T.C. Memo. 2010-253

UNITED STATES TAX COURT

JAMES ZIGMONT, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8388-07L. Filed November 18, 2010.

P filed a petition for judicial review pursuant to sec.

6330(d)(1)(A), I.R.C., in response to determinations by R 

that lien and levy action was appropriate.

Held: R’s determination to maintain the lien and

levy to protect the Government’s interest does not

constitute an abuse of discretion. R’s determination

to proceed with collection action is sustained.

James Zigmont, pro se.

Denise A. Diloreto, for respondent.
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MEMORANDUM FINDINGS OF FACT AND OPINION

WHERRY, Judge: This case is before the Court on a petition

for judicial review of Notices of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notices of

determination).1 Petitioner, James Zigmont, seeks judicial

review of respondent’s determination to proceed with a filed lien

and a proposed levy with respect to petitioner’s tax liabilities

for taxable years 2002 and 2003.2 The sole issue for decision is

whether respondent’s determination to proceed with a filed lien

and a proposed levy for collection of unpaid tax liabilities

constitutes an abuse of discretion.

1Unless otherwise indicated, all section references are to

the Internal Revenue Code of 1986, as amended.

2Petitioner contests respondent’s determination to proceed

with collection action regarding an assessment of alleged income

tax liabilities for the 2002 and 2003 tax years, as well as a

$500 penalty for filing a frivolous tax return for each of

petitioner’s Forms 1040, U.S. Individual Income Tax Return, for

the 2002 and 2003 tax years. Petitioner’s original petition for

review, filed Apr. 12, 2007, referred to respondent’s

determination to proceed with collection action regarding an

assessment of a $500 penalty for filing a frivolous tax return

for each of petitioner’s Forms 1040 for the 1998 and 2001 tax

years. However, petitioner did not dispute respondent’s

collection action regarding the 1998 and 2001 $500 penalties on

his “Amendment to Amended Petition” filed Oct. 28, 2008. 

Accordingly, the frivolous return penalties assessed for the tax

years 1998 and 2001 are not in issue. See also infra note 6. 
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FINDINGS OF FACT

Some of the facts have been stipulated. The stipulations,

with accompanying exhibits, are incorporated herein by this

reference. At the time he filed his petition, petitioner resided

in West Virginia.

Petitioner filed Forms 1040, U.S. Individual Income Tax

Return, for the tax years 2002 and 2003, showing all zeros.3 On

March 4 and 23, 2005, respondent mailed to petitioner’s last

known address notices of deficiency for petitioner’s 2002 and

2003 tax years, respectively. In the notices respondent alleged

income tax deficiencies, a penalty, and additions to tax as

follows:

 Penalty Additions to Tax

Year Deficiency Sec. 6662 Sec. 6651(a)(1) Sec. 6654

2002 $119,751 $23,950.20 --- ---

2003 185,482 --- $46,370.50 $4,854.05

3At trial the Court reserved ruling on petitioner’s

objection to the admission of Exhibits 15-R, 16-R, 17-R, 18-R,

19-R and 20-R, including income tax returns and deficiency

notices for the tax years at issue, on the grounds that they were

not properly made a part of the administrative record because

there was no face-to-face hearing with respondent. Because the

Court finds that respondent was not required to offer petitioner

a face-to-face hearing, the Court overrules petitioner’s

objection to Exhibits 15-R, 16-R, 17-R, 18-R, 19-R, and 20-R. 

Accordingly, Exhibits 15-R, 16-R, 17-R, 18-R, 19-R, and 20-R are

admitted into evidence and confirmed as a part of the

administrative record which was considered by respondent’s

Appeals Office. 
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Petitioner did not challenge the deficiency notices for the

