                  T.C. Memo. 2005-90



                UNITED STATES TAX COURT



            DAVID A. LEHMANN, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 3386-04L.            Filed April 25, 2005.


     P filed a petition for judicial review pursuant to
sec. 6330, I.R.C., in response to a determination by R
that levy action was appropriate.

     Held: Because P has advanced groundless
complaints in dispute of the notice of intent to levy,
R’s determination to proceed with collection action is
sustained.

     Held, further, a penalty under sec. 6673, I.R.C.,
is due from P and is awarded to the United States in
the amount of $2,500.


David A. Lehmann, pro se.

Jonae A. Harrison, for respondent.
                               - 2 -

             MEMORANDUM FINDINGS OF FACT AND OPINION


     WHERRY, Judge:   This case arises from a petition for

judicial review filed in response to a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330.1

The issues for decision are:   (1) Whether an oral motion by

petitioner to dismiss should be granted, and if not, (2) whether

respondent may proceed with collection action as so determined,

and (3) whether the Court, sua sponte, should impose a penalty

under section 6673.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulations of the parties, with accompanying exhibits, are

incorporated herein by this reference.

     Petitioner did not file Federal income tax returns for the

years 1993, 1994, 1995, 1996, and 1997.     Petitioner was at all

relevant times throughout this period and through the time of

trial married to and residing with his wife, Barbara J. Lehmann

(Ms. Lehmann).   Ms. Lehmann likewise did not file Federal income

tax returns for the 1993 through 1997 years.     On January 26,

1999, respondent received from petitioner a letter dated January

22, 1999, in which petitioner stated:    “From now on all letters



     1
         Unless otherwise indicated, section references are to
the Internal Revenue Code of 1986, as amended, and Rule
references are to the Tax Court Rules of Practice and Procedure.
                               - 3 -

will be sent to: c/o 2219 West Deer Valley Road #203, Phoenix,

Arizona 85027-1919.   This address will serve as my ‘last known

address’ for all purposes unless and until I provide you with

another address.”   The letter was sent in petitioner’s name only

and did not mention or identify his wife.

     On October 12, 2000, two notices of deficiency were issued

to petitioner with respect to the years in issue, one for 1993

through 1995 and one for 1996 and 1997.2    The notices were sent

to the West Deer Valley address indicated in petitioner’s letter,

and duplicate originals were sent to an address on file with

respondent at 3040 East McRae Way, Phoenix, Arizona 85027-4916.3

Both sets were returned as “undeliverable, forwarding order

expired”.   Petitioner did not file a petition with this Court in

response to the notices of deficiency, and respondent assessed


     2
       As will be discussed in greater detail infra in text,
separate notices of deficiency for the 1993 through 1997 years
were issued to Ms. Lehmann. Ms. Lehmann contested those notices
in this Court at docket No. 1008-01. An order of dismissal and
decision was entered in that case on Apr. 10, 2002, and was
affirmed by the Court of Appeals for the Ninth Circuit. Lehmann
v. Commissioner, 63 Fed. Appx. 412 (9th Cir. 2003). This Court
takes judicial notice of facts established by the official record
in that action.
     3
       The record contains one original from each set, i.e., the
notice for 1993 through 1995 showing the West Deer Valley address
and the notice for 1996 and 1997 showing the East McRae Way
address. The notice of determination consistently in two places
explains the circumstances surrounding issuance of the duplicate
original notices, and, taking into account the fact that they
were issued on the same date and to the same taxpayer, and signed
by the same reviewer, the Court is satisfied that duplicate
notices were indeed mailed to each address on Oct. 12, 2000.
                               - 4 -

the taxes, additions to tax, and interest for all 5 years on

March 19, 2001.   Notices of balance due were sent to petitioner

on that date, as well as on April 23, 2001.

