T.C. Memo. 2005-74



                UNITED STATES TAX COURT



            THOMASITA TAYLOR, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 14954-03L.              Filed April 6, 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.


Thomasita Taylor, pro se.

Ric D. Hulshoff, for respondent.
                                - 2 -

                          MEMORANDUM OPINION


     WHERRY, Judge:   This case is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.1,    2



The instant proceeding 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.     The issues

for decision are:   (1) Whether respondent may proceed with

collection action as so determined, and (2) whether the Court,

sua sponte, should impose a penalty under section 6673.

                              Background

     This case involves petitioner’s 1993, 1994, 1995, and 1996

income tax liabilities.    A notice of deficiency with respect to

these years was issued to petitioner and sent by certified mail

on September 9, 1999, to 1836 West Mohave Street, Phoenix,

Arizona 85007.   Petitioner did not file a petition with this

Court in response to the notice of deficiency, and respondent

assessed the taxes, additions to tax, and interest for all four


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
     2
       As will be explained more fully infra in text, respondent
initially filed a written motion for summary judgment on Sept.
20, 2004, that was denied by order of the Court dated Oct. 4,
2004. At the close of proceedings in this case held on Oct. 20,
2004, at the trial session of the Court in Phoenix, Arizona,
counsel for respondent moved to renew the motion for summary
judgment. The Court took the oral motion for summary judgment
under advisement at that time.
                               - 3 -

years on February 21, 2000.   Notices of balance due were sent to

petitioner on that date, as well as on March 27 and May 1, 2000.

     Thereafter, on October 3, 2002, respondent issued to

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

Right to a Hearing, with regard to the 1993 through 1996 years.

Respondent on November 7, 2002, received from petitioner a Form

12153, Request for a Collection Due Process Hearing, setting

forth her 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) There was a failure to generate an assessment list;
     (4) There was a failure of the Commissioner to certify
     and transmit the assessment list; (5) There was a
     failure to record the assessment; (6) failure to
     provide record of assessment; and, (7) failure to send
     Notice of Assessment.

     On December 3, 2002, respondent sent to petitioner a letter

acknowledging receipt of her Form 12153.   Petitioner responded by

submitting to respondent a document entitled “Declaration of

Thomasita Taylor” stating, inter alia, that she “did not receive

the Notices of Assessment” with respect to the 1993 through 1996

years.   By a letter dated May 15, 2003, the settlement officer to

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

June 11, 2003, in Phoenix, Arizona.    Petitioner responded with a

letter dated June 9, 2003, asking that the hearing be

rescheduled.   A June 11, 2003, letter from the settlement officer

rescheduled the hearing for July 24, 2003, and enclosed copies of
                               - 4 -

Forms 4340, Certificate of Assessments, Payments and Other

Specified Matters, for each of the years in issue.3

     Prior to the hearing, by a letter dated July 15, 2003,

petitioner informed the settlement officer that in light of the

recent opinion of this Court in Keene v. Commissioner, 

(2003), she wished to record the hearing.   The settlement officer

sent petitioner a response on July 21, 2003, advising that

respondent’s procedures barring recording had not changed and

that petitioner would not be allowed to make an audio or

stenographic recording of the hearing.

     Petitioner appeared for the scheduled conference on July 24,

2003, but the hearing did not proceed when petitioner was not

permitted to record.   The settlement officer informed petitioner

that he would make his determination based on the information in

her file.   Thereafter, on July 31, 2003, respondent issued the

aforementioned Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 to petitioner sustaining

the proposed levy action.

     Petitioner’s petition disputing the notices of determination

was filed on September 5, 2003, and reflected an address at 1836

West Mohave, Phoenix, Arizona 85007.   In the petition, the sole



     3
       Although the June 11, 2003, letter contains a
typographical error referring to the enclosures as “Certified
Transcripts for 1994, 1995, 1996 and 1997”, the actual enclosures
sent were for the pertinent 1993 through 1996 years.
                                 - 5 -

error assigned by petitioner was that the settlement officer

refused to permit the collection hearing to be recorded.