2002 and 2003 tax years by filing a timely petition with this

Court. Accordingly, on July 18 and September 5, 2005, respondent

assessed the tax deficiencies, penalty, and additions to tax

determined in the notices of deficiency for petitioner’s 2002 and

2003 tax years, respectively.4 Respondent also assessed a $500

penalty for filing a frivolous tax return for each of

petitioner’s Forms 1040 for the 2002 and 2003 tax years on

January 3, 2005, and November 8, 2004, respectively.5

On January 11, 2006, respondent sent to petitioner Letter

1058, Final Notice of Intent to Levy and Notice of Your Right to

a Hearing (levy notice), regarding his outstanding 2002 and 2003

income tax liabilities and frivolous return penalties. On

January 24, 2006, respondent sent to petitioner Letter 3172,

4The Form 4340, Certificate of Assessments, Payments, and

Other Specified Matters, for the 2003 tax year as of May 20,

2009, indicates that an assessment of $41,733.45 was made on

Sept. 5, 2005, with regard to the sec. 6651(a)(1) addition to tax

due for the 2003 tax year. This amount is different from the

amount shown on the notice of deficiency for the 2003 tax year,

issued on Mar. 23, 2005, which indicated that $46,370.50 was due

as a sec. 6651(a)(1) addition to tax for the 2003 tax year. 

The Form 4340 for the 2003 tax year as of May 20, 2009, also

shows that a sec. 6651(a)(2) penalty of $15,765.97 was assessed

on Sept. 5, 2005. Respondent has since conceded that the

assessment of the sec. 6651(a)(2) penalty for the 2003 tax year

was in error and will be abated.

5Respondent also assessed a $500 penalty for filing a

frivolous tax return for each of petitioner’s Forms 1040 for the

1998 and 2001 tax years on June 24, 2002, and Mar. 31, 2003,

respectively.
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Notice of Federal Tax Lien Filing and Your Right to Hearing Under

IRC 6320 (lien notice), regarding petitioner’s outstanding 2002

and 2003 income tax liabilities and additions to tax, as well as

unpaid penalties for filing frivolous tax returns for the tax

years 1998 and 2001 through 2003. 

Petitioner timely submitted Forms 12153, Request for a

Collection Due Process Hearing (CDP hearing requests), in

response to the lien and levy notices. On both his CDP hearing

requests petitioner stated the following as to why he did not

agree with the filing of the lien and/or proposed levy: 

I am requesting for a Collection Due Process Hearing in

an Appeals office closet [sic] to my place of residence. 

This is also to inform you that I will be audio recording 

this hearing. One of the issues we will address is if the 

IRS follows proper procedure [sic]. If the IRS has 

considered any of my prior issues that I’ve raised in the 

past to be frivolous, I hereby renounce them. 

On October 18, 2006, respondent sent petitioner a letter

advising petitioner, inter alia, that Settlement Officer Iris

Reubel had been assigned to petitioner’s collection due process

case. The October 18, 2006, letter also informed petitioner that

the items he raised in his CDP hearing requests are those that

“1. Courts have determined are frivolous or groundless, or 

2. Appeals does not consider. These are moral, religious,

political, constitutional, conscientious or similar grounds.” 

Respondent advised petitioner that he was not entitled to a faceto-face conference if he intended to raise only items that are
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frivolous or groundless. However, petitioner could still obtain

a face-to-face hearing if he set forth in writing the

nonfrivolous issues he wished to discuss or telephoned Settlement

Officer Reubel to discuss any relevant changes he wished to make

to the filings of his CDP hearing requests within 15 days from

the date of the letter. The October 18, 2006, letter also

enclosed and transmitted to petitioner Forms 4340, Certificate of

Assessments, Payments, and Other Specified Matters, for

petitioner’s 2002 and 2003 tax liabilities.

On November 14, 2006, petitioner sent a five-page response

letter to Settlement Officer Reubel, together with a two-page

“Freedom Of Information Act Request”. In his letter petitioner

again requested a face-to-face hearing and questioned why the

issues raised in his initial CDP hearing requests were considered

frivolous or groundless. He claimed he should be able to dispute

his underlying liability in a CDP hearing because he “had no

prior opportunity to dispute it”. Further, although he had

already received Forms 4340 for the 2002 and 2003 tax years, he

requested that the Internal Revenue Service (IRS) provide

“substantial proof”, including copies of “original documents” and

the “Administrative file”, to support the alleged tax

liabilities. Petitioner also requested that his case be

transferred to West Virginia.
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Via letter dated December 14, 2006, Settlement Officer

Reubel scheduled a telephone conference with petitioner for

January 17, 2007. In her letter Settlement Officer Reubel also

offered petitioner a face-to-face hearing at a location more

convenient for him if he contacted her within 14 business days

from the date of the letter. 

