1 Unless otherwise indicated, all section references are to

(continued...)

T.C. Memo. 2006-88

UNITED STATES TAX COURT

BRADLEY W. BEAN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1881-05L. Filed April 26, 2006.

Bradley W. Bean, pro se.

Louise R. Forbes, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

HAINES, Judge: Petitioner filed the petition in this case

in response to a Notice of Determination Concerning Collection

Actions(s) Under Section 6320 and/or 6330 (notice of

determination) for 1999 and 2000 (years in issue).1 Pursuant to
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1(...continued)

the Internal Revenue Code, as amended. All amounts are rounded

to the nearest dollar. 

section 6330(d), petitioner seeks review of respondent’s

determination. The issues for decision are whether respondent

abused his discretion in sustaining the filing of a Federal tax

lien and whether the Court should impose a penalty under section

6673(a).

FINDINGS OF FACT

At the time the petition was filed, petitioner resided in

Methuen, Massachusetts.

On April 25, 2000, respondent received petitioner’s 1999

Federal income tax return. Petitioner reported tax withheld of

$2,235, claimed a refund of $2,235, and entered zeros on all

other lines. Petitioner attached to the return a two-page letter

disputing the constitutionality of the Federal income tax laws

and claiming that no law made him liable to pay tax. Respondent

informed petitioner that his 1999 return could not be filed.

On June 29, 2001, respondent received petitioner’s 2000

Federal income tax return. Petitioner reported tax withheld of

$895, claimed a refund of $895, and entered zeros on all other

lines. Petitioner attached to the return a two-page letter

identical to the letter attached to his 1999 return.
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On October 11, 2001, respondent sent petitioner a letter

stating that his 2000 return could not be filed. Respondent

informed petitioner that his claims had been repeatedly rejected

as frivolous and without merit, and that he could be subject to a

penalty under section 6702 of $500 for filing a frivolous return. 

To avoid the assessment of the penalty and to prevent a notice of

deficiency from being issued, respondent advised petitioner to

file an amended return within 30 days.

On November 20, 2001, petitioner sent a letter to respondent

demanding to see “if you have the authority to determine whether

anyone’s tax return is ‘frivolous’”. Petitioner requested a

meeting with respondent to “present my case or defense by oral

and documented evidence, and submit rebuttal evidence, and

conduct such cross-examination as may be required for a full and

true disclosure of the facts”.

On May 15, 2002, respondent sent petitioner two letters

indicating that respondent could not process petitioner’s 1999 or

2000 Federal income tax return. Respondent informed petitioner

that penalties under section 6702 would be assessed and returns

would be prepared for him. Respondent prepared substitutes for

returns for petitioner using information provided by third

parties. 

On September 18, 2002, respondent sent petitioner notices of

deficiency for 1999 and 2000. For 1999, respondent determined a
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deficiency in petitioner’s Federal income tax of $5,421 and

additions to tax under sections 6651(a)(1) and 6654(a) of $752

and $133, respectively. For 2000, respondent determined a

deficiency in petitioner’s Federal income tax of $8,421 and

additions to tax under sections 6651(a)(1) and 6654(a) of $1,882

and $397, respectively.

On November 12, 2002, petitioner sent a letter to respondent

acknowledging receipt of the notices of deficiency. In the

letter, petitioner stated that before filing a petition with the

Tax Court or doing anything else with respect to the notices, “I

must first establish whether or not it was sent pursuant to law,

whether or not it has the ‘force and effect of law,’ and whether

you had any authority to send me the notice in the first place.”

Petitioner did not file a petition with this Court in

response to the notices of deficiency.

On September 5, 2003, respondent sent petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320. The notice of filing informed petitioner that a Federal

tax lien on all of his property had attached to secure payment of

the outstanding Federal income tax deficiencies for 1999 and

2000. The notice further informed petitioner of his right to a

hearing and under what circumstances the lien could be removed.

In response to the notice, petitioner mailed a Form 12153,

Request for a Collection Due Process Hearing, to respondent on
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2 Respondent’s letters were dated May 12, June 7, and Sept.

27, 2004.

3 Petitioner’s requests were dated May 27 and June 18,

2004.

October 3, 2003. In the request, petitioner states: “IRS does

not follow procedures. I request a certificate of assessment for

the amount that IRS claims I owe.”

On three occasions, respondent sent petitioner letters

informing him that his arguments have previously been determined

to be frivolous.2 Respondent advised petitioner that he was not

entitled to a face-to-face hearing unless he informed respondent

of any specific and relevant issues he wished respondent to

consider. If petitioner did not raise any relevant issues,

respondent stated that the hearing would be conducted over the

telephone or through correspondence.

