1 Unless otherwise indicated, all section references are to

the Internal Revenue Code, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

T.C. Memo. 2003-117

UNITED STATES TAX COURT

RAYMOND BOURBEAU, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6898-02L. Filed April 22, 2003.

Raymond Bourbeau, pro se.

D. Sean McMahon, for respondent.

MEMORANDUM OPINION

VASQUEZ, Judge: This case is before the Court on

respondent’s motion for summary judgment and to impose a penalty

under I.R.C. section 66731 (motion for summary judgment).
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Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy. 

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material

fact, and a decision may be entered 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 as to any

material fact and that a decision may be rendered as a matter of

law. 

Background

Petitioner filed his 1996, 1997, and 1998 Federal income tax

returns on April 15, 1997, August 18, 1998, and April 15, 1999,

respectively. Petitioner did not make any payments when he filed

his returns. Based on petitioner’s returns for 1996, 1997, and

1998, respondent assessed the following amounts:

 Addition to 

 Tax for Addition to 

 Failure to Pay Tax for Assessment

Year Tax Estimated Tax Failure to Pay Interest Date

1996 $13,284 $707 $132.84 $158.14 06-02-1997

1997 12,634 681 379.02 448.00 09-21-1998

1998 16,141 339 96.16 82.54 05-24-1999

From November 1998 through March 2000, petitioner made 13

payments totaling $8,058 that respondent applied to petitioner’s

outstanding tax liability for 1996. Respondent also applied an

“overpaid credit” from 1995 to petitioner’s outstanding tax
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liability for 1996. Additionally, respondent applied “estimated

tax declarations” to petitioner’s outstanding tax liability for

1998 on April 16, 1998, June 16, 1998, September 17, 1998, and

February 20, 1999. 

On or about February 24, 2001, respondent filed a Notice of

Federal Tax Lien (tax lien) regarding petitioner’s income tax

liabilities for 1996, 1997, and 1998 at the U.S. District Court

in Boston, Massachusetts. The tax lien listed the following

amounts owed as of the date of the tax lien: 

Tax Period Type of Tax Amount Owed

 1996 1040 $5,722.77

 1997 1040 14,142.02

 1998 1040 10,133.70

On March 1, 2001, respondent issued to petitioner a Notice

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

6320 (hearing notice) regarding his income tax liabilities for

1996, 1997, and 1998.

Petitioner submitted a Form 12153, Request for a Collection

Due Process Hearing (hearing request), regarding his 1996, 1997,

and 1998 tax years that respondent treated as being timely

submitted. In his explanation of why he did not agree with the

tax lien, petitioner stated:

I had no income for tax years 1996, 1997, 1998 that is

not exempt, eliminated, or excluded from gross income. 

I understand that this may conflict with third party

reports which you may have in your files. Further,

whether or not I am required to file a tax return and

pay a tax is a factual matter for a trier of fact to
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determine. In order for a trier of fact to make a

determination there must be a trial at which evidence

and testimony is [sic] presented. As of this date

there has been no trial and no trier of fact has made

any determination. An employee of the IRS is not a

trier of fact and cannot make a determination as to

whether or not I am required to file a return and pay a

tax. For additional [sic] see the response letter

attached hereto and made a part hereof.

Petitioner included with his hearing request a three-page letter

containing frivolous arguments.

On February 11, 2002, Appeals Officer Maureen Jenkins sent

petitioner a letter informing him that an Appeals Office hearing

(hearing) was scheduled for his case on February 26, 2002, at the

Appeals Office in Boston, Massachusetts.

On February 26, 2002, petitioner attended the hearing. 

Appeals Officer Jenkins and Appeals Team Manager Gene Peschier

were present at the hearing. Petitioner and respondent recorded

the hearing, and a court reporter transcribed the hearing. At

the hearing, petitioner called his “adviser”, Thomas Smith (who

was in Utah), twice on petitioner’s cell phone. Petitioner

repeatedly asked Appeals Officer Jenkins and Appeals Team Manager

Peschier to show him the delegation of authority from the

Secretary authorizing Appeals Officer Jenkins and Appeals Team

Manager Peschier to conduct the hearing. Petitioner did not

raise any other issues or arguments at the hearing.

At the hearing, Appeals Officer Jenkins reviewed

petitioner’s administrative file and transcripts of account for
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the years in issue, and she verified that all applicable laws and

administrative procedures had been met. Appeals Officer Jenkins

also provided petitioner copies of his transcripts of account for

the years in issue. Appeals Officer Jenkins provided petitioner

several opportunities to raise issues other than the delegation

of authority, including collection alternatives (such as an

installment agreement or an offer-in-compromise). Petitioner

stated that he was not interested in discussing collection

alternatives and that he wanted to terminate the hearing. 

Respondent acceded to petitioner’s wishes, and the hearing ended. 

