T.C. Memo. 2013-79

UNITED STATES TAX COURT

MICHAEL J. HARPER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 20408-11L. Filed March 18, 2013.

Michael J. Harper, pro se.

Rebecca M. Clark, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This case is before us on respondent’s motion for

summary judgment (respondent’s motion). We shall grant respondent’s motion.

Background

The record establishes and/or the parties do not dispute the following.

Petitioner’s mailing address was in Michigan at the time he filed the petition. 
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[*2] Petitioner did not file a Federal income tax (tax) return for his taxable year

2007.1 Respondent prepared a substitute for return for that year. 

Respondent issued to petitioner a notice of deficiency with respect to his

taxable year 2007 (2007 notice of deficiency). In that notice, respondent

determined a deficiency in, and certain additions to, petitioner’s tax for that year. 

Petitioner did not file a petition with the Court with respect to the 2007 notice of

deficiency. 

On May 24, 2010, respondent assessed the tax and the additions to tax for

petitioner’s taxable year 2007 that respondent had determined in the 2007 notice of

deficiency as well as interest as provided by law thereon. (We shall refer to the

amounts that respondent assessed on May 24, 2010, as well as interest as provided

by law accrued after that date, as the 2007 unpaid liability.)

On May 24, 2010, and on certain dates thereafter, respondent issued to

petitioner notices of balance due with respect to his 2007 unpaid liability. 

On January 18, 2011, respondent issued to petitioner a final notice of intent to

levy and notice of your right to a hearing (notice of intent to levy) with respect to his

2007 unpaid liability. 

1Moreover, petitioner did not file a tax return for any of his taxable years

2004, 2005, 2006, 2008, and 2009. Respondent prepared a substitute for return for

each of those years.
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[*3] Petitioner timely filed with respondent Form 12153, Request for a Collection

Due Process or Equivalent Hearing (petitioner’s Form 12153), and requested a

hearing with respondent’s Appeals Office (Appeals Office). In that form, petitioner

indicated his disagreement with the notice of intent to levy.2 In petitioner’s Form

12153, petitioner requested an installment agreement and an offer-in-compromise as

collection alternatives. 

By letter dated March 23, 2011 (March 23, 2011 letter), a settlement officer

with the Appeals Office (settlement officer) who was assigned petitioner’s Form

12153 acknowledged receipt of that form. That letter stated in pertinent part:

Appeals received your request for a Collection Due Process (CDP)

Hearing. I have scheduled a telephone conference call for you on

May 11, 2011 at 1:00pm EST.

[3]

 This call will be your primary

opportunity to discuss with me the reasons you disagree with the

collection action and/or to discuss alternatives to the collection action.

2

In petitioner’s Form 12153, petitioner also indicated his disagreement with a

notice of Federal tax lien filing. The record does not establish that respondent

issued to petitioner any such notice with respect to his taxable year 2007. The

notice of determination concerning collection action(s) under sec. 6320 and/or 6330

(notice of determination) with respect to petitioner’s taxable year 2007 on which

this case is based addresses solely the notice of intent to levy that respon-dent

issued to petitioner with respect to his taxable year 2007. 

3We shall refer to the telephonic conference with petitioner that the settlement officer scheduled for May 11, 2011, as the scheduled telephonic conference.
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[*4] I will call you at * * *, the number you indicated on your CDP

request.

If this time is not convenient for you, the phone number has changed,

or you would prefer your conference to be held by face-to-face at

the Appeals office closest to your current residence, the school you

attend or your place of employment or if you are a business, your

business address, or by correspondence, please let me know within

fourteen (14) days from the date of this letter, no later than May 5,

2011. I will discuss with you if there are any offices that may be more

convenient for you (e.g., Appeals office nearest place of employment

or school) when you contact me. 

Your attached letter requests a face to face hearing. In order to 

have a face to face you must be in full compliance. Our records

indicate that you are currently missing you [sic] 2004 and 2009[4]

tax returns. Enclosed you will find the 1040’s with the reported

income for these years. * * * complete and sign these forms [1040]

and fax them to me at the fax number listed above and also send

me the completed [Form] 433A also enclosed by April 5, 2011, I

will be able to transfer your case at that time for a face to face

hearing. If I do not receive this information by April 5, 2011 you

will still be eligible for the telephone conference.

