                          T.C. Memo. 2003-77



                       UNITED STATES TAX COURT



                   GEORGE A. ROBINSON, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5355-01L.                 Filed March 17, 2003.



     George A. Robinson, pro se.

     Robert T. Little, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for partial summary judgment (respondent’s motion).

We shall grant respondent’s motion.

                             Background

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

following.
                               - 2 -

     Petitioner resided in Chicago, Illinois, at the time he

filed the petition in this case.

     On July 14, 1993, respondent issued to petitioner a notice

of deficiency (July 14, 1993 notice) with respect to his taxable

years 1987, 1988, and 1989, which he received.   In that notice,

respondent determined a deficiency in, and additions under

sections 6651(a)(1) and 66541 to, petitioner’s Federal income tax

(tax) for each of his taxable years 1987, 1988, and 1989.

     Petitioner did not file a petition in the Court with respect

to the July 14, 1993 notice relating to his taxable years 1987,

1988, and 1989.

     On February 7, 1994, respondent assessed petitioner’s tax,

as well as additions to tax and interest as provided by law, for

his taxable year 1987.   (We shall refer to those assessed

amounts, as well as interest as provided by law accrued after

February 7, 1994, as petitioner’s unpaid liability for 1987.)

     On February 7, 1994, respondent issued to petitioner a

notice of balance due with respect to petitioner’s unpaid liabil-

ity for 1987.   On March 14, 1994, respondent issued a second

notice of balance due with respect to such unpaid liability.

     On February 21, 1994, respondent assessed petitioner’s tax,

as well as any penalties and interest as provided by law, for


     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 -

each of his taxable years 1988 and 1989.   (We shall refer to

those assessed amounts, as well as interest as provided by law

accrued after February 21, 1994, as petitioner’s unpaid liability

for each of his taxable years 1988 and 1989.)

     On February 21, 1994, respondent issued to petitioner a

notice of balance due with respect to petitioner’s unpaid liabil-

ity for each of his taxable years 1988 and 1989.   On March 28,

1994, respondent issued a second notice of balance due with

respect to each such unpaid liability.

     On July 31, 1997, respondent issued to petitioner a notice

of deficiency (July 31, 1997 notice) with respect to his taxable

years 1993, 1994, and 1995, which he received.   In that notice,

respondent determined a deficiency in, and additions to tax under

sections 6651(a)(1) and 6654 on, petitioner’s tax for each of his

taxable years 1993, 1994, and 1995.

     Petitioner did not file a petition in the Court with respect

to the July 31, 1997 notice relating to his taxable years 1993,

1994, and 1995.   Instead, on September 9, 1997, in response to

the July 31, 1997 notice, petitioner sent a letter (petitioner’s

September 9, 1997 letter) to the Internal Revenue Service that

contained statements, contentions, arguments, and requests that

the Court finds to be frivolous and/or groundless.2


     2
      Petitioner’s September 9, 1997 letter is the type of letter
that is similar to the types of letters that certain other
                                                   (continued...)
                               - 4 -

     On March 27, 1998, respondent assessed petitioner’s tax, as

well as additions to tax and interest as provided by law, for

each of his taxable years 1993, 1994, and 1995.   (We shall refer

to those assessed amounts, as well as interest as provided by law

accrued after March 27, 1998, as petitioner’s unpaid liability

for each of his taxable years 1993, 1994, and 1995.)

     On March 27, 1998, respondent issued to petitioner a notice

of balance due with respect to petitioner’s unpaid liability for

each of his taxable years 1993, 1994, and 1995.