On March 18, 2002, respondent issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination) to petitioner regarding his

1996, 1997, and 1998 tax years. In the notice of determination,

respondent determined that (1) prior to the filing of the tax

lien, all statutory, administrative, and procedural requirements

had been met, (2) no viable collection alternatives were

established, and (3) the tax lien was not considered to be overly

intrusive.

On March 27, 2002, respondent mailed petitioner certified

certificates of assessments, payments, and other specified

matters for the years in issue.

On April 1, 2002, petitioner timely filed an imperfect

petition for lien or levy action under Code section 6320(c) or
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6330(d) seeking review of respondent’s determination to proceed

with collection of petitioner’s 1996, 1997, and 1998 tax

liabilities. 

On April 2, 2002, the Court ordered petitioner to file a

proper amended petition on or before April 30, 2002. Attached to

the order were our Rules pertaining to lien and levy actions.

On May 6, 2002, petitioner filed an amended petition for

lien or levy action under Code section 6320(c) or 6330(d). 

Attached to the amended petition are, among other things, a

transcript of the hearing and copies of petitioner’s transcripts

of account for the years in issue.

On February 21, 2003, respondent filed the motion for

summary judgment. Attached as exhibits to the motion for summary

judgment, among other things, are the transcript of the hearing

and transcripts of petitioner’s accounts for 1996, 1997, and

1998.

On February 24, 2003, the Court ordered petitioner to file a

response to respondent’s motion for summary judgment on or before

March 14, 2003. Petitioner did not file a response to

respondent’s motion for summary judgment.

Discussion

Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice (i.e., the

hearing notice) of the filing of a notice of lien under section
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6323. Section 6320 further provides that the taxpayer may

request administrative review of the matter (in the form of a

hearing) within a prescribed 30-day period. The hearing

generally shall be conducted consistent with the procedures set

forth in section 6330(c), (d), and (e). Sec. 6320(c).

The petition in this case is an eight-page document filled

with frivolous and groundless arguments. It is unclear in the

petition whether petitioner raises the issue of his underlying

liabilities. If he did, petitioner is precluded from challenging

his underlying tax liabilities in the instant proceeding because

he did not challenge them at the hearing. Tabak v. Commissioner,

T.C. Memo. 2003-4; see Miller v. Commissioner, 115 T.C. 582, 589

n.2 (2000), affd. 21 Fed. Appx. 160 (4th Cir. 2001); sec.

301.6320-1(f)(2), Q&A-F5, Proced. & Admin. Regs.; see also sec.

301.6330-1(f)(2), Q&A-F5, Proced. & Admin. Regs. 

Where the validity of the underlying tax liability is not

properly in issue, we review respondent’s determination for an

abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610

(2000).

Petitioner appears to argue that at the hearing he was not

provided documents demonstrating that the verification

requirement of section 6330 had been met. At the hearing, the

Commissioner is not required to provide the taxpayer with a copy

of verification that the requirements of any applicable law or
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administrative procedure has been met. Nestor v. Commissioner,

118 T.C. 162, 166-167 (2002). In any event, respondent gave

petitioner copies of his transcripts of account for the years in

issue at, and subsequent to, the hearing. 

We have repeatedly held that the Commissioner may rely on

transcripts of account to satisfy the verification requirement of

section 6330(c)(1). E.g., Eiselstein v. Commissioner, T.C. Memo.

2003-22. Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the

transcripts of account. Davis v. Commissioner, 115 T.C. 35, 41

(2000); Mann v. Commissioner, T.C. Memo. 2002-48. Accordingly,

we hold that the verification requirement of section 6330(c)(1)

has been satisfied. Cf. Nicklaus v. Commissioner, 117 T.C. 117,

120-121 (2001).

Petitioner claims in the petition that he was not accorded a

hearing that complied with section 6330 because as part of the

hearing he was not able to summon witnesses, cross-examine

witnesses, conduct discovery, examine documents, or obtain

evidence from respondent. We have repeatedly held that section

6330 hearings are informal, and that the compulsory attendance of

witnesses or production of documents is not required. Katz v.

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

supra at 41-42.
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2 In the case at bar, petitioner appears to be following a

strategy similar to the one provided to him at the hearing by

Thomas Smith. Although these frivolous arguments may have been

provided by Mr. Smith, it was petitioner’s choice to follow this

bad advice, and petitioner must face the consequences of his

actions.

Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection. 

These issues are now deemed conceded. Rule 331(b)(4). 

Accordingly, we conclude that respondent did not abuse his

discretion, and we sustain respondent’s determination.

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 positions in the

proceedings or instituted the proceedings primarily for delay. 

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

an unequivocal warning to taxpayers concerning the imposition of

a penalty pursuant to 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 petition, petitioner raised frivolous arguments and

contentions that we have previously rejected and which we

conclude were interposed primarily for delay.2 This has caused
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the Court to waste its limited resources. Accordingly, we shall

impose a penalty of $5,000 pursuant to section 6673.

To reflect the foregoing,

An appropriate order and

decision will be entered.