                        T.C. Memo. 2008-162


                       UNITED STATES TAX COURT



                   DOMINIC MAGA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5635-06L.              Filed June 26, 2008.



     Dominic Maga, pro se.

     Terry Serena, for respondent.



                         MEMORANDUM OPINION


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

dent’s motion for summary judgment (respondent’s motion).1    We

shall grant respondent’s motion.




     1
      Although the Court ordered petitioner to file a response to
respondent’s motion, petitioner failed to do so.
                                - 2 -

                            Background

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

following.

     Petitioner resided in Ohio at the time he filed the petition

in this case.

     On October 1, 2003, respondent issued to petitioner a

separate notice of deficiency with respect to each of his taxable

years 1996 and 1997, which he received.   On September 26, 2003,

respondent issued to petitioner a separate notice of deficiency

with respect to each of his taxable years 1998, 1999, and 2000,

which he received.   On November 7, 2003, respondent issued to

petitioner a notice of deficiency with respect to his taxable

year 2001, which he received.   In each of those notices, respon-

dent determined a deficiency in, and additions under sections

6651(a)(1)2 and 6654(a), respectively, to, petitioner’s Federal

income tax (tax).

     Petitioner did not file petitions in the Court with respect

to the respective notices of deficiency relating to his taxable

years 1996, 1997, 1998, 1999, 2000, and 2001.

     On March 29, 2004, respondent assessed petitioner’s tax, as

well as additions to tax under sections 6651(a)(1) and 6654(a),

respectively, and interest as provided by law, for each of his


     2
      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 -

taxable years 1996 and 1997.   On May 24, May 17, April 20, and

May 17, 2004, respectively, respondent assessed petitioner’s tax,

as well as additions to tax under sections 6651(a)(1) and

6654(a), respectively, and interest as provided by law, for each

of his taxable years 1998, 1999, 2000, and 2001.3   (We shall

refer to those unpaid assessed amounts, as well as interest as

provided by law accrued thereafter, as petitioner’s unpaid

liabilities for 1996 through 2001.)

     Respondent timely issued to petitioner a notice of balance

due with respect to each of petitioner’s unpaid liabilities for

1996 through 2001.

     On August 18, 2005, 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 petitioner’s unpaid

liabilities for 1996 through 2001.4

     On August 28, 2005, in response to the notice of intent to

levy, petitioner filed Form 12153, Request for a Collection Due

Process Hearing (petitioner’s Form 12153), and requested a


     3
      Respondent did not determine in the respective notices of
deficiency relating to petitioner’s taxable years 1996 through
2001 additions to tax under sec. 6651(a)(2). Nonetheless,
respondent assessed additions to tax under that section for each
of those years except 2000.
     4
      The notice of intent to levy also pertained to a frivolous
return penalty under sec. 6702 that respondent imposed on peti-
tioner for each of his taxable years 1997, 1999, and 2000. On
Oct. 9, 2007, the Court ordered those penalties dismissed from
this case for lack of jurisdiction.
                               - 4 -

hearing with respondent’s Appeals Office (Appeals Office).    In

petitioner’s Form 12153, petitioner stated the following as the

reason for his disagreement with the notice of intent to levy:

“As per IMFs my MFR is 01 (not required to file a return) see

attached.”   Attached to petitioner’s Form 12153 were copies of

his undated letter to Jim Keegan of the Internal Revenue Service

and certain documents titled “IMF MCC TRANSCRIPT-SPECIFIC”.

     In response to petitioner’s Form 12153, a settlement officer

with the Appeals Office (settlement officer) sent to petitioner a

letter dated November 28, 2005 (settlement officer’s November 28,

2005 letter).   In that letter, the settlement officer admonished

petitioner about advancing frivolous arguments and offered

petitioner a telephonic conference at 9 a.m. on December 20,

2005, or on another date that was more convenient to petitioner.

