1 Unless otherwise indicated, all section references are to

the Internal Revenue Code. 

T.C. Memo. 2005-231

UNITED STATES TAX COURT

CAREY K. PARKER II, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8214-04L. Filed October 3, 2005.

Carey K. Parker II, pro se.

Marty J. Dama, for respondent.

MEMORANDUM OPINION

VASQUEZ, Judge: Respondent sent petitioner a Decision

Letter Concerning Equivalent Hearing Under Section 6320 and/or

63301 for 1994, 1995, 1996, and 1997. The issue for decision is

whether the Court lacks jurisdiction under section 6330(d)(1)

with regard to the years in issue.
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Background

At the time he filed the petition, petitioner resided in

Arlington, Texas. Since at least 2000, petitioner has resided in

a private residence at 6411 Shorewood Drive, Arlington, Texas,

76016-2540117 (Shorewood address). 

Petitioner failed to file income tax returns for 1994, 1995,

1996, and 1997. On October 22, 1996, respondent assessed

petitioner’s tax liability (including penalties and interest) for

1994, and on December 10, 2001, respondent assessed petitioner’s

tax liabilities (including penalties and interest) for 1995,

1996, and 1997. 

On September 2, 2003, respondent mailed petitioner a notice

of intent to levy and right to a section 6330 hearing for 1994,

1995, 1996, and 1997 at the Shorewood address (hearing notice). 

After receiving no response to the hearing notice, on

November 10, 2003, respondent mailed petitioner a Final Notice

Before Levy on Social Security Benefits. As of November 10,

2003, petitioner owed taxes, penalties, and interest totaling

$42,272.55, $42,698.46, $40,945.03, and $33,522.46 for 1994,

1995, 1996, and 1997, respectively. 

On December 7, 2003, petitioner mailed respondent a Form

12153, Request for a Collection Due Process Hearing (dated

December 6, 2003) for 1994, 1995, 1996, and 1997 (hearing

request). Petitioner attached to the hearing request a 10-page
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explanation of disagreement containing frivolous and groundless

arguments, including that he could not find any statute making

him liable for the taxes in issue and that he has no liability

for “income taxes”. 

On March 22, 2004, respondent mailed petitioner a letter

advising petitioner that respondent had received petitioner’s

hearing request and that the issues and arguments he raised in

his hearing request are of the kind that courts have determined

are frivolous or groundless. In this letter, respondent directed

petitioner to a document entitled “The Truth About Frivolous Tax

Arguments” and a link to an IRS Web site containing this

document. Respondent scheduled a telephonic hearing for April 8,

2004, at 1 p.m. The letter further advised petitioner that if

the Appeals Office did not receive any further information from

petitioner or petitioner was not available when called for the

scheduled hearing, his case would be reviewed based on the

information in petitioner’s file. 

On April 7, 2004, in response to respondent’s March 22,

2004, letter, a letter was mailed to respondent demanding a faceto-face hearing. In the April 7, 2004, letter, petitioner did

not list any spousal defenses or collection alternatives, and he

did not list any nonfrivolous arguments regarding the

appropriateness of collection actions or his underlying tax

liabilities. 
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On April 13, 2004, respondent issued to petitioner the

decision letter. The decision letter advised petitioner that

respondent reviewed the proposed collection action for 1994,

1995, 1996, and 1997 and that petitioner received an equivalent

hearing because he did not file a request for a section 6330

hearing within the time prescribed under section 6320 and/or 6330

in order to receive a section 6330 hearing. The decision letter

further stated that petitioner did not raise any issues that were

relevant to paying his tax liability but that petitioner raised

only frivolous issues. The decision letter also stated that

petitioner had no right to dispute the decision of the Appeals

officer in court, cited Pierson v. Commissioner, 115 T.C. 576

(2000), to petitioner, and warned petitioner that if he appealed

the decision letter to the Tax Court, the Court is empowered to

impose sanctions up to $25,000 for instituting or maintaining an

action primarily for delay or taking a position that is frivolous

or groundless. 

Petitioner petitioned the Court to dispute the decision

letter. Respondent filed a motion to dismiss for lack of

jurisdiction. Petitioner filed a response to respondent’s motion

to dismiss for lack of jurisdiction. Respondent filed a response

to petitioner’s response to respondent’s motion to dismiss for

lack of jurisdiction. 
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The Court held a hearing on respondent’s motion to dismiss

for lack of jurisdiction. At calendar call, respondent filed an

amendment to motion to dismiss for lack of jurisdiction. 

Discussion

I. Decision Letter

Petitioner argues that respondent did not send him the

hearing notice as required by section 6330(a), that the first

collection notice he received was the Final Notice Before Levy on

Social Security Benefits, that he timely filed a hearing request

from the Final Notice Before Levy on Social Security Benefits,

that the decision letter is the functional equivalent of a notice

of determination, and accordingly that the Court has jurisdiction

over this case pursuant to section 6330.

Respondent submitted a document entitled “CDP Certified Mail

System Research” printed from respondent’s “CDP Certified Mail

Web Site” (Web site certified mail document). Respondent

submitted the Web site certified mail document because respondent

initially had difficulty obtaining a hard copy of the certified

mail list. The certified mail list was issued from the Memphis

Service Center, which no longer processes section 6330 cases, and

many section 6330 records issued from the Memphis Service Center

have been placed in storage. Respondent created the Web site

certified mail document by inputting into respondent’s computer

system the information contained in the certified mail list
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before the certified mail list was placed in storage. The Web

site certified mail document lists: (1) Certified mail number

7107 3514 6973 1734 2376; (2) petitioner’s name and Social

Security number; (3) a letter dated September 1, 2003, that was

mailed to petitioner for 1994, 1995, 1996, and 1997; (4) a code

indicating that the mailing was a notice of intent to levy and

right to a hearing; and (5) that it was mailed to “ARLINGTON TX

76016-2540117.” 

