Although petitioner showed in the return for each of the years 1994, 1995, and 1996 that there was tax owed for each such year, he did not remit any payment of such tax owed with each such return.
On June 1, 1999, respondent received Form 1040X, Amended U.S. Individual Income Tax Return, for petitioner and his then spouse with respect to their taxable year 1994 (1994 amended return). Petitioner's return preparer signed petitioner's name and the name of petitioner's then spouse on the 1994 amended return. The 1994 amended return showed total tax of $5,104 and tax owed of $4,006. That is because the 1994 amended return reduced the amount of itemized deductions or standard deduction claimed for that year to $6,350 from the $14,001 of itemized deductions claimed in the 1994 return that petitioner mailed to respondent on or about May 24, 1999.
Respondent did not accept and process as filed the return for 1994 (petitioner's 1994 unfiled return) that petitioner mailed to respondent on or about May 24, 1999. Nor did respondent accept and process as filed the 1994 amended return (petitioner's 1994 unfiled amended return) that respondent received on June 1, 1999. Respondent did not issue a notice of deficiency to petitioner with respect to his taxable year 1994. Nonetheless, on April 3, 2000, respondent assessed the tax of $11,540 that respondent had proposed to assess in the 30-day letter pertaining to petitioner's taxable year 1994, as well as additions under sections 6651(a)(1) and (2) and 6654(a)1 to that assessed tax of $2,349.45, $2,610.50, and $531.74, respectively, and interest as provided by law. (We shall refer to any such assessed amounts, as well as interest as provided by law accrued after April 3, 2000, as respondent's assessed amounts for petitioner's taxable year 1994.)
On or about May 1, 2000, respondent sent to petitioner a notice of balance due with respect to respondent's assessed amounts for petitioner's taxable year 1994.
Respondent accepted and processed as filed the respective returns for 1995 (petitioner's 1995 filed return) and 1996 (petitioner's 1996 filed return) that petitioner mailed to respondent on or about May 24, 1999.
On February 7, 2000, respondent assessed the total tax of $3,566 that petitioner reported in petitioner's 1995 filed return, as well as additions under sections 6651(a)(1) and (2) and 6654(a) to petitioner's tax for 1995 of $686.47, $686.48, and $163.41, respectively, and interest as provided by law. (We shall refer to any such unpaid assessed amounts, as well as interest as provided by law accrued after February 7, 2000, as petitioner's unpaid liability for 1995.)
On March 6, 2000, respondent assessed the total tax of $4,024 that petitioner reported in petitioner's 1996 filed return, as well as additions under sections 6651(a)(1) and (2) and 6654(a) to petitioner's tax for 1996 of $864.45, $672.35, and $203.38, respectively, and interest as provided by law. (We shall refer to any such unpaid assessed amounts, as well as interest as provided by law accrued after March 6, 2000, as petitioner's unpaid liability for 1996.)
Except for the notice of deficiency for 1996 (discussed below) that respondent issued to petitioner and that does not pertain to petitioner's unpaid liability for 1996, respondent did not issue to petitioner a notice of deficiency for 1995 or 1996.
On March 6, 2000, respondent sent to petitioner a notice of balance due with respect to petitioner's unpaid liability for 1996.
On or about March 13, 2000, respondent sent to petitioner a notice of balance due with respect to petitioner's unpaid liability for 1995.
On or about April 26, 2000, petitioner submitted to respondent a second amended return for his taxable year 1994 and an amended return for each of his taxable years 1995 and 1996. In each of those amended returns, petitioner reported zero income and claimed a refund of the tax withheld for each taxable year to which the amended return related. Petitioner attached a document to each of those amended returns (collectively, petitioner's attachments to his amended returns for 1994, 1995, and 1996) that contained statements, contentions, arguments, and requests that the Court finds to be frivolous and/or groundless.2 
On or about May 10, 2000, respondent issued to petitioner a final notice of intent to levy and notice of your right to a hearing (notice of intent to levy) with respect to respondent's assessed amounts for petitioner's taxable year 1994 and petitioner's unpaid liability for 1995. On or about the same date, respondent issued to petitioner a separate notice of intent to levy with respect to petitioner's unpaid liability for 1996.
On May 14, 2000, in response to the notices of intent to levy, petitioner filed Form 12153, Request for a Collection Due Process Hearing (Form 12153), and requested a hearing with respondent's Appeals Office (Appeals Office). Petitioner attached a document to Form 12153 (petitioner's attachment to Form 12153) that contained statements, contentions, arguments, and requests that the Court finds to be frivolous and/or groundless.3 On August 8, 2000, respondent's Appeals officer (Appeals officer) sent petitioner a letter (August 8, 2000 letter) indicating that respondent had received Form 12153 from petitioner and requesting that petitioner provide the Appeals officer with the following on or before August 28, 2000:
it is necessary to determine the facts of your case so that you have an opportunity to provide arguments regarding those facts.
The focus of your arguments should be other than moral, religious, political or constitutional issues.
Please provide your objections to the factual issues of this case so that full consideration of your request can be conducted.

On August 25, 2000, in response to the Appeals officer's August 8, 2000 letter, respondent received from petitioner a copy of petitioner's attachment to Form 12153.
On August 8, 2001, the Appeals officer offered petitioner a face-to-face Appeals Office hearing and provided him with a literal transcript of his accounts with respect to each of his taxable years 1994, 1995, and 1996. On August 23, 2001, the Appeals officer held an Appeals Office hearing with petitioner. At that hearing, petitioner made the same statements and requests and advanced the same contentions and arguments that petitioner set forth in petitioner's attachment to Form 12153.
On November 28, 2001, the Appeals Office mailed to petitioner a notice of determination. An attachment to the notice of determination stated in pertinent part:
Legal and Procedural Requirements:
With the best information available, the requirements of various applicable law or administrative procedures have been met.
IRC §6321 provides a statutory lien when a taxpayer neglects or refuses to pay a tax liability after notice and demand. Computer records indicate the Service Center issued these notices; the obligation remains unpaid.
IRC §6331(d) requires that IRS must notify a taxpayer at least 30 days before a notice of levy may be issued.
The revenue officer issued L-1058 [notices of intent to levy] for all periods considered at this hearing.
*******
The taxpayer was given the opportunity to raise any relevant issue relating to the unpaid tax or the pro posed levy at the hearing in accordance with IRC §6330(c).
This Appeals Officer has had no prior involvement with respect to these liabilities.
Relevant issues presented by the taxpayer
The issues you raised on Form 12153 dated May 10, 2001 [sic], are of a kind not considered in Appeals, nor contemplated by the due process provisions. *** You filed Form 1040s on May 28, 1999, June 1, 1999 and May 28, 1999, for tax years 1994, 1995 and [1996], respectively, reflecting what you voluntarily determined to be your tax liability. The 1995 and 1996 returns were accepted as filed. You were advised to file another Form 1040 for 1994 to change your filing status to married-separate because your spouse had previously filed a separate return and the three-year period for changing a separate return to a joint return had expired. You responded by filing Form 1040X for corrections to the 1994 return due to a math error discovered on Schedule A. No subsequent response was received from you and assessment was made as previously proposed in the report [30-day letter pertaining to petitioner's taxable year 1994] dated April 5, 1999. During the Appeals hearing, you indicated that you currently believe that you have no requirement to file any income tax returns.