In the settlement officer’s November 28, 2005 letter, the settle-

ment officer also offered petitioner a face-to-face conference if

he wished to raise relevant, nonfrivolous issues.   In the settle-

ment officer’s November 28, 2005 letter, the settlement officer

asked petitioner to provide her with copies of his tax returns

for his taxable years 2002, 2003, and 2004.

     By letter dated December 3, 2005, petitioner asked the

settlement office to reschedule the telephonic conference to

January 17, 2006.
                              - 5 -

     By letter dated December 7, 2005, the settlement officer

informed petitioner that the telephonic conference had been

rescheduled to 9 a.m. on January 17, 2006, as he had requested.

     In a letter dated January 12, 2006 (petitioner’s January 12,

2006 letter), which petitioner characterized as a “DETERMINATION

LETTER”, petitioner asserted, inter alia,

          This is in regard to the Collection Due Process
     Hearing (CDPH) per your letter of December 7, 2005
     * * *. This CDPH is being handled by mail, therefore
     consider this my objections to this alleged Notice of
     Intent to Levy * * * for the years 1996 through 2001.

     Petitioner’s January 12, 2006 letter contained certain

statements, contentions, arguments, and requests that the Court

finds to be frivolous and/or groundless.    Petitioner attached to

petitioner’s January 12, 2006 letter copies of the respective

notices of deficiency that respondent issued to him with respect

to his taxable years 1996 through 2001.

     On February 16, 2006, the Appeals Office issued to peti-

tioner a notice of determination concerning the collection

action(s) under section 6330 (notice of determination).   That

notice stated in pertinent part:

     It is the Determination of Appeals not to grant you
     relief under IRC Sec. 6330 from the proposed collection
     action. Please find further details contained in the
     attachment to this letter.

An attachment to the notice of determination stated in pertinent

part:
                         - 6 -

You requested a Collection Due Process (CDP) hearing
under the provisions of Internal Revenue Code (IRC)
Sec. 6330 following receipt of Letter 1058 (Lt 11),
Final Notice-Notice of Intent to Levy and Your Right to
a Hearing dated August 18, 2005. Your Form 12153,
Request for a Collection Due Process Hearing was re-
ceived timely as it was made within the 30-day period
for requesting a CDP hearing. In your request you
indicated that per your IMF your MFR is 01 and that
indicates you are not required to file a tax return.
You also asked for various documents from the Internal
Revenue Service (IRS) for the purpose of challenging
the validity of the income tax liability and assessment
procedures. * * *

On November 28, 2005, I mailed you a hearing appoint-
ment letter offering you a telephonic hearing or hear-
ing by correspondence. You were not offered a face-to-
face hearing because you indicated in your request you
wanted to discuss items that were frivolous or ground-
less and Appeals does not offer face-to-face hearings
if the only items you wish to discuss are of a frivo-
lous nature. You were advised that if you were inter-
ested in receiving a face-to-face hearing you needed to
be prepared to discuss issues relevant to paying your
liability and you needed to submit those issues by the
timeframe given. You failed to submit relevant issues
and therefore you were not offered a face-to-face
hearing.

   *       *       *       *       *       *       *

The proposed levy is the appropriate action in this
case based on the reasons as stated below.

   *       *       *       *       *       *       *

You failed to voluntarily file a tax return for income
tax periods ending December 31, 1996, December 31,
1997, December 31, 1998, December 31, 1999, December
31, 2000 and December 31, 2001. The IRS prepared the
tax returns for you under the Service’s substitute-for-
return procedures. The IRS issued Letter 3219, Statu-
tory Notice of Deficiency concerning the tax periods
ending December 31, 1996 and 1997 on October 1, 2003
for 1998, 1999 and 2000 on November 7, 2005 [sic] for
the tax period ending December 31, 2001 and sent them
to you by certified mail. The letter notified you of
                         - 7 -

the proposed tax, penalties and interest and gave you
the opportunity to contest the proposed assessments by
petitioning the United States Tax Court. There is no
record that you filed such a petition.

