153), and requested a

hearing with respondent’s Appeals Office (Appeals Office). In that form,

petitioners indicated their disagreement with the notice of tax lien and claimed that

they were unable to pay petitioners’ unpaid liabilities at issue. Petitioners requested

in petitioners’ Form 12153 that respondent “discharge” the lien.2 In support of their

request, petitioners stated in pertinent part in an attachment to that form:

      In November, 1992, I was downsized/rightsized from a job at
      Ameritech which I started on January 12, 1970. I was fired because of
      my age. I filed an Age Discrimination in Employment complaint with
      the Detroit Office of the Equal Employment Opportunity Commission
      (EEOC). The EEOC could not find age discrimination. The EEOC
      was given a video tape of the vice-president of Human Resources at
      Ameritech who stated on the video that the Downsizing/Rightsizing
      Action was done to remove the older workers and make room to hire
      younger workers.

      Since 1966 to 2002, I paid my taxes. In 2002, I could no longer pay
      my taxes. It was better to feed, clothed, [sic] and provide shelter for
      my family, then [sic] pay my taxes. Since the Federal Government
      refused to protect me, which is a violation of the Implied Equal
      Protection of the Law Clause in the 5TH Amendment to the U.S.
      Constitution. In 1879, the U.S. Supreme Court, because of the Equal
      Protection Clause, ruled that the Government cannot enforce a law to
      my detriment, if the Government refuses to enforce a law to my



      2
        In petitioners’ Form 12153, petitioners did not request as a collection alter-
native an installment agreement or an offer-in-compromise.
                                            -4-

      [*4] benefit, and if this act by the Government causes me to violate
      the law, I can be held responsible for violating the law.

      Now I am not refusing to pay taxes, but I cannot pay taxes, if I don’t
      have a job. I cannot gain employment, if the EEOC doesn’t enforce
      the Age Discrimination in Employment Act of 1967. Also since we
      have 12-20 Million Illegal Immigrants in U.S.A. the Federal
      Government is not protecting me, since the Federal Government is not
      enforcing our Immigration Laws.

      You may claim that enforcement of the Age Discrimination in
      Employment Act of 1967 and Immigration Laws are not your
      responsibility, but you are wrong. The IRS, EEOC, and Homeland
      Security are all one government (U.S.A.). One Government means that
      the IRS can’t treat citizens differently than the EEOC or Homeland
      Security treats citizens.

      On November 15, 2011, a settlement officer with respondent’s Appeals

Office held a telephonic hearing (November 15, 2011 hearing) with petitioners.3

During that hearing, petitioners advanced the following arguments: (1) the filing

of the notice of tax lien violated the due process clause of the Fifth Amendment to

the U.S. Constitution (Constitution) because that notice was filed before petitioners’

hearing under section 6320(b) was held; (2) petitioners were not treated fairly

under the equal protection clause of the Fourteenth Amendment to the Constitution

because, according to them, the Government is prohibited from enforcing a law

to petitioners’ detriment where the Government refuses to enforce a law to


      3
          Petitioners did not request a face-to-face hearing.
                                           -5-

[*5] their benefit; and (3) the Department of Homeland Security is not protecting

petitioners because it allows undocumented workers to work in the United States

but the Internal Revenue Service is not attempting to require those undocumented

workers to file tax returns and pay tax.

        During the November 15, 2011 hearing, the settlement officer informed

petitioners that all procedural and legal requirements had been satisfied before the

filing of the notice of tax lien. The settlement officer also advised petitioners that

they had been placed in a status known as currently not collectible and that therefore

the notice of tax lien was appropriate.

        On November 22, 2011, the Appeals Office issued to each petitioner a notice

of determination concerning collection action(s) under section 6320 and/or 6330

(collectively, notices of determination) with respect to petitioners’ unpaid liabilities

at issue. Those notices stated in pertinent part: “The determination of Appeals is

that the filed Notice of Federal Tax Lien is sustained.”

