T.C. Memo. 2003-46

UNITED STATES TAX COURT

GARY JAMES COPELAND, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9305-02L. Filed February 25, 2003.

Gary James Copeland, pro se.

Rollin G. Thorley, 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
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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. 

2Although the Court ordered petitioner to file a response to

respondent’s motion, petitioner failed to do so.

section 66731 (respondent’s motion).2 We shall grant respondent’s motion.

Background 

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

following.

Petitioner resided in Henderson, Nevada, at the time he

filed the petition in this case.

On or about April 15, 1998, petitioner filed a Federal

income tax (tax) return for his taxable year 1997 (1997 return).

In his 1997 return, petitioner reported total income of $0, total

tax of $0, and claimed a refund of $238.11 of tax withheld. 

Petitioner attached a two-page document to his 1997 return

(petitioner’s attachment to his 1997 return). That document, as

completed by petitioner, stated in pertinent part: 

I, Gary J. Copeland am submitting this as part of my

1997 income tax return

Even though I know that no section of the Internal

Revenue Code: 

1) establishes an income tax “liability” as, for

example, Code Sections 4401, 5005, and 5703 do with

respect to wagering, alcohol, and tobacco taxes;

2) provides that income taxes “have to be paid on

the basis of a return”-as, for example, Code Sections

4374, 4401(c), 5061(a) and 5703(b) do with respect to

other taxes; 
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I am filing anyway, because I know that the government

has prosecuted others for failing to file income tax

returns by (erroneously) invoking Code Sections 7201

and 7203. Therefore, this return is not being filed

voluntarily, but is being filed out of fear that if I

did not file this return, I could also be (illegally)

prosecuted for failing to file an income tax return for

the year 1997.

3) In addition to the above, I am filing even

though the “Privacy Act Notice” as contained in a 1040

booklet clearly informs me that I am not required to

file. It does so in at least two places.

a) In one place, it states that I need only

file a return for “any tax” I may be “liable” for. 

Since no Code Section makes me “liable” for income

taxes, this provision notifies me that I do not have to

file an income tax return;

b) In another place, it directs me to Code

Section 6001. This section provides, in relevant part,

that “Whenever in the judgment of the Secretary it is

necessary, he may require any person by notice served

upon such person; or by regulations, to make such

returns, render such statements, or keep such records,

as the Secretary deems sufficient to show whether or

not such person is liable for the tax under this title.” Since the Secretary of the Treasury did not

“serve” me with any such “notice” and since no legislative regulation exists requiring anyone to file an

income tax return, I am again informed by the “Privacy

Act Notice” that I am not required to file an income

tax return.

* * * * * * *

7) It should also be noted that I had “zero”

income according to The Supreme Court’s definition of

income * * * since in Merchant’s Loan & Trust Co v.

Smietanka, 225 U.S. 509, (at pages 518 & 519) that

court held that “The word (income) must be given the

same meaning in all of the Income Tax Acts of Congress

that was given to it in the Corporation Excise Tax Act

of 1909.” Therefore, since I had no earnings in 1997

that would have been taxable as “income” under the

Corporation Excise Tax Act of 1909, I can only swear to

having “zero” income in 1997. Obviously, since I know
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the legal definition of “income”, if I were to swear to

having received any other amount of “income”, I would

be committing perjury * * *. So, not wishing to commit

perjury * * * I can only swear to having “zero” income

for 1997. [Reproduced literally.]

On or about April 15, 1999, petitioner filed a tax return

for his taxable year 1998 (1998 return). In his 1998 return,

petitioner reported total income of $0 and total tax of $0. 

Petitioner attached a three-page document to his 1998 return

(petitioner’s attachment to his 1998 return), which was very

similar to petitioner’s attachment to his 1997 return.

On August 3, 2000, respondent issued to petitioner a notice

of deficiency (notice) with respect to his taxable years 1997 and

1998, which he received. In that notice, respondent determined a

deficiency in, and an accuracy-related penalty under section 6662

on, petitioner’s tax (1) for his taxable year 1997 in the respective amounts of $2,104 and $421 and (2) for his taxable year 1998

in the respective amounts of $2,021 and $404. 

