FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

June 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-16008

Non-Argument Calendar

________________________

U.S. Tax Court No. 4133-007L

GARY L. SANFORD, 

Petitioner, 

versus 

COMMISSIONER OF I RS, 

Respondent. 

________________________

Petition for Review of a Decision of the

United States Tax Court

_________________________

(June 26, 2008)

Before BIRCH, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

Petitioner Gary Sanford appeals the summary judgment ruling of the United

States Tax Court in favor of the Commissioner of Internal Revenue (“IRS”) and
 The record also shows that Sanford failed to file tax returns or pay taxes for the 1998, 1

1999, 2000, 2001, 2004, and 2005 taxable years. His tax liability for 2002, however, is the only

issue before us in this appeal.

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the imposition of a penalty for instituting and maintaining proceedings primarily to

delay payment of taxes. For the reasons stated below, we affirm the rulings of the

Tax Court.

BACKGROUND

Sanford failed to file a federal income tax return or pay taxes for the 2002

taxable year. On October 5, 2004, the IRS prepared a substitute return and sent 1

Sanford a Notice of Deficiency informing Sanford that he owed $4,177.00 in

unpaid taxes, plus interest and penalties. Sanford did not respond to the Notice of

Deficiency nor did he pay his taxes.

On March 11, 2006, the IRS issued Sanford a Notice of Intent to Levy and

Notice of Right to a Hearing. Sanford responded with a request for a Collection

Due Process Hearing. Sanford argued that he had never given his consent for a

substitute return to be prepared and that the IRS’ authority to execute a tax return

does not extend to individual tax returns. Additionally, Sanford stated that the IRS

had no evidence that a Notice of Deficiency had been sent to him.

On August 4, 2006, the IRS notified Sanford that a Collection Due Process

Hearing by telephone was scheduled for September 12, 2006. The notification

letter provided a phone number for Sanford to call at 9:00 am on that day for the
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hearing. The letter informed Sanford that he would be unable to challenge the

amount or existence of the tax liability because he had failed to respond to the

Notice of Deficiency sent in October 2004, and the time had passed to do so. The

letter also requested that Sanford file tax returns for 2004 and 2005, as failing to be

current on those returns would mean that they would be unable to discuss

collection alternatives at the hearing. The IRS letter also informed Sanford that if

he wished to change the date of the hearing, he would need to contact the named

IRS Settlement Officer within 14 days of the date of the IRS letter.

Sanford responded with a letter dated September 5, 2006 requesting a faceto-face hearing in Jacksonville, Florida, rather than the scheduled telephone

hearing. Sanford did not identify specific issues that he would like to discuss, but

instead reiterated the list of topics that may be raised at a Collection Due Process

Hearing under the statute, I.R.C. § 6330. Sanford did not call in for his hearing on

September 12.

Because Sanford missed the telephone hearing and did not request a change

in date or a face-to-face hearing within 14 days of the August 4 letter, the IRS sent

Sanford a “last chance letter” on September 19, 2006. The letter requested that

Sanford state his non-frivolous reasons for a face-to-face hearing. The letter

warned Sanford that he could be subject to sanctions if he instituted court

proceedings to petition for review of the notice of determination primarily for
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delay or raised only frivolous or groundless arguments. 

Sanford responded in a letter dated October 2, 2006 raising three issues: “(1)

Procedural Errors[,] (2) Collection Alternatives, OIC, payment schedules, CNC,

etc.[,] (3) Proof that [he] received a [Notice of Deficiency].” Sanford did not

provide any additional details as to what procedural errors he believed had

occurred or any specifics on the other two issues. Sanford again requested a faceto-face hearing, this time in Daytona Beach, Florida. Sanford also demanded 60-

days advance notice of any hearing.

In December, the IRS issued a letter to Sanford informing him that the issues

he raised in his October letter were frivolous. The letter also stated, as had

previous communications, that the IRS had issued the Notice of Deficiency in

October 2004 and sent it to his home address of record which was the same address

Sanford had used from 1996 through the current date. On January 23, 2007, the

IRS issued a Notice of Determination that the levy action was appropriate. Sanford

then petitioned the Tax Court for re-determination of the Notice of Determination.