        The notices of determination included an attachment that stated in pertinent

part:

                    SUMMARY AND RECOMMENDATION

        You filed a request for a Collection Due Process hearing under
        Internal Revenue Code § 6320. * * *
                                        -6-

[*6] Your hearing request listed I cannot pay balance as a collection
     alternative. Based on a review of the administrative case file, it is
     Appeals position that the lien filing was proper. It is our determination
     that the lien filing be sustained.

                             BRIEF BACKGROUND

      The liabilities for tax periods 2003, 2004, 2005, 2006 and 2010 are
      based on self assessed tax returns.

      In the Settlement Officer’s letter dated October 20, 2011, a telephone
      conference was scheduled for November 15, 2011 at 2:00pm EST. In
      that letter, you were offered an opportunity to request a face-to-face
      conference but no request was made.

      During the scheduled telephone conference, the Settlement Officer
      advised you that her research indicates that all legal and procedural
      requirements were met prior to the filing of the Notice of Federal Tax
      Lien and that it was also appropriate because it was filed as a result of
      your account being placed in currently not collectible status. You
      disagreed with the filing of the Notice of Federal Tax Lien based on the
      following issues:

             •     It was a violation of the 5th amendment due process
                   clause because it was filed prior to the hearing.
             •     You were not treated fairly under the Equal Protection
                   Clause, which states the government cannot enforce a law
                   to his detriment if the government refuses to enforce a law
                   to his benefit.
             •     Homeland Security is not protecting him because they are
                   allowing undocumented workers to take jobs and that the
                   IRS is not going after these undocumented workers to file
                   and pay taxes.

      The Settlement Officer explained that the issues you raised do not have
      an impact on the filing of the Notice of Federal Tax Lien so she will
      proceed with the issuance of the determination letter.
                                         -7-

[*7]     *          *           *          *          *          *             *

                            Issues raised by the taxpayer
       The reasons given for requesting the hearing is that he lost his job in
       1992 due to age discrimination and filed an age discrimination
       compliant [sic] with the Equal Employment Opportunity Commission
       that was denied. In 2002, he was unable to pay his taxes and provide
       for his family. Now he is not refusing to pay but can’t because he is
       unemployed and can’t find a job.

       Collection Alternatives Offered by Taxpayer
       You requested the collection alternative of I cannot pay balance. Your
       account was placed in currently not collectible status on June 10, 2011.

       Challenges to the Existence of Amount of Liability
       You did not dispute your liability.

       Although the NFTL cannot be withdrawn because the assessments are
       valid, I considered whether any of the criteria for allowing withdrawal
       of the lien existed in your case.

       IRS § 6323(j) allows the withdrawal of a filed notice of lien without
       full payment and without prejudice under the following conditions:

             •      The filing of the notice of lien was premature or otherwise
                    not in accordance with administrative procedures of the
                    Internal Revenue Service:
             •      The taxpayer had entered into an installment agreement
                    under IRC § 6159 to satisfy the tax liability for which the
                    lien was imposed by means of installment payments, unless
                    such agreement provides otherwise:
             •      Withdrawal of the lien will facilitate collection of the tax
                    liability : or
             •      With the consent of the taxpayer or the National Tax-
                    payer Advocate (NTA), the withdrawal of such notice
                                          -8-

[*8]          would be in the best interest of the taxpayer (determined
              by the NTA of the taxpayer) and the United States.

       There is nothing else in the Collection administrative file that indicates
       withdrawal of the filed lien should be considered and you have provided
       no additional information that indicates the withdrawal of the filed lien
       should be considered.

         Balancing of need for efficient collection with taxpayer concern
         that the collection action be no more intrusive than necessary.

       The Notice of Federal Tax Lien (NFTL) is necessary to protect the
       government’s interest in your assets even if you encumber or sell them.
       Per IRC §6330(c)(3)(C), the NFTL balances the need for the efficient
       collection of taxes with the legitimate concern of the person that any
       collection action be no more intrusive than necessary.

       The filing of the Notice of Federal Tax Lien is sustained.