You raised no other relevant issues relating to the unpaid taxes and made no proposals regarding collection alternatives.
Balancing efficient collection and intrusiveness
IRC §6330 requires that the Appeals Officer consider whether any collection action balances the need for efficient collection of taxes with the legitimate concern that any collection action be no more intrusive than necessary. You have not made payments toward these outstanding liabilities [and] dispute having income that could be used to do so. Significant resources continue to be used to collect what you owe. You have not provided any arguments but those the Courts have consistently determined to be frivolous, and have not presented any alternatives to the proposed levy. Therefore, Appeals has determined the levy is necessary for the efficient collection of the income tax liability.
On December 31, 2001, petitioner filed a petition with the Court for review of respondent's notice of determination. The petition contains statements, contentions, arguments, and re quests that the Court finds to be frivolous and/or groundless.
On March 28, 2002, respondent issued to petitioner a notice of deficiency with respect to his taxable years 1996 and 1997. As it pertains to petitioner's taxable year 1996, that notice determined, inter alia, that the total tax of $4,024 reported in petitioner's 1996 filed return was understated and that petitioner has a deficiency of $2,617 for that year. On June 26, 2002, petitioner filed a petition with respect to the notice of deficiency relating to petitioner's taxable years 1996 and 1997, and on September 16, 2002, petitioner filed an amended petition in that case (Docket No. 10753-02).
On March 10, 2003, petitioner submitted a document to the Court entitled "Trial Memorandum for Petitioner" that the Court had filed (petitioner's trial memorandum). Petitioner's trial memorandum contained questions, statements, contentions, and arguments that the Court found in an Order dated March 17, 2003 (March 17, 2003 Order) to be frivolous and/or groundless. In the Court's March 17, 2003 Order, the Court reminded petitioner about section 6673(a)(1) and informed him that if he continued to advance frivolous and/or groundless questions, statements, contentions, and/or arguments, the Court would be inclined to impose a penalty on him under section 6673(a)(1).
OPINION
A taxpayer may raise challenges to the existence or the amount of the taxpayer's underlying tax liability if the taxpayer did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). Where the validity of the underlying tax liability is properly placed at issue, the Court will review the matter on a de novo basis. Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 610 (2000); Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 181-182 (2000).
We turn first to petitioner's taxable year 1994. Respondent did not accept and process as filed the return for his taxable year 1994 that petitioner mailed to respondent on or about May 24, 1999. Nor did respondent process and accept as filed the amended return for his taxable year 1994 that respondent received on June 1, 1999.4 According to respondent's trial memorandum that the Court had filed on March 11, 2003, that is because petitioner's then spouse had previously filed a separate return for 1994 and had received a refund of an earned income credit for that year, and nonetheless both petitioner's 1994 unfiled return and petitioner's 1994 unfiled amended return purported to be joint returns on behalf of petitioner and his then spouse. Moreover, the record establishes that respondent did not issue a notice of deficiency to petitioner with respect to his taxable year 1994, in which respondent determined that petitioner had a deficiency based upon the substitute for return that respondent prepared on March 29, 1999, and the 30-day letter that respondent mailed to petitioner on or about April 5, 1999, with respect to that year. On the record before us, we conclude that respondent improperly assessed the tax shown in that substitute for return and proposed in that 30-day letter. On that record, we further conclude that respondent abused respondent's discretion in determining to proceed with the collection action as determined in the notice of determination regarding respondent's assessed amounts with respect to petitioner's taxable year 1994.
We now address petitioner's taxable years 1995 and 1996. The record establishes that respondent did not issue a notice of deficiency with respect to 1995 or 1996 (except for the notice of deficiency for 1996 and 1997 discussed above). However, respondent accepted and processed as filed the return that petitioner mailed on or about May 24, 1999, to respondent for each of his taxable years 1995 and 1996, in which he showed total tax of $3,566 and $4,024, respectively, and total tax owed of $3,214 and $3,842, respectively. Moreover, respondent assessed such respective total tax reported in petitioner's 1995 filed return and petitioner's 1996 filed return. Finally, although petitioner did not receive a notice of deficiency with respect to petitioner's unpaid liability for 1995 or 1996, the Court finds the contentions and arguments which petitioner advanced at his Appeals Office hearing, in his petition, and in petitioner's trial memorandum and which challenge the existence or the amount of each such unpaid liability to be frivolous and/or groundless.
We turn next to the remaining issues that petitioner raised with respect to his unpaid liabilities for 1995 and 1996 at his Appeals Office hearing, in his petition, and in petitioner's trial memorandum, which we shall review for abuse of discretion. Sego v. Commissioner, supra; Goza v. Commissioner, supra. We find all those remaining issues to be frivolous and/or groundless. On the record before us, we find that respondent did not abuse respondent's discretion in determining to proceed with the collection action as determined in the notice of determination with respect to petitioner's unpaid liabilities for 1995 and 1996.
Although respondent does not ask the Court to impose a penalty on petitioner under section 6673(a)(1), the Court will sua sponte determine whether to impose such a penalty. Section 6673(a)(1) authorizes the Court to require a taxpayer to pay to the United States a penalty in an amount not to exceed $25,000 whenever it appears to the Court, inter alia, that a proceeding before it was instituted or maintained primarily for delay, sec. 6673(a)(1)(A), or that the taxpayer's position in such a proceeding is frivolous or groundless, sec. 6673(a)(1)(B).
In Pierson v. Commissioner [Dec. 54,152], 115 T.C. 576, 581 (2000), we issued an unequivocal warning to taxpayers concerning the imposition of a penalty under section 6673(a)(1) on those taxpayers who abuse the protections afforded by sections 6320 and 6330 by instituting or maintaining actions under those sections primarily for delay or by taking frivolous or groundless positions in such actions. In the Court's Order dated March 17, 2003, and at trial, the Court reminded petitioner about section 6673(a)(1) and indicated that, in the event that petitioner continued to make statements, advance contentions and arguments, and/or raise questions that the Court finds to be frivolous and/or groundless, the Court would be inclined to impose a penalty under that section. Nonetheless, petitioner continued to adhere to those statements, contentions, and arguments.
In the instant case, starting around April 26, 2000, when petitioner submitted to respondent amended returns for his taxable years 1995 and 1996, through the trial in this case, petitioner has advanced, we believe primarily for delay, frivolous and/or groundless contentions, arguments, and requests with respect to petitioner's unpaid liabilities for 1995 and 1996, thereby causing the Court to waste its limited resources in addressing such matters. As a result of petitioner's position and actions in the instant case with respect to petitioner's unpaid liabilities for 1995 and 1996, we shall impose a penalty on petitioner pursuant to section 6673(a)(1) in the amount of $1,500.

We have considered all of petitioner's contentions, arguments, and requests that are not discussed herein, and we find them to be without merit and/or irrelevant.
To reflect the foregoing,
An appropriate decision will be entered.
1 All section references are to the Internal Revenue Code in effect for the years at issue. All Rule references are to the Tax Court Rules of Practice and Procedure.

2 Petitioner's attachments to his amended returns for 1994, 1995, and 1996 contained statements, contentions, arguments, and requests that are very similar to the statements, contentions, arguments, and requests contained in the attachments to Forms 1040 filed with the Internal Revenue Service by certain other taxpayers with cases in the Court. See, e.g., Copeland v. Commissioner [Dec. 55,052(M)], T.C. Memo. 2003-46; Smith v. Commissioner [Dec. 55,051(M)], T.C. Memo. 2003-45.

3 Petitioner's attachment to Form 12153 contained statements, contentions, arguments, and requests that are similar to the statements, contentions, arguments, and requests contained in the attachments to Forms 12153 filed with the Internal Revenue Service by certain other taxpayers with cases in the Court. See, e.g., Copeland v. Commissioner [Dec. 55,052(M)], T.C. Memo. 2003-46; Smith v. Commissioner [Dec. 55,051(M)], T.C. Memo. 2003-45.

