1All 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. 

T.C. Memo. 2003-125

UNITED STATES TAX COURT

DANIEL AND SALLY A. HOLGUIN, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10215-02L. Filed April 29, 2003.

Daniel Holguin and Sally A. Holguin, pro sese.

Alan J. Tomsic, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This case is before the Court on respondent’s motion for summary judgment and to impose a penalty under

section 66731 as to petitioner Daniel Holguin (respondent’s
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2On Jan. 15, 1998, respondent prepared a separate substitute

for return for each petitioner with respect to the taxable year

1994. 

motion for summary judgment as to Mr. Holguin) and respondent’s

motion to dismiss for lack of jurisdiction and to strike as to

petitioner Sally A. Holguin (respondent’s motion to dismiss for

lack of jurisdiction as to Ms. Holguin). (We shall refer collectively to both of those motions as respondent’s motions.) We

shall grant respondent’s motions.

Background 

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

following.

Petitioners resided in Las Vegas, Nevada, at the time they

filed the petition in this case. 

On April 16, 1995, petitioners mailed to respondent Form

1040, U.S. Individual Income Tax Return (Form 1040), for their

taxable year 1994 (1994 Form 1040). Above their signatures

appearing in their 1994 Form 1040, petitioners struck from the

jurat clause the words “Under penalties of perjury”. Because

petitioners struck those words, respondent concluded that petitioners’ 1994 Form 1040 was not a valid Federal income tax (tax)

return.2

In their 1994 Form 1040, petitioners reported total income

of $0 and total tax of $0 and claimed a refund of $1,020 of tax

withheld. Petitioners attached to their 1994 Form 1040 two Forms
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3Petitioners’ attachment to their 1994 Form 1040 is very

similar to the documents that certain other taxpayers with cases

in the Court attached to their tax returns. See, e.g., Copeland

v. Commissioner, T.C. Memo. 2003-46; Smith v. Commissioner, T.C.

Memo. 2003-45. 

4On Jan. 15, 1998, respondent prepared a separate substitute

for return for each petitioner with respect to the taxable year

1995. 

W-2, Wage and Tax Statement (Form W-2), reporting wages, tips,

and other compensation totaling $14,857.07. Petitioners also

attached a document to their 1994 Form 1040 (petitioners’ attachment to their 1994 Form 1040) that contained statements, contentions, and arguments that the Court finds to be frivolous and/or

groundless.3

On April 13, 1996, petitioners mailed to respondent Form

1040 for their taxable year 1995 (1995 Form 1040). Above their

signatures appearing in their 1995 Form 1040, petitioners struck

from the jurat clause the words “Under penalties of perjury”. 

Because petitioners struck those words, respondent concluded that

petitioners’ 1995 Form 1040 was not a valid tax return.4 

In their 1995 Form 1040, petitioners reported total income

of $0 and total tax of $0 and claimed a refund of $1,052 of tax

withheld. Petitioners attached to their 1995 Form 1040 Form W-2,

reporting wages, tips, and other compensation of $17,121.94. 

Petitioners also attached a document to their 1995 Form 1040

(petitioners’ attachment to their 1995 Form 1040) that contained

statements, contentions, and arguments that the Court finds to be
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5Petitioners’ attachment to their 1995 Form 1040 is very

similar to the documents that certain other taxpayers with cases

in the Court attached to their tax returns. See, e.g., Copeland

v. Commissioner, supra; Smith v. Commissioner, supra.

6On Jan. 15, 1998, respondent prepared a separate substitute

for return for each petitioner with respect to the taxable year

1996. 

7Petitioners’ attachment to their 1996 Form 1040 is very

similar to the documents that certain other taxpayers with cases

in the Court attached to their tax returns. See, e.g., Copeland

v. Commissioner, supra; Smith v. Commissioner, supra.

frivolous and/or groundless.5

On April 13, 1997, petitioners mailed to respondent Form

1040 for their taxable year 1996 (1996 Form 1040). Above their

signatures appearing in their 1996 Form 1040, petitioners struck

from the jurat clause the words “Under penalties of perjury”. 

Because petitioners struck those words, respondent concluded that

petitioners’ 1996 Form 1040 was not a valid tax return.6 

In their 1996 Form 1040, petitioners reported total income

of $0 and total tax of $0. Petitioners attached a document to

their 1996 Form 1040 (petitioners’ attachment to their 1996 Form

1040) that contained statements, contentions, and arguments that

the Court finds to be frivolous and/or groundless.7

On March 27, 1998, respondent issued to petitioner Daniel

Holguin (Mr. Holguin) a separate notice of deficiency (notice)

with respect to each of his taxable years 1994, 1995, and 1996,

all of which he received. In the notice with respect to Mr.