 * * * * * * *

4The attachment to the notice of determination that respondent issued to

petitioner with respect to his taxable year 2007 (quoted in pertinent part in the text

below) stated that respondent did not have any tax returns from petitioner for his

taxable years 2004 through 2009. It is immaterial to our resolution of respon-dent’s

motion that the settlement officer’s March 23, 2011 letter is inconsistent in this

regard with that attachment to the notice of determination. The record establishes

that petitioner did not file a tax return for any of his taxable years 2004, 2005, 2006,

2007 (the taxable year involved here), 2008, and 2009. See supra note 1.
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[*5] During the hearing, I must consider:

• Whether the IRS met all the requirements of any applicable

law or administrative procedure

• Any non frivolous issues you wish to discuss. These can

include:

1. Collection alternatives to levy such as full payment of the

liability, installment agreement, offer in compromise or

temporary suspension of collection action if the action

imposes a hardship condition. Although they may not be

considered an “alternative” to a notice of lien filing, these

collection options may also be discussed at a lien hearing.

2. Challenges to the appropriateness of collection action. If

this is a lien hearing, you may ask us to determine if the

notice of lien filing was appropriate and if you qualify for

a lien withdrawal or other lien options, such as

subordination.

3. Spousal defenses, when applicable.

• We may also consider whether you owe the amount due, but

only if you have not otherwise had an opportunity to dispute it

with Appeals or did not receive a statutory notice of

deficiency.

• We will balance the IRS’ need for efficient tax collection and

your legitimate concern that the collection action be no more

intrusive than necessary.

 * * * * * * *

For me to consider alternative collection methods such as an

installment agreement or offer in compromise, you must provide any
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[*6] items listed below. In addition, you must have filed all federal tax 

returns required to be filed.

• A completed Collection Information Statement (Form 433-

A for individuals and/or Form 433-B for businesses.) 

• Signed tax return(s) for the following tax periods. Our

records indicate they have not been filed:

Type of Tax: 1040

Period or Periods: 2004 and 2009

• Proof of estimated tax payments for the period(s) listed 

below:

2001 or a corrected W4

• Other All income and expense substantiation and three

months of bank statements

• Form 656 Offer in Compromise

Please send me the items requested above within 14 days from the

date of this letter, no later than May 5, 2011. I cannot consider

collection alternatives at your conference without this information. I

am enclosing the applicable forms and a return envelope for your

convenience.

 * * * * * * *

If you do not participate in the conference or respond to this letter, the

determination and/or decision letter that we issue will be based on your

CDP request, any information you previously provided to this office

about the applicable tax periods, and the Service’s administrative file

and records.

In response to the settlement officer’s March 23, 2011 letter, on May 8, 
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2011, three days before the scheduled telephonic conference, petitioner sent a 

[*7] letter (May 8, 2011 letter) to the settlement officer. In that letter, petitioner

stated in pertinent part:

You sent me your letter dated March 23, 2011 that was in response to

my request for CDP Hearing, the copy attached. In response to your

letters, I do not wish to have a telephone conference nor do I wish to

discuss this matter via correspondence since the majority of my

questions over the years pertaining to this matter have gone

unanswered.

I requested a face-to-face hearing as I am entitled to under the law. 

The things I will discuss include collection alternatives, including OIC

and payment schedule, procedural irregularities, and possibly Currently

Non Collectible. Please send me the necessary forms, including the

financial statement form.

What I am requesting is an in-person meeting as prescribed by law.

* * *

 * * * * * * *

I would like a copy of all information, documentation and the

administrative records you have on us before the CDP Hearing. Please

send me Form 4340 with the transcripts and certificate. This is

necessary for my CDPH.

At the hearing, I will bring a tape recorder and a few witnesses to

observe the process. Please schedule the Hearing at the IRS office

closest to my residence and notify me of the date, time and place. 

Please contact security and make arrangements for me to bring my tape

recorder, etc. through the security check point.

In your letter, you stated I would be allowed a face-to-face conference

on any relevant, non-frivolous issues if I requested this in writing. Is
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this still correct? I have listed above in this letter the issues that will be

raised. These will not exclude me from the face-to-face confer-

[*8] ence. Please respond to my issues and concerns, and please provide me 

with the information I have requested from you.

As for this form 433-A and the other forms you have requested from

me, there are no laws that require me to fill out this form before you

schedule a face to face hearing. In fact in Brandt v. Commissioner,

T.C. 2009-16 a Collection hearing was held, but yet the taxpayer had

not filed the applicable forms and was in fact granted an extension of

28 days beyond the date of the hearing to do so. You requested that I

complete a comprehensive financial form within 14 days. Not only do

you want the paperwork in advance of the scheduling of the hearing,

but you are only giving me less than half that time to complete it.

