T.C. Memo. 2005-132

UNITED STATES TAX COURT

ROBERT HOLLIDAY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18974-03L. Filed June 1, 2005.

P filed a petition for judicial review pursuant to

sec. 6330, I.R.C., in response to a determination by R

to proceed with collection by lien of assessed income

tax liabilities for 1991, 1992, and 1993. P filed

joint returns with his spouse for these years that

reported total income of “$0” and a total tax of “$0”

on all three of the returns, to which were attached

identical lengthy documents that contained contentions

and arguments that are frivolous and/or groundless. P

filed with the IRS a Request for a Due Process Hearing,

to which was attached a document raising several

reasons for P’s disagreement with a proposed IRS

collection action. P continues to pursue these issues,

all of which are refuted by the record and/or holdings

in prior cases.

Held: Remanding this matter to respondent’s

Appeals Office for recording would be neither necessary

nor productive.
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Held, further, R may proceed with collection of

balances due as determined in a Notice Of Determination

Concerning Collection Action(s) Under Section 6320

and/or 6330.

Robert Holliday, pro se.

Jonae A. Harrison, for respondent.

MEMORANDUM OPINION

NIMS, Judge: This case arises from a petition for judicial

review filed in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330. Unless

otherwise indicated, all section references are to sections of

the Internal Revenue Code in effect for the years in issue, and

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

Procedure. This case was submitted fully stipulated pursuant to

Rule 122, and the facts are so found. The stipulation of the

parties with accompanying exhibits is incorporated herein by this

reference.

Background

At the time the petition was filed in this case, petitioner

resided in Phoenix, Arizona.
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Petitioner failed to file timely Federal income tax returns

for 1991, 1992, and 1993. Respondent prepared a Substitute for

Return for each year pursuant to section 6020(b), and, on

November 9, 1995, respondent mailed to petitioner a notice of

deficiency for all taxable years. See Swanson v. Commissioner,

121 T.C. 111, 112 n.1 (2003). Petitioner and his spouse

subsequently filed joint returns in 2000 for the taxable years

1991, 1992, and 1993. Petitioner and his spouse reported total

income of “$0” and a total tax of “$0” on all of the returns. 

The Hollidays also attached a lengthy document to each of the

returns that contained arguments that this Court has repeatedly

found to be frivolous and/or groundless, see, e.g., Copeland v.

Commissioner, T.C. Memo. 2003-46; Smith v. Commissioner, T.C.

Memo. 2003-45, and we find this also to be true in this case. 

See also Holliday v. Commissioner, T.C. Memo. 2002-67, affd. 57

Fed. Appx. 774 (9th Cir. 2003).

On February 17, 2003, respondent issued to petitioner a

letter entitled “Notice of Federal Tax Lien Filing and Your Right

to a Hearing Under IRC 6320” relating to petitioner’s unpaid tax

liabilities for the aforementioned years. On March 22, 2003,

petitioner submitted Form 12153, Request for a Collection Due

Process Hearing, and attached a document which stated in part:

Notice of Lien - Explanation for Disagreement

Income. (1) There was a failure to determine a

deficiency; (2) There was a failure to issue a Notice of
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Deficiency; (3) There was a failure to generate an

assessment list; (4) There was a failure of the Commissioner

to certify and transmit the assessment list; (5) There was a

failure to record the assessment; (6) failure to provide

record of assessment; and, (7) failure to send Notice of

Assessment.

Petitioner later notified respondent that he intended to

audio record the administrative hearing. Respondent’s Appeals

officer advised petitioner that the hearing could not be

recorded.

On September 17, 2003, petitioner attempted to record the

scheduled administrative hearing at respondent’s offices in

Phoenix. The Appeals officer again informed petitioner that the

hearing could not be recorded but offered to conduct the hearing

without recording. Petitioner declined, and the hearing ended.

On October 2, 2003, respondent issued to petitioner a Notice

of Determination in which the Appeals officer recommended

proceeding with the lien.

Discussion

On November 6, 2003, petitioner filed a Petition for Lien or

Levy Action under section 6330(d). Citing this Court’s holding

in Keene v. Commissioner, 121 T.C. 8 (2003), petitioner contends

that respondent’s determination was an abuse of discretion

because the Appeals officer did not permit an audio recording of

the administrative hearing. Petitioner raised a similar

contention in response to a motion for summary judgment filed by

respondent before trial. For reasons stated in the Court’s order
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of October 4, 2004, we denied respondent’s motion, allowing the

case to proceed to trial. However, when afforded the opportunity

at the time of trial to present meritorious arguments permitted

under section 6330(c)(2), petitioner chose to submit the case

fully stipulated, reiterating only the frivolous protester

arguments previously rejected in our order of October 4, 2004.

Because the underlying tax liability is not in dispute, we

review the Appeals officer’s actions under an abuse of discretion

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

v. Commissioner, 114 T.C. 176, 181-182 (2000). Under the abuse

of discretion standard, a determination will be affirmed unless

the respondent took action that was arbitrary or capricious,

lacked sound basis in fact, or was not justifiable in light of

the facts and circumstances. Mailman v. Commissioner, 91 T.C.