Holguin’s taxable year 1994, respondent determined a deficiency
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8On Sept. 1 and 16, 1998, July 20, 2000, and Oct. 26 and 31,

2000, respondent applied payments totaling $2,462.01 to Mr.

Holguin’s account with respect to his taxable year 1995. On

Sept. 1 and 16, 1998, respondent reduced the payments respondent

had applied to Mr. Holguin’s account with respect to his taxable

year 1995 by a total of $551.98. 

9On Oct. 31, Nov. 15, and Dec. 5, 2000, and Jan. 24, Feb.

22, Mar. 8, Apr. 23, and May 10, 2001, respondent applied payments totaling $1,803.78 to Mr. Holguin’s account with respect to

his taxable year 1996. 

in, and an addition to tax under section 6651(a)(1) on, Mr.

Holguin’s tax for that year in the respective amounts of $3,017

and $508. In the notice with respect to Mr. Holguin’s taxable

year 1995, respondent determined a deficiency in, and additions

to tax under sections 6651(a)(1) and 6654 on, Mr. Holguin’s tax

for that year in the respective amounts of $3,170, $530, and

$109. In the notice with respect to Mr. Holguin’s taxable year

1996, respondent determined a deficiency in, and additions to tax

under sections 6651(a)(1) and 6654 on, Mr. Holguin’s tax for that

year in the respective amounts of $3,238, $810, and $172. 

Mr. Holguin did not file a petition in the Court with

respect to the notices relating to his taxable years 1994, 1995,

and 1996. 

On August 17, 1998, respondent assessed Mr. Holguin’s tax,

as well as additions to tax and interest as provided by law, for

each of his taxable years 19958 and 1996.9 (We shall refer to

any such unpaid assessed amounts, as well as interest as provided

by law accrued after August 17, 1998, as Mr. Holguin’s unpaid
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liabilities for 1995 and 1996.) 

On August 17, 1998, respondent issued to Mr. Holguin a

notice of balance due with respect to Mr. Holguin’s unpaid

liabilities for 1995 and 1996. 

On August 31, 1998, respondent assessed Mr. Holguin’s tax,

as well as an addition to tax and interest as provided by law,

for his taxable year 1994. (We shall refer to those assessed

amounts, as well as interest as provided by law accrued after

August 31, 1998, as Mr. Holguin’s unpaid liability for 1994.)

On August 31, 1998, respondent issued to Mr. Holguin a

notice of balance due with respect to Mr. Holguin’s unpaid

liability for 1994. 

On February 5, 1999, respondent issued to petitioner Sally

A. Holguin (Ms. Holguin) a final notice of intent to levy and

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

respect to Ms. Holguin’s taxable years 1994, 1995, and 1996. (We

shall refer to the notice of intent to levy issued to Ms. Holguin

as respondent’s February 5, 1999 notice of intent to levy concerning Ms. Holguin’s taxable years 1994, 1995, and 1996.) 

On October 4, 2001, respondent issued to Mr. Holguin a

notice of intent to levy with respect to Mr. Holguin’s taxable

years 1994, 1995, and 1996. (We shall refer to the notice of

intent to levy issued to Mr. Holguin as respondent’s October 4,

2001 notice of intent to levy concerning Mr. Holguin’s taxable
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10Petitioners’ attachment to Form 12153 is similar to the

types of attachments to Forms 12153 filed with the Internal

Revenue Service by certain other taxpayers with cases in the

Court. See, e.g., Copeland v. Commissioner, T.C. Memo. 2003-46;

Smith v. Commissioner, T.C. Memo. 2003-45.

years 1994, 1995, and 1996.)

On or about November 2, 2001, in response to both respondent’s February 5, 1999 notice of intent to levy concerning Ms.

Holguin’s taxable years 1994, 1995, and 1996 and respondent’s

October 4, 2001 notice of intent to levy concerning Mr. Holguin’s

taxable years 1994, 1995, and 1996, petitioners filed jointly

Form 12153, Request for a Collection Due Process Hearing (Form

12153), and requested a hearing with respondent’s Appeals Office

(Appeals Office). Mr. Holguin timely filed that form as to

respondent’s October 4, 2001 notice of intent to levy concerning

Mr. Holguin’s taxable years 1994, 1995, and 1996, but Ms. Holguin

did not timely file that form as to respondent’s February 5, 1999

notice of intent to levy concerning Ms. Holguin’s taxable years

1994, 1995, and 1996. Petitioners attached a document to their

Form 12153 (petitioners’ attachment to Form 12153) that contained

statements, contentions, and arguments, that the Court finds to

be frivolous and/or groundless.10

On April 18, 2002, respondent’s Appeals officer (Appeals

officer) held a hearing that constituted (1) an Appeals Office

hearing with Mr. Holguin with respect to respondent’s October 4,

2001 notice of intent to levy concerning his taxable years 1994,
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11Mr. Holguin represented Ms. Holguin at the equivalent

hearing held on Apr. 18, 2002. 

