T.C. Memo. 2003-102

UNITED STATES TAX COURT

ANNIE W. NEBRES, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 7463-01L. Filed April 15, 2003.

Annie W. Nebres, pro se.

Jonathan J. Ono and Susan B. Watson, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COLVIN, Judge: Respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (the lien or levy determination) on May 18, 2001, in

which respondent determined to proceed with collection of
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deficiencies in petitioner’s income tax, additions to tax, and

interest for 1996. 

The sole issue for decision is whether respondent’s

determination to proceed with collection with respect to

petitioner’s 1996 tax year was an abuse of discretion. We hold

that it was not.

Section references are to the Internal Revenue Code in

effect for the applicable year.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

A. Petitioner

Petitioner resided in Ewa Beach, Hawaii, when she filed the

petition.

On January 14, 2000, respondent sent a notice of deficiency

for petitioner’s 1996 tax year to petitioner’s last known

address; however, respondent concedes that petitioner did not

receive the notice of deficiency. In the notice of deficiency,

respondent determined a deficiency in petitioner’s income tax of

$740 and disallowed petitioner’s claimed earned income credit of

$280. Respondent computed petitioner’s tax using the tax tables

for married filing separately because petitioner was married and

did not file a joint return.

On May 29, 2000, respondent assessed petitioner’s tax and

interest for her 1996 tax year. Also on that day, respondent
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sent to petitioner a notice of balance due relating to her tax

liability for 1996.

B. Notice of Intent To Levy and Collection Due Process Hearing

On December 21, 2000, respondent issued to petitioner a

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

Hearing relating to petitioner’s 1996 tax year. Petitioner

requested a hearing, which was held by respondent’s Appeals

officer, Melvin Iwane (Iwane), on April 12, 2001. At the

hearing, Iwane gave petitioner an opportunity to challenge her

underlying tax liability for 1996, but petitioner did not do so.

Petitioner asked Iwane to show her the statute that makes her

liable for tax and contended that the person or persons who sent

notices to her did not have authority to do so. Iwane did not

give to petitioner delegation orders showing that those notices

were issued by persons with authority to do so, copies of the law

which makes her liable for income taxes, or written verification

that the requirements of applicable law and administrative

procedure have been met. At the hearing with Iwane, petitioner

contended that no valid statutory notice of deficiency had been

sent to her and that respondent erred by not using Form 17 for a

statutory notice and demand. Iwane did not consider those

arguments because he concluded that they were frivolous.
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C. Respondent’s Notice of Determination and Form 4340

On May 18, 2001, respondent sent to petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (the lien or levy determination) in which respondent

determined to proceed with collection from petitioner of her tax

liability for 1996.

On March 31, 2002, respondent’s counsel sent petitioner a

Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters, relating to petitioner’s 1996 tax year.

OPINION

A. Whether Respondent Improperly Precluded Petitioner From

Disputing Her Underlying Tax Liability for 1996

Petitioner points out that she did not timely receive a

notice of deficiency and contends that respondent improperly

refused to permit her to dispute her underlying tax liability for

1996 at the hearing with Iwane. We disagree; the Appeals officer

did not prevent petitioner from disputing the amount or existence

of her underlying tax liability for 1996 at the hearing. Iwane’s

refusal to consider petitioner’s frivolous arguments does not

constitute a refusal to permit petitioner to contest her

underlying tax liability.
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B. Whether Respondent’s Determination To Proceed With

Collection as to Petitioner’s 1996 Tax Year Was an Abuse of

Discretion

Petitioner contends that respondent’s determination to

proceed with collection of her 1996 tax liability was an abuse of

discretion because: (1) The notice of deficiency is invalid 

because it was not signed by the Secretary; (2) the persons

sending the notices of levy and determination did not have

authority to do so; (3) respondent did not produce verification

from the Secretary that requirements of applicable law and

administrative procedure have been met; (4) respondent did not

give petitioner copies of the law which makes her liable for

income taxes; and (5) petitioner did not receive the notice and

demand required by section 6303(a). Petitioner’s contentions are

frivolous for reasons discussed next.

The Secretary, or the Secretary’s delegate including the

Commissioner, may issue notices of deficiency. Stamos v.

Commissioner, 95 T.C. 624, 629 (1990), affd. without published

opinion 956 F.2d 1168 (9th Cir. 1992). The Commissioner may

redelegate that authority to his or her subordinates. Id. at

629-630. Petitioner cites no authority, and we know of none,

which requires the Commissioner to provide a copy to a taxpayer

of the delegation orders for a notice of deficiency to be valid.

Internal revenue laws and regulations do not require the

Appeals officer to give the taxpayer a copy of the delegation of
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authority from the Secretary to the person (other than the

Secretary) who signed the verification required under section

6330(c)(1). Nestor v. Commissioner, 118 T.C. 162, 166-167

(2002). Similarly, the Appeals officer is not required to give

the taxpayer a copy of the verification that the requirements of

any applicable law or administrative procedure have been met. 

Id. at 166; sec. 6330(c)(1). Section 301.6330-1(e)(1), Proced. &

Admin. Regs., requires that the Appeals officer obtain

verification before issuing the determination, not that he or she

provide it to the taxpayer. In any event, before the trial in

this case, respondent’s counsel gave petitioner a copy of the

Form 4340 relating to petitioner’s 1996 tax year. The Form 4340

that respondent gave petitioner before trial showed that the

amounts at issue were properly assessed, and petitioner did not

show at trial any irregularity in the assessment procedure that

would raise a question about the validity of the assessments. 

There is no requirement that the notice of intent to levy or the

Appeals officer identify the Code sections which establish the

taxpayer’s liability for tax, additions to tax, or penalties. 

Nestor v. Commissioner, supra at 167.

Finally, we reject petitioner’s contention that respondent

did not issue the notice and demand required by section 6303(a). 

Respondent sent to petitioner a notice of balance due on May 29,

2000, the same day on which respondent assessed petitioner’s tax
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and interest for her 1996 tax year. A notice of balance due

constitutes a notice and demand for payment under section

6303(a). Craig v. Commissioner, 119 T.C. 252, 262-263 (2002).

We conclude that respondent’s determination to proceed with

collection of petitioner’s 1996 tax liability was not an abuse of

discretion.

C. Whether Petitioner Raised an Alternative to Collection

Petitioner said at the hearing that she would pay her taxes

if respondent gave her copies of the law which states that she is

a taxpayer liable for Federal income tax. Petitioner contends

that this is an alternative to collection. We disagree; this

contention is merely a variation of her other frivolous

arguments. See, e.g., Crain v. Commissioner, 737 F.2d 1417 (5th

Cir. 1984); Koenig v. Commissioner, T.C. Memo. 2003-40; Keene v.

Commissioner, T.C. Memo. 2002-277.

Accordingly, 

An appropriate order

and decision will be entered.