                        T.C. Memo. 2009-188



                      UNITED STATES TAX COURT



              BARNABAS E. WILLIAMSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23893-07L.               Filed August 19, 2009.



     Barnabas E. Williamson, pro se.

     Randall L. Eager, for respondent.



               MEMORANDUM FINDINGS OF FACT OPINION


     JACOBS, Judge:   This case arises from a petition for

judicial review pursuant to section 6330(d) of respondent’s

determination to proceed with collection of petitioner’s unpaid

Federal income tax liability for 2003 by way of levy.    The issue

involved is whether respondent abused his discretion in denying
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petitioner a face-to-face hearing.       Unless otherwise indicated,

all section references are to the Internal Revenue Code.

                          FINDINGS OF FACT

     Some of the facts have been stipulated.      The stipulated

facts and the accompanying exhibits are incorporated herein by

this reference.    At the time he filed his petition, petitioner

resided in North Carolina.

     Petitioner failed to file a Federal income tax return for

2003.    Respondent prepared a substitute for return pursuant to

his authority under section 6020(b).      On May 10, 2005, a notice

of deficiency was mailed to petitioner.1      Petitioner did not file

a petition in this Court contesting respondent’s determinations.

Therefore, on October 17, 2005, respondent assessed the tax and

related additions to tax determined in the notice of deficiency,

as well as associated interest.    On the same day that the

assessment was made, respondent sent petitioner a notice and

demand for payment of the deficiency and associated interest.

     On April 11, 2007, respondent sent petitioner notice of his

intent to levy on petitioner’s assets to collect petitioner’s

unpaid tax liability for 2003.    In response, petitioner timely

filed a Form 12153, Request for a Collection Due Process or



     1
      Although the record does not specifically reveal that
petitioner received the notice of deficiency, petitioner does not
assert otherwise or that the notice of deficiency was not
properly and timely issued.
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Equivalent Hearing (section 6330 hearing).    Attached to

petitioner’s request was a form used by individuals adhering to

principles espoused by the Patriot Network, a national

organization that advocates tax avoidance activities as well as

the frustration and delay of collection efforts by the Internal

Revenue Service (IRS).   That form contained a laundry list of

requests, including a request for a face-to-face hearing.      In

addition, the form listed potential defects in IRS procedures and

also listed arguments and requests that a taxpayer might make in

a collection proceeding context.    Petitioner placed an “X” in the

blank by each item even though some of them are manifestly

incorrect with respect to him.

     The case was assigned to Settlement Officer James M. Payton

of the IRS’s Appeals Office.    On July 26, 2007, Settlement

Officer Payton sent petitioner a letter scheduling a telephone

section 6330 hearing for August 20, 2007, at 10 a.m. eastern

daylight time.   The letter informed petitioner that the issues he

raised “are those that Courts have determined are frivolous or

Appeals does not consider.”    Further, the letter advised

petitioner that because he raised only frivolous issues, he was

not entitled to a face-to-face hearing.    Petitioner was informed

that he would be allowed a face-to-face conference with respect

to any nonfrivolous issue, provided he advised respondent of the

nonfrivolous issue in writing or by telephoning Settlement
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Officer Payton within 14 days from the date of the letter.

Petitioner was further informed that if he wished to discuss

alternatives to the intended levy, such as an installment

agreement or an offer-in-compromise, he had to submit a completed

Form 433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals, to Settlement Officer Payton within 14

days from the date of the letter.

     Petitioner did not respond to Settlement Officer Payton’s

letter.    Nor did he call Settlement Officer Payton on the

scheduled date and time.    Nevertheless, Settlement Officer Payton

sent petitioner another letter on August 21, 2007, stating:

“Even though you missed your scheduled telephone conference, I am

giving you another opportunity to provide me any additional

information you want me to consider prior to closing your

Collection Due process case on 09/10/2007.”

     A Form 433-A was attached to the letter for petitioner to

complete if he wanted to pursue an alternative to the proposed

levy.

     On September 4, 2007, Settlement Officer Payton sent a third

letter to petitioner to which was attached a Form 4340,

Certificate of Assessments, Payments, and Other Specified

Matters, for petitioner’s 2003 Federal income tax.

