T.C. Memo. 2006-213



                      UNITED STATES TAX COURT



                 JOHN N. SWEENEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21167-05L.            Filed October 3, 2006.



     John N. Sweeney, pro se.

     Monica J. Miller, for respondent.



                        MEMORANDUM OPINION

     WELLS, Judge:   The instant case is before the Court on

respondent’s motion for summary judgment pursuant to Rule 1211

and to impose a penalty pursuant to section 6673.   The issue we




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

must decide is whether respondent’s Appeals Office abused its

discretion in determining to proceed with collection of

petitioner’s tax liability for taxable years 1999, 2001, and

2002.   For the reasons stated below, we shall grant respondent’s

motion for summary judgment and to impose a penalty pursuant to

section 6673.

                             Background

     At the time of filing the petition in the instant case,

petitioner resided in Melbourne, Florida.   Petitioner failed to

file Federal income tax returns or pay tax for taxable years 1999

through 2003.    Respondent sent petitioner a notice of deficiency

for each year.   Petitioner petitioned this Court regarding

taxable year 2003.   That case is at docket No. 14262-05.

Petitioner failed to petition this Court regarding any other

taxable years, and accordingly, respondent assessed deficiencies

plus section 6651(a)(1) and 6654(a) additions to tax and interest

for taxable years 1999, 2001, and 2002.   Petitioner’s current

liabilities, including interest through the trial date of October

16, 2006, for the years in issue are $38,324.42, $66,315.10, and

$72,286.30, respectively.

     On March 28, 2005, respondent sent petitioner a Letter 1058,

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

Hearing, with respect to the years in issue in the instant case.
                               - 3 -

On April 19, 2005, petitioner sent respondent a Form 12153,

Request for a Collection Due Process Hearing.

     Respondent’s Appeals officer reviewed petitioner’s

correspondence and determined that all of petitioner’s

contentions were frivolous.   On July 25, 2005, respondent’s

Appeals officer sent petitioner a letter in which respondent

notified petitioner that respondent had received petitioner’s

request for a section 6330 hearing and scheduled a telephone

conference for August 17, 2005, at 3 p.m.   The letter advised

petitioner that the underlying liabilities could not be raised at

the hearing because petitioner had received statutory notices of

deficiency.2   Respondent’s letter also directed petitioner to an

Internal Revenue Service (IRS) publication, “The Truth About

Frivolous Tax Arguments”, available on the IRS’s Web site.

Finally, the letter advised petitioner of this Court’s authority

to impose a sanction of up to $25,000 pursuant to section 6673.

     Petitioner did not respond to this letter and failed to

participate in the scheduled phone conference.   On August 22,

2005, respondent sent petitioner a letter again requesting that

petitioner contact respondent and provide any additional




     2
      Petitioner denies receiving a statutory notice of
deficiency. However, this is only because petitioner claims to
have received “non-statutory” notices of deficiency.
Accordingly, the fact of receipt is deemed conceded.
                                - 4 -

information petitioner wished to have considered in the hearing.

The letter requested a response by September 7, 2005.

     On September 13, 2005, petitioner sent respondent a letter

captioned “LEGAL NOTICE”, in which petitioner asserted only

frivolous arguments.   Petitioner also sent a second letter

containing frivolous arguments.   All of the arguments petitioner

raised in those letters were also raised in the 12-page amended

petition filed with this Court in petitioner’s deficiency case at

docket No. 14262-05.   On October 6, 2005, this Court struck, sua

sponte, paragraphs 5 through 50 and 78 through 139 of the

petition in that case as frivolous and advised petitioner

regarding section 6673(a)(1).

     Based on the administrative file and correspondence,

respondent’s Appeals officer determined that the proposed levy

was appropriate and sent petitioner a notice of determination.

Petitioner timely petitioned this Court pursuant to section 6330.

Petitioner’s lengthy petition and reply to respondent’s answer

raise only frivolous arguments.   Respondent filed a motion for

summary judgment and to impose a penalty pursuant to section 6673

on August 18, 2006.

                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and may be granted where
                                 - 5 -

there is no genuine issue of material fact and a decision may be

rendered as a matter of law.    Rule 121(a) and (b); Fla. Peach

Corp. v. Commissioner, 

, 681 (1988).       The moving party

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences are viewed in a light most

favorable to the nonmoving party.        Craig v. Commissioner, 

, 260 (2002); Dahlstrom v. Commissioner, 

, 821

(1985); Jacklin v. Commissioner, 

, 344 (1982).       The

party opposing summary judgment must set forth specific facts

that show a genuine question of material fact exists and may not

rely merely on allegations or denials in the pleadings.        Grant

Creek Water Works, Ltd. v. Commissioner, 

, 325 (1988);

Casanova Co. v. Commissioner, 

, 217 (1986).

     Section 6330 provides that no levy may be made on any

property or right to property of a person unless the Secretary

first notifies him or her in writing of the right to a hearing

before the Appeals Office.     The Appeals officer must verify at

the hearing that the applicable laws and administrative

procedures have been followed.    Sec. 6330(c)(1).     At the hearing,

the person may raise any relevant issues relating to the unpaid

tax or the proposed levy, including appropriate spousal defenses,

challenges to the appropriateness of collection actions, and

collection alternatives.   Sec. 6330(c)(2)(A).      The person may

challenge the existence or amount of the underlying tax, however,
                               - 6 -

only if he or she did not receive any statutory notice of

deficiency for the tax liability or did not otherwise have an

opportunity to dispute the tax liability.   Sec. 6330(c)(2)(B).

     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.   Sego v.

Commissioner, 

, 610 (2000); Goza v. Commissioner, 

, 181-182 (2000).

     Petitioner had the opportunity to challenge the correctness

of his tax liability for 1999, 2001, and 2002 but instead chose

not to petition this Court in response to the notices of

deficiency regarding those years.   Therefore, petitioner’s

underlying tax liability for 1999, 2001, and 2002 is not properly

in issue, and we review respondent’s determination to proceed

with collection for an abuse of discretion.

     The record demonstrates that the only issues petitioner

raised throughout the section 6330 administrative process and in

his petition to this Court were frivolous tax protester type

arguments.   We do not address petitioner’s frivolous arguments

with somber reasoning and copious citations of precedent, as to

do so might suggest that these arguments possess some degree of
                                - 7 -

colorable merit.   See Crain v. Commissioner, 

, 1417

(5th Cir. 1984).

     The record in the instant case demonstrates that

respondent’s Appeals officer was impartial, had no prior

involvement with petitioner, and verified that all applicable

laws and administrative procedures were followed.   Accordingly,

we hold that respondent’s determination to proceed with the

proposed levy to collect petitioner’s tax liability for 1999,

2001, and 2002 was not an abuse of discretion and that no genuine

issue of material fact exists requiring trial.   Respondent is

entitled to summary judgment.

     Section 6673(a)(1) provides that this Court may require the

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

appears to this Court:   (a) The proceedings were instituted or

maintained by the taxpayer primarily for delay; (b) the

taxpayer’s position is frivolous or groundless; or (c) the

taxpayer unreasonably failed to pursue available administrative

remedies.   Respondent has moved that the Court impose a penalty

in the instant case.   The record indicates that petitioner was

warned that this Court could impose a penalty if he persisted in

raising frivolous tax protester arguments.   Despite being warned,

petitioner raised frivolous arguments throughout the section 6330

administrative process, in his petition to this Court, in his
                                 - 8 -

reply to respondent’s answer, and in his response to respondent’s

motion for summary judgment.   Accordingly, we shall impose a

$10,000 penalty on petitioner pursuant to section 6673.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.