4 Nor did respondent accept and process as filed petitioner's second amended return for 1994 (or his respective amended returns for 1995 and 1996) which showed zero income and claimed a refund of the tax withheld.






[Dec. 55,225(M)] Winston O. and Paulet P. Smith v. Commissioner.

Docket No. 14601-01L , T.C. Memo. 2003-205, 86 TCM 62, Filed July 15, 2003. [Appealable, barring stipulation to the contrary, to CA-11]
[Code Sec. 6330]

Internal Revenue Service: Collection Due Process: Hearing: Issues raised. -- 
Taxpayers who failed to file Tax Court petitions after receiving a notice of deficiency were barred from raising any issues regarding their underlying tax liability at their Collection Due Process (CDP) hearing.
Winston O. and Paulet P. Smith, pro sese. Lorianne D. Masano, for the respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, Judge: The issue for decision is whether respondent may proceed with his proposed collection activity relating to petitioners' 1982, 1983, 1986, and 1987 tax liabilities.
FINDINGS OF FACT
On December 7, 1998, petitioners and respondent executed an installment agreement, and petitioners signed Form 900, Tax Collection Waiver, relating to petitioners' 1982, 1983, 1986, and 1987 tax liabilities. The Form 900 extended, until December 31, 2004, the period of limitations relating to collection of petitioners' tax liabilities. On January 1, 2000, petitioners and respondent executed a second installment agreement. Petitioners later defaulted on the second agreement.
On May 8, 2001, petitioners met with Revenue Officer Shoesmith, with whom they discussed a possible offer-in-compromise and another installment agreement. Shoesmith recommended to her supervisor that respondent reject these collection alternatives because she believed that, among other things, petitioners failed to file returns relating to numerous years, had withheld information relating to their wherewithal to pay, and were trying to avoid paying their taxes.
On July 2, 2001, respondent sent petitioners a Notice of Defaulted Installment Agreement Under IRC 6159(b) and a Notice of Intent to Levy Under IRC 6331(d) relating to their 1982, 1983, 1986, 1987, and 1999 unpaid tax liabilities. Petitioners' 1999 tax liability has been satisfied.
On July 16, 2001, respondent received petitioners' Form 12153, Request for a Collection Due Process Hearing, in which petitioners contended that their outstanding tax liability relates only to 1999, they have been making installment payments, they provided updated financial information, respondent's revenue officer acted improperly and maliciously, and they were taking steps to pay their outstanding tax liabilities.
By letter dated July 26, 2001, Shoesmith indicated that petitioners' case was being sent to respondent's Appeals Office, and petitioners had not submitted requested financial information. On July 31, 2001, respondent received a letter in which petitioners contended that they substantially complied with respondent's requests for financial information and had legitimate reasons for their failure to respond more fully.
By letter dated October 11, 2001, respondent sent petitioners literal transcripts relating to the years at issue. The transcripts verified the amount and timely assessment of petitioners' tax liabilities relating to all years in issue (i.e., 1982 on December 8, 1986, 1983 on September 29, 1987, and 1986 and 1987 on July 25, 1988).
On October 17, 2001, Settlement Officer Salinger and petitioners participated in a section 63301 hearing. Petitioners contended that the period of limitation relating to collection (collection period) expired with respect to petitioners' 1982 and 1983 tax liabilities and attempted to dispute such underlying liabilities (i.e., presentation of evidence to substantiate entitlement to unspecified deductions). Petitioners requested abatement of their 1982 and 1983 liabilities and abatement of penalties and interest relating to all of their outstanding tax liabilities. Petitioners further contended that the proposed collection would be unduly intrusive. Salinger did not consider any of petitioners' claims regarding additional deductions relating to 1982.
On October 22, 1992, and December 7, 1993, petitioners filed bankruptcy petitions that were discharged on December 17, 1993, and July 13, 1994, respectively. By letter dated October 18, 2001, respondent explained how the filing of petitioners' bankruptcy petitions and execution of Form 900 extended the collection period.
In a letter dated November 9, 2001, petitioners contended that the collection period relating to their 1982 and 1983 liabilities began to run on September 17 and November 5, 1984, (i.e., the dates the respective returns were filed), petitioners' bankruptcy filings extended the collection period by only 180 days, and Form 900 was executed outside the collection period. Petitioners further asserted that the correct amount of their liability had yet to be determined. In a letter dated November 13, 2001, Salinger rejected petitioners' contentions and urged petitioners to provide the requested financial information. Salinger also contended the following: (1) Respondent correctly calculated penalties and interest relating to 1982, posted credits and payments relating to 1982, and calculated the balance due at the time the lien was filed; (2) two consecutive bankruptcy petitions extended the collection period; (3) Form 900 was signed prior to expiration of the collection period; (4) the installment agreements were not in effect due to petitioners' default; and (5) the collection periods relating to 1982 and 1983 had not expired.
By Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330, dated November 15, 2001, respondent determined that the collection period relating to petitioners' 1982 and 1983 tax liabilities had not expired, petitioners may not claim additional deductions with respect to 1982 and 1983, petitioners offered no collection alternatives, and, thus, it was appropriate to proceed with collection.
On January 25, 2002, petitioners, while residing in Lutz, Florida, filed an amended petition in which they contend that the settlement officer improperly refused to consider petitioners' alleged entitlement to additional deductions relating to 1982 and 1983, petitioners' consent to an extension of the collection period was invalid because Form 900 was signed after the collection period had expired, and respondent miscalculated their unpaid tax liabilities.
OPINION
Petitioners contend that respondent erred in not considering their claim to additional deductions relating to their 1982 tax assessment. Petitioners, however, received a statutory notice of deficiency relating to 1982 and, thus, are precluded from raising their additional deduction claim in this proceeding. Sec. 6330(c)(2)(B); see Goza v. Commissioner [Dec. 53,803], 114 T.C. 176 (2000).
Petitioners further contend that respondent may not collect petitioners' 1982 and 1983 tax liabilities because the period for collection, pursuant to section 6502, expired. On December 8, 1986, respondent timely assessed petitioners' 1982 tax liability. The collection period would have expired on December 8, 1996, had there been no actions tolling the running of the period. Petitioners' 1992 and 1993 bankruptcy petitions, however, extended the expiration date until at least December 7, 1998, the date petitioners executed Form 900. See sec. 6503(h). Form 900 further extended the collection period to December 31, 2004. Thus, the collection period relating to petitioners' 1982 tax liabilities had not expired as of the date of petitioners' request for a section 6330 hearing (i.e., July 16, 2001) and is further extended, pursuant to section 6330(e)(1), during the hearing and while the appeals are pending. Similarly, the collection period relating to petitioners' 1983 tax liabilities has not expired.
Respondent provided petitioners with transcripts relating to petitioners' tax liabilities, took adequate steps to work with petitioners toward a resolution of such liabilities, gave due consideration to all of petitioners' contentions relating to the unpaid tax, and decided to proceed with the proposed collection activity. Accordingly, respondent committed no error and may proceed with the proposed collection activity.
Contentions we have not addressed are irrelevant, moot, or meritless.
To reflect the foregoing,
Decision will be entered for respondent.

1 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue.





[Dec. 55,226(M)] John R. Peacock v. Commissioner.

