T.C. Summary Opinion 2006-137

UNITED STATES TAX COURT

DALE KINSLOW, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1684-05S. Filed August 30, 2006.

Dale Kinslow, pro se.

Trent D. Usitalo, for respondent.

GOLDBERG, Special Trial Judge: This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed. The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority. 

This matter is before the Court on respondent’s Motion for

Summary Judgment filed pursuant to Rule 121, Tax Court Rules of

Practice and Procedure. In his motion, respondent moves for
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adjudication for all legal issues in controversy and asks that

the Court impose a penalty on the taxpayer, pursuant to sec.

6673, I.R.C., for maintaining frivolous arguments.

Because this is the second case in which petitioner raised

the same frivolous arguments, and because he had prior warning,

the Court, in granting respondent’s motion, is imposing a penalty

of $5,000. 

Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure. Petitioner resided in North Dakota when his

petition was filed in this case. 

Background

Respondent filed substitute returns for petitioner for the

tax years 1997, 1998, and 1999, determining the following

deficiencies in Federal income tax, and additions to tax: 

Year Deficiency

Addition to tax

sec. 6651(a)(1)

1997 $5,427 $348.75

1998 7,422 409.28 

1999 7,146 464.40

Respondent issued a notice of deficiency from which

petitioner filed a petition with the Court. During 1997, 1998,

and 1999, petitioner received wages from Peterson Mechanical,
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Inc., for his work as a pipe fitter, and received interest income

from an account with United Savings Credit Union as follows:

1997 1998 1999

Wages $37,166 $45,196 $44,482 

Interest 51 48 49 

Also in 1997, petitioner received a $398 income tax refund

from the State of North Dakota. 

After receiving the notice of deficiency, petitioner

communicated to respondent of his right to “opt out” of the

Federal tax system, reasoning that there was “no law” obligating

him to pay income tax. In reply, respondent informed petitioner

that his beliefs regarding the Federal tax system were both

incorrect and without merit. To this end, respondent sent

petitioner a 33-page document entitled “The Truth About Frivolous

Tax Arguments.” This article contained detailed responses to

some of the arguments commonly raised by individuals who oppose

compliance with the Federal tax laws. 

Respondent’s deficiencies and additions to tax were

subsequently sustained in full in the Court’s decision in Kinslow

v. Commissioner, T.C. Memo. 2002-313. In Kinslow, the Court

ordered petitioner to pay a penalty in the amount of $1,000,

pursuant to section 6673. 

Following Kinslow, respondent assessed the deficiencies,

additions to tax, and interest, and proceeded to attempt to
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collect the unpaid tax liabilities. In this regard, respondent

initiated a Collections and Due Process (CDP) case under section

6330. In his petition and CDP hearing, petitioner continued to

argue that his compliance with the Federal tax system was

voluntary. He did not raise any other issues aside from his

contention that he should not have to pay taxes due to the

voluntary and inherently unfair nature of the Federal tax system. 

He did not proffer any spousal defenses pursuant to section 6015,

challenge the appropriateness of the collection action, or offer

any collection alternatives pursuant to section 6330(c)(2). 

In his petition to the Court and his objection to

respondent’s pending motion, petitioner continues to defend his

refusal to pay his income tax liabilities until respondent

“produces the law that states he is liable for the tax.” 

Respondent’s present motion for summary judgment leads the

Court to consider the following issues: 

(1) Whether respondent met all of the legal and

administrative requirements for the proposed collection action. 

We hold that he has. 

(2) Whether petitioner conceded respondent’s determination

that the proposed collection action was not more intrusive than

necessary. We hold that he has. 
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(3) Whether petitioner conceded that no other issues

pursuant to section 6330(c)(2)(A) should have been considered by

respondent during petitioner’s CDP hearing. We hold that he has. 

(4) Whether the Court should impose a penalty against

petitioner pursuant to section 6673 for maintaining frivolous

arguments. For the reasons stated herein, we impose a $5,000

penalty on petitioner under section 6673. 

Discussion

I. Requirements for the CDP Action

Section 6303(a) provides that the “Secretary shall, as soon

as practicable, and within 60 days, after the making of an 

assessment of a tax pursuant to section 6203, give notice to each

person liable for the unpaid tax, stating the amount and

demanding payment thereof.” For the taxable years at issue--

1997, 1998, and 1999--respondent issued petitioner a notice and

demand for payment on March 1, 2004, the same day as the

assessment. Accordingly, we find that respondent met his

statutory requirement in issuing the notice and demand for

payment within 60 days of the assessment of the underlying tax. 