     Petitioner responded to this letter on September 6, 2007,

stating:    “The Law (IRC 6330) has no provision for a telephone
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conference.   I have met the criteria for a face to face

conference.   I’m entitled to a face to face CDPH.   Please

schedule one for me.”

     Settlement Officer Payton did not grant petitioner a face-

to-face hearing.   On September 19, 2007, the Appeals Office

issued a Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330, sustaining the proposed levy and

rejecting all of petitioner’s arguments.   An attachment to the

notice of determination, written by Settlement Officer Payton,

noted that (1) petitioner did not offer any collection

alternatives, (2) Settlement Officer Payton reviewed the

administrative file transcripts and verified that the

requirements of all applicable law and administrative procedure

were met, and (3) the proposed levy action with respect to the

collection of petitioner’s unpaid Federal income tax for 2003

appropriately balanced the need for efficient collection of tax

with petitioner’s legitimate concerns that the collection action

be no more intrusive than necessary.

     On October 16, 2007, petitioner filed a petition in this

Court challenging respondent’s intended collection action.     At

trial petitioner advanced several unfocused and incongruous

lines of argument.   Petitioner then proceeded to challenge the

credentials of respondent’s counsel and catechize the Court.
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      MR. WILLIAMSON: And I would like to state for fact, I want
      to see the certified copy of a power of attorney of him
      [respondent’s counsel] to be in this court right now.

      THE COURT:   I don’t think he needs one, sir.

      MR. WILLIAMSON:   Well, I do.

      THE COURT:   Okay.   Unfortunately I–-

      MR. WILLIAMSON:   I’m the secured party creditor, Your Honor.

      THE COURT:   Okay.

      MR. WILLIAMSON: So if there’s anybody else that has a claim
      against me under UCC laws, I’m the first priority. So
      unless the Government has a claim against me, I want to see
      it. Do you [the Court] have a claim against me?

      THE COURT: Mr. Williamson, I don’t think we’re going to
      answer your questions. All I can say is I think your
      assertions do not have legal merit. This is not a case
      involving the UCC.

      MR. WILLIAMSON:   Well, Your Honor, aren’t we under public
      policy?

      THE COURT:   Pardon?

      MR. WILLIAMSON:   Aren’t we under the public policy?

      THE COURT: Again, I’m not going to answer any questions.
      You will hear my result in my opinion.

      MR. WILLIAMSON: Okay, Your Honor. I should say we are
      under public policy. And you hold my remedy.

      THE COURT:   I hear you.

                                 OPINION

A.   Standard of Review

      This case involves a review of respondent’s determination to

proceed with collection of petitioner’s unpaid Federal income

tax, additions to tax, and interest for 2003 by way of levy.
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Section 6330 hearings concerning levies are conducted in

accordance with section 6330(c).   After the Commissioner issues

his notice of determination following an administrative hearing,

a taxpayer has the right to petition this Court for judicial

review of the determination.   Sec. 6330(d)(1).   Our review of the

determination is subject to the provisions of section 6330.

     A taxpayer is precluded from contesting the existence or

amount of the underlying tax liability if he/she received a

notice of deficiency for the tax year in question or otherwise

had an opportunity to dispute the underlying tax liability.      Sec.

6330(c)(2)(B).   In such a case, we review the Commissioner’s

determination for abuse of discretion.    See Sego v. Commissioner,

114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176

(2000).   An abuse of discretion is defined as any action that is

unreasonable, arbitrary or capricious, clearly unlawful, or

lacking sound basis in fact or law.     Thor Power Tool Co. v.

Commissioner, 439 U.S. 522, 532-533 (1979); Woodral v.

Commissioner, 112 T.C. 19, 23 (1999).

     Petitioner was issued a notice of deficiency for 2003 and

does not dispute that he received it, but he did not file a

petition with this Court.   Petitioner is therefore not entitled

to raise his underlying tax liability for 2003 in this

proceeding, and we review respondent’s determination to proceed

with the proposed collection action for abuse of discretion.
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B.   Petitioner’s Request for a Face-to-Face Section 6330 Hearing

      Petitioner asserts that his section 6330 hearing was invalid

and unlawful because it was scheduled to be held by way of a

telephone conference and not by way of a face-to-face conference.