Petitioner did not file a petition in the Court with respect

to the notice relating to his taxable years 1997 and 1998. 

Instead, on October 30, 2000, in response to the notice, petitioner sent a letter (petitioner’s October 30, 2000 letter) to

the Internal Revenue Service. That letter stated in pertinent

part:

Your Deficiency Notice dated August 3, 2000

According to your “Deficiency Notice” of above

date (cover sheet [page 1 of notice with respect to
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petitioner’s taxable years 1997 and 1998] attached),

there is an alleged deficiency with respect to my 1997

& 1998 income taxes of $2,104.00 & $2021.00 respectively, and if I wanted to “contest this deficiency

before making payment,” I must “file a petition with

the United States Tax Court.” Before I file, pay, or

do anything with respect to your “Notice,” 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.

* * * * * * *

Let me further point out that IR Code Sections

6001 and 6011 (as identified in the 1040 Privacy Act)

notify me that I need only “comply with regulations.”

Nothing in the Privacy Act Notice or in the above

statutes informs me that I have to “comply” with, or

pay attention to, letters and/or alleged “determinations” sent to me by various and sundry employees of

the IRS.

Please note that Section 6212 states that “If the

Secretary determines that there is a deficiency in

respect of any tax ... he is authorized to send notice

of such deficiency, etc., etc., etc.” However, the

“Notice” I received was not sent by the Secretary, but

by James J. Walsh, who is identified as being the

District Director in Phoenix, AZ, and I have no way of

knowing whether he has been delegated by the Secretary

to send out such notices on the Secretary’s behalf. So

before I do anything at all with respect to your “Notice,” I would have to see a Delegation Order from the

Secretary of the Treasury delegating to James J. Walsh,

the authority to send out Deficiency Notices.

In addition, I would also like you to send me (or

identify for me) the legislative regulations that you

claim implement Code Sections 6212 and 6213. I have

also attached an excerpt from the IRS Procedures Manual

* * * which points out that the IRS is required to

“make available to all taxpayers comprehensive, accurate, and timely information on the requirements of tax

law and regulations.” So, pursuant to this provision

from your Procedures Manual, I am asking that you

identify (“make available”) for me the legislative

regulations that you claim implement both Code Sections
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6212 and 6213, since I have not been able to locate

them.

Without your furnishing me with these documents

and information, I will be unable to “ascertain” * * *

whether the individual who sent me the Deficiency

Notice was authorized to do so, and whether I am legally required to take any notice of it. * * *

[Reproduced literally.]

On January 8, 2001, respondent assessed petitioner’s tax, as

well as any penalties and interest as provided by law, for each

of his taxable years 1997 and 1998. (We shall refer to those

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

after January 8, 2001, as petitioner’s unpaid liabilities for

1997 and 1998.)

On January 8, 2001, respondent issued to petitioner a notice

of balance due with respect to petitioner’s unpaid liabilities

for 1997 and 1998.

On August 14, 2001, respondent issued to petitioner a final

notice of intent to levy and notice of your right to a hearing

(notice of intent to levy) with respect to his taxable years 1997

and 1998. On or about September 10, 2001, in response to the

notice of intent to levy, petitioner filed Form 12153, Request

for a Collection Due Process Hearing (Form 12153), and requested

a hearing with respondent’s Appeals Office (Appeals Office).

Petitioner attached a document to his Form 12153. That document

stated in pertinent part:

I am requesting a “Due Process Hearing” as outlined in From 12153. I am “challenging the appropri-
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ateness of (the) collection action” as specified

6330(c)(2)(A)(ii). If any IRS employee attempts to

deny me the “Due Process Hearing” guaranteed to me by

law, or recommends that seizure action be taken without

producing the documentation required by sections 6320

and 6330, or without addressing the issues provided for

in these Code Sections, I will seek damages * * * and

seek that employees termination * * *.

