T.C. Memo. 2004-223 

UNITED STATES TAX COURT

RICHARD HAMZIK, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4171-04L. Filed October 5, 2004.

Richard Hamzik, pro se.

Wendy S. Harris, for respondent.

 MEMORANDUM OPINION

LARO, Judge: Petitioner, while residing in Gardnerville,

Nevada, petitioned the Court under section 6330(d)(1)(A) to

review the determination of respondent’s Office of Appeals

(Appeals) that respondent may proceed with a levy upon

petitioner’s property to collect petitioner’s 1999 Federal income
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1 Section references are to the applicable versions of the

Internal Revenue Code. Rule references are to the Tax Court

Rules of Practice and Procedure.

tax liability.1 Respondent currently moves the Court for summary

judgment and to impose a penalty under section 6673. Respondent

attached to his motion the declaration of his counsel, Wendy S.

Harris, and 11 exhibits.

Petitioner filed with the Court a response (response) to

respondent’s motion and attached to the response one exhibit. 

The response states that petitioner disputes as a factual matter

that he has a deficiency for 1999 and references the attached

exhibit, a 1999 Form 1040, U.S. Individual Income Tax Return,

that petitioner recently prepared to support his claim in the

response that he overpaid his 1999 Federal income tax. 

Respondent previously issued to petitioner a notice of deficiency

for 1999. Petitioner did not petition this Court with respect to

that notice, and he does not in the response dispute that he had

an opportunity to challenge his 1999 liability before commencing

the section 6330 proceeding as to that year. The response also

sets forth numerous assertions concerning our Federal income tax

system. Those assertions include petitioner’s claim that he is

not a taxpayer and does not have any income that may be taxed;

that respondent is not authorized to determine a deficiency; that

petitioner is not a taxpayer and, thus, does not have a

“deficiency” within the meaning of that word; that respondent is
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not authorized to prepare a substitute return under section 6020;

that petitioner at a section 6330 hearing may compel the

production of documents from respondent; and that Appeals at his

section 6330 hearing improperly relied upon Form 4340,

Certificate of Assessments, Payments and Other Specific Matters.

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials. Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.” Rule 121(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994).

The moving party bears the burden of proving that there is

no genuine issue of material fact, and factual inferences are

drawn in a manner most favorable to the party opposing summary

judgment. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985);

Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). In responding

to a motion for summary judgment, a nonmoving party such as

petitioner must do more than merely allege or deny facts. The

nonmoving party must “set forth [in his response] specific facts
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showing that there is a genuine issue for trial. If the * * *

[nonmoving] party does not so respond, then a decision, if

appropriate, may be entered against such party.” Rule 121(d);

accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

On the basis of the record at hand, we conclude that this

case is ripe for summary judgment in that petitioner has failed

in his response to show any genuine issue for trial. While

petitioner’s response attempts to place before the Court a

factual issue as to the existence or validity of petitioner’s

underlying tax liability for 1999, petitioner is precluded by

statute from raising that issue in this proceeding. See sec.

6330(c)(2)(B); see also Nestor v. Commissioner, 118 T.C. 162,

165-166 (2002); Michael v. Commissioner, T.C. Memo. 2003-26; Hack

v. Commissioner, T.C. Memo. 2002-243. As to petitioner’s other

arguments, all of those arguments are characteristic of shopworn

tax-protester rhetoric that has been universally rejected by this

and other courts. E.g., United States v. Hanson, 2 F.3d 942, 945

(9th Cir. 1993); Wilcox v. Commissioner, 848 F.2d 1007 (9th Cir.

1988), affg. T.C. Memo. 1987-225; Cook v. Spillman, 806 F.2d 948

(9th Cir. 1986); United States v. Studley, 783 F.2d 934, 937 (9th

Cir. 1986); Roberts v. Commissioner, 118 T.C. 365 (2002), affd.

329 F.3d 1224 (11th Cir. 2003); Nestor v. Commissioner, supra;

Davis v. Commissioner, 115 T.C. 35 (2000); Kemper v.

Commissioner, T.C. Memo. 2003-195; Hill v. Commissioner, T.C.
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Memo. 2003-144; Michael v. Commissioner, supra; Burnett v.

Commissioner, T.C. Memo. 2002-181, affd. 67 Fed. Appx. 248

(5th Cir. 2003); Reichenbach v. Commissioner, T.C. Memo.

1995-369, affd. without published opinion 99 F.3d 1139 (6th Cir.