The Statutory Notice of Deficiency is your one time
opportunity to contest or dispute the liability. The
Collection Due Process (CDP) hearing is not a second
opportunity to dispute the underlying tax liability.
IRC § 6330(c)(2)(B) states that you “...may also raise
at the hearing challenges to the underlying tax liabil-
ity for any tax period if the person did not receive
any statutory notice of deficiency for such tax liabil-
ity or did not otherwise have an opportunity to dispute
such tax liability.”

The liability remained unpaid and your account was then
assigned to collection. Collection sent you a Notice
of Intent to Levy-Your Right to a Hearing on August 18,
2005. As explained above, your request for a hearing
was made timely and you have the right to request
judicial review of this Notice of Determination.

  *       *       *       *         *     *        *

                DISCUSSION AND ANALYSIS

Legal and Procedural Requirements

Based on the facts presented in the administrative
file, the Settlement Officer has verified that all the
requirements of various applicable law and administra-
tive procedures have been met.

      •   Assessment was made on the applicable CDP
          period per IRC Sec. 6201 and the notice and
          demand for payment was mailed to your last
          known address, within 60 days of the assess-
          ment as required by IRC § 6303. I verified
          this with transcripts.

      •   Per transcript review there was a balance due
          at the time the Notice of Intent to Levy was
          issued.

      •   The proper computer codes were input to sus-
          pend the collection statute while the case is
          being considered under IRC Sec. 6320 [sic].
                           - 8 -

       •    You do not have a pending bankruptcy case,
            nor did you have a pending bankruptcy case at
            the time the CDP notice was issued.

       •    This Appeals Settlement Officer has had no prior
            involvement in Appeals or collection activity with
            respect to the liabilities covered by this hear-
            ing.

           Relevant Issues Raised by the Taxpayer

Challenge to the Validity of the Assessment:

You included a number of disputed issues in your re-
quest for a hearing. All of the issues mentioned were
items that the courts have determined are frivolous.
There was no mention of collection alternatives.

You questioned the validity of the 1040 assessments for
1996, 1997, 1998, 1999, 2000 and 2001 before Appeals.
I sent you literal readable Individual Master File
transcripts identifying the taxpayer, type of tax, tax
period, date and amount of assessment on January 18,
2006. I explained to you via correspondence dated
January 18, 2006 the transcripts provided show the same
essential information found on Form 4340, Certificate
of Assessments and Payments. You failed to identify
any irregularity in the assessments for 1996, 1997,
1998, 1999, 2000 and 2001 and thus I find the assess-
ments to be valid.

   *         *       *       *       *       *      *

Challenges to the Existence of the Liability:

In addition to claiming the assessments are procedur-
ally invalid, you also assert general challenges to the
existence of the liabilities. IRC § 6330(c)(2)(B)
provides that the existence of the underlying tax
liability can only be disputed in Appeals at a CDP
hearing if the taxpayer did not receive a Statutory
Notice of Deficiency for the taxes in question or did
not otherwise have an earlier opportunity to dispute
such liability.

Our records indicate that you received Notices of
Deficiency for the taxable years 1996, 1997, 1998,
1999, 2000 and 2001 and they indicate that you did not
                           - 9 -

avail yourself of the opportunity to file a petition
for redetermination with the Tax Court.

   *       *       *        *          *   *       *

Collection Alternatives Offered By The Taxpayer:

You did not propose any collection alternatives. Most
alternatives require that you be in compliance with all
filing requirements. You have not filed a return for
2003 or 2004.

Other Issues Raised By the Taxpayer:

You raised no other relevant issues.

Before you decide to petition this Notice of Determina-
tion, you should be advised that the U.S. Tax Court is
empowered to impose monetary sanctions up to $25,000.00
for instituting or maintaining an action before it
primarily for delay or for taking a position that is
frivolous or groundless. Pierson v. Commissioner, 115
T.C. No. 39 (2000). It is our conclusion that the
position you have taken has no merit and is groundless.

   Balancing Efficient Collection and Intrusiveness

IRC § 6330 requires that the Appeals Office consider
whether a proposed collection action balances the need
for efficient collection of taxes with the legitimate
concern that any collection action be no more intrusive
than necessary.

