T.C. Memo. 2003-210

UNITED STATES TAX COURT

ROBERT H. DEPUTY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8183-02L. Filed July 16, 2003. 

Robert H. Deputy, pro se.

Minakshi Tyagi-Jayasinghe, for respondent.

MEMORANDUM OPINION

GERBER, Judge: Respondent, on March 10, 2003, moved for

summary judgment on two questions: (1) Whether respondent may

proceed with collection of various income taxes and penalties

assessed against petitioner and (2) whether petitioner is liable
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1 All section references are to the Internal Revenue Code,

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

and Procedure, unless otherwise indicated. 

for a penalty under section 66731 because this proceeding was

instituted or maintained for delay and/or petitioner’s position

is frivolous. Petitioner filed responses and a hearing on the

summary judgment motion was held on March 31, 2003, at Los

Angeles, California. 

Background

Respondent has assessed income tax deficiencies, penalties,

and additions to tax against petitioner for 1992 and 1997. 

Respondent has also assessed $500 civil penalties for frivolous

returns under section 6702. A Form 1058, Final Notice--Notice of

Intent to Levy and Notice of Your Right to a Hearing, was sent to

petitioner on February 5, 2001, and he requested a section 6330

hearing.

Petitioner’s 1992 income tax return, which was filed in

early May 1995, reflected $19,758 in wage income and also

reported a $2,426 income tax liability. On August 2, 1995,

respondent issued a notice of deficiency determining additions to

tax in the amounts of $553.03 and $107.20, for late filing of the

return and failure to pay estimated tax, under sections 6651(a)

and 6654(a), respectively. On April 15, 1996, respondent mailed

a notice and demand for payment to petitioner, and on 
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June 10, 1996, petitioner filed a demand for abatement and claim

for a refund of his 1992 taxes. No abatement or refund was made.

On April 15, 1998, petitioner filed a 1997 income tax return

on which he reflected $30,000 of income, but no taxable income,

and he sought a refund of $948.24 in withheld tax. Attached to

the 1997 return was a Form W-2, Wage and Tax Statement,

reflecting the payment of $30,012.65 of wage income to

petitioner. On December 22, 1998, respondent mailed a notice of

deficiency to petitioner determining a $3,514 income tax

deficiency and a $76.97 addition to tax under section 6651(a). 

With respect to that notice, petitioner filed what was deemed an

imperfect petition, and this Court, on March 18, 1999, ordered

him to file a proper petition. Petitioner failed to do so, and

on August 18, 1999, his case concerning the 1997 tax year was

dismissed for lack of jurisdiction.

Petitioner requested a precollection hearing in response to

the notice of intent to collect, and the Appeals officer set a

hearing date. Petitioner failed to attend the scheduled

conference and, instead, asked for and was granted a rescheduled

date for the hearing. The hearing was held on March 21, 2001,

and it was tape recorded. At the hearing, the Appeals officer

provided petitioner with Forms 4340, Certificates of Assessments,

Payments, and Other Specified Matters.
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At the hearing, petitioner denied the existence of the

notices of deficiency, notices and demand, and other pertinent

documents on the grounds that they were either not personally

signed by the Secretary of the Treasury or that they were not on

the official form. His arguments were without substance and

based on selective readings and interpretations of cases,

statutes, and related materials. He also confronted the Appeals

officer with a copy of the Internal Revenue Code and challenged

him to show where in that document petitioner was required to pay

any tax. Petitioner also asked whether he could delegate to the

Appeals officer a power of attorney, so that petitioner could

assign the responsibility of filing petitioner’s income tax

returns to the Appeals officer. Petitioner did not raise any

spousal defenses or collection alternatives at the hearing. 

After the hearing, respondent issued notice of intent to proceed

with collection.

In documents that petitioner submitted to respondent he made

protester arguments; i.e., that he was not subject to the income

tax because he was an American citizen and that only nonresident

aliens and Federal employees are subject to Federal tax. 

Petitioner also sent in materials concerning Irwin Shiff, a

reputed tax protester. 
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Discussion

Respondent seeks summary judgment with respect to whether he

may proceed to collect certain outstanding tax liabilities

against petitioner and whether petitioner should be held liable

for a penalty under section 6673. Rule 121 provides for summary

judgment to be employed as to part or all of the legal issues in

controversy if there is no genuine issue as to any material fact

and a summary adjudication may be rendered as a matter of law. 

See also Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994). In that regard,

summary judgment is intended to expedite litigation and avoid

unnecessary and expensive trials. Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).