I will work with appeals to provide all the necessary forms. At the

hearing, I will bring copies of my books and records. Please schedule

the hearing 90 days in advance so I can arrange my schedule.

After having received the May 8, 2011 letter from petitioner, the settlement

officer called him to inform him that a face-to-face hearing could not be held until he

provided the settlement officer with the information and the documents that the

settlement officer had requested in her March 23, 2011 letter. Petitioner did not

respond to that telephone call. 

On May 11, 2011, the date of the scheduled telephonic conference, the

settlement officer called petitioner, but petitioner was not available. On the same

date, after petitioner failed to participate in the scheduled telephonic conference, the

settlement officer sent him a letter (May 11, 2011 letter). In that letter, the
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settlement officer stated in pertinent part:

[*9] I sent you a letter dated March 23, 2011 offering you a telephonic

Collection Due Process conference. The conference was scheduled for

May 11, 2011 at 1:00pm EST.

I tried calling you at the scheduled time but you were not available and

you had not called to indicate that this date and/or time was not

convenient.

The conference letter also asked that you send me the information I

needed to consider the issues you raised in your request for a hearing.

• I never received the information from you.

Please be advised that we will make a determination in the Collection

Due Process hearing you requested by reviewing the Collection

administrative file and whatever information you have already

provided.

If you would like to provide information for our consideration, please

do so within 14 days from the date on this letter, no later than May 25,

2011.

We will promptly issue you a determination and/or decision letter with

our findings. 

In July 2012, petitioner sent one check or two checks to respondent with

respect to his respective tax liabilities for his taxable years 2005 and 2006.5 The

5The record does not establish whether petitioner sent one check with respect

to his tax liability for his taxable year 2005 and one check with respect to his tax

liability for his taxable year 2006 or whether he sent one check with respect to his

respective liabilities for both of those years. For convenience, we assume and state

(continued...)
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checks were dishonored, and respondent charged petitioner dishonored check fees.

[*10] On August 10, 2011, the Appeals Office issued to petitioner a notice of

determination with respect to his taxable year 2007. That notice stated in pertinent

part: 

Summary of Determination

Appeals has determined that your Notice of Intent to Levy is sustained.

The notice of determination included an attachment that stated in pertinent

part:

SUMMARY AND RECOMMENDATION

You requested a Collection Due Process Hearing under authority of

IRC Code 6330 in response to the proposed levy action on the above

accounts. The request was timely as it was received within 30 days

from the date of the levy notice.

Appeals has determined that the Notice of Intent to Levy is sustained.

BRIEF BACKGROUND

On March 23, 2011 the Settlement Officer sent you a letter which

scheduled a telephone conference for you on May 11, 2011 at 1:00pm

EST. You were offered the opportunity to request a face to face

conference but you did not send any of the requested information that

was needed in order for the Settlement Officer to consider it for you. 

In the letter, you were asked to provide Form 433A, collection

5

(...continued)

hereafter that petitioner sent two checks to respondent.
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information statement with all income and expense substantiation and

three months of bank statements along with Form 1040 for tax years

2004 through 2009, estimated tax payments for 2011 or a corrected

W4 and Form 656 for the offer in compromise you requested. The

[*11] Settlement Officer did not receive any of the requested information 

from you.

On May 8, 2011, the Settlement Officer received a letter from you

requesting a face to face conference. The Settlement Officer called

you to advise you that a face to face could not be granted until you sent

the requested information. You did not respond to that telephone

attempt.

On May 11, 2011 the Settlement Officer called you for your scheduled

conference, You were not available. You were advised that the call

was in reference to you collection due process and that a letter would

be sent dated May 11, 2011. The Settlement Officer sent you the letter

which stated that the telephone conference was attempted and that you

had 14 days from the date of the letter which was by May 25, 2011 for

you to provide any information you wished to be considered prior to

determination on your account. You were to provide this information

within 14 days, no later than May 25, 2011; The Settlement Officer did

not receive any information.