      Although a section 6330 hearing may consist of a face-to-

face conference, a proper hearing may also occur by telephone or

by correspondence under certain circumstances.   See Katz v.

Commissioner, 115 T.C. 329, 337-338 (2000); sec. 301.6330-

1(d)(2), Q&A-D6, Proced. & Admin. Regs.   Section 6330 hearings

have historically been informal.   Davis v. Commissioner, 115 T.C.

35, 41 (2000).   We have held that it is not an abuse of

discretion if an Appeals settlement officer denies a taxpayer’s

request for a face-to-face section 6330 hearing after determining

that the hearing would not be productive on account of the

taxpayer’s frivolous or groundless arguments.    See Huntress v.

Commissioner, T.C. Memo. 2009-161; Summers v. Commissioner, T.C.

Memo. 2006-219; Ho v. Commissioner, T.C. Memo. 2006-41.

      The record demonstrates that a face-to-face conference would

not have been productive.   Petitioner’s meeting request contained

general and nonspecific arguments, many of which do not even

apply to petitioner’s circumstances (e.g., arguments with respect

to a nonexistent notice of Federal tax lien, bankruptcy, and

spousal defenses).   The settlement officer granted petitioner a

telephone conference and informed him that he could still qualify
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for a face-to-face conference if he would first identify a

relevant nonfrivolous issue he intended to discuss.      Despite

being given this opportunity, petitioner presented no such

matter.   Even after petitioner failed to call Settlement Officer

Payton at the appointed time for his conference call, the

settlement officer gave petitioner another opportunity to qualify

for a face-to-face meeting by mailing petitioner a letter,

including Form 433-A, asking petitioner to propose a collection

alternative.      Petitioner’s only response was a letter stating

that he met all the criteria for a face-to-face meeting.      Under

these circumstances, it was not an abuse of discretion for

Settlement Officer Payton to conclude that a face-to-face meeting

would not be productive.     Hence, Settlement Officer Payton was

not required to offer petitioner a face-to-face conference.        See

Clark v. Commissioner, T.C. Memo. 2008-155; Summers v.

Commissioner, T.C. Memo. 2006-219; see also Lunsford v.

Commissioner, 117 T.C. 183 (2001).

C.   Conclusion

      Section 6330(c)(3) provides that an Appeals settlement

officer must take into consideration the verification that the

requirements of applicable law and administrative procedure have

been met and whether any proposed collection action balances the

need for the efficient collection of taxes with the legitimate

concern of the taxpayer that any collection action be no more
                              - 10 -

intrusive than necessary.   The notice of determination states,

and petitioner does not dispute, that Settlement Officer Payton

verified that the requirements of all applicable law and

administrative procedure were met and that the proposed levy

action appropriately balanced the need for efficient collection

of taxes with petitioner’s concerns that the levy be no more

intrusive than necessary.   Consequently, we are satisfied that

the mandate of section 6330(c)(3) has been met.

      At trial respondent’s counsel requested that the Court

impose a penalty under section 6673(a)(1) on account of

petitioner’s frivolous arguments during trial.    Section

6673(a)(1) authorizes the Court to require a taxpayer to pay a

penalty to the United States in an amount not to exceed $25,000

whenever it appears to the Court that the taxpayer instituted or

maintained the proceeding primarily for delay or that the

taxpayer’s position in the proceeding is frivolous or groundless.

      Petitioner’s position is frivolous and groundless.

Petitioner failed to advance any argument with respect to

respondent’s proposed collection action.   During trial he

continually cited the Uniform Commercial Code, a work that is not

relevant to this case; he challenged respondent’s counsel’s

credentials; he questioned the Court and was unresponsive to the

Court’s most basic questions, such as where his current residence

is.   Moreover, we find that petitioner filed his petition for
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purposes of delay.   Therefore, pursuant to the authority granted

to the Court under section 6673(a)(1), we require petitioner to

pay to the United States a penalty of $3,000.

     We have considered all of petitioner’s assertions, and to

the extent not discussed herein, we find them to be groundless,

irrelevant, and/or without merit.

     To reflect the foregoing,


                                         An appropriate order and

                                    decision will be entered.
