                      T.C. Memo. 2006-59



                      UNITED STATES TAX COURT



                    HENRY NINO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17120-05.             Filed March 28, 2006.



     Henry Nino, pro se.

     Timothy S. Murphy, for respondent.



                           MEMORANDUM OPINION


     LARO, Judge:   This case is before the Court on respondent’s

motion to dismiss for failure to state a claim upon which relief

can be granted.   Petitioner did not file Federal income tax

returns for 2000, 2001, 2002, or 2003.     Respondent prepared a

Form 4549A, Income Tax Examination Changes, and issued to

petitioner a notice of deficiency dated June 9, 2005, that
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determined the following deficiencies in petitioner’s Federal

income tax and additions to tax:

                                       Additions to Tax

Year       Deficiency    Sec. 6651(a)(1)1 Sec. 6651(a)(2) Sec. 6654

2000        $43,644       $8,860.95         $9,451.68       $2,078.27
2001         34,957        6,860.93          5,488.74        1,198.79
2002         30,404        6,709.95          3,578.64          994.41
2003         19,015        4,078.35          1,087.56          471.79

       Petitioner, while residing in Northville, Michigan, timely

petitioned this Court.    In his petition, petitioner claimed that

respondent’s determination was based on the following errors:

       The Commissioner’s Examiner (revenue officer) and
       Technical Services, was unable, and/or unwilling to
       properly execute its collection activities as is
       statutorily annotated in agency law as herein stated:

            (a) The Paper Work Reduction Act, as is
            statutorily implemented by the Agency in
            Title 26 Code of Federal Regulation Part
            601.104.

            (b) The Revenue Officer failed to lawfully
            execute its collection activity prescribed in
            Title 26 CFR part 601.104

            (c) Technical Services failed to lawfully
            authenticate the Letter 531(DO) in
            accordance to its legal responsibility, and
            chose to issue a non statutory notice of
            deficiency in contravention to Title 26 CFR
            part 601.103(c)(2)

       (d) Neither The Examiner, and/or Technical Services
       have a lawfully executed a legal collection activity in
       compliance to Title 26 USCA Chapter 63, Subchapter B.


       1
        Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
                               -3-

     Petitioner relied on the following as the basis of his case:

     (a) The Examiner, who is the Revenue Officer moved a
     collection activity in violation to Title 26, CFR part
     601.104

     (b) The Technical Services Officer knows and/or should
     have known that a non statutory collection activity is
     demonstrative of an inappropriate collection activity.
     (Title 26 of USCA Chapter 64, Subchapter D)

     (c) The Examiner’s Tax Payer Delinquency Investigation
     substantiates it has moved an inappropriate
     collection activity, that stands in
     contradistinction to the Paper Work Reduction Act.
     (Title 26 CFR part 601.101)

     (d) The Technical Services Territory Manager is
     attempting to perfect an inappropriate collection
     action, as it is unwilling, and/or unable to
     produce a lawfully filed, and/or legally executed TAX
     RETURN. (Title 26 USCA Chapter 63, Subchapter A)

     Respondent filed a motion to dismiss the case for failure to

state a claim upon which relief can be granted.   On October 21,

2005, the Court ordered petitioner to file an amended petition

“in which petitioner sets forth with specificity each error

petitioner alleges was made by respondent in the determination of

the deficiency and additions to tax, and separate statements of

every fact upon which petitioner bases the assignment of errors.”

On November 2, 2005, petitioner filed with this Court an amended

petition in which he listed the following assignments of error of

respondent:

     a.) The respondent failed to substantiate a lawful
     collection of information for the issuance of
     statutory notice of deficiency.
                               -4-

     b.) The respondent has not lawfully substantiated its
     collection of information in accordance to the
     Paperwork Reduction Act annotated specifically by the
     Secretary in Title 26 CFR part 601.101(b) in
     Compliance to Title 44 USCA section 3501 et. seq..

     c.) The respondent is attempting to use a non
     statutory notice of deficiency to accrue an assessment
     without a lawful collection of information in violation
     to the Paperwork Reduction Act which stipulates the
     statutory provisions for an agency’s collection of
     information.

     d.) The respondent’s Internal Revenue Manual
     specifically states a substitute for return is not a
     valid collection of information, as said manual
     stipulates this substitute for return, is an
     invalid return, which is why the Respondent is
     unable to produce a lawfully executed and legally
     signed Tax return.

     e.) The respondent is statutorily empowered to collect
     information in accordance to law, not to create
     fictitious presentments in violation to the law
     authorizing information collection requests and
     collection of information for determining legal
     assessments.

     f.) The Respondent issued a non statutory notice of
     deficiency and wavier to obfuscate its statutory
     failure to lawfully execute an information collection
     request, for the legal collection of information in
     accordance to the procedural rules annotated by the
     Secretary in Title 26 CFR part 601.103(c)(2).