DISCUSSION AND ANALYSIS

a. Verification of legal and procedural requirements:

Appeals has obtained verification from the IRS office

collecting the tax that the requirements of any applicable

law, regulation or administrative procedure with respect to

the proposed levy or NFTL filing have been met. Computer

records indicate that the notice and demand, notice of intent

to levy and/or notice of federal tax lien filing, and notice of

a right to a Collection Due Process hearing were issued.
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Assessment was properly made per IRC § 6201 for each

tax and period listed on the CDP notice.
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[*13] The notice and demand for payment letter was mailed to

the taxpayer’s last known address, within 60 days of the 

assessment, as required by IRC § 6303.

There was a balance due when the CDP levy notice was 

issued or when the NFTL filing was requested.

There is no pending bankruptcy case, nor did you have a 

pending bankruptcy case at The Time the CDP was sent 

(11USC § 362(a)(6).

Prior involvement

The Settlement Officer had no prior involvement with respect to the

specific tax periods either in Appeals or Compliance.

Collection statute verification

The collection statute has been suspended; the collection period

allowed by statute to collect these taxes has been suspended by the

appropriate computer codes for the tax periods at issue.

Collection followed all legal and procedural requirements and the

actions taken or proposed were appropriate under the circumstances.

Issues raised by the taxpayer

Collection Alternatives Offered by Taxpayer

You requested the collection alternative of an installment agreement or

an offer in compromise but you did not provide any of the requested

information in order for the Settlement Officer to consider one for you.

Challenges to the Existence of Amount of Liability

You disagree with your liability because you state that the tax 
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[*14] assessments were incorrect but you did not provide any information 

showing why. You annotated subordination, discharge or withdrawal of a 

lien. Our records show that the Notice of Federal Tax Lien has not been 

filed.

 Balancing of need for efficient collection with taxpayer concern

that the collection action be no more intrusive than necessary.

The proposed collection action has been determined to be appropriate

in you case. Although a levy is intrusive a levy is the most efficient

method of collection remaining. You did not send in any requested

information in order for the Settlement Officer to explore for collection

alternatives. It is our judgment that the proposed levy action balances

the need for efficient collection with your legitimate concern that the

collection action be no more intrusive than necessary. [Reproduced

literally.]

In the petition commencing this case, petitioner alleged in pertinent part:

2. Pursuant to IRC §§ 6320 and 6330, Petitioner requested a

face-to-face Collection Due Process Hearing for the tax

period 2007 within the 30-day time period allowed by

statute, dated February 7, 2011. (Certificate of Service--

Exhibit B).

3. The IRS Appeals Office issued a “Notice of Determination

Concerning Collection Action under Section 6320 and/or

6330” dated August 10, 2011. This denied Petitioner’s

lawful request and is hereby appealed. (Exhibit C).

 * * * * * * *

5. Appeals Officer Roseann Novetti sent taxpayer a letter

dated March 23, 2011, scheduling a telephone conference

for May 11, 2011 at 1 pm. The same letter indicated taxpayer could have a face to face hearing if he notified Ms. 

Novetti. (Exhibit E)
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[*15] 6. On May 8, 2011, taxpayer sent Ms. Novetti a letter 

requesting a face-to-face hearing. Petitioner never heard

from Ms. Novetti after the May 8th letter. (Exhibit F)

7. Congress has set forth three pre-conditions for Collection

Due Process Hearing (herein referred to as CDPH):

a. Petitioner must make request.

b. Petitioner must make request in a timely manner, 30

days.

c. Petitioner must state the purpose of the hearing which

includes collection alternatives, procedure

irregularities, spousal relief and tax liability in some

cases.

8. Petitioner complied with all of these. Further, the IRS has

an extra precondition for taxpayer not to raise political,

Constitutional and religious concerns. Petitioner complied

with this extra requirement.

9. The IRS has other irregular and interesting preconditions

such as filling out forms and submitting a payment

schedule. These requirements are impossible for Petitioner

to meet on the Appeals Office time table.

10. Petitioner stated in his CDPH Request that he would

provide all applicable forms. In Brandt v. Commissioner,

T.C. 2009-16, a Collection Hearing was granted even

though Petitioner had not filed the applicable forms. Brandt

was even granted an extension of 28 days beyond the date

of the actual hearing to do so. Settlement Officer Novetti

wanted all such paperwork prior to the scheduling of the

CDPH.