In response to the first two letters, petitioner sent

additional requests for a face-to-face hearing.3 Petitioner did

not raise any relevant issues, but instead informed respondent

that he would tape record the hearing and would be accompanied by

a court reporter and a witness. Petitioner also requested that

respondent bring several documents to the hearing, including a

summary record of assessment, the tax returns on which the

assessment was based, and the notice and demand for payment.

On September 27, 2004, respondent scheduled a telephone

conference with petitioner for October 20, 2004. Respondent
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informed petitioner that if he did not participate, a

determination would be made on the basis of the administrative

record. Petitioner did not participate in the telephone

conference and made no attempt to reschedule.

On October 20, 2004, respondent sent petitioner a letter

advising him that a determination would be made by November 12,

2004. Respondent requested that petitioner submit any additional

documentation that he wished considered in making the

determination.

Petitioner sent respondent a letter on October 27, 2004,

again requesting a face-to-face hearing. Petitioner stated that

a telephone conference was unacceptable because “Documents cannot

be produced over the telephone, nor can an accurate record of

such a meeting.” Petitioner did not raise any additional

arguments in the letter.

Petitioner did not provide respondent with any additional

documentation to consider before making the determination.

On December 28, 2004, respondent sent petitioner a Notice of

Determination Concerning Collection Actions Under Section 6320

and/or 6330 with respect to the years in issue. In the notice of

determination, respondent states:

A review of the administrative file indicates that

statutory and administrative requirements that needed

to be met with respect to the filing of the Notice of

Federal Tax Lien were in fact met in this case.

* * * * * * *
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The taxpayer raised issues that are either frivolous,

groundless, or otherwise not considered by appeals. He

did not qualify for a face to face conference, and did

not avail himself of the opportunity for a telephone

hearing or a hearing via correspondence. He requested

various documents, but did not propose a viable

collection alternative or otherwise participate in the

offered telephone hearing. The Notice of Federal Tax

Lien will remain in full force and effect until

satisfied or unenforceable. This analysis indicates

that this action is now necessary to provide for the

efficient collection of the taxes despite the potential

intrusiveness of enforced collection.

In response to the notice of determination, petitioner filed

his petition with this Court on January 28, 2005.

On December 2, 2005, respondent filed a motion for summary

judgment, asking the Court to find as a matter of law that

respondent’s determination sustaining the filing of a Federal tax

lien was not an abuse of his discretion and that a penalty under

section 6673(a)(1) should be imposed against petitioner. The

Court denied respondent’s motion.

OPINION

Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a taxpayer liable for

taxes when a demand for payment of the taxes has been made and

the taxpayer fails to pay those taxes. Section 6320(a) provides

that the Secretary shall furnish the taxpayer with written notice

of a Federal tax lien within 5 business days after the notice of

lien is filed. Section 6320 further provides that the taxpayer

may request an Appeals hearing within 30 days beginning on the
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day after the 5-day period described above. Sec. 6320(a)(3)(B)

and (b)(1). Section 6320(c) provides that the Appeals hearing

generally shall be conducted consistent with the procedures set

forth in section 6330. 

Section 6330(c) provides for review with respect to

collection issues such as spousal defenses, the appropriateness

of the Commissioner’s proposed collection actions, and the

possibility of collection alternatives. Sec. 6330(c)(2)(A). The

taxpayer may also challenge the amount of the underlying tax

liability if a statutory notice of deficiency was not received or

the taxpayer did not otherwise have an opportunity to dispute the

tax liability. Sec. 6330(c)(2)(B). 

Pursuant to section 6330(d)(1), within 30 days of the

issuance of a notice of determination, the taxpayer may appeal

the determination to this Court if we have jurisdiction over the

underlying tax liability. Where the validity of the underlying

tax liability is properly at issue, the Court will review the

matter de novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 181 (2000). Where the

validity of the underlying tax liability is not properly at

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

determination for an abuse of discretion. Sego v. Commissioner,

supra at 610; Goza v. Commissioner, supra at 181. 
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Petitioner received statutory notices of deficiency for the

years in issue, and thus his underlying tax liability is not

properly at issue. Accordingly, we review respondent’s

determination for an abuse of discretion. See Sego v.

Commissioner, supra at 610; Goza v. Commissioner, supra at 181.

Petitioner argues that respondent abused his discretion by

not allowing petitioner a face-to-face hearing.

