FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 16, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11960

Non-Argument Calendar

________________________

Agency No. 18252-07L

GREGORY D. VENCE, 

Petitioner-Appellant, 

versus

COMMISSIONER OF IRS, 

Respondent-Appellee. 

________________________

Petition for Review of a Decision of the

United States Tax Court

_________________________

(October 16, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Gregory Vence, proceeding pro se, appeals the tax court’s decision in favor of

the Commissioner of the Internal Revenue Service (“IRS”) on the Commissioner’s

motions for summary judgment seeking to sustain a Notice of Determination
upholding a proposed levy collection, pursuant to 26 U.S.C. § 6331, to impose

penalty under 26 U.S.C. § 6673, and to permit levy, pursuant to 26 U.S.C. § 6330.

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On appeal, Vence challenges the penalties imposed on him by the IRS and by the tax

court, arguing that he was protected against any penalty resulting from failing to file

a return because the 1040 form did not comply with the Paperwork Reduction Act

(“PRA”), and therefore, he was not required to respond to it. After careful review,

we affirm.

We review de novo the tax court's grant of summary judgment and apply the

same legal standards as the tax court. Baptiste v.Comm’r of Internal Revenue, 29

F.3d 1533, 1537 (11th Cir. 1994). Summary judgment is proper “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.” Tax Ct.

R. 121(b). We view the facts in the light most favorable to the nonmoving party.

Baptiste, 29 F.3d at 1533. We review the tax court’s imposition of a sanction for an

 Vence does not challenge on appeal the tax court’s grant of the Commissioner’s motion 1

to permit levy, and therefore, that issue has been abandoned. See Irwin v. Hawk, 40 F.3d 347,

347 n.1 (11th Cir.1994) (noting that a pro se litigant abandons an issue by failing to challenge it

on appeal).

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abuse of discretion. Roberts v. Comm’r of Internal Revenue, 329 F.3d 1224, 1229

(11th Cir. 2003). 

The relevant facts are these. After Vence failed to file a tax return for the year

2002, the IRS prepared a return for him, which created an outstanding balance, and

the IRS mailed him a Notice of Deficiency. Vence did not respond to the Notice or

pay the tax deficiency, and instead, he filed a Request for a Collection Due Process

(“CDP”) hearing, requesting an abatement of all penalties and interest on the basis

that Form 1040 violated the PRA, 44 U.S.C. § 3501, et. seq. Vence did not take part

in the CDP hearing that was scheduled and failed to provide the settlement officer

with information that she had requested in order to make her determination. As a

result, based on the settlement officer’s consideration of the case, the IRS sent Vence

a Notice of Determination, which detailed certain penalties that the Commissioner

had assessed, as well as the tax due, and the Commissioner proposed a levy. 

Subsequently, Vence filed the instant petition in the tax court, again arguing that the

penalties, interest, and additions to his tax due should be abated because Form 1040

violated the PRA, and the Commissioner moved for summary judgment.

First, Vence has not shown that the tax court erred in granting summary

judgment to the Commissioner on Vence’s tax liability. The Secretary of the IRS “is

authorized and required to make the . . . assessments of all taxes (including interest,

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additional amounts, additions to the tax, and assessable penalties) imposed by this

title.” 26 U.S.C. § 6201(a). Within 60 days of making an assessment of a tax, the

Secretary shall “give notice to each person liable for the unpaid tax, stating the

amount and demanding payment thereof.” 26 U.S.C. § 6303(a). Section 6321

providesthat, “[i]f any person liable to pay any tax neglects or refuses to pay the same

after demand, the amount . . . shall be a lien in favor of the United States.” 26 U.S.C.

§ 6321. Additionally, the IRS may collect taxes by levy upon the taxpayer’s property

within ten days after the Secretary provides notice and demand for payment to the

taxpayer. 26 U.S.C. § 6331(a). The taxpayer is then given notice of, and an

opportunity for, administrative review of the levy in the formof a CDP hearing by the

IRS Office of Appeals, and, if dissatisfied, provided judicial review of the

administrative determination. 26 U.S.C. § 6330(a)-(d). If the taxpayer requests a

CDP hearing, the collection by levy is suspended during the pendency of the hearing

and any judicial review that is sought. 26 U.S.C. § 6330(e)(1).