     Subsequently, on September 16, 2002, respondent issued to

petitioner a Final Notice--Notice of Intent to Levy and Notice of

Your Right to a Hearing, with regard to the 1993 through 1997

years.   Respondent on October 22, 2002, received from petitioner

a Form 12153, Request for a Collection Due Process Hearing,

setting forth his disagreement with the proposed collection

action, as follows:

     (1) There was a failure to determine a deficiency; (2)
     There was a failure to issue a Notice of Deficiency;
     (3) Any Notice of Deficiency was void as it included
     income subject to Final Partnership Administrative
     Adjustments under TEFRA; (4) There was a failure to
     generate an assessment list; (5) There was a failure of
     the Commissioner to certify and transmit the assessment
     list; (6) There was a failure to record the assessment;
     (7) failure to provide record of assessment; and, (8)
     failure to send Notice of Assessment.

     By a letter dated January 29, 2003, the settlement officer

to whom petitioner’s case had been assigned scheduled a hearing

for February 19, 2003, in Phoenix, Arizona.    The letter enclosed

copies of Forms 4340, Certificate of Assessments, Payments and

Other Specified Matters, for each of the years in issue.

     Petitioner appeared for the scheduled conference on

February 19, 2003, accompanied by a stenographer and James

Chisholm, who was identified as a witness.    The settlement

officer advised petitioner that recording and stenography were no
                                - 5 -

longer permitted at collection hearings.    He further informed

petitioner that they could either proceed without recordation or

that a determination could be made based on the information in

petitioner’s file.    Petitioner declined to proceed and instead

submitted to the settlement officer a document entitled

“Declaration of David Lehmann”, which the settlement officer

understood petitioner to say asserted the only issues he intended

to present.    The declaration contained the following five

statements, the fourth of which duplicated the second:

          1. I received the Notice of Intent to Levy and
     Notice of Right to a Hearing.

          2. I did not receive the Notices of Deficiency
     for any of the years 1993 through 1997.

          3. My wife Barbara Lehmann received Notices of
     Deficiency for the years 1993 through 1997, dated
     October 12, 2000 and petitioned Tax Court.

          4. I did not receive the Notices of Deficiency
     for any of the years 1993 through 1997.

          5. I did not receive any of the income attributed
     to my wife in the Notices of Deficiency sent to her.

Respondent, on March 11, 2003, then issued to petitioner the

aforementioned Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 sustaining the proposed

levy action.

     Petitioner’s petition disputing the notice of determination

was filed on February 25, 2004, and reflected an address in New
                                 - 6 -

River, Arizona.4    In the petition, petitioner largely repeated

contentions made in his Form 12153 and additionally assigned

error on the grounds that he was prohibited from recording the

collection hearing.    Petitioner then prayed that this Court issue

an order requiring respondent to show cause why the determination

should not be vacated; find the determination arbitrary,

capricious, not supported by the evidence, an abuse of

discretion, and contrary to law; vacate the March 11, 2003,

determination; and award petitioner costs and fees incurred in

the prosecution of this action.5

     On September 20, 2004, respondent filed a motion for summary

judgment pursuant to Rule 121.     Petitioner was directed to file

any response to respondent’s motion on or before October 1, 2004.

However, upon review of the record, the Court noted certain

internal inconsistencies that rendered summary judgment

inappropriate.6    By order dated September 30, 2004, the Court


     4
       Petitioner initially filed a complaint in the U.S.
District Court for the District of Arizona on Apr. 10, 2003. The
complaint was dismissed for lack of subject matter jurisdiction
on Jan. 21, 2004. Petitioner’s petition to this Court arrived in
an envelope bearing a postmark of Feb. 20, 2004. See sec.
6330(d)(1).
     5
       The Court notes that to the extent that the petition seeks
reasonable administrative and/or litigation costs pursuant to
sec. 7430, any such claim is premature and will not be further
addressed. See Rule 231.
     6
       Principally, the exhibits accompanying respondent’s motion
for summary judgment contained conflicting dates for issuance of
                                                   (continued...)
                               - 7 -

denied the motion for summary judgment but warned petitioner as

follows:

