                        T.C. Memo. 2005-62



                      UNITED STATES TAX COURT



                 JONATHAN KAPLOWITZ, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 542-04L.                 Filed March 29, 2005.



     Jonathan Kaplowitz, pro se.

     Sandra K. Reid and Monica J. Miller, for respondent.



                        MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:    This matter is before

the Court on respondent’s motion to dismiss for failure to state

a claim upon which relief can be granted pursuant to Rule 40 and

petitioner’s motion for partial summary judgment.1


     1
         Section references are to sections of the Internal
                                                    (continued...)
                                 - 2 -

Background2

     Petitioner failed to file Federal income tax returns for the

taxable years 1996 through 2000.     A notice of deficiency was

issued on June 19, 2002, determining deficiencies and additions

to tax for the taxable years 1996 through 2000.     Petitioner

received the notice of deficiency and acknowledged receipt to

representatives of respondent.    A timely petition was not filed

with this Court in response to the June 19, 2002, notice of

deficiency.   The deficiencies, additions to tax, and interest

were assessed on November 11, 2002.

     On August 21, 2003, respondent mailed a Final Notice-–Notice

of Intent to Levy and Notice of Your Right to a Hearing with

regard to petitioner’s tax liabilities for 1996 through 2000.

Petitioner submitted a timely request for hearing.     Petitioner

was advised by the Appeals officer that the issue of the

underlying tax liability would not be the subject matter of the

hearing.   See sec. 6330(c)(2)(B).    Petitioner was also advised

that respondent could consider collection alternatives and that


     1
      (...continued)
Revenue Code, as amended, and Rule references are to the Tax
Court Rules of Practice and Procedure.
     2
        The background factual information is derived from
respondent’s determination letter dated Dec. 16, 2003.
Petitioner does not appear to dispute the factual narrative
provided by the IRS Appeals officer with respect to the failure
to file returns, the issuance of a notice of deficiency and a
final notice of intent to levy, and the subsequent hearing held
with the Appeals officer.
                                - 3 -

petitioner should file tax returns for the years in issue.      A

hearing was conducted with the Appeals officer, and petitioner

presented arguments that he was not subject to income tax and

that there were defects in respondent’s procedures.

     On December 16, 2003, respondent issued to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.    The notice states that the Appeals

Office determined that it was appropriate to proceed with

collection for 1996 through 2000 as follows:

                                     Unpaid
                 Year               Liability1

                 1996               $11,562.07
                 1997                41,312.05
                 1998                31,040.43
                 1999                40,107.43
                 2000                25,793.49
     1
         Calculated through Nov. 30, 2003.

The letter advised, among other things, that petitioner could be

subject to sanctions pursuant to section 6673(a) for instituting

or maintaining an action primarily for delay or taking a position

that is frivolous or groundless.

     On January 12, 2004, petitioner filed with the Court a

petition for lien or levy action seeking review of respondent’s

notice of determination.    At the time that the petition was

filed, petitioner resided in Maitland, Florida.
                               - 4 -

     The petition asserts as error that “a) Failure of the

hearing officer to consider denial of due process at the

examination interview, an evidentiary hearing; b) Failure of the

hearing officer to consider procedural errors committed by the

Examinations Division in creating the Report of Tax Changes.” In

paragraph 5 of the petition, petitioner asserts facts that he

relies on, such as, that he was a “Citizen of the United States

of America”, that he was not engaged in interstate commerce, that

he is a natural person, that he has a Sixth Amendment right to

refute, confront, and cross-examine witnesses, that petitioner

was denied an opportunity during the examination process to raise

a defense against erroneous testimony, that there was no

opportunity to cross-examine witnesses related to documents used

by the examiner, and that he effectively did not have an

opportunity to dispute the tax liability.

     Respondent filed a motion to dismiss for failure to state a

claim.   Respondent contends that petitioner is barred under

section 6330(c)(2)(B) from challenging the existence or amount of

his tax liability in this proceeding because he received a notice

of deficiency and failed to file a timely petition in response

thereto.

     After the petition was filed in response to the

determination letter, respondent filed an answer.   Petitioner

filed a lengthy reply which contains primarily frivolous
                                - 5 -

objections.    Since that time, petitioner has filed numerous

lengthy motions and documents with the Court espousing frivolous

positions.    Many of the motions have previously been denied.   The

Court set for hearing:    (1) Respondent’s motion to dismiss for

failure to state a claim and (2) petitioner’s motion for partial

summary judgment.3

     On February 9, 2005, the Court ordered petitioner to show

cause in writing on or before March 4, 2005, why a penalty should

not be imposed pursuant to section 6673(a).

     On February 22, 2005, petitioner filed a Verified Motion for

Ruling on Petitioner’s Motion to Set Aside Defaults Against the

petitioner Docketed on July 8, 2004, and a Verified Motion for

Findings of Fact and Conclusions at Law.    On February 23, 2005,

petitioner filed a Motion to Postpone Answer to Order of February

9, 2004 Until Court Rules on Petitioner’s Motion to Set Aside IRS

Default Against Petitioner.    All three motions contain frivolous

allegations and were summarily denied.    In response to the Order

to show cause, petitioner filed a document entitled “Verified

Answer to Order to Show Cause Why Penalty Should Not Be Imposed.”