1996). We shall not painstakingly address those assertions “with

somber 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). 

Suffice it to say that petitioner has not persuaded us that any

part of respondent’s determination is incorrect. We conclude

that respondent may proceed with his proposed levy for 1999.

As to respondent’s request to impose a sanction against

petitioner, section 6673(a)(1) authorizes this Court to require a

taxpayer to pay to the United States a penalty not in excess of

$25,000 whenever it appears that proceedings have been instituted

or maintained by the taxpayer primarily for delay or that the

taxpayer’s position in the proceeding is frivolous or groundless. 

We have repeatedly indicated our willingness to impose such

penalties in a lien and levy review case. E.g., Roberts v.

Commissioner, supra at 372-373; Pierson v. Commissioner, 115 T.C.

576, 581 (2000). In addition, we have imposed section 6673(a)(1)

penalties in lien and levy review cases where, as here, the

taxpayer has raised frivolous and groundless arguments as to the

validity of our Federal income tax system. See, e.g., Gilligan
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v. Commissioner, T.C. Memo. 2004-194; Green v. Commissioner, T.C.

Memo. 2003-264; Brown v. Commissioner, T.C. Memo. 2003-261;

Dunham v. Commissioner, T.C. Memo. 2003-260; Hodgson v.

Commissioner, T.C. Memo. 2003-122.

On the basis of the record before us, we are convinced that

petitioner has instituted and maintained these proceedings

primarily for delay and that he has cognizantly advanced in this

proceeding only frivolous and groundless arguments. We note four

occasions on which petitioner has been informed that his

arguments are groundless and/or frivolous. First, in an Oral

Opinion of this Court dated September 26, 2000, affd. Hamzik v.

Commissioner, 25 Fed. Appx. 911 (9th Cir. 2001), a case that

concerned petitioner’s 1996 taxable year, the Court admonished

petitioner that the arguments which he made there, which were

similar to the arguments which he makes here, were “frivolous”. 

The Court also informed petitioner that we would have considered

imposing upon him a penalty under section 6673 had such a request

been made by respondent. Id. Second, petitioner by his own

admission (set forth in his response) acknowledges that, upon his

appeal of that case to the Court of Appeals for the Ninth

Circuit, the Court of Appeals sanctioned him for advancing

frivolous arguments there. Third, in Hamzik v. United States,

92 AFTR 2d 2003-5743 (Fed. Cl. 2003), a case involving

petitioner’s claim for refunds of 1995 and 1997 Federal income
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2 Respondent in his motion alleges that petitioner has

another case pending before the Court of Federal Claims regarding

a tax refund for 2000. Petitioner in his response does not deny

either of these assertions.

taxes, the Court of Federal Claims dismissed petitioner’s and his

wife’s amended complaint for failure to state a claim upon which

relief can be granted.2 The court noted that the arguments made

by petitioner and his wife in support of their amended complaint,

arguments which are similar to the arguments made by petitioner

here, are “commonly made by tax protestors such as plaintiffs * *

* [and] have been rejected, flatly and uniformly, by other

courts, and are rejected by this court as well.” Id. Fourth, in

a letter that Appeals sent to petitioner in connection with his

request for a section 6330 hearing as to the subject year, among

other years, Appeals informed petitioner that the arguments which

he made in his request were frivolous or groundless. Those

arguments were similar to the arguments which petitioner makes

here.

Petitioner’s insistence in this proceeding on pursuing his

fruitless arguments has consumed the valuable time and effort of

this Court (and of respondent) that could have otherwise been

devoted to resolving bona fide claims of other taxpayers. See

Cook v. Spillman, 806 F.2d 948 (9th Cir. 1986). Petitioner was

specifically warned by the Court of the likelihood of a penalty

under section 6673 if he persisted in his frivolous arguments,
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and he has persisted. Serious sanctions are necessary to deter

petitioner and others similarly situated; the penalty must be

substantial for it to have a deterrent effect. See Takaba v.

Commissioner, 119 T.C. 285, 295 (2002) (citing Coleman v.

Commissioner, 791 F.2d 68, 71 (7th Cir. 1986)). Pursuant to

section 6673(a)(1), we impose against petitioner a penalty in the

amount of $15,000. See Brenner v. Commissioner, T.C. Memo.

2004-202; Hill v. Commissioner, T.C. Memo. 2003-144.

An appropriate order and

decision will be entered for

respondent.