Docket No. 6168-02L , T.C. Memo. 2003-206, 86 TCM 64, Filed July 15, 2003. [Appealable, barring stipulation to the contrary, to CA-9]
[Code Sec. 6330]

Internal Revenue Service: Collection Due Process: Hearing: Issues raised. -- 
An individual who failed to file a Tax Court petition after receiving a notice of deficiency was barred from raising any issues regarding his underlying tax liability at his Collection Due Process (CDP) hearing. 
Noel W. Spaid, for the petitioner. Karen N. Sommers, for the respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
FOLEY, Judge: The issue for decision is whether respondent may proceed with his proposed collection activity relating to petitioner's 1994 tax liability.
FINDINGS OF FACT
Petitioner failed to file his 1994 Federal income tax return. On April 18, 1997, respondent sent petitioner a notice of deficiency. On May 23, 1997, respondent sent petitioner a second notice, which corrected a typographical error in the April 18, 1997, notice. Petitioner did not file a petition with the Court to challenge either notice. On October 13, 1997, respondent assessed a $42,859 deficiency and, pursuant to sections 66511 and 6654, a $4,027.50 addition to tax and a $676.92 addition to tax, respectively.
On December 31, 1997, respondent sent a Form 668-W(c), Notice of Levy on Wages, Salary, and Other Income (notice of levy), to petitioner's employer, United Airlines (United). The notice of levy required United to relinquish a portion of petitioner's pay to satisfy his 1994 tax liability.
Respondent, on February 16, 2001, sent petitioner a Final Notice --Notice of Intent to Levy and Notice of Your Right to a Hearing, relating to his 1994 tax liability. On March 14, 2001, petitioner sent respondent Form 12153, Request for a Collection Due Process Hearing, in which petitioner alleged that the tax liability had been fully paid. On August 10, 2001, the Appeals officer held a conference with petitioner. The Appeals officer reviewed transcripts of petitioner's 1994 income tax account and payroll records. The payroll records indicated that between October 20, 1997, and November 17, 1998, United, pursuant to an "assignment", deducted $92,923.47 from petitioner's wages. In an attempt to determine where the $92,923.47 had been sent, the Appeals officer wrote to United and to the California Franchise Tax Board.

On the basis of respondent's records and those provided by the State of California, the Appeals officer determined that levy payments totaling $53,476.27 and $5,965.54 had been applied to petitioner's 1992 and 1994 income tax accounts, respectively, and that in 1998 the State of California had received $12,109.23 in levy payments relating to petitioner's State income tax liabilities. United and petitioner did not provide any documentation of payments received by respondent other than the payments reflected on respondent's records.
On February 7, 2002, respondent sent petitioner a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 relating to 1994. In response, on March 18, 2002, petitioner, while residing in San Diego, California, filed his petition with the Court.
OPINION
Petitioner contends that respondent erred in determining his 1994 tax liability because respondent used "married filing separately" filing status rather than "married filing jointly" status. Petitioner, however, received a statutory notice of deficiency relating to 1994 and, thus, is precluded from raising his filing status. Sec. 6330(c)(2)(B); see Goza v. Commissioner [Dec. 53,803], 114 T.C. 176 (2000).
Petitioner further contends that respondent failed to apply petitioner's levy payments (i.e., the amounts withheld from his wages by his employer) to his 1994 tax liability. We disagree. The record did not establish that respondent's calculation of the unpaid tax was incorrect. United deducted $92,923.47 from petitioner's wages, but Forms 4340, Certificate of Assessments, Payments, and Other Specified Matters, relating to petitioner's 1994 income tax account indicate an unpaid assessed balance due of $19,924.82. See Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 40 (2000) (stating "courts have held that Form 4340 provides at least presumptive evidence that a tax has been validly assessed under section 6203"). Before deciding to proceed with collection, respondent provided petitioner with transcripts relating to his 1994 tax liability, took adequate steps to determine the correct amount of petitioner's unpaid tax, and gave due consideration to petitioner's contentions. Accordingly, respondent committed no error and may proceed with the proposed collection activity.
Contentions we have not addressed are irrelevant, moot, or meritless.
To reflect the foregoing,
Decision will be entered for respondent.
1 Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year in issue.






[2004-2 USTC ¶50,310] Xavier J.R. Avula, Sulochana D. Avula, Appellants v. Commissioner of Internal Revenue, Appellee. 

U.S. Court of Appeals, 8th Circuit; 03-3521, July 27, 2004. 

Unpublished opinion affirming, per curiam, an unreported Tax Court decision. Related case at 79 TCM 1711, Dec. 53,809(M), TC Memo. 2000-97.

[ Code Sec. 6330]

Notice of levy and right to hearing: Issues raised at hearing: Underlying tax liabilities. -- 
The IRS was entitled to summary judgment with respect to an Appeals officer's determination following a Collection Due Process (CDP) hearing. The married taxpayers were precluded from challenging their underlying tax liabilities at the CDP hearing and on appeal. They had received a statutory notice of deficiency and had litigated the merits of their liabilities in the Tax Court. 

Before: Wollman, Lay and Melloy, Circuit Judges.

 Caution: The court has designated this opinion as NOT FOR PUBLICATION. Consult the Rules of the Court before citing this case.

PER CURIAM: Xavier J.R. Avula and Sulochana D. Avula ("Taxpayers") appeal the Tax Court's 1 order granting summary judgment in favor of the Commissioner of Internal Revenue ("Commissioner") and upholding the Commissioner's determination of collection action to be taken with respect to income tax assessments against Taxpayers for the 1991, 1992, 1994, and 1995 tax years. After de novo review of the record, we affirm. See Cox v. Comm'r [ 97-2 USTC ¶50,582], 121 F.3d 390, 391 (8th Cir. 1997) (standard of review).

On January 29, 1998, the Commissioner issued Taxpayers a notice of deficiency for the tax years in question. Taxpayers thereafter petitioned the Tax Court for a redetermination of the deficiencies. Following a trial on November 13, 1999, the court entered a decision holding Taxpayers liable for deficiencies in income, additions to tax, and accuracy-related penalties. Taxpayers did not appeal this decision. The Commissioner then issued a notice of intent to levy followed by a determination that the proposed levy action should proceed. Taxpayers petitioned the Tax Court for a collection due process hearing ("CDP") on the Commissioner's decision to proceed with the collection of their income tax liabilities. However, Taxpayers challenged only their underlying tax liabilities, not the collection actions. The district court granted summary judgment to the Commissioner, concluding Taxpayers were not entitled to challenge their underlying tax liabilities in the CDP hearing.

We find no error in the Tax Court's decision. The Internal Revenue Code ("Code") grants a taxpayer the right to a hearing on a proposed levy action and allows the taxpayer to raise any relevant issue relating to the unpaid tax or collection actions, including spousal defenses, challenges to the appropriateness of the intended collection activities, and possible alternative means of collection. See 26 U.S.C. §6330(a)(3)(B) & (c)(2)(A). However, the Code allows a taxpayer to challenge the existence or amount of an underlying tax liability only if the taxpayer "did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." Id. §6330(c)(2)(B); see also Katz v. Comm'r [ CCH Dec. 54,081], 115 T.C. 329, 339 (2000). In this case, Taxpayers received a statutory notice of deficiency for their tax liabilities in 1998 and litigated the merits of their liabilities in the Tax Court in 1999. At the CDP hearing and on appeal, Taxpayers challenge only their underlying tax liabilities. Because they are precluded from doing so, the Tax Court did not err in granting summary judgment in favor of the Commissioner.

Accordingly, we affirm the Tax Court's decision.

1 The Honorable Peter J. Panuthos, Chief Special Trial Judge, United States Tax Court.


[Dec. 55,253(M)] Antonio and Ernestine Thomas v. Commissioner.

