T.C. Memo. 2005-183

UNITED STATES TAX COURT

MICHAEL JACK STEPHENS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9485-04L. Filed July 26, 2005.

Michael Jack Stephens, pro se.

Pamela L. Mable, for respondent.

MEMORANDUM OPINION

WELLS, Judge: This matter is before the Court on

respondent’s motion to dismiss for failure to state a claim upon

which relief can be granted. All section references are to the

Internal Revenue Code, as amended, and all Rule references are to

the Tax Court Rules of Practice and Procedure. 
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Background

At the time of the filing of the petition, petitioner

resided in Bloomingdale, Georgia. 

On March 30, 2003, respondent issued to petitioner a Final

Notice - Notice of Intent to Levy and Notice of Your Right to a

Hearing for tax year 2001. In response, petitioner timely

requested a hearing by filing Form 12153, Request for Collection

Due Process Hearing, citing frivolous arguments in support of his

request.

During the Appeals process, Settlement Officer Powell had a

telephone conversation with petitioner in which he requested a

face-to-face hearing in Savannah, Georgia. Respondent’s Office

of Appeals had previously sent a letter to petitioner stating

that petitioner would not receive a face-to-face hearing unless

he had nonfrivolous issues to discuss but instead would receive a

hearing by telephone and/or correspondence. When Settlement

Officer Powell asked what issues petitioner would discuss at a

face-to-face hearing, petitioner said he wanted to discuss the

law that forces him to pay tax. Settlement Officer Powell

informed petitioner that the issue was frivolous and he would

therefore only receive a telephone or correspondence hearing. 

Petitioner then stated that, if he did not receive a face-to-face

hearing in Savannah, Georgia, he did not want a hearing.
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1Petitioner incorrectly marked the area of the Court’s

standard petition form used to identify the type of action

sought. Petitioner indicated that it was a Petition for

Redetermination of a Deficiency. The Court has treated this

pleading as a Petition for Lien or Levy Action (Collection

Action). 

Settlement Officer Powell then verified that he had no prior

involvement with the unpaid income tax at issue, that petitioner

had an unpaid income tax liability for taxable year 2001, and

that respondent met the requirements of all applicable laws and

administrative procedures. Settlement Officer Powell considered

whether the proposed collection action balanced the need for the

efficient collection of taxes with the concern of petitioner that

any collection action be no more intrusive than necessary. 

Petitioner did not raise, and, consequently, Settlement Officer

Powell did not consider, any challenges to the appropriateness of

the collection actions or offers of collection alternatives.

On May 11, 2004, respondent issued a notice of determination

sustaining the proposed levy. In response, petitioner timely

petitioned this Court.1 The petition states in part:

The person involved in the determination has not answered

any on my question. I have exhausted my ability to keep

asking when they the IRS just acts like I am sheep they can

run over. I will not ask any more, when they should have

already answered my request. I have called, and called, and

I can’t even get a response, other than one agent told me,

“you owe this because my computer says you owe it.” One of

the other agents I talked to told me,”I am the IRS I can

take your property anytime I want too”. Well I guess this is

where we are going, we are going to see just how it works.

the rest of my research is on the other 5 pages. I was 
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denied a due process hearing, all I got was a phone call and

they made up the rest in the notice of determination.

Petitioner attached five additional pages to the petition

which include the following: (1) Numerous citations to Federal

and Supreme Court cases; (2) quotes from various Congressional

proceedings, including a Senate hearing regarding formation of

the UN; (3) a quote from John Maynard Keynes about inflation; and

(4) various Code sections. Petitioner’s response to the instant

motion and statements at the hearing on the motion contain

similar arguments, including: (1) The definition of frivolous;

(2) quotes from Thomas Jefferson and George Washington; (3)

citations of various sections of the Internal Revenue Code and

the Regulations; (4) an argument based on the Sixth Amendment;

(5) a section 861 argument often advanced by tax protesters; and

(6) various religious statements.

Discussion

Rule 331(b)(4) requires that a petition in a levy action

contain “Clear and concise assignments of each and every error

which the petitioner alleges to have been committed in the notice

of determination. Any issue not raised in the assignments of

error shall be deemed to be conceded. Each assignment of error

shall be separately lettered.” Rule 331(b)(5) further requires

that the petition contain “[c]lear and concise lettered

statements of the facts on which the petitioner bases each 
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2Petitioner’s contention that he is entitled to a face-toface hearing has no merit. Hearings conducted under sec. 6330

are informal proceedings, not formal adjudications. Katz v.

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

115 T.C. 35, 41 (2000). Hearings may be held as face-to-face

meetings, and they may also be conducted by telephone or by

correspondence. Katz v. Commissioner, supra at 337-338; sec.

301.6330-1(d)(2), Q&A-D6 and D7, Proced. & Admin. Regs.

In light of petitioner’s frivolous arguments, a face-to-face

hearing in this case would not be productive. See Lunsford v.

Commissioner, 117 T.C. 183, 189 (2001). We note that respondent

offered a face-to-face hearing if petitioner raised any

meaningful issue regarding his tax liability or the proposed

levy. 

assignment of error.” See Lunsford v. Commissioner, 117 T.C. 183

(2001); Goza v. Commissioner, 114 T.C. 176 (2000).

The petition in the instant case does not contain clear and

concise assignments of any error that petitioner alleges to have

been committed in the notice of determination. Likewise, the

petition does not contain clear and concise lettered statements

of the facts on which petitioner bases an assignment of error. 

Instead, petitioner argues only law and legal conclusions in the

petition as evinced by the attachments to the petition. 

The petition neither conforms to this Court’s Rules of

Practice and Procedure, nor states a claim upon which relief can

be granted.2 The absence in the petition of specific justiciable

allegations of error and of supporting facts permits this Court

to grant respondent’s motion. See Goza v. Commissioner, supra.
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3Respondent did not move for a penalty under sec.

6673(a)(1). However, the Court considers this issue sua sponte. 

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

taxpayer to pay a penalty not in excess of $25,000 when it

appears to the Court that, inter alia, proceedings have been

instituted or maintained by the taxpayer primarily for delay or

that the taxpayer's position in such proceeding is frivolous or

groundless.3 In Pierson v. Commissioner, 115 T.C. 576, 581

(2000), we issued a warning to taxpayers concerning the

imposition of a penalty under section 6673(a)(1) on those

taxpayers abusing the protections afforded by sections 6320 and

6330 through the bringing of dilatory or frivolous lien or levy

actions. The Court has since repeatedly disposed of cases

premised on arguments akin to those raised herein summarily and

with imposition of the section 6673 penalty. See, e.g., Craig v.

Commissioner, 119 T.C. 252, 264-265 (2002) (and cases cited

therein).

Respondent has not sought a section 6673 penalty in this

case, and the Court declines to impose such a penalty because the

record contains no evidence that petitioner has been warned

expressly that we may do so under the circumstances extant

herein. However, petitioner is now so warned. If petitioner

insists on asserting frivolous and irrelevant arguments in the 
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future, or instituting court proceedings primarily for the

purpose of delaying collection, penalties will be imposed.

To reflect the foregoing,

An appropriate order of 

dismissal and decision will be

entered.