                         T.C. Memo. 2005-61



                       UNITED STATES TAX COURT



            RICHARD JOHN FLORANCE, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18209-03L.                 Filed March 29, 2005.


     Richard John Florance, Jr., pro se.

     Adam L. Flick, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion for summary judgment and to impose a penalty

under section 6673.1



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                              - 2 -

Background

     Petitioner failed to file Federal income tax returns for

1994, 1995, and 1996.

     On November 30, 1999, respondent sent petitioner a statutory

notice of deficiency for 1994, 1995, and 1996.    Petitioner

received the notice of deficiency.    Respondent determined

deficiencies in and additions to petitioner’s Federal income tax

as follows:

                                 Additions to Tax
     Year     Deficiency   Sec. 6651(f)    Sec. 6654(a)

     1994      $6,105         $1,561              --
     1995      13,675          9,912             $714
     1996      14,324         10,743              762

     On April 24, 2000, respondent assessed the tax, additions to

tax, and interest for 1994, 1995, and 1996.

     On February 14, 2003, respondent sent petitioner a Final

Notice, Notice of Intent to Levy and Notice of Your Right to a

Hearing with respect to petitioner’s 1994 and 1996 taxable years.

     On March 5, 2003, respondent sent petitioner a Final Notice,

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

with respect to petitioner’s 1995 taxable year.

     On or about March 7, 2003, respondent filed a notice of

Federal tax lien regarding petitioner’s 1994, 1995, and 1996 tax

years.
                               - 3 -

     On March 10, 2003, respondent sent petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320 regarding petitioner’s 1994, 1995, and 1996 tax years.

     On March 14, 2003, petitioner sent respondent a Form 12153,

Request for a Collection Due Process Hearing, regarding his 1994,

1995, and 1996 tax years.2   In a 22-page attachment to the Form

12153, petitioner essentially challenged his underlying tax

liability.

     On July 10, 2003, petitioner mailed respondent three Forms

1041, U.S. Income Tax Return for Estates and Trusts, and Forms

W-2, Wage and Tax Statement, for 1994, 1995, and 1996.

     On September 3, 2003, a face-to-face hearing was held with

petitioner, Appeals Officer Nancy J. Driver, and Appeals

Collection Specialist Veronica Smith.   Appeals Officer Driver

confirmed that respondent had complied with all applicable laws

and administrative procedures regarding 1994, 1995, and 1996, and

she reviewed the administrative file for those years.    Petitioner

did not propose any collection alternatives at the hearing and

stated he was not interested in discussing collection

alternatives because he did not believe he owed the amounts in



     2
        On the face of the Form 12153, petitioner listed 1994 and
1995 as the taxable periods. In his 22-page attachment to the
Form 12153, petitioner referenced 1996. Additionally, on Apr. 9,
2003, petitioner filed a second Form 12153 on which he listed
1996 as the taxable period. Respondent does not dispute that
petitioner timely requested hearings to challenge all 3 years.
                                 - 4 -

issue.   Petitioner questioned Appeals Officer Driver’s authority

to conduct a section 6330 hearing and wanted to discuss his

underlying liabilities for 1994, 1995, and 1996.

     On September 26, 2003, respondent issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 to petitioner regarding his 1994, 1995, and 1996 tax

years.   In the notice of determination, respondent determined

that the proposed collection actions were appropriate and to

proceed with collection.

     On October 24, 2003, petitioner petitioned the Court.

     On December 11, 2003, petitioner filed a motion for judgment

on the pleadings.   Petitioner asked that the answer be stricken

from the record.    Petitioner characterized the primary issue in

his case as whether he was a “taxpayer” and stated that he had

challenged this issue.   The motion for judgment on the pleadings

also contained other frivolous and groundless statements,

contentions, and arguments.

     On December 16, 2003, the Court denied petitioner’s motion

for judgment on the pleadings.

     On January 6, 2004, petitioner filed a status report

containing frivolous and groundless statements, contentions, and

arguments.

     By notice dated June 30, 2004, the Court set this case for

trial at the Court’s Dallas, Texas, session beginning December 6,
                                - 5 -

2004.    This notice specifically stated:   “YOUR FAILURE TO APPEAR

MAY RESULT IN DISMISSAL OF THE CASE AND ENTRY OF DECISION AGAINST

YOU.”    Attached to this notice was the Court’s standing pretrial

order.