11. The IRS illegally and wrongfully did not allow an inperson hearing and violated Petitioner’s statutory and
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[*16] administrative due process rights. Petitioner’s rights under 

the administrative procedure code include an opportunity to 

appear before the fact-finding tribunal. The U.S. Tax Court 

has held many times that the law requires an in-person 

hearing. Marett v. CIR, Docket # 4048-061, decided 7 Jul

06; Shell v. CIR, Docket # 20188-05L, decided 31 May 06;

Nelson v. CIR, Docket # 13212-05L, decided 7 Nov 05.

12. The Settlement Officer prematurely issued her Notice of

Determination without taking into consideration Petitioner’s

reasoning for a face to face hearing. She failed to consider

all available collection alternatives and the facts of the case.

13. Petitioner requested a face-to-face hearing so that he could

tape record the hearing as is allowed by law pursuant to

§7521 and Keene v. Commissioner, 121 T.C. 8 (2003) and

Calafati v. Commissioner, 127 T.C. 16.

14. Petitioner requested a face-to-face hearing within the time

period and raised relevant issues. Therefore taxpayer is

entitled to an in-person hearing. Under IRC §§6320 and

6330, Petitioner is entitled to an in-person CDP hearing at

a location convenient to him.

15. Petitioner was not given the opportunity to raise any relevant issue relating to the unpaid tax or the proposed levy at 

a hearing in accordance with IRC §§6320 and/or 6330(C).

16. Petitioner was not able to discuss collection alternatives,

which is a relevant issue for a face-to-face hearing, 

be cause no in-person hearing was held. In Mesa Oil Inc.

v. United States, No. 00-B-851 (D. Colo. Filed Nov. 21, 

2000) the court decided that the CDP statute, I.R.C. 

§6330(c)(3), was ambiguous because it did not specify
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[*17] what factors the appeals officer needed to consider in 

performing the balancing analysis. The court held that the 

appeals officer must verify that she thoroughly considered 

the facts of the case, including the availability of alternative

collection methods. (Paraphrased from Collection, 

Bankruptcy and Summonses Bulletin No. 428, 

November 2000).

17. At the in-person hearing, which should have been scheduled

since Petitioner requested it and has relevant issues to

discuss; Petitioner would have been present in person and

brought with him a tape recorder, witnesses to observe the

process and possibly a representative.

18. Petitioner understands that face-to-face hearings are not

required but if a taxpayer asks for a face-to-face hearing,

one must be granted on all non-frivolous issues. * * *

 * * * * * * *

20. In the case of Schulz II, the U.S. Court of Appeals for the

2nd Circuit issued a definitive ruling: Independent judicial

review is required for all IRS collection enforcement

activities. Now, the IRS is like landlords, banks and loan

companies who need a court hearing before state action. 

The Debtor is entitled to an independent judge to scrutinize

the enforcement activities of all collection agencies. Harsh

actions are no longer allowed without the acquiescence or

intervention from a judge. A judge is defined as holding a

lifetime appointment with no diminishment in salary. Schulz

v. IRS, 2nd Circuit, June 2005, 413 F.3d 297(2d)NY, 95

A.F.T.R.2d 2005-3007, 2005 WL 152090.

 * * * * * * *

22. Petitioner’s rights were violated in the following manner:
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[*18] A. Petitioner was not granted an in-person hearing as he

had requested;

B. Petitioner did not have the opportunity to raise

collection alternatives such as OIC, payment schedules,

non-collectible status;

C. Petitioner did not have the opportunity to examine the

administrative record to verify that all procedural

requirements had been met by the IRS and that all

payments had been properly applied.

D. This caused financial hardship for Petitioner as well as

severe emotional and physical distress.

23. Issuance of the Notice of Determination was inappropriate. 

It did not balance the need for efficient collection with

Taxpayer’s concerns that the collection action be no more

intrusive than necessary.

24. The Notice of Determination should be overturned, and a

new proper CDP hearing should be scheduled. The

Settlement Officer was not a person authorized to hold a

CDPH.

Petitioner also alleged in the petition that he was seeking “judicial review of

the IRS tax assessment under the due process clause of the United States

Constitution”. In this connection, petitioner alleged in the petition in pertinent part:

“No government agency can take any action against any Citizen absent judicial

intervention. Government agents are not allowed into people’s homes or people’s

pocketbooks without review by the independent judiciary.” 
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Petitioner concluded the petition by alleging:

[*19] 30. This Petition explains Petitioner’s position and Petitioner

requests that the Court remand this case to Appeals Office

and order the IRS to schedule a face-to-face hearing.