Sanford concedes that his original petition contained “very little of the

specifics and particulars of his case.” He tried, however, to file a supplemental

petition, but the Tax Court denied his motion to do so. The supplemental petition

still did not specify any arguments or errors in the IRS’ Notice of Deficiency. The

supplement merely reiterated that Sanford felt he was entitled to a face-to-face
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hearing and that, if granted such a hearing, he would raise non-frivolous issues at

that time; the supplement did not, however, discuss specifically any issues,

frivolous or otherwise, that he would raise. The Tax Court stated that the amended

petition “advanced nothing of substance in the case and only further evidenced

Petitioner’s attempt to delay the ultimate resolution of this case.”

On October 18, 2007, the Tax Court granted summary judgment for the

Commissioner of Internal Revenue. The court concluded that the Commissioner

could proceed with collection of Sanford’s 2002 tax liability in accordance with

the Notice of Determination. The Tax Court also imposed a $2,500 penalty upon

Sanford under the provisions of I.R.C. § 6673(a). Sanford filed this timely appeal.

STANDARD OF REVIEW

We review de novo the Tax Court’s grant of summary judgment and apply

the same legal standards as the Tax Court. Baptiste v. C.I.R., 29 F.3d 1533, 1537

(11th Cir. 1994). Summary judgment is proper “if the pleadings, answers to

interrogatories, depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of law.” Tax Ct. R.

121(b). We view the facts in the light most favorable to the nonmoving party. 

Baptiste, 29 F.3d at 1533.

We review the Tax Court’s imposition of sanctions for abuse of discretion.
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Roberts v. C.I.R., 329 F.3d 1224, 1227 (11th Cir. 2003). 

DISCUSSION

Was Appellant Entitled to a Face-to-Face Hearing?

Sanford argues that the IRS’ refusal to provide him with a face-to-face

hearing instead of the telephone hearing violated his due process rights. He argues

that, after his September 5, 2006 letter (wherein he offered to withdraw all

previously offered frivolous arguments), he raised non-frivolous arguments and so

was entitled to a face-to-face hearing.

The statute provides that if a “person requests a hearing in writing . . . and

states the grounds for the requested hearing, such hearing shall be held by the

Internal Revenue Service Office of Appeals.” I.R.C. § 6330(b)(1). The statute

does not specify that the hearing will take place in person, or that a taxpayer is

guaranteed a right to a face-to-face hearing. Nor has Sanford stated any reasons

why a telephone conference would have been insufficient to explore any objections

to the proposed levy. Other courts to address this issue have similarly found that a

face-to-face hearing is unnecessary. See e.g., O’Meara v. Waters, 464 F.Supp.2d

474, 479-480 (D. Md. 2006). Additionally, the applicable regulations specifically

state that these hearings are “informal in nature and do not require . . . a

face-to-face meeting. A CDP hearing may, but is not required to, consist of a

face-to-face hearing.” 26 C.F.R. § 301.6330-1(d)(2)Q & A-D6 (2006). We
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therefore conclude that Sanford’s due process rights were not violated when the

IRS offered him a telephone hearing only, rather than a face-to-face hearing.

Was the Tax Court’s summary judgment order defective?

Sanford argues that the Tax Court’s summary judgment order was defective

for failing to include detailed conclusions of law and facts. Sanford also disputes

the Tax Court’s conclusion that he raised only frivolous arguments.

Although Sanford vaguely refers to “three other similar decisions” which he

feels establish that the Tax Court’s decision was unlawful, Sanford does not

provide the names or citations of these decisions. Sanford also fails to provide any

authority for his position that the Tax Court must include detailed conclusions of

law and facts. In our opinion, the Tax Court’s order was sufficiently clear and

complete. The court clearly stated that Sanford had raised only frivolous

arguments challenging the Commissioner’s authority to assess and collect the tax

he owed. The record supports this conclusion. 