Docket No. 3263-02L , T.C. Memo. 2003-231, 86 TCM 216, Filed August 1, 2003. [Appealable, barring stipulation to the contrary, to CA-11]
[Code Sec. 6330]

Internal Revenue Service: Collection Due Process: Hearing: Issues raised. -- 
Married taxpayers who had an opportunity to challenge a notice of deficiency were barred from raising any issues regarding their underlying tax liability at their Collection Due Process (CDP) hearing. Because the taxpayers entered into an agreement as to the amount of their tax liability in one tax year, they were precluded from arguing the amount of their tax liability at their CDP hearing or in their petition. Consequently, the government was entitled to proceed with its collection action.
[Code Sec. 6330]

Internal Revenue Service: Forms and transcripts: Form 4340. 
The IRS properly took into account payments made by married taxpayers in determining their tax liability and, thus, the amount the IRS sought to collect was correct. The government provided Form 4340, which was presumed accurate, showing that six payments were made against the taxpayers' liability in connection with one tax year. The taxpayers unsuccessfully argued that a letter presented as evidence reflected the accurate deficiency amount.
[Code Sec. 6330]


Internal Revenue Service: Collection Due Process: Hearing: Request for hearing. -- 
Married taxpayers were not prejudiced by an IRS Appeal's officers decision to issue a determination without an in-person Collection Due Process hearing. The arguments raised by the taxpayers concerning their liability were considered by the Court, and were found to lack merit. Consequently, the government was entitled to proceed with its collection action.
[Code Secs. 6330 and 6871]


Internal Revenue Service: Collection Due Process: Tax Court: Jurisdiction: Bankruptcy: Discharge of debt. 
Married taxpayers were not entitled to a discharge of their tax debt in bankruptcy. The taxpayers filed an untimely return two years before the filing of their bankruptcy petition. As an initial matter, the Tax Court noted its jurisdiction to review whether a tax liability for which collection is at issue in a Code Sec. 6330(d)(1) proceeding has been discharged in bankruptcy. 
Antonio L. and Ernestine Thomas, pro se. Monica D. Armstrong, for the respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION

GALE, Judge: This case arises from a petition filed pursuant to sections 6320(c) and 6330(d)(1)(A).1 After concessions,2 the issue for decision is whether respondent's determination to proceed with a collection with respect to petitioners' Federal income tax liabilities for 1991 should be sustained. We hold that it should.
FINDINGS OF FACT
Most of the facts have been stipulated and are so found. The parties' stipulation of facts and the accompanying exhibits are incorporated herein by this reference.
At the time of filing the petition in this case, petitioners resided in East Point, Georgia.
Petitioners filed their 1991 joint Federal income tax return (1991 return) on September 28, 1993, reporting a tax due of $8,343, which was not paid. Respondent assessed the tax shown as due on the 1991 return on October 18, 1993, as well as additions to tax under sections 6651(a)(1) and (2) and 6654, plus interest (return assessment).
On or about March 6, 1995, respondent notified petitioners that their 1991 income tax return had been selected for examination.
On March 10, 1995,3 petitioners filed a petition (bankruptcy petition) in the U.S. Bankruptcy Court for the Northern District of Georgia, thereby commencing a bankruptcy proceeding under chapter 7 of title 11 of the United States Code.
On March 20, 1996, petitioners amended their bankruptcy petition to include their Federal tax liabilities for 1991.
On March 21, 1996, respondent issued a statutory notice of deficiency to petitioners with respect to 1991, determining a deficiency of $31,560, an addition to tax under section 6651(a)(1) of $8,004, and a penalty under section 6662(a) of $6,312.
On June 12, 1996, the bankruptcy court entered a "DISCHARGE OF DEBTOR(S) WITH ORDER APPROVING TRUSTEE'S REPORT OF NO DISTRIBUTION, CLOSING ESTATE AND DISCHARGING TRUSTEE" with respect to petitioners (discharge order), granting petitioners a discharge pursuant to 11 U.S.C. sec. 727 (2000). The return assessment was abated shortly after issuance of the discharge order.
On June 19, 1996, petitioners filed a petition with this Court with respect to the notice of deficiency for 1991. Petitioners ultimately settled the deficiency proceeding by agreeing to a deficiency in tax of $13,914 plus an addition to tax under section 6651(a)(1) of $3,478.50. A decision was entered on October 20, 1997, reflecting the foregoing agreement. The deficiency and addition to tax, plus interest of $10,457.90, were assessed on December 29, 1997 (examination assessment).
On August 29, 2000, respondent filed a notice of Federal tax lien with the Clerk of Superior Court in Fulton County, Georgia. The notice of Federal tax lien was issued with respect to petitioners' income tax liabilities for the years 1985, 1991, 1997, and 1998. With respect to 1991, the Notice of Federal Tax Lien indicated an unpaid balance of $22,227.91. On September 1, 2000, respondent mailed to petitioners a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320.

On October 5, 2000, petitioners filed with respondent a Form 12153, Request for a Collection Due Process Hearing. On the Form 12153, petitioners alleged as grounds for relief: (1) "IRS assessed taxes after the date a petition for discharge filed"; (2) "IRS mailed Notice of Deficiency to wrong address"; (3) "The statute of limitation for collection has ended"; and (4) "Agreement was reached in Tax Court". Petitioners did not raise any spousal defenses or offer collection alternatives. A face-to-face meeting was scheduled between petitioners and a settlement officer of respondent for November 19, 2001. Petitioner Antonio Thomas telephoned the settlement officer on November 14, 2001, to postpone this meeting because his representative was ill, and the scheduled meeting did not take place. A second meeting was scheduled for December 3, 2001, at 10 a.m. Petitioners failed to appear, and in the afternoon of that day, a representative of petitioners contacted the settlement officer to request a further postponement. The representative was advised that Appeals would close the case and issue a determination.
On December 12, 2001, respondent issued a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (determination letter). Therein, the settlement officer first determined that all applicable laws and administrative procedures had been met for all liabilities at issue except for the 1985 taxable year; for 1985, the settlement officer determined that petitioners' liability had been discharged in the bankruptcy proceeding. With respect to issues raised by petitioners, the determination letter concluded that all of the issues raised by petitioners related to the validity of the assessments and that all of the assessments except for the one relating to 1985 were valid. Finally, the determination letter concluded that the proposed collection action appropriately balanced petitioners' interests with the need for efficient tax collection, noting a "pattern of unresponsiveness" in that petitioners had failed to appear for two scheduled hearings.
On February 11, 2002, petitioners filed their petition in the present case. The petition alleged: (1) That petitioners' 1991 liabilities had been discharged in the bankruptcy proceeding; (2) that the amount of the 1991 liabilities asserted by respondent was incorrect; and (3) that contrary to the determination letter, petitioners and their representative had called the settlement officer to request that the hearings be rescheduled. At trial, petitioners further argued that the lien should be released because the 1991 liabilities had been paid.
OPINION
Section 6321 imposes a lien in favor of the United States on all property and rights to property of a person when a demand for payment of that person's taxes has been made and the person fails to pay those taxes. Such a lien arises when an assessment is made. Sec. 6322. Section 6323(a) requires the Secretary to file a notice of Federal tax lien if the lien is to be valid against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor. Lindsay v. Commissioner [Dec. 54,529(M)], T.C. Memo. 2001-285, affd. [2003-1 USTC ¶50,307] 56 Fed. Appx. 800 (9th Cir. 2003).
Section 6320 provides that the Secretary shall furnish the person described in section 6321 with written notice of the filing of a notice of lien under section 6323. The notice required by section 6320 must be provided not more than 5 business days after the day of the filing of the notice of lien. Sec. 6320(a)(2). Section 6320 further provides that the person may request administrative review of the matter (in the form of an Appeals Office hearing) within 30 days beginning on the day after the 5-day period. Section 6320(c) provides that the Appeals Office hearing generally shall be conducted consistent with the procedures set forth in section 6330(c), (d), and (e).