       In the petition commencing this case, petitioners alleged in pertinent part:

       The IRS put a lien on our home, before the Due Process hearing, which
       is a violation of our right to due process
       The hearing officer represented the IRS and was the judge, so the
       hearing officer was not impartial
       The hearing officer was not licensed to practice law, so didnot
       understand the U.S. Constitution and 5TH Amendment
       The IRS is treating me differently, then the EEOC treats employers who
       violate Age Discrimination in Employment Act
       The IRS has violated the Age Discrimination in Employment Act, when
       the IRS failed to hire me.
       The IRS fails to file liens against undocumented workers who don’t file
       U.S. Income Tax.
       Home Land Security fails to deport illegal aliens, because the illegal
       aliens have not committed any crimes.

         *           *          *          *           *            *        *
                                    -9-

[*9] The 5TH Amendments Due Process Clause
The 5TH Amendments Equal Protection Clause
Right to a fair and impartial judge [Reproduced literally.]

In an attachment to the petition, petitioners alleged:

The U.S. Government has violated my 5TH Amendment rights to Due
Process and Equal Protection of Law. While the 5TH Amendment
doesn’t have an Equal Protection of Law clause, like the 14TH
Amendment does, in 1954 Case of Bolling vs. Sharpe, Chief Justice Earl
Warren placed the Equal Protection of Law clause in the 5TH
Amendment’s Due Process clause. Procedural Due Process requires that
each side is able to fully present his side of things, whether that is a
complaint or a defense, or any other relevant information. The sides
must also be able to present their information in front of an impartial
judge or jury who will listen fairly to each side. Equal Protection of Law
provides the right of all persons to have the same access to the Law and
Courts, and to be treated equally by the Law and Courts, both in
procedures and in substance of the Law. It is akin to the right to Due
Process of Law, but in particular applies to equal treatment as an
element of fundamental fairness.

In July, 2011, the Internal Revenue Service (IRS) wanted to place a lien
on my home for back Income Taxes, so in July, 2011, I asked the IRS
for a Due Process hearing. In July, 2011, the IRS placed a lien on my
home. On Tuesday (November 15, 2011) I had my Due Process hearing,
and this is 4 months after the IRS placed a lien on my home. The
hearing officer was Dawn Attivissimo who is not licensed to practices
law and doesn’t have any training in law. Also Ms. Attivissimo is
employed by the IRS and represented the IRS in the Due Process
hearing.

The Due Process hearing was not timely, fair, and impartial. The Due
Process hearing was not timely, because it was held 4 months after the
IRS placed a lien on my home. The Due Process hearing was not fair,
because Ms. Attivissimo was both the IRS and the Judge. Ms.
Attivissimo refused to discuss the Law, because as Ms. Attivissimo
                                  - 10 -

[*10] stated that it was not the purpose of this Due Process hearing, and
also, Ms. Attivissimo stated that the U.S. Constitution and the 5TH
Amendment was not relevant to my case. The Due Process hearing was
not impartial, because Ms. Attivissimo started the Due Process hearing
by stating that she (Ms. Attivissimo) read the file and she (Ms.
Attivissimo) could not find that the IRS did anything wrong.

The 5TH Amendment to the U.S. Constitution guarantees me Equal
Protection of Law. Equal Protection of Law means that the U.S.
Government must enforce all Laws equally. As a victim of a crime (Age
Discrimination in Employment) am I not entitled to protection of Law as
are victims of others crimes? Should not the Equal Employment
Opportunity Commission (EEOC) fully and properly investigate claims
of Age Discrimination in Employment, as fully and properly as the IRS
investigates citizens who violate the Tax Codes?

Why is the U.S. Goverment enforcing the Tax Codes against me when
the U.S. Government fails to enforce U.S. Laws that would help me pay
my U.S. taxes? Why is the U.S. Government treating me differently
when I fail to pay my U.S. Income Taxes, than when I am a victim of a
crime (Age Discrimination in Employment)? The reason that I failed to
pay my taxes, is that my family and I are on welfare. The reason that my
family and I are on welfare, is the EEOC failure to enforce the Age
Discrimination in Employment Act of 1967. I am not opposed to paying
taxes, because I paid my taxes for 41 years out of 45 years. The first
order of business for government is to protect its citizens, but when I
needed the U.S. Government’s protection, the U.S. Government failed
me.

