T.C. Memo. 2010-44



                      UNITED STATES TAX COURT



                PATRICK R. TURNER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 29001-08L.              Filed March 4, 2010.



     Patrick Turner, pro se.

     Mindy Chou and A. Gary Begun, for respondent.



                        MEMORANDUM OPINION


     KROUPA, Judge:   This collection review matter is before the

Court on respondent’s motion for summary judgment filed pursuant

to Rule 121.1   Respondent contends that he is entitled to



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

judgment as a matter of law on whether the Appeals Office

correctly determined to sustain the lien filing against

petitioner to collect unpaid interest, late filing additions to

tax, and late payment additions to tax for the taxable years 1999

and 2000 (years at issue).    We shall grant respondent’s motion.

                             Background

     Petitioner resided in Michigan at the time he filed the

petition.   Petitioner failed to timely file a return for either

year at issue.    Petitioner eventually filed a return for each

year at issue over three years after the filing deadline.    On

each return, petitioner reported a tax due but failed to pay the

reported tax.    Respondent then assessed the $124,8252 tax due

shown on the returns and $38,677 of statutory interest under

section 6601.    Respondent also assessed $28,828 of late payment

additions and $25,945 of late filing additions for both years at

issue.3

     Petitioner failed to pay the assessed amounts.    Respondent

thereafter sent petitioner a Notice of Federal Tax Lien Filing

and Your Right to a Hearing Under IRC 6320 (lien notice).4


     2
      All amounts are rounded to the nearest dollar.
     3
      Respondent applied a $9,513 withholding credit against
petitioner’s liabilities.
     4
      Petitioner and his wife, Patricia Turner, filed joint
returns for the years at issue. Mrs. Turner is not a party to
this collection proceeding as the lien notice and determination
                                                   (continued...)
                                - 3 -

Petitioner timely requested a collection due process (CDP)

hearing and objected to the imposed interest and additions.

Petitioner did not challenge the underlying tax.   Petitioner

asserted that he was not required to file a tax return for either

of the two years at issue based on the Paperwork Reduction Act of

1995 (PRA), 44 U.S.C. section 3512 (2006).    Petitioner requested

that all additions and interest be abated.

     Appeals Officer Thomas Anderson (AO Anderson) was assigned

petitioner’s collection case.   AO Anderson mailed a letter to

petitioner to schedule a telephone conference.   AO Anderson

declined to offer petitioner a face-to-face hearing because

petitioner raised only frivolous issues.   AO Anderson informed

petitioner that to receive a face-to-face meeting he had to

assert a non-frivolous issue within a certain period.   AO

Anderson also requested petitioner to submit a completed Form

433-A, Collection Information Statement.

     Petitioner responded by requesting a face-to-face hearing

but did not raise any non-frivolous issues.   AO Anderson

reiterated to petitioner in subsequent phone conversations that

he had to raise non-frivolous issues to have a face-to-face

hearing.   AO Anderson gave petitioner another opportunity to


     4
      (...continued)
notice were issued solely to petitioner. Respondent mailed
petitioner and Mrs. Turner a Notice of Intent to Levy and Your
Right to a Hearing for tax years 1999, 2000, and 2002. The levy
determination is not at issue in this proceeding.
                                 - 4 -

present a non-frivolous issue.    Petitioner failed to submit any

other issues and did not provide the necessary financial

information for AO Anderson to consider any collection

alternatives.   AO Anderson reviewed the material and arguments

petitioner presented and determined to sustain the lien filing.

AO Anderson sent petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330

(determination notice) sustaining the lien filing.     The

determination notice stated that petitioner “has not raised any

issues that have not been previously ruled to be frivolous by the

United States Tax Court.”

     Petitioner timely filed an imperfect petition seeking relief

from respondent’s determination notice.     Petitioner filed an

amended petition challenging the assessed interest, late filing

additions, and late payment additions under the PRA.     Petitioner

does not challenge the self-assessed tax for either year at issue

in the petition for review.    As previously mentioned, respondent

moved for summary judgment and petitioner filed an objection.

                              Discussion

     We are asked to decide whether it is appropriate to grant

summary judgment in this collection review proceeding.       Summary

judgment is intended to expedite litigation and avoid unnecessary

and expensive trials.   See, e.g., FPL Group, Inc. & Subs. v.

Commissioner, 

, 74 (2001).      Either party may move for
                                - 5 -

summary judgment upon all or any part of the legal issues in

controversy.   Rule 121(a).   The moving party bears the burden of

proving that there is no genuine issue of material fact.

Dahlstrom v. Commissioner, 

, 821 (1985); Jacklin v.

Commissioner, 

, 344 (1982).    When a motion for summary

judgment is made and supported as provided in Rule 121, the party

opposing summary judgment must set forth specific facts which

show that a 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).