We next consider whether petitioner has filed an adequate

petition in response to the notice of determination. Rule

331(b)(4) requires that a petition must contain clear and concise

assignments of each and every error which the petitioner alleges

to have been committed in the notice of determination. Any
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issues not otherwise raised in these assignments of error are

deemed conceded. Id. 

In his underlying petition, petitioner made no such

assignments of error with respect to respondent’s determination. 

The petition only contained statements that petitioner objected

to the determination on the basis that the Federal tax system was

both voluntary and inherently unfair. Accordingly, pursuant to

Rule 331(b)(4), the Court holds that petitioner conceded all

other issues relevant to the notice of determination. 

We finally consider whether respondent has verified,

pursuant to section 6330(c)(1), that all of the requirements of

applicable law or administrative procedure were satisfied with

respect to the CDP action. The underlying record contains the

declaration of Monty Luhmann (Mr. Luhmann), a settlement officer

with respondent’s Office of Appeals, in which Mr. Luhmann

attested to the underlying tax and penalty assessments made

against petitioner for the years 1997, 1998, and 1999. Mr.

Luhmann’s attestation was based upon his review of respondent’s

transcripts generated by its Integrated Data Retrieval System. 

These transcripts contain petitioner’s name, Social Security

number, the amounts assessed, and gross and taxable income. The

Court has held that the use of records containing such

information by an Appeals officer is not an abuse of discretion

when used to verify an assessment. Kuglin v. Commissioner, T.C.
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Memo. 2002-51. Moreover, Mr. Luhmann’s declaration verified that

the notice and demand for tax was sent to petitioner within 60

days of the assessment. 

Accordingly, we hold both that respondent was in compliance

with all legal and administrative procedures with respect to the

CDP action, and that petitioner conceded all other issues by not

providing a clear and concise assignment of error. 

II. CDP Not More Intrusive Than Necessary

Rule 331(b)(4) requires that a petition must contain clear

and concise assignments of each and every error that the taxpayer

alleges to have been committed in the notice of determination,

including whether the proposed collection action is more

intrusive than necessary. Any issue not otherwise raised in

these assignments of error is deemed conceded. Id. Petitioner

did not raise any issue with respect to whether or not the

proposed collection action was more intrusive than necessary in

his petition. Accordingly, and pursuant to Rule 331(b)(4), we

hold that petitioner conceded this issue. 

III. Concession of Issues at CDP Hearing

Section 6330(c)(2)(A) provides: 

(A) In general.--The person may raise at the 

hearing any relevant issue relating to the unpaid tax 

or the proposed levy, including-- 

(i) appropriate spousal defenses; 

(ii) challenges to the appropriateness of 

collection actions; and 
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1 Respondent sent petitioner numerous copies of an article

entitled “The Truth About Frivolous Tax Court Arguments”, both

prior to the date that Kinslow v. Commissioner, T.C. Memo. 2002-

313, was filed and as part of the present CDP case. 

(iii) offers of collection alterative, which 

may include the posting of a bond, the 

substitution of other assets, an installment 

agreement, or an offer-in-compromise. 

Petitioner singularly argued, both in his petition and at

his CDP hearing, that he was not obligated to pay his Federal

income taxes because respondent had failed to provide him with

the law providing as such, and because the Federal tax system is

inherently unfair. As we have previously discussed, Rule

331(b)(4) expressly requires that petitioner provide a clear

assignment of errors with respect to respondent’s notice of

determination. The underlying petition was silent as to any

errors made by respondent, and petitioner continued to raise his

singular challenge based on the veracity and fairness of the

Federal tax system at his CDP hearing. Accordingly, and pursuant

to section 6330(c)(2)(A), we must hold that petitioner conceded

all other issues related to the proposed collection action. 

IV. Penalty for Maintaining Frivolous Arguments 

Petitioner has been on notice since at least 2000 that his

arguments concerning his income and his liability for income tax

are frivolous.1 However, despite this notice, petitioner has 

repeatedly maintained his arguments to respondent and the Court. 
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Nothing in petitioner’s arguments suggests any justiciable

dispute with respect to the income determinations or additions to

tax made by respondent. Funk v. Commissioner, 123 T.C. 213

(2004). 

Accordingly, and given that this is the second time that

petitioner comes before the Court with the same frivolous

arguments, we award a penalty to the United States in the amount

of $5,000, pursuant to section 6673. 

For the reasons stated herein, respondent’s motion for

summary judgment will be granted under Rule 121. The order and

decision granting respondent’s motion will require petitioner to

pay a penalty to the United States in the amount of $5,000

pursuant to section 6673. 

Reviewed and adopted as the report of the Small Tax Case

Division. To reflect the foregoing, 

An appropriate order and decision

will be entered.