          At the same time, the Court cautions petitioner
     that some, but not all, of the various issues advanced
     by petitioner during the administrative process have
     been repeatedly rejected by this and other courts or
     are refuted by the documentary record. Moreover,
     maintenance of similar frivolous arguments has served
     as grounds for imposition of penalties under section
     6673. We admonish petitioner that if he persists in
     making frivolous and groundless tax protester arguments
     in any further proceedings with respect to this case,
     rather than raising relevant issues, as specified in
     section 6330(c)(2), the Court would be in a position to
     impose a penalty under section 6673(a)(1). * * *

     Several days later, on October 8, 2004, the Court received

from petitioner his response to respondent’s motion.   Therein,

petitioner principally reiterated his position that, on account

of the refusal to permit recording of the collection hearing, the

underlying notice of determination should be vacated and his case

remanded.   He asked that the Court deny respondent’s motion for

summary judgment.   The response was filed for the record, and the

case proceeded to trial.




     6
      (...continued)
the underlying notices of deficiency and did not include copies
of the notices themselves. For instance, the notice of
determination stated at one point that the notices of deficiency
were issued on Jan. 10, 2001, and at another point gave a date of
mailing of Oct. 12, 2000. As later became clear at trial,
certain of the references were inadvertently made to the “Last
Day to File a Petition With the United States Tax Court” date
stamped on the front of the notices of deficiency, rather than
the issuance date, also stamped on the front.
                               - 8 -

     The case was called from the calendar of the trial session

of the Court in Phoenix, Arizona, on October 18, 2004.

Petitioner at that time submitted a pretrial memorandum that

incorporated by reference the legal arguments stated in

petitioner’s earlier response to respondent’s motion for summary

judgment but offered no additional reasoning.     Petitioner’s

pretrial memorandum was filed with the Court after respondent

indicated no objection to late filing.     The case was then heard

on October 19, 2004, and both petitioner and his wife testified.

     At the close of trial, petitioner stated:     “All I have to

say is I move to have this case dismissed on the grounds that

they weren’t prepared.”   Presumably, the basis for this statement

is that, as a predicate to the admission into evidence as

business records of copies of the statutory notices of deficiency

underlying the assessments, counsel for respondent requested a

brief recess to procure the testimony of a revenue agent.       This

request was granted, and a revenue agent testified as to the

manner in which the documents in petitioner’s administrative file

were maintained in the regular course of business.

                              OPINION

I.   Oral Motion To Dismiss

     As a threshold matter, the Court briefly addresses

petitioner’s motion to dismiss this case on grounds of

respondent’s lack of preparedness.     Although we agree that
                                - 9 -

counsel for respondent might have been more ready, based on our

September 30, 2004, order, to address inquiries from the Court

regarding the notices of deficiency, the need formally to

introduce the documents into evidence may have been

unanticipated.    Counsel quickly responded to the situation by

procuring the testimony of a revenue agent.     Only very minimal

delay ensued, and we do not perceive that petitioner was

prejudiced thereby.    The Court is aware of no precedent for

employing dismissal in such circumstances.

      The Court further is satisfied that the testimony of the

agent laid a proper foundation for admission of the notices of

deficiency under rules 901 and 803(6) of the Federal Rules of

Evidence.    See also sec. 7453; Rule 143(a).   Petitioner’s oral

motion to dismiss shall be denied.

II.   Collection Action

      A.   General Rules

      Section 6331(a) authorizes the Commissioner to levy upon all

property and rights to property of a taxpayer where there exists

a failure to pay any tax liability within 10 days after notice

and demand for payment.    Sections 6331(d) and 6330 then set forth

procedures generally applicable to afford protections for

taxpayers in such levy situations.      Section 6331(d) establishes

the requirement that a person be provided with at least 30 days’

prior written notice of the Commissioner’s intent to levy before
                              - 10 -

collection may proceed.   Section 6331(d) also indicates that this

notification should include a statement of available

administrative appeals.   Section 6330(a) expands in several

respects upon the premise of section 6331(d), forbidding

collection by levy until the taxpayer has received notice of the

opportunity for administrative review of the matter in the form

of a hearing before the Internal Revenue Service Office of

Appeals.   Section 6330(b) grants a taxpayer who so requests the

right to a fair hearing before an impartial Appeals officer.