The proposed levy action is appropriate given the facts
and circumstances of this particular case. It balances
the least intrusive method of collection with the need
to efficiently collect taxes, the balance favors the
proposed levy, as you presented no information or
collection alternative that would weigh against the
need for efficient collection.

                       DETERMINATION

All legal and procedural requirements were met prior to
the issuance of the Notice of Intent to levy, and the
Settlement Officer concludes that the action was appro-
priate. The levy action is sustained.
                               - 10 -

     On January 15, 2008, the Court issued an Order (January 15,

2008 Order) in which, inter alia, it ordered petitioner to file a

response to respondent’s motion.   In that Order, the Court also

concluded that the petition that petitioner filed contained

certain statements, contentions, and arguments that the Court

found to be frivolous and/or groundless.   In the January 15, 2008

Order, the Court reminded petitioner about section 6673(a)(1) and

admonished him that, in the event that he continued to advance

frivolous and/or groundless statements, contentions, or argu-

ments, the Court would impose a penalty not in excess of $25,000

on him under that section.   Thereafter, petitioner made no

filings in this case.

                             Discussion

     The Court may grant summary judgment where there is no

genuine 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.

     Petitioner did not file a petition with the Court with

respect to any of the respective notices of deficiency that

respondent issued to him relating to his taxable years 1996

through 2001.   Where, as is the case here, the validity of the

underlying tax liability for each of those years is not properly
                              - 11 -

placed at issue, the Court will review the determination of the

Commissioner of the Internal Revenue for abuse of discretion.

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

sioner, 114 T.C. 176, 182 (2000).

     As was true of petitioner’s position before the Appeals

Office, petitioner’s position in this case is frivolous and

groundless.   We find that respondent did not abuse respondent’s

discretion in making the determinations in the notice of determi-

nation with respect to petitioner’s unpaid liabilities for 1996

through 2001.5

     Although respondent does not ask the Court to impose a

penalty on petitioner under section 6673(a)(1), the Court consid-

ers sua sponte whether to impose such a penalty.   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 that a taxpayer instituted or maintained a




     5
      It is not clear from the notice of determination whether
the Appeals Office sustained the collection action insofar as it
pertained to the respective additions to tax under sec.
6651(a)(2) for petitioner’s taxable years 1996 through 1999 and
2001 that respondent assessed. See supra note 3. To the extent
that the Appeals Office did determine to sustain the collection
action with respect to those additions to tax, we do not sustain
that determination. In the respective notices of deficiency with
respect to petitioner’s taxable years 1996 through 1999 and 2001,
respondent did not determine to impose additions to tax under
sec. 6651(a)(2) and did not have the authority to assess any such
additions to tax.
                              - 12 -

proceeding in the Court primarily for delay or that a taxpayer’s

position in such a proceeding is frivolous or groundless.

     We believe that petitioner instituted and maintained the

instant proceeding primarily for delay.   We have found that

petitioner’s position in this case is frivolous and groundless.

Nonetheless, we shall not impose a penalty under section

6673(a)(1) on petitioner.6   We caution him that he may be subject

to such a penalty if in the future he institutes or maintains a

proceeding in this Court primarily for delay and/or his position

in any such proceeding is frivolous or groundless.    See Abrams v.

Commissioner, 82 T.C. 403, 409-413 (1984); White v. Commissioner,

72 T.C. 1126, 1135-1136 (1979).

     We have considered all of petitioner’s statements, conten-

tions, arguments, and requests that are not discussed herein, and

we find them to be without merit and/or irrelevant.

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

     To reflect the foregoing,


                                    An appropriate order and

                         decision for respondent will be entered.




     6
      Petitioner made no filings in this case after the Court
issued its January 15, 2008 Order in which the Court reminded him
about sec. 6673(a)(1) and admonished him that the Court would
impose a penalty on him under that section if he continued to
advance frivolous and/or groundless statements, contentions, or
arguments.