I am requesting to see copies of the following

documents:

1) A copy of the statutory “Notice and Demand”

2) A copy of the record of my assessments. And since

Code Section 6201(a)(1) and IRS Transaction Code 150

states “all assessments have to be based on filed

returns” I will have to see a copy of the returns from

which any claimed assessments are based.

3) The name or names of the IRS employees who imposed

the “frivolous” penalty along with their Federal ID

number.

4) The delegation of authority from the Secretary

authorizing such persons to impose a “frivolous” penalty.

5) The official job description(s) of those IRS employees who imposed the “frivolous” penalty.

6) Code Section 6001 and 6011 (which are specifically

mentioned in the Privacy Act Notice in the 1040 booklet) advise the public that they need only to “comply

with regulations,” I am requesting that you also have

at the hearing the Treasury regulation that allows IRS

employees to impose the “frivolous” penalty, and the

regulation that requires me to pay it. 

7) Lastly, I will be challenging the existence of the

underlying tax liability, which Code Section

6330(c)(2)(b) specifically authorizes me to do.

In lieu of producing these specified documents

listed above, “verification from the Secretary (of the

Treasury) that the requirements of any applicable law

or administrative procedures have been met”, will be

acceptable. But the appeals officer better have either

the documents as identified above, or “verification

from the Secretary”. If the appeals officer can not

produce neither document, than no Due Process Hearing

should be scheduled until he has those documents in

hand. * * * [Reproduced literally.]
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On April 22, 2002, respondent’s Appeals officer held an

Appeals Office hearing with petitioner with respect to the notice

of intent to levy. At the Appeals Office hearing, the Appeals

officer relied on Form 4340, Certificate of Assessments, Payments, and Other Specified Matters (Form 4340), with respect to

each of petitioner’s taxable years 1997 and 1998. 

On May 7, 2002, the Appeals Office issued to petitioner 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:

The Secretary has provided you with sufficient verification that the requirements of any applicable law or

administrative procedures have been met. 

You requested a Collection Due Process Hearing under

IRC 6330 opposing levy action. Your Request for a

Collection Due Process was timely filed and you are

entitled to judicial review. 

The case was assigned to Tony Aguiar, Appeals Officer,

who had no prior involvement with respect to the disputed tax liability.

The levy notice reflects a liability for income taxes

owed for 1997 and 1998. Zero type income tax returns

were filed for 1997 and 1998. Statutory Notices of

Deficiency were sent to you for both years on August 3,

2000. You responded to the sent Statutory Notice of

Deficiency with your interpretation of the tax laws. 

You were given an opportunity to petition the United

States Tax Court and choose not to. The Statutory

Notice of Deficiency defaulted and an assessment was

made. The assessment made is valid. The assessment

has been made and notice and demand letters were issued

by regular mail to your last known address as required

and demonstrated by forms 4340s in the administrative

file.
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You have not challenged the appropriateness of the levy

action. At your Collection Due Process Hearing you

spoke about whether the assessment made was done so by

one delegated with the authority to do so. You stated

you do not believe you received a proper Statutory

Notice of Deficiency for the Secretary of the Treasury

did not sign it. I explained it [sic] the Statutory

Notice of Deficiency does not have to be signed by the

Secretary of the Treasury to be valid. You have been

previously given an opportunity to contest the amount

assessed as income tax. Due to fact you have had a

previous opportunity the underlying liability is not to

be considered under the Collection Due Process.

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. You were

billed and did not pay the amounts due. Collection

proceeded with enforced collection and they should be

allowed to continue.

It is Appeals determination that the proposed collection action balances the need for efficient collection

of taxes with the legitimate concern that collection

action is no more intrusive than necessary.

Discussion

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 is no genuine issue of material fact

regarding the questions raised in respondent’s motion. 