     Section 6330(c) addresses the matters to be considered at

the hearing:

          SEC. 6330(c). Matters Considered at Hearing.--In
     the case of any hearing conducted under this section--

                (1) Requirement of investigation.--The
           appeals officer shall at the hearing obtain
           verification from the Secretary that the
           requirements of any applicable law or
           administrative procedure have been met.

                (2) Issues at hearing.--

                     (A) In general.--The person may raise at
                the hearing any relevant issue relating to
                the unpaid tax or the proposed levy,
                including--

                          (i) appropriate spousal defenses;

                          (ii) challenges to the
                     appropriateness of collection actions;
                     and

                          (iii) offers of collection
                     alternatives, which may include the
                     posting of a bond, the substitution of
                                  - 11 -

                      other assets, an installment agreement,
                      or an offer-in-compromise.

                     (B) Underlying liability.--The person
                may also raise at the hearing challenges to
                the existence or amount of the underlying tax
                liability for any tax period if the person
                did not receive any statutory notice of
                deficiency for such tax liability or did not
                otherwise have an opportunity to dispute such
                tax liability.

     Once the Appeals officer has issued a determination

regarding the disputed collection action, section 6330(d) allows

the taxpayer to seek judicial review in the Tax Court or the U.S.

District Court, depending upon the type of tax.    In considering

whether taxpayers are entitled to any relief from the

Commissioner’s determination, this Court has established the

following standard of review:

     where the validity of the underlying tax liability is
     properly at issue, the Court will review the matter on
     a de novo basis. However, where the validity of the
     underlying tax liability is not properly at issue, the
     Court will review the Commissioner’s administrative
     determination for abuse of discretion. [Sego v.
     Commissioner, 114 T.C. 604, 610 (2000).]

     B.   Analysis

           1.   Appeals Hearing

     Hearings conducted under section 6330 are informal

proceedings, not formal adjudications.     Katz v. Commissioner, 115

T.C. 329, 337 (2000); Davis v. Commissioner, 115 T.C. 35, 41

(2000).   There exists no right to subpoena witnesses or documents

in connection with section 6330 hearings.     Roberts v.
                               - 12 -

Commissioner, 118 T.C. 365, 372 (2002), affd. 329 F.3d 1224 (11th

Cir. 2003); Nestor v. Commissioner, 118 T.C. 162, 166-167 (2002);

Davis v. Commissioner, supra at 41-42.      Taxpayers are entitled to

be offered a face-to-face hearing at the Appeals Office nearest

their residence.    Where the taxpayer declines to participate in a

proffered face-to-face hearing, hearings may also be conducted

telephonically or by correspondence.      Katz v. Commissioner, supra

at 337-338; Dorra v. Commissioner, T.C. Memo. 2004-16; sec.

301.6330-1(d)(2), Q&A-D6 and D7, Proced. & Admin. Regs.

Furthermore, once a taxpayer has been given a reasonable

opportunity for a hearing but has failed to avail himself or

herself of that opportunity, we have approved the making of a

determination to proceed with collection based on the Appeals

officer’s review of the case file.      See, e.g., Taylor v.

Commissioner, T.C. Memo. 2004-25; Leineweber v. Commissioner,

T.C. Memo. 2004-17; Armstrong v. Commissioner, T.C. Memo. 2002-

224; Gougler v. Commissioner, T.C. Memo. 2002-185; Mann v.

Commissioner, T.C. Memo. 2002-48.    Thus, a face-to-face meeting

is not invariably required.