1995, and 1996 and (2) an equivalent hearing with respect to

respondent’s February 5, 1999 notice of intent to levy concerning

Ms. Holguin’s taxable years 1994, 1995, and 1996.11 Prior to

those hearings, the Appeals officer gave Mr. Holguin Form 4340,

Certificate of Assessments, Payments, and Other Specified Matters, with respect to each of Mr. Holguin’s taxable years 1994,

1995, and 1996. 

On April 30, 2002, the Appeals Office issued to Mr. Holguin

a notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination). An attachment to the notice of determination stated in pertinent part: 

What are the Issues?

The taxpayer requested a hearing under the provisions

of I.R.C. section 6330 to contest the application of a

notice of intent to levy, Form 1058.

Verification of Legal and Procedural Requirements

The requirements of all applicable laws and administrative procedures have been met:

The liabilities were assessed and notice and

demand letters were issued by regular mail to the

taxpayer’s last known address as required under I.R.C.

6303, demonstrated by the forms 4340 in the administrative file;

There was an assessed liability and a levy source

determined by the Revenue Officer at the time the

notice of intent to levy was issued to TP;

The notices required under I.R.C. 6330 were provided to TP on the dates shown above in relation to the

levy notice, L-1058;
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The taxpayer responded by submitting a Form 12153,

Request for a Collection Due Process Hearing, to the

Collection officer;

The taxpayer’s appeal was timely, being mailed on

11/2/01-The taxpayer is entitled to judicial review;

* * * * * * *

Both certified transcripts, and non-literal transcripts

were requested and reviewed by this A.O. Copies of the

certified transcripts were provided to the taxpayer. A

“face to face” CDP Hearing was offered to TP. * * * The

meeting was held on 4/18/2002. TP represented himself.

Issues Raised by the Taxpayer

In TP’s appeal request, TP’s arguments were plentiful

but without substance. They were of the type described

by the Courts as “frivolous.” * * * TP disputes the

receipt of an official notice of deficiency and other

procedural errors based on TP’s personal views and

conclusions of law. In my opinion, based on Court

decisions, those arguments have no merit. TP was

provided copies of court cases attesting to the fact

that the courts are tired of such arguments and could

sanction TP if they were brought forth in a judicial

hearing.

At the time of the conference, TP did not make a claim

he was an “innocent spouse.” * * * Nor did TP provide

any non-frivolous argument as to the steps taken by the

Collection division to obtain payment. TP did attempt

to offer questions regarding procedures, but such

questions were generally frivolous and had no bearing

on the outcome of the case. TP did not suggest that he

might become current in or correct his prior filings. 

Nor did TP suggest any collection alternatives. 

MY EVALUATION

Review of the information stated above and now present

in the administrative file shows the requirements of

all applicable laws and administrative procedures have

been met. Assessments were properly made. TP was

billed for and did not pay amounts due. The Compliance

Division proceeded with enforced collection action and

it appears they should be allowed to continue with the

action. 
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Balancing the Need for Efficient Collection with Taxpayer Concerns

Given that no timely, reasonable alternative to the

proposed levy action has been suggested and that TP has

not presented anything more than frivolous arguments in

the matter, it is my opinion that the proposed collection action balances the government’s need for efficient collection with the taxpayer’s concern that any

collection action be no more intrusive than necessary. 

It is therefore concluded that the action should be

allowed to continue.

On May 22, 2002, respondent issued to Ms. Holguin a decision

letter concerning equivalent hearing under section 6320 and/or

6330 (decision letter). That letter was not, and did not purport

to be, a determination letter. An attachment to the decision

letter stated in pertinent part:

The taxpayer responded [to respondent’s February

5, 1999 notice of intent to levy concerning Ms.

Holguin’s taxable years 1994, 1995, and 1996] by submitting a Form 12153, Request for a Collection Due

Process Hearing, to the Collection officer;

The taxpayer’s appeal was not timely, not being

mailed until 11/2/01-The taxpayer is not entitled to

judicial review;

Discussion

Respondent’s Motion to Dismiss for 

Lack of Jurisdiction as to Ms. Holguin

Our jurisdiction under sections 6320 and 6330 depends upon

the issuance of a valid notice of determination and a timely

filed petition. Moorhous v. Commissioner, 116 T.C. 263, 269

(2001). 