31. In conclusion, Petitioner requests independent judicial

review of IRS’s enforcement actions. The courts have a

long string of cases requiring a judicial intervention under

the due process clause before state action against a Citizen. 

Therefore, this court should schedule a hearing to review or

scrutinize the intended IRS police state activities.

WHEREFORE, Petitioner requests that the Notice of Determination

be overturned and that a new, proper CDPH be scheduled.

Many of the allegations that petitioner made in the petition are very similar 

to allegations that we have seen advanced repeatedly by so-called tax protesters.

On October 26, 2012, we issued an Order in which we ordered petitioner to

file a response to respondent’s motion. In that Order, we also indicated that our

review of the record suggested that petitioner might intend to advance in this case

frivolous and/or groundless statements, contentions, arguments and/or questions. 
- 20 -

We reminded petitioner in the Order dated October 26, 2012, about section

6673(a)(1)6 and admonished him that if he advanced frivolous and/or groundless

statements, contentions, arguments, and/or questions and/or instituted or main- 

[*20] tained this proceeding primarily for delay, we would impose on him a penalty

under section 6673(a)(1) in an amount not exceeding $25,000.

On December 4, 2012, petitioner filed a response to respondent’s motion

(petitioner’s response). 

Discussion

The Court may grant summary judgment where there is no genuine dispute of

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), aff’d, 17 F.3d 965 (7th

Cir. 1994). We conclude that there is no genuine dispute as to any material

fact regarding the questions raised in respondent’s motion.

Petitioner did not file a petition with the Court with respect to the 2007 notice

of deficiency that he received. Where, as is the case here, the validity of the

underlying tax liability is not properly placed at issue, the Court will review the

6All section references are to the Internal Revenue Code in effect at all

relevant times. All Rule references are to the Tax Court Rules of Practice and

Procedure.
- 21 -

determination of the Commissioner of Internal Revenue for abuse of discretion. 

Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C.

176, 182 (2000).

It is petitioner’s position that respondent abused respondent’s discretion in

issuing the notice of determination with respect to his taxable year 2007. In support

of that position, petitioner relies in petitioner’s response to respondent’s

[*21] motion on respondent’s refusal to grant him a face-to-face hearing with respect

to the proposed collection action relating to that taxable year.7

In the settlement officer’s March 23, 2011 letter to petitioner, she stated in

pertinent part:

Your attached letter requests a face to face hearing. In order to 

have a face to face you must be in full compliance. Our records

indicate that you are currently missing you [sic] 2004 and 2009 tax

returns. Enclosed you will find the 1040’s with the reported income

for these years. * * * complete and sign these forms [1040] and fax

them to me at the fax number listed above and also send me the

completed [Form] 433A also enclosed by April 5, 2011, I will be able

to transfer your case at that time for a face to face hearing. If I do

7Petitioner relies in the petition on several additional allegations in support of

his position that respondent abused respondent’s discretion in issuing the notice of

determination, including certain frivolous and/or groundless allegations. For

example, petitioner alleged in the petition that his “rights were violated” because,

inter alia, he “did not have the opportunity to examine the administrative record to

verify that all procedural requirements had been met by the IRS and that all payments had been properly applied.” We have rejected that type of allegation on

numerous occasions. See, e.g., Craig v. Commissioner, 119 T.C. 252, 262 (2002).
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not receive this information by April 5, 2011 you will still be

eligible for the telephone conference.

 * * * * * * *

For me to consider alternative collection methods such as an installment

agreement or offer in compromise, you must provide any items

listed below. In addition, you must have filed all federal tax

returns required to be filed.

• A completed Collection Information Statement (Form 433-A

for individuals and/or Form 433-B for businesses.) 

[*22] • Signed tax return(s) for the following tax periods. Our records

indicate they have not been filed:

Type of Tax: 1040

Period or Periods: 2004 and 2009

• Proof of estimated tax payments for the period(s) listed

below:

2001 or a corrected W4

• Other All income and expense substantiation and three

months of bank statements

• Form 656 Offer in Compromise

Please send me the items requested above within 14 days from the

date of this letter, no later than May 5, 2011. I cannot consider

collection alternatives at your conference without this information. I

am enclosing the applicable forms and a return envelope for your

convenience.

 * * * * * * *

If you do not participate in the conference or respond to this letter, the

determination and/or decision letter that we issue will be based on your

CDP request, any information you previously provided to this office
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about the applicable tax periods, and the Service’s administrative file

and records.