     Petitioner relied on the following as the basis of his case

in his amended petition:

     a.) The Letter 531(DO) is a deliberated attempt by the
     respondent to suppress its evidentiary failure to
     execute an information collection request in
     compliance to securing the collection of information to
     substantiate its issuance of a Notice of Deficiency,
     which is self evident as it forthwith, issued as a non
     statutory Notice of Deficiency and Waiver presented as
     this Letter 531 (DO).
                                 -5-


     b.) The respondent has no lawful evidence to
     substantiate its issuance of a statutory notice of
     deficiency in compliance to law as specified by the
     Secretary in Title 26 CRF part 601.103(c)(2) and the
     Federal Rules of Evidence as expressed in Court Rule
     143.

     c.) The respondent has issued a non statutory Letter
     531(DO) to fraudulently induce the Petitioner to
     secure re-determination of a non existent Notice of
     Deficiency.

     d.) The respondent has not lawfully determined a legal
     assessment substantiating an issuance of a notice of
     deficiency in accordance to its administrative rules
     and regulations; it has chosen to issue a non statutory
     notice of deficiency and waiver as this Letter 531 (DO)
     purporting to be the respondent’s “90 day Letter”.

     Following the filing of petitioner’s amended petition,

respondent filed a supplement to his motion to dismiss for

failure to state a claim upon which relief can be granted.

Respondent reiterated in his supplement that petitioner has still

failed to state a claim upon which relief can be granted.

Petitioner has filed a response to respondent’s motion.

     Rule 34(b)(4) requires that a petition filed in this Court

contain clear and concise assignments of each and every error

that the petitioning taxpayer alleges to have been committed by

the Commissioner in the determination of any deficiency, addition

to tax, or penalty in dispute.   Rule 34(b)(5) further requires

that the petition shall contain clear and concise lettered

statements of the facts on which the taxpayer bases the

assignments of error.   See Funk v. Commissioner, 123 T.C. 213,

215 (2004); Jarvis v. Commissioner, 78 T.C. 646, 658 (1982).      Any
                                -6-

issue not raised in the pleadings is deemed to be conceded.      See

Rule 34(b)(4); Funk v. Commissioner, supra.    Further, the failure

of a party to plead or otherwise proceed as provided in the

Court’s Rules may be grounds for the Court to hold such party in

default, either on the motion of another party or on the

initiative of the Court.   See Rule 123(a); Meeker v.

Commissioner, T.C. Memo. 2005-146; Ward v. Commissioner, T.C.

Memo. 2002-147.   The Court also may dismiss a case and enter a

decision against a taxpayer for the failure properly to prosecute

or to comply with the Rules of this Court.    See Rule 123(b);

Meeker v. Commissioner, supra; Ward v. Commissioner, supra.

     We agree with respondent that petitioner has failed to state

a claim upon which relief can be granted.    See Funk v.

Commissioner, supra at 216-217; Meeker v. Commissioner, supra.

Petitioner has failed to present the Court with a petition

containing clear and concise assignments of error that petitioner

alleges the Commissioner has committed in the determination of

the deficiency or the additions related thereto.    Petitioner has

likewise failed to include in his petition clear and concise

statements of the facts on which he bases his assignments of

error.   Rather than making factual claims of error, petitioner

argues only frivolous conclusions.    The petition neither conforms

to this Court’s Rules of Practice and Procedure nor states a

claim upon which relief can be based.   Due to the absence from
                                  -7-

the petition of specific justiciable allegations of error and of

supporting facts, this Court shall grant respondent’s motion.

See Funk v. Commissioner, supra.

     Section 6673(a)(1) authorizes this 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.   The Court has considered imposing sanctions on

petitioner under section 6673(a)(1) but declines to do so at this

time.   With this in mind, we note that petitioner is now on

notice that he may be liable for sanctions if he continues to

make frivolous arguments and maintain proceedings before this

Court for the purpose of delay.

     Accordingly, we shall dismiss petitioner’s case and enter a

decision sustaining respondent’s determinations contained in the

notice of deficiency dated June 9, 2005.      See sec. 7459(d).

     To reflect the foregoing,

                                             An appropriate order of

                                        dismissal and decision will be

                                        entered for respondent.