     Regulations promulgated under section 6330 likewise

incorporate many of the foregoing concepts, as follows:

          Q-D6.    How are CDP hearings conducted?

          A-D6. * * * CDP hearings * * * are informal in
     nature and do not require the Appeals officer or
     employee and the taxpayer, or the taxpayer’s
     representative, to hold a face-to-face meeting. A CDP
                                - 13 -

     hearing may, but is not required to, consist of a face-
     to-face meeting, one or more written or oral
     communications between an Appeals officer or employee
     and the taxpayer or the taxpayer’s representative, or
     some combination thereof. * * *

          Q-D7. If a taxpayer wants a face-to-face CDP
     hearing, where will it be held?

          A-D7. The taxpayer must be offered an opportunity
     for a hearing at the Appeals office closest to
     taxpayer’s residence or, in the case of a business
     taxpayer, the taxpayer’s principal place of business.
     If that is not satisfactory to the taxpayer, the
     taxpayer will be given an opportunity for a hearing by
     correspondence or by telephone. If that is not
     satisfactory to the taxpayer, the Appeals officer or
     employee will review the taxpayer’s request for a CDP
     hearing, the case file, any other written
     communications from the taxpayer (including written
     communications, if any, submitted in connection with
     the CDP hearing), and any notes of any oral
     communications with the taxpayer or the taxpayer’s
     representative. Under such circumstances, review of
     those documents will constitute the CDP hearing for the
     purposes of section 6330(b). [Sec. 301.6330-1(d)(2),
     Q&A-D6 and D7, Proced. & Admin. Regs.]

This Court has cited the above regulatory provisions with

approval.   See, e.g., Taylor v. Commissioner, supra; Leineweber

v. Commissioner, supra; Dorra v. Commissioner, supra; Gougler v.

Commissioner, supra.

     With respect to the instant matter, the record reflects that

petitioner was provided with an opportunity for a face-to-face

hearing on February 19, 2003.    The hearing did not proceed when

petitioner was not permitted to record the meeting.   On July 8,

2003, in Keene v. Commissioner, 121 T.C. 8, 19 (2003), this Court

held that taxpayers are entitled, pursuant to section 7521(a)(1),
                               - 14 -

to audio record section 6330 hearings.   The taxpayer in that case

had refused to proceed when denied the opportunity to record, and

we remanded the case to allow a recorded Appeals hearing.    Id.

     In contrast, we have distinguished, and declined to remand,

cases where the taxpayer had participated in an Appeals Office

hearing, albeit unrecorded, and where all issues raised by the

taxpayer could be properly decided from the existing record.

E.g., id. at 19-20; Frey v. Commissioner, T.C. Memo. 2004-87;

Durrenberger v. Commissioner, T.C. Memo. 2004-44; Brashear v.

Commissioner, T.C. Memo. 2003-196; Kemper v. Commissioner, T.C.

Memo. 2003-195.   Stated otherwise, cases will not be remanded to

Appeals, nor determinations otherwise invalidated, merely on

account of the lack of a recording when to do so is not necessary

and would not be productive.   See, e.g., Frey v. Commissioner,

supra; Durrenberger v. Commissioner, supra; Brashear v.

Commissioner, supra; Kemper v. Commissioner, supra; see also

Lunsford v. Commissioner, 117 T.C. 183, 189 (2001).   A principal

scenario falling short of the necessary or productive standard

exists where the taxpayers rely on frivolous or groundless

arguments consistently rejected by this and other courts.    See,

e.g., Frey v. Commissioner, supra; Brashear v. Commissioner,

supra; Kemper v. Commissioner, supra.

     Because no hearing had been conducted at all in petitioner’s

case and the record contained certain factual ambiguities, we
                                 - 15 -

declined to grant respondent’s motion for summary judgment.     The

record as it then existed did not foreclose the possibility that

petitioner might have raised valid arguments had a hearing been

held.     Accordingly, we provided petitioner an opportunity before

the Court at the trial session in Phoenix to identify any

legitimate issues he wished to raise that could warrant further

consideration of the merits of his case by the Appeals Office or

this Court.