Ms. Holguin was not entitled to an Appeals Office hearing in

the instant case. That is because she did not timely request
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12We note that petitioners do not object to the Court’s

granting respondent’s motion to dismiss for lack of jurisdiction

as to Ms. Holguin. 

such a hearing within 30 days from the date of respondent’s

February 5, 1999 notice of intent to levy concerning her taxable

years 1994, 1995, and 1996, which notified her of her right to an

Appeals Office hearing. See sec. 6330(a)(3)(B); sec. 301.6330-

1(c)(2), Q&A-C7, Proced. & Admin. Regs. 

Instead of an Appeals Office hearing, respondent held an

equivalent hearing with respect to respondent’s February 5, 1999

notice of intent to levy concerning Ms. Holguin’s taxable years

1994, 1995, and 1996. See sec. 301.6330-1(i)(1), Proced. &

Admin. Regs. Consequently, respondent issued a decision letter

to Ms. Holguin instead of a notice of determination. Id. That

letter was not, and did not purport to be, a determination under

section 6330(d). See, e.g., Moorhous v. Commissioner, supra at

270.

We conclude that we do not have jurisdiction over Ms.

Holguin.12 See sec. 6330(d)(1); Moorhous v. Commissioner, supra. 

We shall grant respondent’s motion to dismiss for lack of jurisdiction as to Ms. Holguin.
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13The statements, contentions, and arguments set forth in

petitioners’ response as to Mr. Holguin are similar to the types

of statements, contentions, and arguments set forth in responses

by certain other taxpayers with cases in the Court to motions for

summary judgment and to impose a penalty under sec. 6673 filed by

(continued...)

Respondent’s Motion for 

Summary Judgment as to Mr. Holguin

The Court may grant summary judgment where there is no

genuine issue 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), affd. 17 F.3d 965 (7th Cir. 1994). We

conclude that there are no genuine issues of material fact

regarding the questions raised in respondent’s motion for summary

judgment as to Mr. Holguin.

Where, as is the case here, the validity of the underlying

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

review the 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, 181-182 (2000).

As was true of petitioners’ attachment to their 1994 Form

1040, petitioners’ attachment to their 1995 Form 1040, petitioners’ attachment to their 1996 Form 1040, and petitioners’ attachment to Form 12153, petitioners’ response to respondent’s motion

for summary judgment as to Mr. Holguin (petitioners’ response as

to Mr. Holguin) contains statements, contentions, and arguments

that the Court finds to be frivolous and/or groundless.13
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13(...continued)

the Commissioner of Internal Revenue in such other cases. See,

e.g., Smith v. Commissioner, T.C. Memo. 2003-45.

Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to Mr. Holguin’s

unpaid liabilities for 1994, 1995, and 1996.

In respondent’s motion for summary judgment as to Mr.

Holguin, respondent requests that the Court require Mr. Holguin

to pay a penalty to the United States pursuant to section

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

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

to exceed $25,000 whenever it appears to the Court, inter alia,

that a proceeding before it was instituted or maintained primarily for delay, sec. 6673(a)(1)(A), or that the taxpayer’s position in such a proceeding is frivolous or groundless, sec.

6673(a)(1)(B). 

In Pierson v. Commissioner, 115 T.C. 576, 581 (2000), we

issued an unequivocal warning to taxpayers concerning the imposition of a penalty under section 6673(a) on those taxpayers who

abuse the protections afforded by sections 6320 and 6330 by

instituting or maintaining actions under those sections primarily

for delay or by taking frivolous or groundless positions in such
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14The record in this case reflects that the Appeals officer

gave Mr. Holguin “copies of court cases attesting to the fact

that the courts are tired of such [frivolous] arguments and could

sanction” him.

actions.14

In the instant case, Mr. Holguin advances, we believe

primarily for delay, frivolous and/or groundless contentions,

arguments, and requests, thereby causing the Court to waste its

limited resources. We shall impose a penalty on Mr. Holguin

pursuant to section 6673(a)(1) in the amount of $1,600. 

We have considered all of petitioners’ contentions, arguments, and requests that are not discussed herein, and we find

them to be without merit and/or irrelevant.

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

for summary judgment as to Mr. Holguin. 

To reflect the foregoing,

An appropriate order granting

respondent’s motion to dismiss for

lack of jurisdiction and to strike

as to petitioner Sally A. Holguin

will be issued and an order granting respondent’s motion for summary

judgment and to impose a penalty

under section 6673 as to petitioner

Daniel Holguin and decision as to

him will be entered for respondent.
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