     On October 29, 2004, respondent filed a motion for summary

judgment and to impose a penalty under section 6673.

     On November 1, 2004, the Court ordered petitioner to file

any objection to respondent’s motion for summary judgment and to

impose a penalty under section 6673 on or before November 15,

2004.

     On November 12, 2004, the Court lodged respondent’s

objection to petitioner’s request for admissions.

     On November 16, 2004, pursuant to Rule 90, the Court ordered

petitioner to file his request for admissions.    Petitioner failed

to do so.

     On November 18, 2004, petitioner filed a 53-page response to

respondent’s motion for summary judgment and to impose a penalty

under section 6673.    Petitioner alleged criminal conduct by the

Court and made disrespectful statements directed to the Court.

     On November 19, 2004, the Court ordered respondent’s motion

for summary judgment and to impose a penalty under section 6673

calendared for hearing at the Court’s Dallas, Texas, session

beginning December 6, 2004.

     Petitioner failed to appear at the hearing.
                                   - 6 -

Discussion

       I.      Motion for Summary Judgment

       Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any 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 is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law.

       II.    Determination To Proceed With Collection

       Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice (i.e., the

hearing notice) of the filing of a notice of lien under section

6323.       Section 6320 further provides that the taxpayer may

request administrative review of the matter (in the form of a

hearing) within a 30-day period.       The hearing generally shall be

conducted consistent with the procedures set forth in section

6330(c), (d), and (e).       Sec. 6320(c).

       Section 6330(a) provides that the Secretary shall furnish

taxpayers with written notice of their right to a hearing before

any property is levied upon.       Section 6330 further provides that
                               - 7 -

the taxpayer may request administrative review of the matter (in

the form of a hearing) within a prescribed 30-day period.     Sec.

6330(a) and (b).

     Pursuant to section 6330(c)(2)(A), a taxpayer may raise at

the section 6330 hearing any relevant issue with regard to the

Commissioner’s collection activities, including spousal defenses,

challenges to the appropriateness of the Commissioner’s intended

collection action, and alternative means of collection.     Sego v.

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

T.C. 176, 180 (2000).   If a taxpayer received a statutory notice

of deficiency for the years in issue or otherwise had the

opportunity to dispute the underlying tax liability, the taxpayer

is precluded from challenging the existence or amount of the

underlying tax liability.   Sec. 6330(c)(2)(B); Sego v.

Commissioner, supra at 610-611; Goza v. Commissioner, supra at

182-183.

     Petitioner received the notice of deficiency for 1994, 1995,

and 1996.   Accordingly, he cannot challenge his underlying

liabilities.   See sec. 6330(c)(2)(B); Sego v. Commissioner, supra

at 610-611; Goza v. Commissioner, supra at 182-183.   Therefore,

we review respondent’s determination for an abuse of discretion.

See Sego v. Commissioner, supra at 610.

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended
                               - 8 -

collection action, or offer alternative means of collection.

These issues are now deemed conceded.   See Rule 331(b)(4).

     Accordingly, we conclude that respondent did not abuse his

discretion, and we sustain respondent’s determination to proceed

with collection.

     III. Section 6673

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

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous or groundless positions in

the proceedings or instituted the proceedings primarily for

delay.   A position maintained by the taxpayer is “frivolous”

where it is “contrary to established law and unsupported by a

reasoned, colorable argument for change in the law.”   Coleman v.

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); see also Hansen v.

Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673

penalty upheld because taxpayer should have known claim was

frivolous).

     Petitioner filed frivolous documents and motions with the

Court.   Petitioner has advanced shopworn arguments characteristic

of tax-protester rhetoric that has been universally rejected by

this and other courts.3   Wilcox v. Commissioner, 848 F.2d 1007



     3
        Petitioner advanced similar frivolous arguments in
Florance v. Commissioner, T.C. Memo. 2005-60 (docket No. 11782-
03). That case also was on the Court’s Dallas, Texas, session
beginning Dec. 6, 2004.
                                 - 9 -

(9th Cir. 1988), affg. T.C. Memo. 1987-225; Carter v.

Commissioner, 784 F.2d 1006, 1009 (9th Cir. 1986).       We will not

painstakingly address petitioner’s assertions “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).

     We conclude petitioner’s position was frivolous and

groundless and that petitioner instituted and maintained these

proceedings primarily for delay.    Accordingly, pursuant to

section 6673(a) we hold petitioner is liable for a $12,500

penalty.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