On December 20, 2006, petitioner sent Settlement Officer

Reubel another letter refusing to call in for the January 17,

2007, telephone conference and, inter alia, requesting Settlement

Officer Reubel to “pick at least three dates in the future that

you will be available to conduct my face-to-face hearing”. 

Petitioner reiterated his desire to audio record the hearing and

review “any and all documentation that you [respondent] readily

have on file that supports your claim of an unpaid liability”. 

He asserted that he still did not believe he owed “anything to

the IRS for years 2002 and 2003”. 

On January 29, 2007, Settlement Officer Reubel sent

petitioner a letter addressing some of his concerns outlined in

his November 14 and December 20, 2006, letters. She warned

petitioner that if he did not contact her to either provide

additional information or to set up a telephone conference by

February 13, 2007, she would make a determination based upon the

administrative file and the information already provided. 

Additionally, and separate from her January 29, 2007, letter,
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Settlement Officer Reubel verified that as of September 18, 2006,

petitioner was not in compliance with filing requirements for the

2004 and 2005 tax years. 

Petitioner did not respond to the January 29, 2007, letter. 

Accordingly, on March 12, 2007, respondent issued to petitioner 

notices of determination in which respondent sustained the

proposed lien and levy actions and rejected petitioner’s

arguments. Attachments to the notices of determination noted

that petitioner did not offer any collection alternatives. In

any event, Settlement Officer Reubel would not have considered

collection alternatives because she had determined that

petitioner was not in compliance with the tax return filing

requirements for the tax years 2004 and 2005. 

The notices of determination stated that the requirements of

any applicable law or administrative procedure had been met and

that the proposed levy and filed lien action, with respect to the

collection of petitioner’s unpaid Federal income tax and

frivolous return penalties for 2002 and 2003, appropriately

balanced the need for efficient collection of the taxes with the

legitimate concerns of the taxpayer that the collection action be

no more intrusive than necessary. 

On April 12, 2007, petitioner filed a petition in this Court

for review of respondent’s intended collection action. That
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petition was amended on May 14, 2007, and amended again on

October 28, 2008.6

OPINION

Section 6320(a) and (b) provides that a taxpayer shall be

notified in writing by the Secretary of the filing of a notice of

Federal tax lien and provided with an opportunity for an

administrative hearing. An administrative hearing under section

6On Apr. 12, 2007, petitioner originally filed a petition

objecting to the notices of determination for the 2002 and 2003

tax years and a “Civil Penalty 12/98 and 12/01” issued Mar. 12,

2007, but his petition did not comply with the Rules of the Court

and he did not pay the required filing fee. On Apr. 17, 2007,

this Court ordered petitioner to file an amended petition

complying with the Rules of the Court and either pay the required

filing fee or file an Application for Waiver of Filing Fee and

Affidavit by June 1, 2007, or risk having his case dismissed. On

May 14, 2007, petitioner filed an amended petition objecting to a

Backup Withholding Notification issued on Jan. 1, 2007, but did

not object to respondent’s proposed collection action for the

1998, 2001, 2002, or 2003 tax year. On Sept. 29, 2008,

petitioner filed a motion to file amendment to amended petition. 

The Court granted petitioner’s motion on Oct. 28, 2008. 

Petitioner filed an amendment to amended petition on Oct. 28,

2008, objecting to respondent’s proposed collection action for

the 2002 and 2003 tax years but did not include respondent’s

proposed collection action with regard to the 1998 and 2001 tax

years. Accordingly, as stated supra, the collection action for

petitioner’s 1998 and 2001 tax years is not at issue. 