     Petitioner challenges the assessed interest, late filing

additions, and late payment additions asserting that he was not

required to file a return because the return violated the PRA.

This and other courts have consistently held taxpayers’ claims

based on the PRA groundless.    See, e.g., James v. United States,

, 753 n.6 (10th Cir. 1992) (lack of an OMB number on

IRS forms and notices does not violate the PRA); United States v.

Neff, 

, 699 (11th Cir. 1992) (lack of an OMB number

on a Federal income tax return does not violate the PRA); Freas

v. Commissioner, T.C. Memo. 1993-552 (PRA does not apply to

Federal income tax regulations or to Federal tax forms); Andreas

v. Commissioner, T.C. Memo. 1993-551 (PRA does not apply to

Federal income tax regulations or to Federal tax forms).   Courts
                               - 6 -

have refused to even consider such arguments so as not to suggest

they have any credence.   See Schneller v. Commissioner, T.C.

Memo. 2006-99.   We similarly find that petitioner’s arguments

regarding the OMB control numbers and the PRA lack merit.

Furthermore, petitioner’s argument that the PRA prevents

respondent from charging interest is without merit.   See Wolcott

v. Commissioner, T.C. Memo. 2008-153.

     Petitioner also challenges the assessed interest, late

filing additions, and late payment additions on the grounds that

respondent denied him the right to a CDP hearing.   Again we

disagree.   A CDP hearing may consist of one or more written or

oral communications between an Appeals officer and the taxpayer.

Sec. 301.6320-1(d)(2), Q&A-D6, Proced. & Admin. Regs.; see Katz

v. Commissioner, 

(2000); Dinino v. Commissioner,

T.C. Memo. 2009-284.   This Court and other courts have held that

a face-to-face CDP hearing is not required under section 6330.

Katz v. 

(telephone conference procedurally

proper); Williamson v. Commissioner, T.C. Memo. 2009-188

(taxpayer not entitled to face-to-face hearing after asserting

only meritless arguments); Stockton v. Commissioner, T.C. Memo.

2009-186 (upholding denial of face-to-face conference after the

taxpayer failed to raise non-frivolous issue after multiple

opportunities); Leineweber v. Commissioner, T.C. Memo. 2004-17

(prior telephone conversations constitute CDP hearing); Tilley v.
                               - 7 -

United States, 

(M.D.N.C. 2003) (telephone

conversations sufficed), affd. 

(4th Cir. 2004).

All communications between the taxpayer and the Appeals officer

between the time of the hearing request and the issuance of the

determination notice constitute part of the CDP hearing.     See

Middleton v. Commissioner, T.C. Memo. 2007-120; see also Dinino

v. 

.

     Here, AO Anderson spoke with petitioner on the phone and

exchanged written correspondence with petitioner.     AO Anderson

gave petitioner ample opportunity to raise non-frivolous issues.

AO Anderson verified that respondent met the requirements of

applicable law and administrative procedures.    We find that

petitioner had a CDP hearing with AO Anderson.    In addition, we

find that petitioner has failed to raise any meritorious issue to

suggest that it would be productive or appropriate to remand this

case to the Appeals Office for further proceedings.     See Lunsford

v. Commissioner, 

, 189 (2001).

     Petitioner has raised no legitimate issue, spousal defense,

or collection alternative.   See sec. 6330(c)(2).    Accordingly,

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

     Petitioner has advanced a plethora of groundless arguments.

We have specifically warned petitioner on two occasions (one

order dated December 7, 2009, and another order dated January 22,

2010) to stop making these frivolous arguments.     We informed
                                 - 8 -

petitioner that other taxpayers in similar cases were subject to

a section 6673 penalty.5   See, e.g., Wolcott v. 

; Schneller v. 

.     Despite these warnings,

petitioner has wasted the Court’s limited time and resources.

See Takaba v. Commissioner, 

, 295 (2002).    We will

not impose a section 6673 penalty at this time but we caution

petitioner that should he bring similar arguments before this

Court in the future, the Court may impose such a penalty up to

$25,000.

     We have considered all arguments made in reaching our

decision, and, to the extent not mentioned, we conclude that they

are moot, irrelevant, or without merit.    We conclude that there

are no genuine issues of material fact and that respondent is

entitled to summary judgment as a matter of law.

     To reflect the foregoing,


                                     Decision will be entered

                                 for respondent.




     5
      Sec. 6673 authorizes this Court to require a taxpayer to
pay a penalty up to $25,000 whenever it appears that a taxpayer
instituted or maintained a proceeding in the Court primarily for
delay or that a taxpayer’s position in such a proceeding is
frivolous or groundless. Sec. 6673(a)(1).