Section 6330(c)(2) prescribes the matters that a person may raise at an Appeals Office hearing. Under that section, a person may raise any relevant issue related to the unpaid tax or noticed lien, but may only contest the existence or amount of the underlying tax liability if the person did not receive a notice of deficiency for the tax liability or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B); Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 609 (2000); Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 180-181 (2000). Section 6330(d) provides for judicial review of the administrative determination in the Tax Court or a Federal District Court, as may be appropriate. Where the underlying tax liability is not at issue, the Court will review the Appeals officer's determination for abuse of discretion. Sego v. Commissioner, supra at 610.
The Underlying Liabilities
Although petitioners allege various errors in the deficiency respondent determined with respect to 1991, they may not raise these issues in the instant proceeding. The underlying liabilities for 1991 that respondent seeks to collect4 were the subject of a notice of deficiency that petitioners received. Accordingly, pursuant to section 6330(c)(2)(B), petitioners are precluded from challenging the existence or amount of the underlying tax liabilities for 1991 in this proceeding.
The Bankruptcy Discharge
Petitioners also allege that they owe no tax for 1991 because all of their liabilities for that year were discharged in the bankruptcy proceeding. Petitioners further note that they amended their bankruptcy petition specifically to include their 1991 income tax liabilities. Respondent agrees that the return assessment was discharged in that proceeding but contends that the examination assessment was not.
We have jurisdiction to decide whether a tax liability for which collection is at issue in a section 6330(d)(1) proceeding has been discharged in bankruptcy. Washington v. Commissioner [Dec. 55,072], 120 T.C. 114, 121 (2003).
Respondent argues that the examination assessment was not discharged in bankruptcy pursuant to 11 U.S.C. secs. 523(a)(1)(A) and 507(a)(8)(A)(iii) (2000). Those sections provide collectively that an income tax liability that is "not assessed before, but assessable *** after" commencement of the bankruptcy proceeding, is not dischargeable. Thus, respondent argues, the examination assessment, which was not made before the commencement of the bankruptcy proceeding on March 10, 1995, but instead was made after commencement, on December 29, 1997, was not dischargeable pursuant to the foregoing provisions.
We agree that the examination assessment was not dischargeable but disagree with respondent's analysis. Specifically exempted from the nondischargeability rule for income taxes that were not assessed before but are assessable after commencement of bankruptcy proceedings are income taxes with respect to which a return was filed after its due date (including extensions) and after 2 years before the filing of the bankruptcy petition. See 11 U.S.C. secs. 507(a)(8)(A)(iii), 523(a)(1)(B)(ii) (2000). Such taxes are nondischargeable without regard to the timing of the assessment. Petitioners' 1991 return was untimely filed on September 28, 1993, which is after 2 years before the filing of the bankruptcy petition on March 10, 1995.5 Accordingly, pursuant to 11 U.S.C. sec. 523(a)(1)(B)(ii) the examination assessment was not discharged in the bankruptcy proceedings.6 
Payment
At trial, petitioners raised an additional issue; namely, that any amount owed with respect to 1991 that was not discharged in the bankruptcy proceeding had been paid. In support of this contention, petitioners introduced a letter issued to them from respondent dated July 21, 1997, indicating that the total amount owed with respect to 1991 was $20. Petitioners allege that they paid this amount and "additional payments" with respect to 1991.
Petitioners' argument has no merit. The July 21, 1997, letter on which they rely precedes by 3 months their October 20, 1997, execution of the stipulated decision in the Tax Court proceedings covering 1991 in which they agreed there was a deficiency for that year of $13,914, plus an addition to tax of $3,478.50. Thus, while the letter of July 21, 1997, may have been an accurate statement of petitioners' 1991 liabilities before the examination assessment, it obviously did not reflect the deficiency to which they agreed in October 1997. Accordingly, the letter provides no support for the claim that petitioners' 1991 liabilities were satisfied.
To the contrary, respondent has submitted a certified copy of Form 4340, Certificate of Assessments, Payments, and Other Specified Matters, for petitioners' 1991 tax year. Absent some showing of irregularity, which petitioners have not made, the Form 4340 provides presumptive proof of its contents. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); United States v. Chila, 871 F.2d 1015, 1019 (11th Cir. 1989); Craig v. Commissioner [Dec. 54,933], 119 T.C. 252, 262-63 (2002); Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 40-41 (2000). The Form 4340 indicates that six payments of $400 each were made by petitioners during 1998 with respect to their 1991 liabilities and does not indicate that any further payments were made. The Form 4340 indicates that the total amount of the examination assessment was $24,647.91. The amount that respondent seeks to collect, $22,247.91, is $2,400 less than the amount of the examination assessment. The Form 4340 also indicates that the return assessment was abated shortly after it was discharged. Accordingly, we conclude that all payments that petitioners have made since the examination assessment have been accounted for, and the amount respondent seeks to collect is correct.
Necessity of a Face-to-Face Meeting
Finally, petitioners contend that their right to a hearing under section 6330(b) was compromised by the settlement officer's issuing the determination letter without conducting a face-to-face meeting. The parties have stipulated that a meeting scheduled for November 19, 2001, was canceled by petitioners by telephone on November 14, 2001, because of the illness of their representative. A second meeting was scheduled for December 3, 2001, at 10 a.m. Further, the parties have stipulated that petitioners failed to appear for this second meeting, and that a representative of petitioners telephoned the settlement officer later in the day to ask that the meeting be rescheduled. Rather than schedule a third meeting, the settlement officer elected instead to close the case and issue a determination letter.
We find it unnecessary to decide whether, in these circumstances, petitioners' right to a hearing under section 6330(b) was infringed upon when respondent's settlement officer refused to offer petitioners a third opportunity for a face-to-face meeting. The issues that petitioners have raised herein and indicated they would have raised in a face-to-face meeting --namely, the correctness of the 1991 deficiency and the bankruptcy discharge of the 1991 liabilities or their payment --have been considered in this proceeding and found to lack merit. Thus, regardless of whether petitioners were initially accorded their right to a hearing under section 6330(b), they have not been prejudiced, and we do not believe it is "either necessary or productive" to remand this case for a hearing on the claims we have found legally insufficient to forestall collection. See Lunsford v. Commissioner [Dec. 54,553], 117 T.C. 183, 189 (2001); Moore v. Commissioner [Dec. 55,002(M)], T.C. Memo. 2003-1.




Conclusion
Petitioners have not raised any spousal defenses, other challenges to the appropriateness of the collection action, or collection alternatives. We have considered every contention raised by petitioners, and conclude that each is without merit. We therefore hold that respondent may proceed with the proposed collection action. To reflect the foregoing,
An appropriate order and decision will be entered.
1 Unless otherwise noted, all section references are to the Internal Revenue Code, as amended.

2 The notice of determination that is the subject of this action covered petitioners' liabilities with respect to taxable years 1985, 1991, 1997, and 1998. Respondent conceded in the notice that his collection action with respect to 1985 was not appropriate, and petitioners seek review herein only with respect to 1991.