On May 14, 2007, petitioner also filed a motion to restrain

assessment and collection with regard to the Backup Withholding

Notification issued on Jan. 1, 2007. Petitioner filed a

supplement to the motion to restrain assessment and collection on

June 18, 2007. A hearing was held on Jan. 14, 2009, and the

Court denied petitioner’s motion to restrain assessment and

collection on Mar. 19, 2009, pursuant to Zigmont v. Commissioner,

T.C. Memo. 2009-48. 
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6320 is conducted in accordance with the procedural requirements

of section 6330. Sec. 6320(c).

Section 6331(a) authorizes the Secretary to levy upon

property or property rights of a taxpayer liable for taxes who

fails to pay those taxes within 10 days after a notice and demand

for payment is made. Section 6331(d) provides that the levy

authorized in section 6331(a) may be made with respect to an

unpaid tax liability only if the Secretary has given written

notice to the taxpayer 30 days before the levy. Section 6330(a)

requires the Secretary to send a written notice to the taxpayer

of the amount of the unpaid tax and of the taxpayer’s right to a

section 6330 hearing at least 30 days before the levy is begun. 

If an administrative hearing is requested in a lien or levy

case, the hearing is to be conducted by the Office of Appeals

(Appeals). Secs. 6320(b)(1), 6330(b)(1). At the hearing the

Appeals officer conducting it must verify that the requirements

of any applicable law or administrative procedure have been met.

Sec. 6330(c)(1). 

A taxpayer may raise any relevant issue relating to the

unpaid tax or the proposed levy, including a spousal defense or

collection alternatives such as an offer-in-compromise or an

installment agreement. Sec. 6330(c)(2)(A); secs. 301.6320-

1(e)(1), 301.6330-1(e)(1), Proced. & Admin. Regs. A taxpayer may

also challenge the existence or amount of the underlying tax
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liability, including a liability reported on the taxpayer’s

original return, if the taxpayer “did not receive any statutory

notice of deficiency for such tax liability or did not otherwise

have an opportunity to dispute such tax liability.” Sec.

6330(c)(2)(B); see also Montgomery v. Commissioner, 122 T.C. 1,

5-6 (2004).

Following the hearing, the Appeals officer must determine

whether the proposed collection action should proceed. In making

the determination the Appeals officer shall take into

consideration: (1) Whether the requirements of any applicable

law or administrative procedure have been satisfied; (2) any

relevant issues raised by the taxpayer during the section 6330

hearing; and (3) whether the proposed collection action balances

the need for efficient collection of taxes with the taxpayer’s

legitimate concern that any collection action be no more

intrusive than necessary. Sec. 6330(c)(3). 

In determining whether the requirements of any applicable

law or administrative procedure have been followed, an Appeals

officer is not required to rely on any particular document. 

Craig v. Commissioner, 119 T.C. 252, 261-262 (2002). In

evaluating a taxpayer’s arguments, an Appeals officer is not

required to consider irrelevant or frivolous arguments. Elias v.

Commissioner, T.C. Memo. 2009-236. 
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Although a section 6330 hearing may consist of a face-toface conference, a proper hearing may also occur by telephone or

by correspondence under certain circumstances. Katz v.

Commissioner, 115 T.C. 329, 337-338 (2000); sec. 301.6330-

1(d)(2), Q&A-D6, Proced. & Admin. Regs. Section 6330 hearings

have historically been informal. Davis v. Commissioner, 115 T.C.

35, 41 (2000). We have held that it is not an abuse of

discretion for an Appeals officer to deny a taxpayer’s request

for a face-to-face hearing where the taxpayer has raised only

frivolous or groundless arguments. Elias v. Commissioner, supra;

Moline v. Commissioner, T.C. Memo. 2009-110, affd. 363 Fed. Appx.

675 (10th Cir. 2010); see also Lunsford v. Commissioner, 117 T.C.

183, 189 (2001). 