During a CDP hearing, the taxpayer can raise “any relevant issue relating to the

unpaid tax or the proposed levy,” including spousal defenses, challenges to the

appropriateness of collections actions, and offers of collection alternatives. 26 U.S.C.

§ 6330(c)(2)(A). The taxpayer also may raise a challenge to the existence or amount

of the underlying tax liability, but only “if [he] did not receive any statutory notice

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of deficiency for such tax liability or did not otherwise have an opportunity to dispute

such tax liability.” 26 U.S.C. § 6330(c)(2)(B). The tax court has interpreted

“underlying tax liability” as used in § 6330 to be “a reference to the amounts that the

Commissioner assessed for a particular tax period,” including any “statutory interest

and penalties.” Fransen v. Comm’r, 94 T.C.M. (CCH) 193 n.5 (2007) (quotations

omitted). 

As the record shows, Vence was given the opportunity to have a CDP hearing,

but he did not raise any spousal defenses, challenges to the appropriateness of

collections actions, or offers of collection alternatives. See 26 U.S.C. §

6330(c)(2)(A). Furthermore, Vence did not challenge the existence or amount of the

underlying liability in his request for a CDP hearing or in his petition for review, and

therefore, this argument properly was deemed conceded by the tax court. See Goza

v. Comm’r, 114 T.C. 176, 183 (2000) (finding that a petition for review of an

administrative determination filed pursuant to § 6330 shall contain clear and concise

assignments of each and every error that the petitioner alleges to have been

committed in the levy determination, and any issue not raised in the assignments of

error shall be deemed to be conceded). Vence was also precluded from challenging

in the tax court the existence or amount of the underlying tax liability, which included

the interest and penalties assessed, because he was given notice of the deficiency and

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did not dispute it with the IRS. See 26 U.S.C. § 6330(c)(2)(B); see also Fransen, 94

T.C.M. at 193 n.5. As the tax court properly noted, the record showed that the

deficiency notice was sent by certified mail to the same address that Vence used in

his proceedings, and there was no evidence that the notice was returned to the

Commissioner, nor did Vence contend that he did not receive the notice. 

Accordingly, the tax court’s grant ofsummary judgment was proper, asthere were no

genuine issues of material fact that Vence could dispute.

We likewise are unpersuaded that the tax court abused its discretion in

imposing sanctions on Vence. The tax court may impose sanctions if it concludes

that the taxpayer instituted or maintained proceedings for purposes of delay or based

on a frivolous position. Roberts, 329 F.3d at 1229; 26 U.S.C. § 6673(a)(1)(A)-(B). 

The PRA was intended to limit the paperwork burden that federal agencies could

impose on the public by requesting information, and it requires that certain types of

agency-generated requests for information be controlled through the Office of

Management and Budget (“OMB”). See 44 U.S.C. §§ 3501, 3507. The requirement

to file a tax return, however, is mandated by Congress, pursuant to 26 U.S.C. §

6012(a), not by the IRS, and statutory obligations are not affected by the provisions

of the PRA. See United States v. Neff, 954 F.2d 698, 699-700 (11th Cir. 1992)

(“Congress did not enact the PRA’s public protection provision to allow OMB to

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abrogate any duty imposed by Congress,” and therefore, the PRA did not provide the

petitioner “refuge from his statutorily-imposed duty to file income tax returns.”)

(internal citations omitted).

Here, the tax court determined that Vence had maintained the proceedings

primarily for delay, and the arguments that he asserted regarding the PRA were

“frivolous and groundless.” Despite Vence’s contention that he was arguing for an

extension of the law, thereby asserting a non-frivolous argument, the tax court found

that Vence already had been fined under § 6673 in a previous case in which he

asserted the same arguments that he made here, and he was on notice that these

arguments were frivolous. Thus, Vence’s position was clearly frivolous and provided

a sufficient basis for the imposition of sanctions, and the tax court did not abuse its

discretion in sanctioning Vence. See 26 U.S.C. § 6673(a)(1)(B). Accordingly, we

affirm.

AFFIRMED. 

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