With respect to petitioner’s taxable years 1997 and 1998,

petitioner received a notice of deficiency, but he did not file a

petition with respect to that notice. In the petition, petitioner admits that he received the notice of deficiency and
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3We note that, pursuant to Rule 37(c), petitioner is deemed

to have admitted that he may not challenge the existence or the

amount of his unpaid liabilities for 1997 and 1998 because he

received a notice of deficiency with respect to those years.

alleges that “the deficiency notice Petitioner received was

invalid, because it was not sent out by the Secretary as required

by Code Section 6212.” On the instant record, we find that

petitioner may not challenge the existence or the amount of

petitioner’s unpaid liabilities for 1997 and 1998.3 See sec.

6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 610-611

(2000); Goza v. Commissioner, 114 T.C. 176, 182-183 (2000).

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

tax liabilities 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, supra at 610;

Goza v. Commissioner, supra at 181-182.

As was true of petitioner’s attachment to his 1997 return,

petitioner’s attachment to his 1998 return, petitioner’s October

30, 2000 letter, and petitioner’s attachment to Form 12153, the

petition contains contentions, arguments, and requests that the

Court finds to be frivolous and/or groundless. To illustrate,

petitioner contends in the petition that respondent failed to

issue petitioner the notice and demand for payment required by

section 6303(a). We reject that contention. Forms 4340 with

respect to petitioner’s taxable years 1997 and 1998 show that
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respondent sent petitioner a notice of balance due on January 8,

2001, the same day on which respondent assessed petitioner’s tax,

as well as any penalties and interest as provided by law, for

each of those years. A notice of balance due constitutes the

notice and demand for payment under section 6303(a). Craig v.

Commissioner, 119 T.C. 252, 262-263 (2002). 

As a further illustration of the frivolous and/or groundless

nature of petitioner’s position in this case, petitioner contends

in the petition that the Appeals officer failed to obtain and to

produce verification that the requirements of any applicable law

or administrative procedure have been met, as required by section

6330(c)(1). The record establishes that the Appeals officer

obtained verification from the Secretary that the requirements of

any applicable law or administrative procedure were met, and we

reject petitioner’s contention to the contrary. At the Appeals

Office hearing, the Appeals officer relied on Forms 4340 with

respect to petitioner’s taxable years 1997 and 1998. Section

6330(c)(1) does not require the Appeals officer to rely on a

particular document to satisfy the verification requirement

imposed by that section. Craig v. Commissioner, supra at 261-

262. Nor does section 6330(c)(1) require the Appeals officer to

provide petitioner with a copy of the verification upon which the

Appeals officer relied. Id. at 262. Form 4340 is a valid

verification that the requirements of any applicable law or
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4We shall not specifically address any additional matters,

such as the following, which petitioner asserts in his petition,

all of which, as indicated above, the Court finds to be frivolous

and/or groundless:

6) * * * But in any case, Petitioner

pointed out to the appeals officer, if

he would simply identify for Petitioner

the statute that established Petitioner’s income tax “liability”; Petitioner would pay the taxes and penalties

at issue without further adieu. * * * 

7) Petitioner asked the appeals officer to

identify for Petitioner the statute that

required Petitioner “to pay” the income

taxes at issue. Even though the existence of such a statute was a “relevant

issue relating to the unpaid tax,” as

stated in 6330(c)(2)(A). Despite the law

specifically providing that this issue

could be raised (since it is obviously a

“relevant issue.” What could be more

relevant?) the appeals officer refused

to identify any such statute. * * *

administrative procedure have been met. Id. Petitioner has not

shown any irregularity in respondent’s assessment procedure that

would raise a question about the validity of the assessments or

the information contained in Forms 4340 with respect to petitioner’s taxable years 1997 and 1998. We hold that the assessments with respect to petitioner’s taxable years 1997 and 1998

were valid and that the Appeals officer satisfied the verification requirement of section 6330(c)(1). See id.4

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
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in the notice of determination with respect to petitioner’s

taxable years 1997 and 1998. 

In respondent’s motion, respondent requests that the Court

require petitioner 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

actions. 

In the instant case, petitioner 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 petitioner

pursuant to section 6673(a)(1) in the amount of $1,000. 

We have considered all of petitioner’s contentions, argu-
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ments, 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.

To reflect the foregoing,

An appropriate order granting

respondent’s motion and decision

will be entered for respondent.