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, and unreasonable; vacate the July 31,

2003, determination; and award petitioner costs and fees incurred

in the prosecution of this action.4

     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 September 30,

2004.    Having not heard from petitioner, the Court on October 4,

2004, issued an order denying the motion for summary judgment,

ruling as follows:

          As respondent correctly notes in the motion for
     summary judgment, issues raised by petitioner during
     the administrative process, i.e., in her Form 12153,
     have been repeatedly rejected by this and other courts
     or are refuted by the documentary record. Moreover,
     the Court observes that maintenance of similar
     arguments has served as grounds for imposition of
     penalties under section 6673. However, the case in its
     current posture does present a procedural shortcoming.

          On July 8, 2003, this Court issued Keene v.
     

at 19, in which it was held that
     taxpayers are entitled, pursuant to section 7521(a)(1),
     to audio record section 6330 hearings. The taxpayer in


     4
       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 -

     that case had refused to proceed when denied the
     opportunity to record, and we remanded the case to
     allow a recorded Appeals hearing.

     have distinguished, and declined to remand, cases where
     the administrative proceedings took place prior to our
     opinion in Keene v. 

; 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.

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.

          The circumstances of the instant case are closely
     analogous to those in Keene v. 

, and
     diverge from those where it was determined that remand
     was not necessary and would not be productive.
     Critically, the final letter denying recording was sent
     on July 21, 2003, the aborted hearing was held on July
     24, 2003, and the notice of determination was issued on
     July 31, 2003. Although these dates are subsequent to
     the opinion in Keene v. 

, petitioner
     was not afforded an opportunity for a recorded
     conference. Further, because the requested face-to-
     face hearing was not held, there still exists a
     possibility that petitioner might have raised one or
     more nonfrivolous issues if the meeting had proceeded.

          In this situation, the Court will not accept
     respondent’s invitation to characterize the failure to
     allow recording as harmless error. Hence, the Court
     will deny respondent’s motion for summary judgment at
     this time. As in Keene v. 

at 19,
     however, we admonish petitioner that if she 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 may consider granting a
     future motion for summary judgment. In such an
     instance, the Court would also be in a position to
     impose a penalty under section 6673(a)(1).

     The following day, October 5, 2004, the Court received from

petitioner her response to respondent’s motion.   Therein,

petitioner principally reiterated her contentions that, on
                               - 7 -

account of the refusal to permit recording of the collection

hearing, the underlying notice of determination should be vacated

and her case remanded.   She asked that the Court deny

respondent’s motion for summary judgment.   The response was filed

for the record, and the case proceeded to trial.

     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.   At the calendar

call, the Court explained to petitioner that she would be

afforded an opportunity in a recorded proceeding before the Court

to raise any issues or arguments that she wished to make

concerning the notice of determination.   The Court also warned

petitioner, however, to take careful heed of the October 4, 2004,

order and to ensure that any such arguments were not frivolous in

nature.

     The case was thereafter heard on October 20, 2004.

Petitioner did not offer any evidence or testimony, and her

comments were limited to vague assertions that the Forms 4340

should not be treated as conclusive proof, that she did not

receive the notices of assessment, and that the case should be

sent back for a recorded hearing.   Counsel for respondent at this
                                - 8 -

time orally moved to renew respondent’s motion for summary

judgment, and the Court took the motion under advisement.

                             Discussion

     Rule 121(a) allows a party to move “for a summary

adjudication in the moving party’s favor upon all or any part of

the legal issues in controversy.”   Rule 121(b) directs that a

decision on such a motion shall be rendered “if the pleadings,

answers to interrogatories, depositions, admissions, and any

other acceptable materials, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that a decision may be rendered as a matter of law.”

     The moving party bears the burden of demonstrating that no

genuine issue of material fact exists and that he or she is

entitled to judgment as a matter of law.     Sundstrand Corp. v.

Commissioner, 

, 520 (1992), affd. 

(7th

Cir. 1994).   Facts are viewed in the light most favorable to the

nonmoving party.

motion for summary

judgment has been properly made and supported by the moving

party, the opposing party may not rest upon mere allegations or

denials contained in that party’s pleadings but must by

affidavits or otherwise set forth specific facts showing that

there is a genuine issue for trial.     Rule 121(d).
                                - 9 -

I.   Collection Actions

     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

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
                                - 10 -

          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
                    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 a

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
                                  - 11 -

     underlying tax liability is not properly at issue, the
     Court will review the Commissioner’s administrative
     determination for abuse of discretion. [Sego v.
     Commissioner, 

, 610 (2000).]