     At trial, the comments of petitioner and his wife focused

almost exclusively on petitioner’s assertion that he did not

receive the notices of deficiency and on corollary matters

regarding his address.     However, as will be explained in greater

detail below, petitioner failed to raise any legitimate

substantive issues requiring or justifying additional review

under the framework of section 6330.      The record therefore does

not indicate that any purpose would be served by remand or

additional proceedings.     The Court concludes that all pertinent

issues relating to the propriety of the collection determination

can be decided through review of the materials before it.

             2.   Review of Underlying Liabilities

        The evidentiary record establishes that statutory notices

determining deficiencies with respect to the 1993, 1994, 1995,

1996, and 1997 taxable years were issued to petitioner.

Respondent’s records indicate that the notices were returned as
                               - 16 -

undeliverable, forwarding order expired.    Petitioner asserts that

he never received the notices, and at trial he and his wife

testified regarding their various addresses.

     In particular, petitioner acknowledged that he wrote and

signed the January 22, 1999, letter communicating the West Deer

Valley address.    He also failed to identify any subsequent

communication providing the Internal Revenue Service with a

superseding address.    Ms. Lehmann testified explicitly that no

superseding letter had been sent to supply new or updated

information.    Thus, the notices of deficiency were sent in a

manner in compliance with, and valid under, section 6212 and

corresponding regulations,7 requiring that a notice of deficiency

be sent to a taxpayer’s last known address.    Sec. 6212(a) and

(b)(1).

     Concerning issues bearing on receipt for purposes of section

6330, petitioner initially stated that West Deer Valley was his

address as of January 22, 1999.    Then he said he probably moved

at about that time.    Next, he testified that it had been over 8

years since he and his wife had lived at either the West Deer

Valley address or the East McRae Way address.    Finally, he stated

explicitly that they had “been living at our address we’re at now

since 1996.”




     7
         See supra note 3.
                              - 17 -

     In this connection, the Court notes that the address used by

petitioner on his petition and on other papers filed with the

Court throughout this proceeding is 48412 North Black Canyon Hwy

#252, New River, Arizona 85087.    However, the address reflected

on the notices of deficiency issued to petitioner’s wife on

October 12, 2000, and with respect to which a Tax Court petition

was filed at docket No. 1008-01, was 22444 North 23rd Avenue or

Lane,8 Phoenix, Arizona 85027.    This address was used by

Ms. Lehmann throughout that proceeding, from March of 2001 to

September of 2002.   At trial in the instant case, Ms. Lehmann

testified that she and petitioner lived together during the 1993

through 1997 period and at the time her earlier Tax Court

proceedings were underway.   She stated that petitioner was aware

of those proceedings and discussed them with her.    There is also

indication in the testimony that petitioner and his wife employed

post office boxes at various times, and it is unclear precisely

which of the addresses used pertain to boxes as opposed to

residences.

     Although section 6330(c)(2)(B) generally entitles taxpayers

to raise the issue of underlying liability if they did not

receive a notice of deficiency or otherwise have an opportunity



     8
       One notice used “Ave.”, while the other used “Lane”. Lane
was employed on the majority of the documents filed during the
proceedings, but the parties indicated at the 2002 trial in that
case that avenue was more correct.
                               - 18 -

to dispute the liability, the Court has held that taxpayers

cannot defeat actual receipt by deliberately refusing delivery of

a statutory notice.    Sego v. Commissioner, 114 T.C at 610-611;

Tatum v. Commissioner, T.C. Memo. 2003-115; Carey v.

Commissioner, T.C. Memo. 2002-209; Baxter v. Commissioner, T.C.