3 The parties have stipulated that the bankruptcy petition was filed on Mar. 10, 1995, although the bankruptcy court's discharge order indicates that the petition was filed on Oct. 10 of that year. As discussed infra note 5, since the result in this case would be the same under either filing date, we need not resolve this discrepancy.

4 Respondent has abated the 1991 liability that petitioners reported on their return for that year (i.e., the return assessment).

5 We note that there is a discrepancy in the record regarding the filing date of the bankruptcy petition. The parties have stipulated that the petition was filed on Mar. 10, 1995; however, the bankruptcy court's discharge order indicates that the petition was filed on Oct. 10, 1995.

Even if Oct. 10, 1995, were the correct filing date of the bankruptcy petition, it would not change the result herein because the examination assessment would still be nondischargeable. If the filing date of the bankruptcy petition were Oct. 10, 1995, the nondischargeability rule of 11 U.S.C. secs. 523(a)(1)(A) and 507(a)(8)(A)(iii) (2000), relied on by respondent, would apply. That is, the examination assessment made on Dec. 29, 1997, would be nondischargeable because it was not assessed before, but was assessable after, the commencement of the bankruptcy proceeding on Oct. 10, 1995.

6 Petitioners' amendment of their bankruptcy petition to specifically list their 1991 Federal income tax liabilities has no effect on their dischargeability.





[2003-2 USTC ¶50,612] Donna Jean Barnett, Plaintiff v. United States Government, Defendant. 

U.S. District Court, Mid. Dist. Fla., Fort Myers Div.; 2:01-cv-526-FtM-29SPC, July 15, 2003. 

[ Code Sec. 6702]

Penalties, civil: Frivolous return: Wages or salary omitted. -- 
A frivolous return penalty was imposed against an individual who filed a zero-income return but received unreported wages in the tax year at issue. Because the Eleventh Circuit has held that claims asserting that wages are not income are "patently frivolous", the government was entitled to summary judgment dismissing the taxpayer's action. 

[ Code Sec. 6330]

Collection Due Process: Hearing: Notice. -- 
The IRS provided proper notice and demand to an individual of her tax liability before levy and, as a result, was entitled to dismissal of the taxpayer's suit. The taxpayer attached a copy of the notice and demand for payment she received by the IRS to her complaint. The court rejected her argument that the notice was not valid because it was computer generated and did not contain the proper form number. 

[ Code Sec. 6330]

Collection Due Process: Hearing: Forms and transcripts: Procedures: Issues raised at hearing. 
The district court dismissed an individual's challenge to an adverse Collection Due Process determination where evidence established that the IRS followed proper hearing procedures. The Appeals officer was not required to provide the taxpayer with a copy of the verification that the requirements of applicable law and administrative procedure had been met. The taxpayer was appropriately prohibited from disputing her underlying tax liability because she received a notice of deficiency and did not contest the liability at that time. Moreover, the Appeals officer was not required to produce documentation of a delegation of authority to impose or collect the frivolous return penalty. Finally, the taxpayer unsuccessfully argued that the IRS improperly denied her a collection alternative after she challenged the Appeals officer to produce a statute or code regulation authorizing the imposition of the frivolous return penalty. 
REPORT AND RECOMMENDATION

TO THE UNITED STATES DISTRICT COURT


CHAPPELL, Magistrate Judge: This matter comes before the Court on Defendant's Motion for Summary Judgment (Doc. #25) as to the Federal Income Tax penalty assessed under 26 U.S.C. §6702 against the Plaintiff for filing a frivolous tax return for the year 1997.
STANDARD OF REVIEW

Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id. "Conclusory allegations based on subjective beliefs are insufficient to create a genuine issue of material fact. Johnson v. U.S. [ 2003-1 USTC ¶50,297], 2002 WL 32003906 (N.D. Fla.). In deciding a motion for summary judgment the record and all reasonable inferences drawn from the record must be viewed in the light most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310,1313 (11th Cir. 1999). In reviewing appeals from Collection Due Process (CDP) hearing determinations, the Court reviews the validity of the tax de novo and all other determinations for abuse of discretion. Johnson [ 2003-1 USTC ¶50,297], 2002 WL 3200396 at 2. Defendant's argue that summary judgment is due to be granted because there are no material facts as to which there is a genuine issue, and therefore summary judgment should be granted as a matter of law. (Doc. #26).
FACTS

The Plaintiff filed a form 1040 tax return with the Internal Revenue Service (IRS) on May 7, 1998 for the tax year 1997. The Plaintiff's tax return reported zero earned income and zero taxable income even though the Plaintiff earned a combined total of $26,761.00 income from her employment with the State of Florida and the federal government's Office of Personnel Management. On October 26, 1998, under 26 U.S.C. §6702, the IRS assessed a $500.00 penalty against the Plaintiff for filing a frivolous return and on the same day sent the Plaintiff a demand for payment. The IRS followed up the payment demand with two notices of intent to levy to collect the penalty. The first notice of intent to levy to collect was sent on December 21, 1998 and the second notice was sent on June 13, 2000.

The Plaintiff filed for a Collection Due Process (CDP) hearing on July 14, 2000 and the hearing was held on May 23, 2001. After the hearing, the IRS issued a determination that the Plaintiff's 1997 tax return was indeed frivolous and, therefore, the penalty was properly assessed. In response to the IRS's determination that the penalty was properly assessed, the Plaintiff filed a complaint with this Court on September 24, 2001 requesting that the IRS's determination be invalidated. The Government (Defendant) filed a motion to dismiss 1 which was denied by United States District Judge Steele on October 25, 2002 (Doc. #14). As a result of its motion to dismiss being denied, the Defendant now files this Motion for Summary Judgment.
DISCUSSION
The Court must consider whether there are any genuine issues of material fact remaining before rendering a decision on the Defendant's Motion for Summary Judgment. The genuine issues of material fact that this Court must take into account are: (1) whether the Plaintiff's 1997 tax return was frivolous; (2) whether the Plaintiff received proper notice of the IRS's intent to levy to collect the penalty; and (3) whether the Plaintiff's CDP hearing conformed to the requirements of 26 U.S.C. §6330.
(1) Whether the Plaintiff's 1997 Tax Return was Frivolous

26 U.S.C. §6702(a)(1)(B) states that a tax return is frivolous if the return contains information that is "substantially incorrect." The Plaintiff recorded her income as zero on her 1997 tax return. (Doc. #13 exhibit J). The recording of her wages for 1997 as zero is a "substantially incorrect" statement. Her wages for 1997 were $26,701.00. (Doc. #27 ¶2). In Biermann v. Comm'r of Internal Revenue, the Eleventh Circuit Court of Appeals held that arguments asserting that wages are not considered income are "patently frivolous." [ 85-2 USTC ¶9632], 769 F.2d 707, 707 (11th Cir. 1985). Therefore, it is clearly established that an individual's wages are income subject to federal income tax. Hyslep v. U.S. [ 85-2 USTC ¶9553], 765 F.2d 1083, 1084 (11th Cir 1985). More to the point, Courts have routinely upheld frivolous filing penalties where the taxable income line item was simply zeroed out by the tax payer. Johnson [ 2003-1 USTC ¶50,297], 2002 WL 32003906 at 5. Consequently, the Plaintiff's 1997 tax return clearly falls within the scope of a frivolous tax return under section 6702.

Therefore, no genuine issue of material fact exists that would cause a jury to decide that the Plaintiff's 1997 tax return was anything but frivolous.