In response to the settlement officer’s March 23, 2011 letter, petitioner sent

the settlement officer his May 8, 2011 letter. In that letter, petitioner indicated that

he would provide the settlement officer with the information and the documents that

the settlement officer had requested from him in her March 23, 2011 letter only at a

face-to-face hearing.

[*23] After having received the May 8, 2011 letter from petitioner, the settlement

officer called him to inform him that a face-to-face hearing could not be held until he

provided the settlement officer with the information and the documents that the

settlement officer had requested in her March 23, 2011 letter. Petitioner did not

respond to that telephone call. 

We conclude that the settlement officer’s refusal to schedule a face-to-face

hearing with petitioner unless he provided the information and the documents that the

settlement officer had requested in her March 23, 2011 letter was not an abuse of

discretion. Indeed, the settlement officer’s actions were consistent with section

301.6330-1(d)(2), Q&A-D8, Proced. & Admin. Regs.8

8Sec. 301.6330-1(d)(2), Q&A-D8, Proced. & Admin. Regs., provides in

pertinent part:

(continued...)
- 24 -

On May 11, 2011, the date of the scheduled telephonic conference, the

settlement officer called petitioner, but he was not available. On the same date, after

petitioner failed to participate in the scheduled telephonic conference, the

[*24] settlement officer sent him the May 11, 2011 letter. In that letter, the

settlement officer stated in pertinent part:

I sent you a letter dated March 23, 2011 offering you a telephonic

Collection Due Process conference. The conference was scheduled for

May 11, 2011 at 1:00pm EST.

I tried calling you at the scheduled time but you were not available and

you had not called to indicate that this date and/or time was not

convenient.

The conference letter also asked that you send me the information I

needed to consider the issues you raised in your request for a hearing.

• I never received the information from you.

Please be advised that we will make a determination in the Collection

Due Process hearing you requested by reviewing the Collection

administrative file and whatever information you have already provided.

8

(...continued)

A face-to-face CDP conference concerning a collection alternative

* * * will not be granted unless other taxpayers would be eligible for

the alternative in similar circumstances. For example, because the IRS

does not consider offers to compromise from taxpayers who have not

filed required returns * * * no face-to-face conference will be granted

to a taxpayer who wishes to make an offer to compromise but has not

fulfilled those obligations. * * *
- 25 -

 If you would like to provide information for our consideration, please 

 do so within 14 days from the date on this letter, no later than May 25, 

 2011.

 We will promptly issue you a determination and/or decision letter with 

 our findings. 

 On August 10, 2011, the Appeals Office issued to petitioner the notice of

determination with respect to his taxable year 2007. In that notice, that office

sustained the proposed collection action with respect to that taxable year. 

[*25] Based upon our examination of the entire record before us, we find that

respondent did not abuse respondent’s discretion in making the determinations in the

notice of determination with respect to petitioner’s taxable year 2007.

We consider sua sponte whether to impose on petitioner a penalty under

section 6673(a)(1), a provision that we brought to his attention in our Order dated

October 26, 2012. Section 6673(a)(1) authorizes us to require a taxpayer to pay to

the United States a penalty in an amount not to exceed $25,000 whenever it appears

to us, inter alia, that the taxpayer instituted or maintained a proceeding before us

primarily for delay, sec. 6673(a)(1)(A), or that the taxpayer’s position in a proceeding

before us is frivolous or groundless, sec. 6673(a)(1)(B).

We believe that petitioner instituted and maintained this case primarily for

delay and that the arguments in support of his position that he was entitled to a face-
- 26 -

to-face hearing with the Appeals Office are frivolous and/or groundless. Nonetheless,

we shall not impose a penalty under section 6673(a)(1) on petitioner at this time. We

caution him that he may be subject to such a penalty if in the future he institutes or

maintains a proceeding before us primarily for delay and/or his position in any such

proceeding is frivolous or groundless. See Abrams v. Commissioner, 82 T.C. 403,

409-413 (1984); White v. Commissioner, 72 T.C. 1126, 1135-1136 (1979).

[*26] We have considered any of petitioner’s contentions and arguments that are not

discussed herein and that are not frivolous and/or groundless, and we find them to be

without merit, irrelevant, and/or moot.

On the record before us, we shall grant respondent’s motion.

To reflect the foregoing, 

An order granting respondent’s

motion and decision for respondent will be

entered.