     On December 16, 1999, respondent issued to petitioner a

final notice of intent to levy and notice of your right to a

hearing (notice of intent to levy) with respect to (1) peti-

tioner’s unpaid liability for each of his taxable years 1987,

1988, 1989, 1993, 1994, and 1995 and (2) a frivolous return

penalty under section 6702 with respect to each of his taxable

years 1995 and 1996.   That notice showed in pertinent part:




     2
      (...continued)
taxpayers with cases in the Court sent to the Internal Revenue
Service in response to the notices issued to them. See, e.g.,
Copeland v. Commissioner, T.C. Memo. 2003-46; Smith v. Commis-
sioner, T.C. Memo. 2003-45.
                              - 5 -

    Type       Period      Assessed      Statutory
   of Tax      Ending       Balance      Additions      Total
   1040A     12-31-1987    $7,777.54     $5,939.64    $13,717.18
   1040A     12-31-1988     7,200.48      5,518.33     12,718.81
   1040A     12-31-1989     6,324.24      4,924.69     11,248.93
   1040A     12-31-1993     3,239.00        846.03      4,085.03
   1040A     12-31-1994     7,790.00      2,079.30      9,869.30
   1040A     12-31-1995     2,374.00        659.66      3,033.66
 Civ. pen.   12-31-1995       500.00         30.92        530.92
 Civ. pen.   12-31-1996       500.00         30.92        530.92

     In response to the notice of intent to levy, petitioner

submitted more than one Form 12153, Request for a Collection Due

Process Hearing (Form 12153), and requested a hearing with

respondent’s Appeals Office (Appeals Office).3   Petitioner at-

tached a document to each of his Forms 12153 (collectively,

petitioner’s attachments to Forms 12153) that contained state-

ments, contentions, arguments, and requests that the Court finds

to be frivolous and/or groundless.4


     3
      Petitioner submitted three Forms 12153. On Dec. 29, 1999,
petitioner submitted Form 12153 with respect to his taxable years
1987, 1988, 1989, 1993, 1994, 1995, and 1996. On Mar. 2, 2000,
the Appeals Office returned that form because it lacked an
original signature. On Mar. 21, 2000, respondent received a
second Form 12153, with petitioner’s original signature, with
respect to his taxable years 1987, 1988, 1989, 1993, 1994, 1995,
and 1996. On June 12, 2000, petitioner sent a letter to the
Internal Revenue Service and attached to that letter, inter alia,
a third Form 12153 with respect to his taxable years 1994 and
1996.
     4
      Petitioner’s attachments to Forms 12153 contained state-
ments, contentions, arguments, and requests that are similar to
the statements, contentions, arguments, and requests contained in
the attachment to Forms 12153 filed with the Internal Revenue
Service by certain other taxpayers with cases in the Court. See,
                                                   (continued...)
                                 - 6 -

     Respondent did not hold an Appeals Office hearing with

petitioner.    That is because the Appeals officer determined that

the matters advanced in petitioner’s attachments to Forms 12153

did not require respondent to hold a hearing to discuss those

matters.     The Appeals officer did advise petitioner in a letter

(Appeals officer’s September 5, 2000 letter) that she was willing

to examine any information that petitioner wished to submit

showing that petitioner is not liable for the unpaid liabilities

at issue, requesting an installment agreement, or requesting an

offer in compromise.    Petitioner did not provide any information

in response to the Appeals officer’s September 5, 2000 letter.

     On March 22, 2001, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination).    The notice

of determination pertains to petitioner’s taxable years 1987,

1988, 1989, 1993, 1994, 1995, and 1996.    An attachment to the

notice of determination stated in pertinent part:

     MATTERS CONSIDERED AT THE APPEALS HEARING

     Applicable Law and Administrative Procedures

         •   With the best information available, the require-
             ments of various applicable law and administrative
             procedures have been met.

         •   Internal Revenue Code Section 6331(d) requires that


     4
      (...continued)
e.g., Copeland v. Commissioner, supra; Smith v. Commissioner,
supra.
                          - 7 -

       the IRS notify a taxpayer at least 30 days before a
       Notice of Levy can be issued. A transcript of your
       account verifies that this notice was issued.