The statute provides that at a Collection Due Process Hearing the taxpayer

may raise “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 (iii) offers of collection alternatives.” I.R.C.

§ 6330(c)(2)(A). Additionally, the taxpayer may challenge the existence or

amount of the underlying tax liability, but only if the taxpayer did not receive a
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Notice of Deficiency. I.R.C. § 6330(c)(2)(B). Sanford never adequately raised

any of these issues, nor any other non-frivolous, non-groundless error that would

establish his entitlement to a hearing. 

Sanford repeatedly demanded proof from the IRS that it had sent a Notice of

Deficiency, but in his many letters, pleadings to the Tax Court, or his briefs to this

court, Sanford never alleged that he had not received the notice. Nowhere does the

statute state that the IRS must produce proof that a Notice of Deficiency was sent. 

Because he never argued that he did not receive the Notice of Deficiency, Sanford

could not have challenged the existence or amount of the tax liability. I.R.C.

§ 6330(c)(2)(B). In his October 2006 letter, Sanford stated that he would raise

“procedural errors” but never specified what these errors were. Under the statute,

the taxpayer must state the grounds for the requested hearing. I.R.C. § 6330(b)(1).

Thus, the alleged “procedural errors” did not constitute a non-frivolous issue

entitling Sanford to a face-to-face hearing. In the same letter, Sanford briefly

mentioned that he would discuss collection alternatives. The IRS has already

informed him that it would not discuss collection alternatives unless he filed his tax

returns for the 2004 and 2005 taxable years. Sanford does not dispute that he

failed to do so. Sanford never suggested that he would raise spousal defenses or

that a collection action would be inappropriate. Thus, Sanford raised no relevant

non-frivolous issues. See I.R.C. § 6330(c)(4)(ii)(B) (stating that an issue may not
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be raised at a Collection Due Process Hearing if it is based on a frivolous position

or reflects a desire to delay or impede the administration of Federal tax laws). 

Sanford has failed to identify arguments that are non-frivolous. Instead, he

has only vaguely asserted that he would have raised non-frivolous arguments had

he been granted a face-to-face hearing. Because he has not identified any

legitimate arguments relating to the Notice of Determination, we affirm the Tax

Court’s summary judgment order.

Should the Tax Court Have Granted Sanford’s Motion to Supplement His Petition?

We agree with the Tax Court that Sanford’s supplement petition raised no

new arguments and that allowing the petition to be filed therefore would have been

futile. His supplemental petition did discuss specific facts, but failed to raise any

new arguments challenging the Notice of Determination. Sanford merely

reasserted that he had been unfairly denied a face-to-face hearing. As discussed

above, Sanford was not entitled to a face-to-face hearing. It was not, therefore,

error for the Tax Court to deny Sanford’s motion to supplement his petition. 

Was the Imposed Sanction Appropriate?

Sanford argues only briefly that the sanction was inappropriate because the

Tax Court issued a penalty “without any explanation whatsoever.”

The Tax Court stated that it imposed a $2,500 penalty “under the provisions

of section 6673(a). Section 6673(a) states that the Tax Court may impose
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sanctions on a taxpayer, if he institutes or maintains proceedings primarily for

delay or if his position is frivolous or groundless. 26 U.S.C. § 6673(a)(1)(A)-(B);

see also Roberts, 329 F.3d at 1229.

As discussed above, we agree that Sanford’s positions were frivolous and

groundless. Furthermore, a number of positions taken by Sanford suggest that his

actions were motivated primarily to avoid or delay his tax liability. In his

correspondence with the IRS, he demanded significant amounts of notice before he

would accept a scheduled hearing. Sanford never stated his precise complaints or

arguments against the Notice of Determination. Sanford demanded proof that the

IRS had sent a Notice of Deficiency, but never alleged that he had not received it. 

Sanford did not call the IRS Settlement Officer at the appointed time on September

12, 2006—not even to discuss his demand for a face-to-face hearing. His actions

thus seem to consist more of delay tactics than attempts to raise actual issues. The

Tax Court, therefore, did not abuse its discretion by imposing sanctions. 

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the Tax Court.