1079, 1084 (1988).

Before a lien may be placed on any property or right to

property, a taxpayer is entitled to notice of intent to file a

lien and notice of the right to a fair hearing before an

impartial officer of the IRS Appeals Office. Sec. 6320(a) and

(b). Taxpayers may raise challenges to “the appropriateness of

collection actions” and may make “offers of collection

alternatives, which may include the posting of a bond, the

substitution of other assets, an installment agreement, or an

offer-in-compromise”. Sec. 6330(c)(2)(A). The Appeals officer
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must consider those issues, verify that the requirements of

applicable law and administrative procedures have been met, and

consider “whether any proposed collection action balances the

need for the efficient collection of taxes with the legitimate

concern of the person [involved] that any collection action be no

more intrusive than necessary.” Sec. 6330(c)(3)(C).

Section 7521(a)(1) states that, upon the advance request of

the taxpayer, an Internal Revenue Service officer or employee

shall permit the taxpayer to make an audio recording of “any inperson interview * * * relating to the determination or

collection of any tax”. As explained in our October 4, 2004,

order in this case, in Keene v. Commissioner, 121 T.C. 8, 19

(2003), this Court held that taxpayers are entitled, pursuant to

section 7521(a)(1), to audio record section 6330 hearings. The

taxpayer in that case had refused to proceed when denied the

opportunity to record, and we remanded the case to allow a

recorded Appeals hearing. Id.

In contrast, again as noted in our October 4, 2004, order,

we have distinguished, and declined to remand, cases where the

taxpayer had participated in an Appeals Office hearing, albeit

unrecorded, and where all issues raised by the taxpayer could be

properly decided from the existing record. E.g., id. at 19-20;

Frey v. Commissioner, T.C. Memo. 2004-87; Durrenberger v.

Commissioner, T.C. Memo. 2004-44; Brashear v. Commissioner, T.C.
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Memo. 2003-196; Kemper v. Commissioner, T.C. Memo. 2003-195. 

Stated otherwise, cases will not be remanded to Appeals, nor

determinations otherwise invalidated, merely on account of the

lack of a recording when to do so is not necessary and would not

be productive. See, e.g., Frey v. Commissioner, supra;

Durrenberger v. Commissioner, supra; Brashear v. Commissioner,

supra; Kemper v. Commissioner, supra; see also Lunsford v.

Commissioner, 117 T.C. 183, 189 (2001). A principal scenario

falling short of the necessary or productive standard exists

where the taxpayers rely on frivolous or groundless arguments

consistently rejected by this and other courts. See, e.g., Frey

v. Commissioner, supra; Brashear v. Commissioner, supra; Kemper

v. Commissioner, supra. 

Because no hearing had been conducted at all in petitioner's

case, we declined to grant respondent's motion for summary

judgment. The record as it then existed did not foreclose the

possibility that petitioner might have raised valid arguments had

a hearing been held. Accordingly, we provided petitioner an

opportunity before the Court at the trial session in Phoenix to

identify any legitimate issues he wished to raise that could

warrant further consideration of the merits of his case by the

Appeals Office or this Court. Petitioner, however, merely

continued to focus on the denial of a recorded hearing and

offered no substantive issues of merit.
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Hence, despite repeated warnings and opportunities, the only

contentions other than the recorded hearing issue advanced by

petitioner, i.e., the notice of deficiency and assessment issues

discussed below, are of a nature previously rejected by this and

other courts. The record therefore does not indicate that any

purpose would be served by remand or additional proceedings. The

Court concludes that all pertinent issues relating to the

propriety of the collection determination can be decided through

review of the materials before it.

Petitioner claims that there was a failure to issue a notice

of deficiency or a determination of a deficiency. However, while

a deficiency notice is not in the record, petitioner does not

seek to challenge respondent’s determination of his income tax

liability for the 3 years in issue and agrees that the standard

for review in this case is abuse of discretion. We deem this to

be a concession by petitioner that there was a deficiency notice

and a determination of a deficiency, notwithstanding petitioner’s

assertion to the contrary. Petitioner alleges irregularity in

respondent’s assessment procedure, but caselaw establishes that a

Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters, included in the record for each year at issue,

satisfies the verification requirements under section 6330(c)(1)

and constitutes presumptive evidence that a tax has been validly

assessed. See Roberts v. Commissioner, 118 T.C. 365, 371 n.10
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(2002), affd. 329 F.3d 1224 (11th Cir. 2003); Davis v.

Commissioner, 115 T.C. 35 (2000). Respondent also properly

notified petitioner of the assessments by issuing a notice of

balance due for each taxable year. See, e.g., Hughes v. United

States, 953 F.2d 531, 536 (9th Cir. 1992).

Petitioner’s meritless arguments support the conclusion that

remanding this matter to respondent’s Appeals Office for

recording would be neither necessary nor productive, and we so

hold.

We have considered all of petitioner’s contentions and

arguments that we have not discussed, and we find them to be

without merit and irrelevant.

Further, we hold that respondent correctly determined that

collection efforts should proceed.

To reflect the foregoing,

Decision will be entered

for respondent.