Hearings conducted under section 6330 are informal

proceedings, not formal adjudications. Katz v. Commissioner, 115

T.C. 329, 337 (2000); Davis v. Commissioner, 115 T.C. 35, 41

(2000); Ho v. Commissioner, T.C. Memo. 2006-41. Taxpayers are

generally entitled to a face-to-face hearing at the Appeals

Office nearest their residence. Sec. 301.6330-1(d)(2), Q&A D6

and D7, Proced. & Admin. Regs. Where the taxpayer declines to

participate in a proffered face-to-face hearing, hearings may be

conducted by telephone or correspondence. Katz v. Commissioner,

supra at 337-338; Ho v. Commissioner, supra; sec. 301.6330-

1(d)(2), Q&A-D6 and D7, Proced. & Admin. Regs. Furthermore, once

the taxpayer has been given reasonable opportunity for a hearing

but has failed to avail himself of that opportunity, we have

approved the making of a determination to proceed with collection

based on the Commissioner’s review of the case file. See, e.g.,

Ho v. Commissioner, supra; Taylor v. Commissioner, T.C. Memo.

2004-25, affd. 130 Fed. Appx. 934 (9th Cir. 2005); Leineweber v.
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Commissioner, T.C. Memo. 2004-17; Armstrong v. Commissioner, T.C.

Memo. 2002-224. Thus, a face-to-face hearing is not invariably

required.

Respondent sent three letters to petitioner stating that he

would be allowed a face-to-face hearing if he would advise

respondent of the relevant issues he wished to discuss. 

Petitioner responded to two of those letters, but did not raise

any relevant issues. Petitioner was also given the opportunity

to have a telephone hearing but did not participate. 

Additionally, petitioner did not submit any documentation to

respondent to be considered in an administrative review of his

file. 

Because no hearing had been conducted, we declined to grant

respondent’s 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 to identify any relevant issues he wished to raise that

could warrant further consideration of the merits of his case by

respondent or this Court. Petitioner, however, failed to offer

any relevant issues of merit.

In the light of the above and in consideration of

petitioner’s frivolous arguments, discussed infra, a face-to-face

hearing in this case would not have been, nor would it be,
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productive. See Lunsford v. Commissioner, 117 T.C. 183, 189

(2001); Ho v. Commissioner, supra. 

Additionally, petitioner argues that respondent abused his

discretion by failing to verify that all administrative

procedures have been met. However, in the notice of

determination, the Appeals officer verified that all requirements

of applicable law and administrative procedure had been met, and

he properly balanced the need for efficient collection against

the intrusiveness of the collection action. Petitioner points to

nothing that indicates respondent failed to follow applicable law

and administrative procedure.

Petitioner further argues that respondent abused his

discretion by failing to make a notice and demand for payment. 

However, the Forms 4340 indicate that notices and demands for

payment were made. 

Petitioner also raises various tax-protester arguments,

including: (1) The income tax is unconstitutional; (2) he is not

a U.S. citizen, but instead “an American man living on the soil

of Massachusetts”; (3) letters received from respondent do not

include signatures or “Publication No. 594”; and (4) he has not

been provided with proof that the person(s) who issued the notice

of Federal tax lien had the authority to do so. Petitioner’s

arguments have been rejected by this Court and other courts, and

“We perceive no need to refute these arguments with somber
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reasoning and copious citation of precedent; to do so might

suggest that these arguments have some colorable merit.” Crain

v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984); see

Holliday v. Commissioner, T.C. Memo. 2005-240; Duffield v.

Commissioner, T.C. Memo. 2002-53; Kuglin v. Commissioner, T.C.

Memo. 2002-51.

Petitioner has not presented any evidence or arguments to

convince us that respondent abused his discretion. As a result,

we hold respondent’s determination was not an abuse of

discretion, and respondent may proceed with the proposed

collection action.

Section 6673(a)(1) authorizes the Court to require a

taxpayer to pay the United States a penalty in an amount not to

exceed $25,000 whenever it appears to the Court the taxpayer’s

position is frivolous or groundless. Sec. 6673(a)(1)(B). 

Respondent has asked the Court to impose a penalty against

petitioner under section 6673(a). 

There is no evidence that petitioner has previously been a

litigant in this Court. However, the Court warned petitioner

that if he continued to raise only frivolous arguments, a penalty

could be imposed. Despite the warning, petitioner continued to

assert only frivolous arguments. As a result, we hold that a

penalty of $1,500 against petitioner is awarded to the United

States pursuant to section 6673(a)(1).
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In reaching our holdings herein, we have considered all

arguments made, and, to the extent not mentioned above, we find

them to be moot, irrelevant, or without merit.

To reflect the foregoing,

An appropriate Order

and decision will be entered.