The EEOC fails to enforce the Age Discrimination in Employment Act
of 1967. I have not seen where the EEOC has promoted the hiring of
older workers as stated in SEC. 621 [Section 2] paragraph b of the Age
Discrimination in Employment Act of 1967 as stated below;
                                       - 11 -

[*11] SEC 621 [Section 2]

            (a)   The Congress hereby finds and declares that
                  (1) In the face of rising productivity and affluence older
                          workers find themselves disadvantaged in their
                          efforts to retain employment and especially to regain
                          employment when displaced from jobs.
                  (2) The setting of arbitrary age limits regardless of
                          potential for job performance has become a common
                          practice, and certain otherwise practices may work to
                          the disadvange of older persons.
                  (3) The incidence of unemployment especially long-term
                          unemployment with resultant deterioration of skills,
                          morale, and employer acceptability is, relative to the
                          younger ages, high among older workers, their
                          numbers are great and growing, and their
                          employment problems grave.
                  (4) The existence in industries affecting commerce of
                          arbitrary discriminaton in employment because of
                          age, burdens commerce and the free flow of goods
                          in commerce.
            (b)   It is therefore the purpose of this chapter to promote
                  employment of older persons based on their ability rather
                  than age, to prohibit arbitrary age discrimination in
                  employment; to help employers and workers find ways of
                  meeting problems arising from the impact of age on
                  employment

      An EEOC investigation of Age Discrimination in Employment consist
      of the EEOC sending the complaint to the employer, then the employer
      responds by stating that the employer could not have age discriminated,
      because the employer has a policy against age discrimination in
      employment. The EEOC will close the case, because the employer has
      a policy against Age Discrimination in Employment. The Customs
      Border Protection (CBP) has failed to protect the U.S. borders from
      illegal entry. If the Customs Border Protection had protected the U. S.
      borders, there would not be 12 million illegal aliens in my country.
                                  - 12 -

[*12] The Immigration Customs and Enforcement has failed to enforce
the U.S. Immigration Laws. If the Immigration Customs and
Enforcement had enforced U.S. Immigration Laws, then there would
not be 12 million illegal aliens working in my country. The
Immigration Customs and Enforcement (ICE) will start to release
illegal aliens who have not committed a violent crime, plus ICE will
give the illegal alien a work permit. A job that I could do, but an
illegal alien will have. The Department of Justice (DOJ) is suing
several states (Alabama, Arizona, and Utah), because these states
passed immigration laws. Had the CBP and ICE done the job (that they
are paid to do) of keeping the illegal aliens out of my country, then
these states would not have passed immigration laws. DOJ is wasting
my tax dollars suing states for doing the U.S. Government’s job. The
IRS fails to enforce the U.S. Tax Codes against the undocumented
workers (illegal aliens) or place a lien on the undocumented workers
property for not paying back taxes. How would an undocumented
worker pay taxes without documents (Social Security Number)? Also
the IRS has violated the Age Discrimination in Employment Act of
1967 by refusing to hire me because of my age. A position that I have
over 40 years of experience doing, and a Master Degree in
Management and Supervision with a Bachelor Degree in Electrical
Engineer. I wasn’t even given an interview.

The 5TH Amendment doesn’t have an Equal Protection of Law clause,
but Chief Justice Earl Warren in a 1954 Case (Bolling vs. Sharpe 347
U.S. 497) placed it in the 5TH Amendment. The U.S. Supreme Court
averred that it was absurd that the Constitution could deny the states the
power to abridge equal protection of Laws, yet permit that power to the
congress. “[T]he concepts of equal protection and due process, both
stemming from our American ideal of fairness, are not mutually
exclusive,” reasoned Chief Justice Earl Warren. The Court thus
interpreted the 5TH Amendment’s due process clause to include an equal
protection element but has continued to hold that there is a difference
between due process and equal protection in its 14TH Amendment
jurisprudence.
                                         - 13 -

      [*13] The U.S. Supreme Court has held that a government (U.S. or State)
      cannot treat Citizens differently, because we are all Citizens. This can be
      seen in the following cases; Strauder vs. West Virginia 1880, Yick Wo vs.
      Hopkins 1886, Brown vs. Board of Education 1954, Hernandez vs. Texas
      1954, Reynolds vs. Sims 1964, and Wesberry vs. Sanders 1964. The U.S
      Government is treating me (U.S. Citizen) differently as a victim of crime
      (Age Discrimination in Employment), then the U.S. Government treat
      victims of other crimes. [Reproduced literally.]