The document is replete with frivolous allegations.4


     3
        In October 2004, petitioner filed a petition for writ of
mandamus with the U.S. Court of Appeals for the 11th Circuit.
The writ was denied on Dec. 21, 2004.
     4
        On the same date petitioner filed a “Verified Motion to
Certify Issues for Review by the U.S. Court of Appeals for the
                                                   (continued...)
                               - 6 -

Discussion

     Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy on the person’s property.   Section

6331(d) provides that at least 30 days before enforcing

collection by levy on the person’s property, the Secretary is

obliged to provide the person with a final notice of intent to

levy, including notice of the administrative appeals available to

the person.

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the person has been given

notice and the opportunity for an administrative review of the

matter (in the form of an Appeals Office hearing) and, if

dissatisfied, with judicial review of the administrative

determination.   See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).

     Section 6330(c) prescribes the matters that a person may

raise at an Appeals Office hearing.    In sum, section 6330(c)

provides that a person may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner’s

intended collection action, and possible alternative means of


     4
      (...continued)
Eleventh Circuit”. This motion also contained nothing but
frivolous allegations and was summarily denied.
                               - 7 -

collection.   Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing if the person did not receive a notice of

deficiency for the taxes in question or did not otherwise have an

opportunity to dispute the tax liability.    See Sego v.

Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner,

supra.   Section 6330(d) provides for judicial review of the

administrative determination in the Tax Court or a Federal

District Court, as may be appropriate.

     Petitioner first contends that he was unlawfully denied the

opportunity to challenge the existence or amount of his tax

liabilities for the years in question.    The record in this case

shows otherwise.   As was the case in Goza v. Commissioner, supra,

petitioner received a notice of deficiency for the years in issue

and failed to file a timely petition for redetermination with

this Court.   It follows that section 6330(c)(2)(B) bars

petitioner from challenging the existence or amount of the

underlying tax liability in this collection review proceeding.

Even if petitioner were permitted to challenge the underlying tax

liability, his arguments are clearly frivolous.

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.    Rule 331(b)(4).   Further,
                                - 8 -

the nature of the Appeals Office hearing does not include the

taking of testimony under oath or the compulsory attendance of

witnesses.   Davis v. Commissioner, supra at 41-42.   In the

absence of a justiciable issue for review, we conclude that

petitioner has failed to state a claim for relief, and we shall

therefore grant respondent’s motion to dismiss.   See Jackson v.

Commissioner, T.C. Memo. 2002-100; Yacksyzn v. Commissioner, T.C.

Memo. 2002-99; Weishan v. Commissioner, T.C. Memo. 2002-88, affd.

66 Fed. Appx. 113 (9th Cir. 2003).

     Petitioner’s motion for partial summary judgment does not

raise any justiciable issues.   Essentially, petitioner asserts

many of the same frivolous positions set forth in his numerous

documents filed with the Court.   The U.S. Court of Appeals for

the Fifth Circuit stated:   “We perceive no need to refute these

arguments with somber reasoning and copious citation of

precedent; to do so might suggest that these arguments have some

colorable merit.”    Crain v. Commissioner, 737 F.2d 1417, 1417

(5th Cir. 1984).    Suffice it to say that petitioner is a taxpayer

who is subject to the Federal income tax on his wages and other

sources of income.   See secs. 1(c), 61(a)(1), (11), 7701(a)(1),

(14); Nestor v. Commissioner, 118 T.C. 162, 165 (2002),

supplemented by T.C. Memo. 2002-251.    We shall deny petitioner’s

motion for partial summary judgment.
                                 - 9 -

     Section 6673(a) authorizes the Tax Court to require a

taxpayer to pay to the United States a penalty not in excess of

$25,000 whenever it appears that proceedings have been instituted

or maintained by the taxpayer primarily for delay or that the

taxpayer’s position in such proceeding is frivolous or

groundless.    Petitioner was specifically warned of the likelihood

of a penalty under section 6673 if he persisted in his frivolous

arguments.    Petitioner was ordered to show cause why a penalty

under section 6673(a) should not be imposed.       Petitioner’s

response was frivolous.    Further, subsequent to the issuance of

the Order to show cause petitioner filed four separate motions,

all of which are frivolous.    Petitioner has persisted.     Serious

sanctions are necessary to deter petitioner and others similarly

situated.    Takaba v. Commissioner, 119 T.C. 285, 295 (2002);

Hamzik v. Commissioner, T.C. Memo. 2004-223.       We shall impose a

penalty on petitioner pursuant to section 6673(a) in the amount

of $15,000.

     To reflect the foregoing,


                                         An appropriate order and

                                 decision will be entered.