     B.   Analysis

           1.   Appeals Hearing

     Hearings conducted under section 6330 are informal

proceedings, not formal adjudications.         Katz v. Commissioner, 

, 337 (2000); Davis v. Commissioner, 

, 41

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

in connection with section 6330 hearings.         Roberts v.

Commissioner, 

, 372 (2002), affd. 

(11th

Cir. 2003); Nestor v. Commissioner, 

, 166-167 (2002);

Davis v. 

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. 

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,
                              - 12 -

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
     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.]
                              - 13 -

This Court has cited the above regulatory provisions with

approval.   See, e.g., Taylor v. 

; Leineweber

v. 

; Dorra v. 

; Gougler v.

.

     With respect to the instant matter, the record reflects that

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

hearing on July 24, 2003.   The hearing did not proceed when

petitioner was not permitted to record the meeting.   As explained

in our previous order in this case, in Keene v. Commissioner, 

, this Court held that taxpayers are entitled, pursuant

to section 7521(a)(1), 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.

as noted in our October 4, 2004, order,

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.

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
                               - 14 -

lack of a recording when to do so is not necessary and would not

be productive.   See, e.g., Frey v. 

;

Durrenberger v. 

; Brashear v. 

; Kemper v. 

; see also Keene v.

at 19-20; Lunsford v. Commissioner, 

, 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. 

;

Brashear v. 

; Kemper v. 

.

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

case, we declined to grant respondent’s initial 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 she wished to raise

that could warrant further consideration of the merits of her

case by the Appeals Office or this Court.      Petitioner, however,

merely offered generalized remarks regarding Forms 4340 and then

expressly affirmed that she had no issues to raise other than

those set forth in her Form 12153 and quoted in the Court’s

October 4, 2004, order.
                               - 15 -

     Hence, despite repeated warnings and opportunities, the only

contentions advanced by petitioner are, as will be further

discussed below, of a nature previously rejected by this and

other courts.   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 on respondent’s renewed motion

for summary judgment.

          2.    Review of Underlying Liabilities

     The evidentiary record establishes that a statutory notice

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

and 1996 taxable years was issued to petitioner.   Copies of the

notice itself and a certified mail list clearly reflect that the

notice was sent to petitioner’s last known, and current, address.

To the extent that petitioner made allegations to the contrary in

her Form 12153, such contentions are refuted by the evidence and,

in any event, were not pursued before the Court.   Accordingly,

because petitioner received a valid notice of deficiency and did

not timely petition for redetermination, she is precluded under

section 6330(c)(2)(B) from disputing her underlying tax

liabilities in this proceeding.
                              - 16 -

          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, 

, 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, 

.     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.

Commissioner, 

, 262 (2002); Nestor v. Commissioner,

.

     A Form 4340, for instance, constitutes presumptive evidence

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

Davis v. Commissioner, 

(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
                               - 17 -

is sufficient to support collection action under section 6330.

   We have specifically held that it is not an abuse

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

v. 

at 166; Davis v. 

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.    Although petitioner generally asserted

at trial that Forms 4340 are not conclusive proof, she failed to

cite any specific irregularities with respect to the Forms 4340

introduced into evidence and pertinent to this proceeding 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

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. 

at 370 n.7.    This Court likewise
                                - 18 -

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 June 11, 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. 

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.     At trial, the Court

explained to petitioner that no “magic words” were necessary;

rather, “If the substance of the notice is that you owe money and

for what year and how much, that may be sufficient to meet the

statutory requirements.”     Petitioner at that point made no

attempt to argue that she had failed to receive such a notice or

notices.

        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
                              - 19 -

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, 

; Goza v.

Commissioner, 

, 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.

II.   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

groundless.   In Pierson v. Commissioner, 

, 581

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

afforded by sections 6320 and 6330 through the bringing of
                              - 20 -

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, 

(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 even

through the time of trial, petitioner advanced contentions and

demands previously and consistently rejected by this and other

courts.   While her procedural stance concerning recording was

correct, she 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 her case.

Yet she appeared at the trial session in Phoenix without any

legitimate evidence or argument in support of her position.      She

instead continued to espouse those positions that had been

rejected in this Court’s order of October 4, 2004, or in other

cases previously decided by the Court.

     Hence, petitioner received fair warning but has persisted in

frivolously disputing respondent’s determination.    The Court
                              - 21 -

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

United States in this case.   To reflect the foregoing,


                                         An appropriate order

                                    granting respondent’s motion

                                    and decision for respondent

                                    will be entered.