A few days before calendar call, respondent received a copy

of the certified mail list. Respondent submitted a copy of the

certified mail list to the Court and provided a copy to

petitioner. The certified mail list lists certified mail number

7107 3514 6973 1734 2376; petitioner’s name and Social Security

number; the mailing was mailed to the Shorewood address; and a

postmark dated September 2, 2003, from “Memphis, TN USPS 38101”.

Additionally, respondent submitted petitioner’s individual

master file literal transcripts of account for 1994, 1995, 1996,

and 1997. The transcripts of account for each year indicate that

petitioner was issued an “Intent to levy collection due process

notice levy notice” dated September 1, 2003. The transcripts of

account contain the same code number next to the “Intent to levy

collection due process notice levy notice” as is listed on the

Web site certified mail document. 
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Respondent relies on the Web site certified mail document,

the certified mail list, and the literal transcripts to establish

that on September 2, 2003, petitioner was mailed, via certified

mail, a hearing notice for 1994, 1995, 1996, and 1997 to the

Shorewood address. Petitioner admitted that the address listed

on the Web site certified mail document and certified mail list

is, and was in September 2003, his correct address. The Web site

certified mail document, the certified mail list, and the literal

transcripts are consistent and corroborate that respondent mailed

petitioner, via certified mail, the hearing notice no later than

September 2, 2003.

Petitioner claims that he did not receive the hearing

notice. Petitioner’s testimony is inconsistent with the

documentary evidence in the record. Orum v. Commissioner, 123

T.C. 1, 9 (2004), affd. on other grounds 412 F.3d 819 (7th Cir.

2005). The Court is not required to accept petitioner’s

unsubstantiated testimony. See Wood v. Commissioner, 338 F.2d

602, 605 (9th Cir. 1964), affg. 41 T.C. 593 (1964). The Court

need not accept at face value a witness’s testimony that is selfinterested or otherwise questionable. See Archer v.

Commissioner, 227 F.2d 270, 273 (5th Cir. 1955), affg. a

Memorandum Opinion of this Court; Weiss v. Commissioner, 221 F.2d

152, 156 (8th Cir. 1955), affg. T.C. Memo. 1954-51; Schroeder v.

Commissioner, T.C. Memo. 1986-467. After observing petitioner’s
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demeanor at trial, we find his testimony on this point not to be

credible. See Orum v. Commissioner, supra at 9. 

Accordingly, we find that on September 2, 2003, respondent

mailed petitioner the hearing notice for 1994, 1995, 1996, and

1997 to petitioner’s last known address, that petitioner received

it in due course, and that petitioner failed to file a timely

request for an Appeals Office hearing pursuant to section

6330(a)(2) and (3)(B) and (b).

A decision letter is not a determination letter pursuant to

section 6320 or 6330. See Orum v. Commissioner, supra at 7-12;

Kennedy v. Commissioner, 116 T.C. 255, 263 (2001); Offiler v.

Commissioner, 114 T.C. 492, 495 (2000). Respondent did not issue

a determination letter to petitioner sufficient to invoke the

Court’s jurisdiction to review the hearing notice for 1994, 1995,

1996, and 1997. Orum v. Commissioner, supra; Kennedy v.

Commissioner, supra. Accordingly, we shall dismiss the petition

for lack of jurisdiction on the ground that respondent did not

make a determination pursuant to section 6330 regarding the

hearing notice for 1994, 1995, 1996, and 1997 because petitioner

failed to file a timely request for an Appeals Office hearing

pursuant to section 6330(a)(2) and (3)(B) and (b). Orum v.

Commissioner, supra; Kennedy v. Commissioner, supra. 
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II. Section 6673

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

taxpayer to pay to the United States a penalty not to exceed

$25,000 if the taxpayer took frivolous or groundless positions in

the proceedings or instituted the proceedings primarily for

delay. A position maintained by the taxpayer is “frivolous”

where “it is contrary to established law and unsupported by a

reasoned, colorable argument for change in the law.” Coleman v.

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986); see also Hansen v.

Commissioner, 820 F.2d 1464, 1470 (9th Cir. 1987) (section 6673

penalty upheld because taxpayer should have known claim was

frivolous).

Petitioner’s petition is replete with tax-protester

rhetoric. Petitioner has advanced shopworn arguments

characteristic of tax-protester rhetoric that has been

universally rejected by this and other courts. Wilcox v.

Commissioner, 848 F.2d 1007 (9th Cir. 1988), affg. T.C. Memo.

1987-225; Carter v. Commissioner, 784 F.2d 1006, 1009 (9th Cir.

1986). 

Additionally, it is obvious to the Court that petitioner

litigated this case primarily for delay. Petitioner was advised

of our opinion in Pierson v. Commissioner, supra, and that he

could not litigate respondent’s decision in court.
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We conclude that petitioner’s position was frivolous and

groundless and that petitioner instituted and maintained these

proceedings primarily for delay. Petitioner was duly warned that

his arguments were frivolous and groundless, that his case was

not appealable to the Court, and of the potential consequences of

his actions. Accordingly, pursuant to section 6673(a), we hold

petitioner is liable for a $1,000 penalty.

To reflect the foregoing,

An appropriate order and 

order of dismissal will be

entered.