This Court has jurisdiction to review an Appeals officer’s

determination. Sec. 6330(d)(1). Where the taxpayer’s underlying

liability was not properly at issue in the hearing, we review the

determination for abuse of discretion. Sego v. Commissioner, 114

T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182

(2000). An Appeals officer’s determination will not be an abuse

of discretion unless the determination is arbitrary, capricious,

or without sound basis in fact or law. Giamelli v. Commissioner,

129 T.C. 107, 111 (2007); Freije v. Commissioner, 125 T.C. 14, 23

(2005).
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This Court determined at trial that petitioner received

statutory notices of deficiency for the 2002 and 2003 tax years

but that he did not file a petition with this Court within the

allowable period of 90 days.7 Petitioner is therefore not

entitled to raise his underlying tax liabilities for 2002 and

2003, and we review respondent’s proposed collection action for

abuse of discretion.

Petitioner’s main argument is that he was wrongfully denied

a face-to-face section 6330 hearing. However, the record

demonstrates that a face-to-face conference would not have been

productive. As stated above, it was not an abuse of discretion

to deny petitioner a face-to-face hearing, because he has raised

only frivolous or groundless arguments. 

Petitioner’s CDP hearing requests contained only arguments

challenging whether the IRS followed all the proper procedures

and insisting that he be allowed to audio record the hearing. 

Respondent granted petitioner an opportunity for a telephone

conference and informed him that he could qualify for a

7The Court concluded at trial that notices of deficiency for

the 2002 and 2003 tax years were mailed to petitioner at his last

known address. Petitioner did not submit any evidence to

establish that he never received the notices of deficiency. 

Accordingly, pursuant to the jurisprudence of the Court of

Appeals for the Fourth Circuit, to which an appeal of this case

would lie absent a stipulation to the contrary, petitioner is

presumed to have received the notices of deficiency. See FDIC v.

Shaffer, 731 F.2d 1134, 1137 n.6 (4th Cir. 1984). However, even

if the notices of deficiency were open to challenges as to the

underlying liability, petitioner’s arguments are frivolous. 
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face-to-face conference if he would first identify any relevant

nonfrivolous matter he intended to discuss. In his response

petitioner presented no such matter. Instead, he refused the

telephone conference and replied with arguments demanding the IRS

produce evidence that he owes taxes and grant him a face-to-face

hearing. 

Respondent replied by scheduling a telephone conference for

petitioner, as well as offering him the opportunity for a faceto-face hearing closer to his place of residence. Despite being

given yet another opportunity to discuss the collection action

pending against him, petitioner again refused to participate in

the telephone conference and requested that respondent submit

three potential dates for a face-to-face hearing. 

Respondent then attempted to respond in writing to some of

petitioner’s concerns and also offered him a final opportunity

for a telephone conference. Petitioner did not respond by the

given time. Additionally, petitioner had not complied with the

filing obligation with respect to his Federal tax returns for

2004 and 2005 and was consequently ineligible for collection

alternatives. 

Under these circumstances, it was not an abuse of discretion

for Settlement Officer Reubel to conclude that a face-to-face

meeting would not have been productive. Settlement Officer
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Reubel was therefore not required to offer petitioner a

face-to-face conference. 

In conclusion, the facts of this case do not establish any

abuse of discretion on respondent’s part. The Court will sustain

respondent’s proposed collection actions as to the 2002 and 2003

tax years.8

The Court has considered all of petitioner’s contentions,

arguments, requests, and statements. To the extent not discussed

herein, the Court concludes that they are meritless, moot, or

irrelevant.

To reflect the foregoing,

An appropriate order and

decision will be entered for

respondent. 

8In its Oct. 31, 2006, opinion in Zigmont v. Commissioner,

T.C. Memo. 2006-233, the Court warned petitioner that he would be

subject to a sec. 6673(a)(1) penalty if he continued to raise

frivolous arguments in court proceedings. After much

consideration, the Court has decided not to impose a penalty in

the instant case, but we explicitly admonish petitioner that he

may, in the future, be subject to a penalty under sec. 6673 for

any proceedings instituted or maintained primarily for delay or

for any proceedings which are frivolous or groundless.