T.C. Memo. 2006-203

UNITED STATES TAX COURT

JERRE MARVINE WOOD, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16390-05L. Filed September 25, 2006.

Jerre Marvine Wood, pro se.

Jeffrey S. Luechtefeld, for respondent.

MEMORANDUM OPINION

WELLS, Judge: The instant case is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121 and

to impose a penalty pursuant to section 6673. The issue we must

decide is whether respondent’s Appeals Office abused its

discretion in determining to proceed with collection of

petitioner’s tax liability for taxable year 2002. After
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1Petitioner does not dispute that she received the notice of 

deficiency. Accordingly, this issue is deemed conceded. See

Rule 331(b)(4).

considering respondent’s motion and petitioner’s response, as

supplemented, we conclude that there remain no issues of material

fact that require trial or hearing. For the reasons stated

below, we shall grant respondent’s motion for summary judgment

and to impose a penalty pursuant to section 6673. Unless

otherwise indicated, all Rule references are to the Tax Court

Rules of Practice and Procedure, and all section references are

to the Internal Revenue Code in effect for the year in issue.

Background

At the time of filing the petition in the instant case,

petitioner resided in Sarasota, Florida. Petitioner failed to

file a Federal income tax return or pay tax for taxable year

2002. Respondent prepared a substitute for return pursuant to

section 6020(b) and, on June 8, 2004, sent petitioner a notice of

deficiency showing a deficiency of $3,011.1 Petitioner failed to

petition this Court, and, accordingly, respondent assessed the

deficiency plus additions to tax pursuant to sections 6651(a)(1)

and 6654(a) and interest. 

On February 19, 2005, respondent sent petitioner a Letter

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

a Hearing. On March 11, 2005, petitioner sent respondent a Form

12153, Request for a Collection Due Process Hearing, and
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attachments which contained nothing but frivolous tax protester

arguments. On April 19, 2005, petitioner sent respondent a

letter captioned “Supplemental Letter to Request for Collection

Due Process Hearing”, in which petitioner continued to assert

frivolous arguments. 

Respondent’s Appeals officer reviewed petitioner’s

correspondence and determined that all of petitioner’s

contentions were frivolous. On July 5, 2005, respondent’s

Appeals officer sent petitioner a letter in which respondent

notified petitioner that respondent had received petitioner’s

request for a section 6330 hearing and scheduled a telephone

conference for August 11, 2005, at 2:30 p.m. Respondent also

offered petitioner the opportunity to reschedule the telephone

conference and the opportunity to conduct the section 6330

hearing through correspondence. Respondent’s letter also

directed petitioner to an Internal Revenue Service (IRS)

publication, “The Truth About Frivolous Tax Arguments”, available

on the IRS’s Web site. In letters dated July 19, 23, 25, 27, and

30, 2005, petitioner continued to assert only frivolous tax

protester arguments. 

On August 11, 2005, the date of the scheduled telephone

conference, respondent’s Appeals officer attempted to contact

petitioner but was unsuccessful. Following the unsuccessful

attempt to contact petitioner, respondent’s Appeals officer
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conducted petitioner’s section 6330 hearing based on the

correspondence received from petitioner. Respondent’s Appeals

officer determined that the proposed levy was appropriate and, on

August 17, 2005, sent petitioner a notice of determination. 

Petitioner timely petitioned this Court pursuant to section 6330. 

Respondent filed a motion for summary judgment and to impose a

penalty pursuant to section 6673 on August 21, 2006, and

petitioner filed a response and a supplemental response on 

August 29, and September 13, 2006, respectively. 

Discussion

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and may be granted where

there is no genuine issue of material fact and a decision may be

rendered as a matter of law. Rule 121(a) and (b); Fla. Peach

Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The moving party

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences are viewed in a light most

favorable to the nonmoving party. Craig v. Commissioner, 119

T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). The

party opposing summary judgment must set forth specific facts

that show a genuine question of material fact exists and may not
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rely merely on allegations or denials in the pleadings. Grant

Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988);

Casanova Co. v. Commissioner, 87 T.C. 214, 217 (1986).

Section 6330 provides that no levy may be made on any

property or right to property of a person unless the Secretary

first notifies him or her in writing of the right to a hearing

before the Appeals Office. The Appeals officer must verify at

the hearing that the applicable laws and administrative

procedures have been followed. Sec. 6330(c)(1). At the hearing,

the person may raise any relevant issues relating to the unpaid

tax or the proposed levy, including appropriate spousal defenses,

challenges to the appropriateness of collection actions, and

collection alternatives. Sec. 6330(c)(2)(A). The person may

challenge the existence or amount of the underlying tax, however,

only if he or she did not receive any statutory notice of

deficiency for the tax liability or did not otherwise have an

opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). 

Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion. Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 181-182 (2000). 
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Petitioner had the opportunity to challenge the correctness

of her tax liability for 2002 but instead chose not to petition

this Court in response to the June 8, 2004, notice of deficiency.

Therefore, petitioner’s underlying tax liability for 2002 is not 

properly in issue, and we review respondent’s determination to

proceed with collection for an abuse of discretion. 

The record in the instant case demonstrates that the only

issues petitioner raised throughout the section 6330

administrative process, in her petition to this Court, and in her

response, as supplemented, to respondent’s motion for summary

judgment and to impose a penalty pursuant to section 6673, were

frivolous tax protester type arguments. We do not address

petitioner’s frivolous arguments with somber reasoning and

copious citations of precedent, as to do so might suggest that

these arguments possess some degree of colorable merit. See

Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984). 

The record in the instant case demonstrates that

respondent’s Appeals officer was impartial, had no prior

involvement with petitioner, and verified that all applicable

laws and administrative procedures were followed. Accordingly,

we hold that respondent’s determination to proceed with the

proposed levy to collect petitioner’s tax liability for 2002 was

not an abuse of discretion and that no genuine issue of material
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fact exists requiring trial. Respondent is entitled to summary

judgment.

Section 6673(a)(1) provides that this Court may require the

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

appears to this Court: (a) The proceedings were instituted or

maintained by the taxpayer primarily for delay; (b) the

taxpayer’s position is frivolous or groundless; or (c) the

taxpayer unreasonably failed to pursue available administrative

remedies. Respondent has moved that the Court impose a penalty

in the instant case. The record indicates that petitioner was

warned that this Court could impose a penalty if she persisted in

raising frivolous tax protester arguments. Despite being warned,

petitioner raised frivolous arguments throughout the section 6330

administrative process, in her petition to this Court, and in her

response, as supplemented, to respondent’s motion. Accordingly,

we shall impose a $1,000 penalty on petitioner pursuant to

section 6673. 

To reflect the foregoing,

 An appropriate order and

 decision will be entered.