There is no genuine issue as to any material fact in this

case. Respondent, pursuant to section 6331(a) was seeking to

levy on petitioner’s property. In accord with sections 6330(a)

and 6331(d), respondent provided petitioner with final notice of

intent to levy, which also included notice of petitioner’s right

to an administrative appeal of respondent’s decision to collect

the tax. In that regard, the Commissioner cannot collect by levy

without the opportunity for a taxpayer to seek an administrative

review of the decision to proceed with collection, and/or the

opportunity for judicial review of the administrative

determination. Davis v. Commissioner, 115 T.C. 35, 37 (2000).
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Petitioner opted for an administrative appeal and, after

respondent’s decision to go forward with collection, sought

review by this Court. Petitioner did not file a petition for his

1992 tax year or perfect his petition for his 1997 tax year

following respondent’s issuance of the notices of deficiency. 

Accordingly, petitioner is afforded review by this Court solely

on the question of abuse of discretion because the validity of

the underlying liabilities is not at issue. Sec. 6330(c)(2)(B);

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

Because petitioner is not entitled to question the

underlying tax liability, his administrative hearing was limited

to collection issues, including spousal defenses, the

appropriateness of respondent’s intended collection action, and

possible alternatives to collection. Petitioner questioned the

appropriateness of respondent’s proposed collection action by

questioning whether the Appeals officer had satisfied the

verification requirement of section 6330(c)(1). Petitioner

contends that respondent used incorrect forms for the notice and

demand and otherwise failed to meet the requirement because the

Secretary did not personally verify the liability. 

At the administrative Appeals conference, petitioner was

provided with a transcript of his tax accounts detailing the

information underlying the assessment of the taxes in question. 

Petitioner does not question whether all of the steps had been
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taken or performed. In effect, he questions the authenticity of

the documents used by respondent to meet the statutory

requirements. Section 6330(c)(1) does not require the

Commissioner to rely on a particular document to satisfy the

verification requirement. Wagner v. Commissioner, T.C. Memo.

2002-180; see also Roberts v. Commissioner, 118 T.C. 365, 371

(2002), affd. 329 F.3d 1224 (11th Cir. 2003). In addition, it

has been held that “‘The form on which a notice of assessment and

demand for payment is made is irrelevant as long as it provides

the taxpayer with all the information required under * * *

[section 6303].’” Hughes v. United States, 953 F.2d 531, 536

(9th Cir. 1992) (quoting Elias v. Connett, 908 F.2d 521, 525 (9th

Cir. 1990)). Accordingly, we find petitioner’s arguments to be

specious and without merit.

At the administrative hearing, petitioner was provided with

documents that satisfied respondent’s verification requirement. 

From the transcript of the hearing, it is also clear that

petitioner did not raise any issue provided for in section

6330(c)(2). To the extent that petitioner made arguments, they

were spurious and without merit. Lunsford v. Commissioner, 117

T.C. 183 (2001); Davis v. Commissioner, supra.

Accordingly, we hold that respondent has not abused his

discretion in determining to proceed with collection as set forth

in the February 5, 2001, Final Notice--Notice of Intent to Levy 
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and Notice of Your Right to a Hearing, sent to petitioner with

respect to his tax liabilities.

Finally, respondent has moved for a penalty under section

6673 on the ground that petitioner’s arguments are frivolous and

that he instituted and maintained this proceeding merely for

delay. Section 6673 provides that this Court may impose a

penalty, not to exceed $25,000, where it is found that a

taxpayer’s position in the proceeding is frivolous and/or that

the proceeding was instituted and maintained primarily for delay. 

Section 6673 penalties may be imposed in a lien and levy case. 

Pierson v. Commissioner, 115 T.C. 576, 580-581 (2000).

In addition to questioning the authenticity of respondent’s

documentation, petitioner has interposed protester arguments

which have, on numerous occasions, been rejected by the courts. 

In order to support his arguments, petitioner has selectively

picked phrases out of context from statutes and rulings. In so

doing, petitioner chose to ignore more current or complete

statements of the law. In that same vein, petitioner has chosen

to ignore and/or not follow case precedent and interpretation of

the statutory law. In that regard, petitioner has insinuated

that he is subject only to legal precedent of the Supreme Court

and that legal precedent of lower courts (such as the United

States Tax Court) is binding only with respect to the particular

taxpayer who was the subject of a specific case.
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Under these circumstances we are convinced and hold that

petitioner’s position in this proceeding is frivolous and has

been interposed primarily to protest the tax laws of this country

and/or to delay collection activity by respondent. We note that

petitioner was made aware on several occasions that his arguments

were considered frivolous and without merit. Accordingly, we

hold that petitioner is liable for a $2,000 penalty under section

6673(a)(1). 

To reflect the foregoing,

An appropriate order and

decision will be entered granting

respondent’s motion for summary

judgment.