      In an Order dated October 15, 2012 (October 15, 2012 Order), we ordered

petitioners to file a response to respondent’s motion.4 In that Order, we also

indicated that our review of the record suggested that petitioners may intend to

advance in this case certain frivolous and/or groundless statements, contentions,

arguments and/or questions. In the October 15, 2012 Order, we reminded petitioners

about section 6673(a)(1) and admonished them that if they (1) advanced frivolous

and/or groundless statements, contentions, arguments and/or questions and/or (2)

instituted or maintained this proceeding primarily for delay, we would impose on

them a penalty under section 6673(a)(1) in an amount not exceeding $25,000.




      4
       Petitioners filed a response to respondent’s motion before they received our
Order dated November 15, 2012, ordering (1) respondent to file a supplement to
respondent’s motion and (2) petitioners to file after respondent filed that supplement
a response to respondent’s motion as supplemented. As a result, petitioners filed a
response to respondent’s motion and a response to respondent’s motion as
supplemented.
                                          - 14 -

[*14] About six weeks before the parties were required to file pretrial memoranda,

petitioners filed their pretrial memorandum. In that pretrial memorandum, petitioners

advanced essentially the same statements, contentions, arguments, and/or questions

that they advanced in the petition and the attachment to the petition and that they

advanced to the settlement officer during the November 15, 2011 hearing.

                                       Discussion

      The Court may grant summary judgment where there is no genuine dispute of

material fact and a decision may be rendered as a matter of law. Rule 121(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th

Cir. 1994). We conclude that there is no genuine dispute as to any material

fact regarding the questions raised in respondent’s motion.

      Where, as is the case here, the validity of the underlying tax liability is not

properly placed at issue, the Court will review the determination of the Commissioner

of Internal Revenue for abuse of discretion. Sego v. Commissioner, 114 T.C. 604,

610 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000).

      In both their response to respondent’s motion and their response to respon-

dent’s motion as supplemented, petitioners advance, albeit in a summary fashion,

essentially the same statements, contentions, arguments, and/or questions that they
                                          - 15 -

[*15] advanced in the petition and the attachment to the petition. Those statements,

contentions, arguments, and/or questions are also essentially the same as what they

made to the settlement officer during the November 15, 2011 hearing.

      Based upon our examination of the entire record before us, we find that

respondent did not abuse respondent’s discretion in making the determinations in the

notices of determination with respect to petitioners’ unpaid liabilities at issue.

      We consider sua sponte whether to impose on petitioners a penalty under

section 6673(a)(1). Section 6673(a)(1) authorizes us to require a taxpayer to pay to

the United States a penalty in an amount not to exceed $25,000 whenever it appears

to the Court, inter alia, that the taxpayer’s position in a proceeding before us is

frivolous or groundless. Sec. 6673(a)(1)(B).

      Despite the admonition in our October 15, 2012 Order regarding section

6673(a)(1), petitioners persisted in advancing a position in this case that we find to be

frivolous and/or groundless. Nonetheless, we shall not impose a penalty under

section 6673(a)(1) on petitioners. We caution them that they may be subject to such a

penalty if in the future they institute or maintain a proceeding in this Court primarily

for delay and/or their position in any such proceeding is frivolous or groundless. See

Abrams v. Commissioner, 82 T.C. 403, 409-413 (1984); White v. Commissioner, 72

T.C. 1126, 1135-1136 (1979).
                                         - 16 -

[*16] We have considered any of petitioners’ contentions and arguments that are not

discussed herein and that we do not find to be frivolous and/or groundless, and we

find them to be without merit, irrelevant, and/or moot.

      On the record before us, we shall grant respondent’s motion.

      To reflect the foregoing,


                                              An order granting respondent’s motion

                                       and decision for respondent will be entered.