Memo. 2001-300.    Here, the testimony given at trial suggests that

petitioner’s communication of the West Deer Valley address to the

Internal Revenue Service in January of 1999, and subsequent

failure to notify of any new addresses, may have been a

deliberate preemptive attempt to prevent delivery of any notice

of deficiency.    The substantial nature of the relevant tax

deficiencies, exceeding $250,000 for each of the years in issue,

further enhances the likelihood of this scenario.    To the extent

that the West Deer Valley address had been outdated for 8 years

or “since 1996” at the time of trial in October of 2004, the 1999

letter would have been inaccurate when written.    Petitioner would

reasonably be considered in such circumstances to have

deliberately repudiated his opportunity to contest the notices of

deficiency in this Court and likewise now to be precluded from

challenging his underlying liability in this proceeding.

     Nonetheless, even if petitioner were entitled to contest his

underlying liabilities at this juncture, he has at no time

offered even a scintilla of evidence that would show error in

respondent’s determinations.    He declined at trial to address in
                               - 19 -

any way the merits of the deficiencies, despite being warned as

follows:

     you wanted to record your hearing and were not
     permitted to do so, so you didn’t participate in the
     hearing. This trial is being recorded. This is your
     chance, your only chance unless I remand the case, to
     present any and all issues that you wish to raise with
     respect to your 6330 hearing. And that will be on the
     record.

Thus, even a de novo review would not avail petitioner, and,

moreover, he has now forfeited his chance to suggest any

meritorious issues worthy of remand.

           3.   Review for Abuse of Discretion

     Petitioner has also made various arguments relating to

aspects of the assessment and collection procedures that we

review for abuse of discretion.   Action constitutes an abuse of

discretion under this standard where arbitrary, capricious, or

without sound basis in fact or law.      Woodral v. Commissioner, 112

T.C. 19, 23 (1999).

     Federal tax assessments are formally recorded on a record of

assessment in accordance with section 6203.      The Commissioner is

not required to use Form 23C in making an assessment.         Roberts v.

Commissioner, 118 T.C. at 369-371.      Furthermore, section

6330(c)(1) mandates neither that the Appeals officer rely on a

particular document in satisfying the verification requirement

nor that the Appeals officer actually give the taxpayer a copy of

the verification upon which he or she relied.      Craig v.
                              - 20 -

Commissioner, 119 T.C. 252, 262 (2002); Nestor v. Commissioner,

118 T.C. at 166.

     A Form 4340, for instance, constitutes presumptive evidence

that a tax has been validly assessed pursuant to section 6203.

Davis v. Commissioner, 115 T.C. at 40 (and cases cited thereat).

Consequently, absent a showing by the taxpayer of some

irregularity in the assessment procedure that would raise a

question about the validity of the assessments, a Form 4340

reflecting that tax liabilities were assessed and remain unpaid

is sufficient to support collection action under section 6330.

Id. at 40-41.   We have specifically held that it is not an abuse

of discretion for an Appeals officer to rely on Form 4340, Nestor

v. Commissioner, supra at 166; Davis v. Commissioner, supra at

41, or a computer transcript of account, Schroeder v.

Commissioner, T.C. Memo. 2002-190; Mann v. Commissioner, T.C.

Memo. 2002-48, to comply with section 6330(c)(1).

     Here, the record contains a Form 4340 for each of the years

at issue, indicating that assessments were made for the year and

that taxes remain unpaid.   Petitioner has failed to cite any

irregularities with respect to the Forms 4340 introduced into

evidence that would cast doubt on the information recorded

thereon.

      In addition to the specific dictates of section 6330, the

Secretary, upon request, is directed to furnish to the taxpayer a
                                - 21 -

copy of pertinent parts of the record of assessment setting forth

the taxpayer’s name, the date of assessment, the character of the

liability assessed, the taxable period, if applicable, and the

amounts assessed.     Sec. 6203; sec. 301.6203-1, Proced. & Admin.