   •   Internal Revenue Code Section 6330(a) states that
       no levy may be made unless the IRS notifies a tax-
       payer of the opportunity for a hearing with the IRS
       Office of Appeals. This notice was sent to you via
       certified mail.

   •   You were given the opportunity to raise any rele-
       vant issue relating to the unpaid tax or the Notice
       of Intention to Levy in accordance with Internal
       Revenue Code Section 6330(c).

   •   This Appeals Officer has had no prior involvement
       with respect to these liabilities.

Relevant Issues Presented by the Taxpayer

   •   You contend that you are not liable for tax and you
       don’t owe anything because you are not a taxpayer
       and therefore, not required to file.

   •   You also stated that you never received the statu-
       tory notice and demand for payment nor did you
       receive a (valid) notice of deficiency.

   •   You failed to raise any issues that could be con-
       sidered in a due process hearing pursuant to Inter-
       nal Revenue Code Section 6330. Our review of your
       file indicates a hearing is not available for con-
       stitutional issues such as those referenced in your
       reply to the final notice.

   •   You can not challenge the tax liabilities for 1987,
       1988, 1989, 1993, 1995 [sic] and 1995 because you
       did received [sic] a deficiency notice. You did
       not avail yourself of the opportunity to file a
       petition for redetermination with the court.

   •   Appeals believes that you are liable for the income
       tax liabilities for tax years 1987, 1988, 1989,
       1993, 1994 and 1995 in accordance with the law.

Balancing Efficient Collection and Intrusiveness

   •   It is Appeal’s determination that the proposed
                              - 8 -

           collection action is proper and should be pursued
           as was recommended by Collection for the income tax
           liability.

       •   It is Appeals determination that normal collection
           activity balances efficient collection with any
           concerns you may have regarding the intrusiveness
           of the action.

   On April 23, 2001, the date on which petitioner filed the

petition in this case, petitioner filed a motion to dismiss for

lack of jurisdiction (petitioner’s motion to dismiss for lack of

jurisdiction) on the ground that the Appeals Office did not hold

a hearing with him.

   On December 18, 2001, the Court issued an Order denying

petitioner’s motion to dismiss for lack of jurisdiction.   That

was because, after petitioner filed petitioner’s motion to

dismiss for lack of jurisdiction, the Court overruled Meyer v.

Commissioner, 115 T.C. 417 (2000), and held that the Court will

not look behind a notice of determination to determine whether

the Appeals Office conducted a hearing.   Lunsford v. Commis-

sioner, 117 T.C. 159, 164 (2001).

   On December 2, 2002, respondent’s counsel provided petitioner

with Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters (Form 4340), with respect to each of his

taxable years 1987, 1988, 1989, 1993, 1994, 1995, and 1996.

                            Discussion

Jurisdictional Matter

   Respondent submitted to the Court a document entitled “MOTION
                               - 9 -

FOR SUMMARY JUDGMENT”, which the Court had filed as respondent’s

motion for partial summary judgment.    The Court had that document

filed as a motion for partial summary judgment because it asked

the Court for a summary adjudication in respondent’s favor only

as to petitioner’s taxable years 1987, 1988, 1989, 1993, 1994,

and 1995.   However, the notice of determination pertains to

petitioner’s taxable year 1996 as well as his taxable years 1987,

1988, 1989, 1993, 1994, and 1995.

   In a supplement to respondent’s motion (respondent’s supple-

ment) that the Court ordered respondent to file, respondent

explained that the notice of determination insofar as it pertains

to petitioner’s taxable year 1996 relates only to a frivolous

return penalty under section 6702.     Respondent further explained

in respondent’s supplement that, in addition to pertaining to

petitioner’s unpaid liability for 1995, the notice of determina-

tion also pertains to a frivolous return penalty under section

6702 for that year.

   The Court does not have jurisdiction over a frivolous return

penalty under section 6702.   Van Es v. Commissioner, 115 T.C.

