                        T.C. Memo. 2007-18



                      UNITED STATES TAX COURT



                  ROGAN C. BIRD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9149-06L.             Filed January 29, 2007.



     Rogan C. Bird, pro se.

     Alan Friday, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   This matter is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.1

The issue we must decide is whether respondent’s Appeals Office



     1
      Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code, as amended.
                                - 2 -

abused its discretion in determining to proceed with collection

of petitioner’s tax liability for taxable year 2002 by levy.

                             Background

     At the time of filing the petition in the instant case,

petitioner resided in Farmerville, Louisiana.

     Petitioner failed to file an income tax return for taxable

year 2002.    On November 18, 2004, respondent sent a notice of

deficiency to petitioner at his last known address, which is the

same address petitioner listed on his petition in the instant

case.    Petitioner did not petition this Court for a

redetermination of the deficiency for taxable year 2002.

     On October 7, 2005, respondent sent petitioner a Letter

1058, Notice of Intent to Levy and Your Right to a Hearing.    On

November 3, 2005, petitioner sent respondent a Form 12153,

Request for a Collection Due Process Hearing, containing

frivolous arguments.2

     By letter dated January 24, 2006, Settlement Officer Suzanne

Magee (Mrs. Magee) advised petitioner that his hearing request

had been assigned to her, the arguments raised in the hearing

request are ones consistently held to be frivolous, and he would




     2
      We note that although the Form 12153 lists as the taxable
periods 1998 through 2004 and indicates disagreement with both a
lien and a levy, the Notice of Determination relevant to the
instant case sustains only a levy for taxable year 2002.
                               - 3 -

not be granted a face-to-face hearing.   Mrs. Magee also scheduled

a telephonic conference for February 15, 2006.

     Petitioner failed to participate in the telephonic

conference.   Instead, petitioner faxed a 17-page document

entitled “Public Protection Clause” to Mrs. Magee.   This document

contained only frivolous tax protester arguments.

     On February 16, 2006, Mrs. Magee sent a letter to petitioner

stating that since he did not participate in the telephonic

conference she would make a decision in his case on the basis of

the administrative file and any material he had submitted.    The

letter gave petitioner the opportunity to submit any additional

information within 14 days.   Petitioner did not avail himself of

this opportunity.

     In his submissions to the IRS, petitioner raised only

frivolous challenges to the underlying liability.    Petitioner did

not offer any collection alternatives for Mrs. Magee to consider.

After verifying that all applicable laws and administrative

procedures had been met, Mrs. Magee determined, on the basis of

the administrative file, that the proposed levy balanced the need

for efficient collection of taxes with the legitimate concern

that any collection action be no more intrusive than necessary.
                                - 4 -

On April 12, 2006, Mrs. Magee sent petitioner a Notice of

Determination sustaining the proposed levy.      On May 15, 2006,

petitioner timely petitioned the Court.

     On November 27, 2006, respondent filed the motion for

summary judgment.   The Court ordered petitioner to respond to the

motion by January 3, 2006.   Petitioner, in his response,

continued to raise frivolous arguments challenging the underlying

liability.

                             Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and 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); Fla. Peach

Corp. v. Commissioner, 90 T.C. 678, 681 (1988).      The moving party

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences are viewed in a light most

favorable to the nonmoving party.       Craig v. Commissioner, 119

T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985).   The party opposing summary judgment must set forth

specific facts that show that a genuine question of 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).
                                 - 5 -

     Section 6330 provides that no levy may be made on any

property or right to property of a person unless the Secretary

first notifies him or her in writing of the right to a hearing

before the Appeals Office.   The Appeals officer must verify at

the hearing that the applicable laws and administrative

procedures have been followed.    Sec. 6330(c)(1).   At the hearing,

the person requesting a hearing may raise any relevant issues

relating to the unpaid tax or the proposed levy, including

appropriate spousal defenses, challenges to the appropriateness

of collection actions, and collection alternatives.    Sec.

6330(c)(2)(A).   The person may challenge the existence or amount

of the underlying tax, however, only if he or she did not receive

any statutory notice of deficiency for the tax liability or did

not otherwise have an opportunity to dispute the tax liability.

Sec. 6330(c)(2)(B).

     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.     Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 181-182 (2000).
                               - 6 -

     Petitioner does not dispute that he had the opportunity to

challenge the correctness of his tax liability for 2002 by

petitioning this Court from the notice of deficiency, but failed

to do so.   Therefore, petitioner’s underlying tax liability for

2002 was not properly in issue.

     In the instant case, the record indicates that the only

issues petitioner raised throughout the section 6330

administrative process and in his petition to this Court were

frivolous tax protester type arguments.   We do not address

petitioner’s frivolous arguments with somber reasoning and

copious citations of precedent, as to do so might suggest that

these arguments possess some degree of colorable merit.   See

Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).

     Accordingly, we hold that no genuine issue of material fact

exists requiring trial and that respondent is entitled to summary

judgment.   Respondent’s determination to proceed with the

proposed levy to collect petitioner’s tax liability for 2002 was

not an abuse of discretion.

     Section 6673(a)(1) authorizes the Court to impose a penalty

not in excess of $25,000 when it appears to the Court that, inter

alia, proceedings have been instituted or maintained by the

taxpayer primarily for delay or that the position of the taxpayer
                               - 7 -

in such proceeding is frivolous or groundless.   In Pierson v.

Commissioner, 115 T.C. 576, 581 (2000), we issued a warning

concerning the imposition of a penalty under section 6673(a)(1)

on those petitioners abusing the protections afforded by sections

6320 and 6330 through the bringing of dilatory or frivolous lien

or levy actions.   The Court has since repeatedly disposed of

cases premised on arguments akin to those raised herein summarily

and with imposition of the section 6673 penalty.3   See, e.g.,

Craig v. Commissioner, 119 T.C. at 264-265 (and cases cited

therein).

     Respondent has not sought a section 6673 penalty in the

instant case; however, the Court considers this issue sua sponte.

Petitioner was warned by respondent that his arguments were

frivolous.   Petitioner referred to the penalty in his response to

respondent’s motion for summary judgment.4   Petitioner clearly is

aware of section 6673, yet raised frivolous arguments during the



     3
      We note that on Dec. 20, 2006, Congress enacted the Tax
Relief and Health Care Act of 2006, Pub. L. 109-432, div. A, sec.
407, 120 Stat. 2960, which, through amendments to secs. 6702 and
6330, instructs the Secretary to prescribe a list of positions
identified as frivolous. A request for a sec. 6330 hearing based
on any such position may then be disregarded and is not subject
to further administrative or judicial review. The new provisions
are effective only for issues raised after the Secretary
prescribes the list of frivolous positions.
     4
      The closing line of petitioner’s response reads:
“Petitioner asks this Court to deny Respondent’s Motion for
Summary Judgment, abate the additions to tax determined by
Respondent and refuse any penalty at 26 U.S.C. [section] 6673.”
                                 - 8 -

administrative process, in his petition to this Court, and in his

response to respondent’s motion.    Accordingly, we shall impose a

$3,000 penalty on petitioner pursuant to section 6673.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