Regs.   A taxpayer receiving a copy of Form 4340 has been provided

with all the documentation to which he or she is entitled under

section 6203 and section 301.6203-1, Proced. & Admin. Regs.

Roberts v. Commissioner, supra at 370 n.7.     This Court likewise

has upheld collection action where taxpayers were provided with

literal transcripts of account (so-called MFTRAX).     See, e.g.,

Frank v. Commissioner, T.C. Memo. 2003-88; Swann v. Commissioner,

T.C. Memo. 2003-70.    The January 29, 2003, letter to petitioner

from the settlement officer enclosed copies of Forms 4340 for

each year.

     Petitioner has also denied receiving the “Notices of

Assessment”, presumably alluding to the notice and demand for

payment that section 6303(a) establishes should be given within

60 days of the making of an assessment.    However, a notice of

balance due constitutes a notice and demand for payment within

the meaning of section 6303(a).     Craig v. Commissioner, supra at

262-263.     The Forms 4340 indicate that petitioner was sent

notices of balance due for the tax years involved, and petitioner

has never denied receiving these notices.
                               - 22 -

       Thus, with respect to those issues enumerated in section

6330(c)(2)(A) and subject to review in collection proceedings for

abuse of discretion, petitioner has not raised any spousal

defenses, valid challenges to the appropriateness of the

collection action, or collection alternatives.    As this Court has

noted in earlier cases, Rule 331(b)(4) states that a petition for

review of a collection action shall contain clear and concise

assignments of each and every error alleged to have been

committed in the notice of determination and that any issue not

raised in the assignments of error shall be deemed conceded.      See

Lunsford v. Commissioner, 117 T.C. at 185-186; Goza v.

Commissioner, 114 T.C. 176, 183 (2000).    For completeness, we

have addressed various points advanced by petitioner during the

administrative process or before us in Phoenix, but no

meritorious items were pursued even in those proceedings.

Accordingly, the Court concludes that respondent’s determination

to proceed with collection of petitioner’s tax liabilities was

not an abuse of discretion.

III.    Section 6673 Penalty

       Section 6673(a)(1) authorizes the Court to require the

taxpayer to pay a penalty not in excess of $25,000 when it

appears to the Court that, inter alia, proceedings have been

instituted or maintained by the taxpayer primarily for delay or

that the taxpayer’s position in such proceeding is frivolous or
                               - 23 -

groundless.   In Pierson v. Commissioner, 115 T.C. 576, 581

(2000), the Court warned that taxpayers abusing the protections

afforded by sections 6320 and 6330 through the bringing of

dilatory or frivolous lien or levy actions will face sanctions

under section 6673.    The Court has since repeatedly disposed of

cases premised on arguments akin to those raised herein summarily

and with imposition of the section 6673 penalty.    See, e.g.,

Craig v. Commissioner, 119 T.C. at 264-265 (and cases cited

thereat).

     With respect to the instant matter, we are convinced that

petitioner instituted and maintained this proceeding primarily

for delay.    Throughout the administrative process and in his

petition, petitioner advanced contentions and demands previously

and consistently rejected by this and other courts.    While his

procedural stance concerning recording was correct and his

contentions regarding nonreceipt of the notices of deficiency

initially gave us pause, his testimony and that of his wife

revealed that these matters in petitioner’s circumstances posed

no legitimate basis for contesting the collection determination.

Hence, petitioner ignored the Court’s explicit warning that any

further proceedings would be justified only in the face of

relevant and nonfrivolous issues.    Moreover, petitioner was

expressly alerted to the potential use of sanctions in his case.
                              - 24 -

Yet he appeared at the trial session in Phoenix without any

legitimate evidence or argument in support of his position.

     Petitioner therefore received fair warning but has persisted

in frivolously disputing respondent’s determination.   The Court

concludes that a penalty of $2,500 should be awarded to the

United States in this case.   To reflect the foregoing,


                                         An appropriate order and

                                    decision will be entered.
