1 Unless otherwise indicated, all section references are to

the Internal Revenue Code, as amended, and all Rule references

are to the Tax Court Rules of Practice and Procedure.

T.C. Memo. 2002-189

UNITED STATES TAX COURT

GLEN A. BLAIR, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

 Docket No. 2891-02L. Filed August 5, 2002.

Glen A. Blair, pro se.

Alan J. Tomsic and Karen Baker, for respondent.

MEMORANDUM OPINION

PANUTHOS, Chief Special Trial Judge: This matter is before

the Court on respondent’s motion for summary judgment filed

pursuant to Rule 121.1 Respondent contends that there is no
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dispute as to any material fact with respect to this levy action,

and that respondent’s determination to proceed with collection of

petitioner’s outstanding tax liability for 1997 should be

sustained as a matter of law. 

Summary judgment is intended to expedite litigation and

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

Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be 

granted with respect to all or any part of the legal issues in

controversy “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.” Rule 121(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving

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

of material fact, and factual inferences will be read in a manner

most favorable to the party opposing summary judgment. Dahlstrom

v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).

As explained in detail below, there is no genuine issue as

to any material fact, and a decision may be rendered as a matter 
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of law. Accordingly, we shall grant respondent’s motion for

summary judgment.

Background

On or about April 27, 1998, Glen A. Blair (petitioner) and

his wife, Kay Blair, submitted to respondent a joint Form 1040A,

U.S. Individual Income Tax Return, for 1997. Petitioner entered

zeros on every line of the income sections of the Form 1040A,

reported no tax due, and claimed a refund in the amount of

$5,158.39 equal to the amount of Federal income tax withheld from

his wages. A Form W-2, Wage and Tax Statement, attached to the

Form 1040A indicates that Union Oil Company of California paid

petitioner wages in the amount of $45,183.73 during 1997.

On June 16, 2000, respondent issued a notice of deficiency

to petitioner determining a deficiency of $8,263 in his Federal

income tax for 1997 and an accuracy-related penalty under section

6662(a) in the amount of $620.32. The deficiency was based on

respondent’s determination that petitioner failed to report the

wage income reported to respondent by Union Oil Co.

On July 4, 2000, petitioner wrote a letter to the Director

of respondent’s Service Center in Ogden, Utah, acknowledging

receipt of the notice of deficiency for 1997, but challenging the

Director’s authority to issue such notices. Although petitioner

knew that he had the right to contest respondent’s deficiency 
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determination by filing a petition for redetermination with this

Court, petitioner chose not to do so.

On October 30, 2000, respondent entered assessments against

petitioner for the deficiency and accuracy-related penalty

determined in the notice of deficiency for 1997 described above. 

Respondent also entered an assessment against petitioner for

statutory interest. On October 30, 2000, and December 4, 2000,

respondent issued to petitioner notices of balance due informing

petitioner that he owed tax for 1997 and requesting that he pay

such amount. Petitioner failed to pay the amount owing.

On February 22, 2001, respondent mailed to petitioner a

Final Notice-–Notice of Intent to Levy and Notice of Your Right

to a Hearing with regard to his tax liability for 1997. On

February 24, 2001, petitioner filed with respondent a Form 12153,

Request for a Collection Due Process Hearing. Petitioner’s

request included a challenge to the validity of the assessments

and assertions that respondent failed to serve petitioner with a

valid notice and demand for payment or a valid notice of

deficiency. Petitioner also requested verification from the

Secretary that all applicable laws and administrative procedures

were followed with regard to the assessment and collection of the

tax liability in question.

On November 13, 2001, Appeals Officer Douglas DeSoto

conducted an Appeals Office hearing in this matter that
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2 At the time that the petition was filed, petitioner

resided in Las Vegas, Nevada.

petitioner attended. During the hearing, the Appeals officer

provided petitioner with a Form 4340, Certificate of Assessments,

Payments, and Other Specified Matters, with regard to his account

for 1997. A copy of the Form 4340, dated October 22, 2001, is

part of the record in this case.

On January 8, 2002, respondent issued to petitioner a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330. The notice stated that the Appeals Office

determined that it was appropriate to proceed with the collection

of petitioner’s outstanding tax liability for 1997. On February

5, 2002, petitioner filed with the Court a petition for lien or

levy action seeking review of respondent’s notice of

determination.2

As indicated, respondent filed a motion for summary judgment

asserting that there is no dispute as to a material fact and that

respondent is entitled to judgment as a matter of law. In

particular, respondent contends that, because petitioner

acknowledges that he received the notice of deficiency for 1997,

he cannot challenge the existence or amount of his underlying tax

liability for that year in this proceeding. Respondent further

asserts that the Appeals officer’s review of the transcript of

account for 1997 satisfied the verification requirement imposed
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under section 6330(c)(1) and demonstrates that petitioner was

issued a notice and demand for payment. 

Petitioner filed an objection to respondent’s motion

repeating the various challenges first raised in his request for

an administrative hearing. Thereafter, pursuant to notice,

respondent’s motion was called for hearing at the Court's motions

session in Washington, D.C.

Discussion

Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy on the person’s property. Section

6331(d) provides that at least 30 days before enforcing

collection by levy on the person’s property the Secretary is

obliged to provide the person with a final notice of intent to

levy, including notice of the administrative appeals available to

the person.

Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the person has been given

notice and the opportunity for an administrative review of the

matter (in the form of an Appeals Office hearing) and, if

dissatisfied, with judicial review of the administrative

determination. See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).
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Section 6330(c) prescribes the matters that a person may

raise at an Appeals Office hearing. In sum, section 6330(c)

provides that a person may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner’s

intended collection action, and possible alternative means of

collection. Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing only if the person did not receive a

notice of deficiency for the taxes in question or did not

otherwise have an earlier opportunity to dispute the tax

liability. See Sego v. Commissioner, 114 T.C. 604, 609 (2000); 

Goza v. Commissioner, supra. Section 6330(d) provides for

judicial review of the administrative determination in the Tax

Court or a Federal District Court, as may be appropriate.

Petitioner challenges the assessments entered against him on

the ground that the notice of deficiency for 1997 is invalid. 

However, the record shows that petitioner received the notice of

deficiency and disregarded the opportunity to file a petition for

redetermination with the Court. It follows that section

6330(c)(2)(B) generally bars petitioner from challenging the

existence or amount of his underlying tax liability for 1997 in

this collection review proceeding.

Even if petitioner were permitted to challenge the validity

of the notice of deficiency, petitioner’s argument that the
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notice is invalid because respondent’s Service Center director is

not properly authorized to issue notices of deficiency is

frivolous and groundless. See Nestor v. Commissioner, 118 T.C.

162 (2002); Smeton v. Commissioner, T.C. Memo. 2002-140; Coleman

v. Commissioner, T.C. Memo. 2002-132. As the Court of Appeals

for the Fifth Circuit has remarked: “We perceive no need to

refute these arguments with somber reasoning and copious citation

of precedent; to do so might suggest that these arguments have

some colorable merit.” Crain v. Commissioner, 737 F.2d 1417,

1417 (5th Cir. 1984).

We likewise reject petitioner’s argument that the Appeals

officer failed to obtain verification from the Secretary that the

requirements of all applicable laws and administrative procedures

were met as required by section 6330(c)(1). The record shows

that the Appeals officer obtained and reviewed a transcript of

account (Form 4340) with regard to petitioner’s taxable year

1997.

Federal tax assessments are formally recorded on a record of

assessment. Sec. 6203. “The summary record, through supporting

records, shall provide identification of the taxpayer, the

character of the liability assessed, the taxable period, if

applicable, and the amount of the assessment.” Sec. 301.6203-1,

Proced. & Admin. Regs.
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Section 6330(c)(1) does not require the Commissioner to rely

on a particular document to satisfy the verification requirement

imposed therein. Weishan v. Commissioner, T.C. Memo. 2002-88;

Lindsey v. Commissioner, T.C. Memo. 2002-87; Tolotti v.

Commissioner, T.C. Memo. 2002-86; Duffield v. Commissioner, T.C.

Memo. 2002-53; Kuglin v. Commissioner, T.C. Memo. 2002-51. In

this regard, we observe that the Form 4340 on which the Appeals

officer relied contained all the information prescribed in

section 301.6203-1, Proced. & Admin. Regs. See Weishan v.

Commissioner, supra; Lindsey v. Commissioner, supra; Tolotti v.

Commissioner, supra; Duffield v. Commissioner, supra; Kuglin v.

Commissioner, supra.

Petitioner also contends that he never received a notice and

demand for payment for 1997. The requirement that the Secretary

issue a notice and demand for payment is set forth in section

6303(a) which provides in pertinent part:

SEC. 6303(a). General Rule.-–Where it is not

otherwise provided by this title, 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.

* * *

The Form 4340 that respondent provided to the Court shows that 

notices of balance due were issued to petitioner on October 30,

2000, and December 4, 2000. A notice of balance due constitutes

a notice and demand for payment within the meaning of section
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6303(a). See, e.g., Hughes v. United States, 953 F.2d 531, 536

(9th Cir. 1992); Weishan v. Commissioner, supra.

Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the

Form 4340. See Nestor v. Commissioner, supra at 167; Mann v.

Commissioner, T.C. Memo. 2002-48. Accordingly, we hold that the

Appeals officer satisfied the verification requirement of section

6330(c)(1). Cf. Nicklaus v. Commissioner, 117 T.C. 117, 120-121

(2001).

Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection. 

These issues are now deemed conceded. Rule 331(b)(4). Under the

circumstances, we conclude that respondent is entitled to

judgment as a matter of law sustaining the notice of

determination dated January 8, 2002.

As a final matter, we mention section 6673(a)(1), which

authorizes the Tax Court to require a taxpayer to pay to the

United States a penalty not in excess of $25,000 whenever it

appears that proceedings have been instituted or maintained by

the taxpayer primarily for delay or that the taxpayer’s position

in such proceeding is frivolous or groundless. The Court has

indicated its willingness to impose such penalties in collection

review cases. Pierson v. Commissioner, 115 T.C. 576 (2000). 
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Although we shall not impose a penalty on petitioner pursuant to

section 6673(a)(1) in the present case, we admonish petitioner

that the Court will consider imposing such a penalty should he

return to the Court in the future and advance similar arguments. 

To reflect the foregoing,

An order and decision will

be entered granting respondent’s

motion for summary judgment.