324, 328-329 (2000).   The Court will sua sponte dismiss this case

for lack of jurisdiction insofar as the petition seeks review of

the notice of determination relating to a frivolous return

penalty under section 6702 with respect to each of petitioner’s
                                - 10 -

taxable years 1995 and 1996.5

Respondent’s Motion

   The Court may grant summary judgment where there is no genu-

ine issue 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), affd. 17 F.3d 965 (7th Cir. 1994).   We

conclude that there are no genuine issues of 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, 181-182 (2000).

   As was true of petitioner’s September 9, 1997 letter and

petitioner’s attachments to Forms 12153, petitioner’s response to

respondent’s motion (petitioner’s response) contains contentions,

arguments, and requests that the Court finds to be frivolous

and/or groundless.6



     5
      The Court will recharacterize respondent’s motion for
partial summary judgment as a motion for summary judgment.
     6
      The contentions, arguments, and requests set forth in
petitioner’s response are similar to the contentions, arguments,
and requests set forth in responses by certain other taxpayers
with cases in the Court to motions for summary judgment and to
impose a penalty under sec. 6673 filed by the Commissioner of
Internal Revenue in such other cases. See, e.g., Smith v.
Commissioner, T.C. Memo. 2003-45.
                             - 11 -

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

find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioner’s

unpaid liability for each of his taxable years 1987, 1988, 1989,

1993, 1994, and 1995.

   Although respondent does not ask the Court to impose a pen-

alty on petitioner under section 6673(a)(1), the Court will sua

sponte determine whether to impose such a penalty.    Section

6673(a)(1) authorizes the Court 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 a proceeding

before it was instituted or maintained primarily for delay, sec.

6673(a)(1)(A), or that the taxpayer’s position in such a proceed-

ing is frivolous or groundless, sec. 6673(a)(1)(B).

   In Pierson v. Commissioner, 115 T.C. 576, 581 (2000), we

issued an unequivocal warning to taxpayers concerning the imposi-

tion of a penalty under section 6673(a) on those taxpayers who

abuse the protections afforded by sections 6320 and 6330 by

instituting or maintaining actions under those sections primarily

for delay or by taking frivolous or groundless positions in such

actions.7


     7
      In an Order dated Jan. 10, 2003, in response to respon-
dent’s motion for protective order, the Court reminded petitioner
                                                   (continued...)
                               - 12 -

   In the instant case, petitioner advances, we believe primar-

ily for delay, frivolous and/or groundless contentions, argu-

ments, and requests, thereby causing the Court to waste its

limited resources.   We shall impose a penalty on petitioner

pursuant to section 6673(a)(1) in the amount of $11,000.

   We have considered all of petitioner’s contentions, argu-

ments, and requests that are not discussed herein, and we find

them to be without merit and/or irrelevant.8

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

   To reflect the foregoing,

                                 An appropriate order and deci-

                      sion will be entered for respondent.




     7
      (...continued)
about sec. 6673(a)(1) and indicated that, in the event that
petitioner continued to make statements, advance arguments and
contentions, or raise questions that the Court finds to be
frivolous and/or groundless, the Court would be inclined to
impose a penalty under that section.
     8
      We shall, however, address one of petitioner’s allegations
in the petition. Petitioner alleges in the petition that the
Court should order respondent to hold an Appeals Office hearing
with him. Respondent acknowledges that, pursuant to Internal
Revenue Manual 8.7.2.3.3(5)d, respondent’s Appeals Office should
have held a hearing with petitioner. However, relying on
Lunsford v. Commissioner, 117 T.C. 183, 189 (2001), respondent
contends that an Appeals Office hearing is not necessary or
productive in the instant case. We agree with respondent. We
have found petitioner’s statements, contentions, arguments, and
requests to be frivolous and/or groundless. We conclude that it
is not necessary or productive for respondent to hold an Appeals
Office hearing with petitioner. Id.