(2) Whether the Plaintiff Received Proper Notice of the IRS's Intent to Levy to Collect

26 U.S.C. §6330(a)(1) requires the Secretary to give notice to and demand payment from any person liable to pay any tax before a levy may be brought against that person's property. On October 26, 1998, the Plaintiff was sent a notice of penalty charged from the IRS. (Doc. #1 exhibit D). The Plaintiff contends that the above stated notice failed to give her proper notice and demand for her tax liability. The Plaintiff relies heavily on U.S. v. Coson a Ninth Circuit Court of Appeals decision holding that notice must be given to a person before a levy is valid. [ 61-1 USTC ¶9219], 286 F.2d 453 (9th Cir. 1961). The facts in Coson are clearly distinguishable from the instant case. In Coson, the IRS claimed notice had been given to Coson because notice had been given to members of a partnership with which the IRS claimed Coson was affiliated. Coson [ 61-1 USTC ¶9219], 286 F.2d at 461. The Court held that Coson was not a member of the partnership and therefore not liable for any part of the partnership's tax liability. Id. at 461-462.

Here, the Plaintiff contends the form failed to meet the statutory requirements of a proper notice and demand because the form was a computer printout and it did not contain the proper form number. (Doc. #28 at 2). The Plaintiff does not deny receiving this notice only that the notice was "computer generated" and that it therefore did not meet the statutory requirements. Id. In fact, Plaintiff included a copy of the IRS's notice and demand for payment in her original complaint. (Doc. #1 exhibit D). Furthermore, to demonstrate the Plaintiff received actual notice, the Plaintiff applied for and received a CPD hearing based upon the penalty assessed in that notice. (Doc. #1 exhibit B).

After careful review of the notice and demand, the Court finds that the notice and demand included all of the relevant information required by 26 U.S.C. §6330(a)(3). The Plaintiff was informed of the reason for the penalty, the code section that authorized the penalty, the amount of the penalty, and finally, the Plaintiff was informed of the necessary steps to appeal the penalty. (Doc. #1 exhibit D).

Furthermore, it is not necessary for the Plaintiff to actually receive the notice, but only that the IRS actually send the notice. U.S. v. Chila [ 89-1 USTC ¶9299], 871 F.2d 1015, 1018-1019 (11th Cir. 1989); U.S. v. Dixon [ 87-2 USTC ¶9485], 672 F.Supp. 503, 506 (M.D. Ala. 1987) (citing Wilson v. Comm'r. [ 78-1 USTC ¶9148], 564 F.2d 1317 (9th Cir. 1977). The rationale behind the ruling lies in "the presumption of regularity" that public officers perform official acts in a proper manner. Id.; See also Johnson [ 2003-1 USTC ¶50,297], 2002 WL 32003906 at 5 (holding that [t]ax assessments are presumptively valid). The burden falls upon the Plaintiff to establish that the IRS failed to send her notice of demand for payment and in this case the Plaintiff failed to provide any proof the IRS failed to send notice of and demand for payment. Id. Conversely, the IRS record shows that a notice was mailed on June 13, 2000 to the Plaintiff and a returned receipt was signed on June 14, 2000. (Doc. #29 attachment). Thus, it was clearly established that the IRS fulfilled its obligation of providing notice to the Plaintiff. Chila [ 89-1 USTC ¶9299], 871 F.2d at 1018-1019.

As noted in the Standard of Review section, a subjective belief that the notice is not valid is not sufficient to create a genuine issue of material fact. Johnson [ 2003-1 USTC ¶50,297], 2002 WL 32003906 at 2. The Court finds the Plaintiff did receive proper notice and demand for payment. Thus, the Court can find no genuine issue of material fact concerning Plaintiff's contention that no notice and demand was sent to her.
(3) Whether the Plaintiff's CDP Hearing Conformed to the Statutory Requirements

"The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." 26 U.S.C. §6330(c)(1). The Statute only requires the hearing officer to obtain the verification from the Secretary that the applicable law or administrative procedures have been met. Gregory v. U.S. [ 2003-1 USTC ¶50,256], 2003 WL 701218 (N.D. Ga.). No where does the statute, nor for that matter the IRS regulations, require the hearing officer to provide the Plaintiff with a copy of the verification. Id. "The alleged failure to send to Plaintiff verification from the IRS office collecting the tax prior to the issuance of the determination is not a violation of the statute." Id. (internal quotations omitted). Since the hearing officer was not required, by the statute, to provide the Plaintiff with verification of the applicable law or administrative procedures, no genuine issue of material fact exist concerning the Plaintiff's complaint that no one provided her a copy of the verification.

The statute further provides the Plaintiff has the right to raise any relevant issue "relating to the unpaid tax" as well as challenge "any existence or amount of the underlying tax liability for any tax period if the [Plaintiff] did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." 26 U.S.C. §6330(c)(2)(A)-B). The Court determined previously that the Plaintiff received proper statutory notice of the tax deficiency. ( supra at 3). However, the Plaintiff contends that she was not allowed the opportunity to dispute the underlying tax liability. (Doc. #28 at 7). Here the Plaintiff confuses the tax liability for her 1997 return with the penalty being charged by the IRS. The purpose of the hearing on May 23, 2001 was not to determine the liability for the Plaintiff's 1997 tax return, but to provide the Plaintiff an opportunity to discuss and or settle the disputed penalty imposed by the IRS under 26 U.S.C. §6702. By the Plaintiff's own account, she was allowed to discuss the penalty imposed under 6702. (Doc. #1 exhibit C). Therefore, no genuine issue of material fact exists concerning the Plaintiff's right to discuss the underlying tax liability at her CDP hearing.

Plaintiff contends that her CDP hearing was unlawful because the hearing officer did not produce any documentation signed by the Secretary or other employee authorizing the delegation of authority to impose or collect the frivolous penalty. (Doc. #28 at 5). "The Secretary has the power to collect taxes and that such power can be delegated to local IRS agents." Gregory [ 2003-1 USTC ¶50,256], 2003 WL 701218 at 2. "The delegation of authority down the chain of command, from the Secretary, to the Commissioner of Internal Revenue to local IRS employees constitutes a valid delegation by the Secretary to the Commissioner, and a [re-delegation] by the Commissioner to the delegated officers and employees." Id. The IRS is not required to provide the tax payer with a copy of the delegated authority nor a copy of the statute or regulations relating to the imposed penalty. Johnson [ 2003-1 USTC ¶50,297], WL 32003906 at 4.

Since it is well established that the hearing officer was not required to produce any signed or unsigned documents, statutes or regulations authorizing the imposition and collection of the frivolous penalty, there exists no genuine issue of material fact in regards to the production of documents at the CDP hearing.

Finally, the Plaintiff argued the CDP hearing was unlawful because the hearing officer would not accept the Plaintiff's collection alternative to pay the $500.00 penalty if the hearing officer would produce the statute or code regulation that established the Plaintiff's underlying liability. (Doc. #28 at 7). Plaintiff claimed that no code regulation or statute allowed for the imposition of the penalty. Id. Plaintiff even threw a code book on the table in front of the hearing officer and challenged the officer to find the code giving her the authority to collect the penalty. Id.

"These allegations do not state a claim." Gregory [ 2003-1 USTC ¶50,256], 2003 WL 701218 at 3. The purpose of the collection alternative laid out in sections 6330(c)(2)(A) and 6330(c)(3)(C) is to provide a method of payment for the underlying tax liability. Id. Plaintiff's allegations propose a condition to making the payment and not a method to satisfy the liability. Id. Thus, Plaintiff's allegations do not state a claim "upon which relief can be granted." and consequently no genuine issue of material fact exists. Id.
CONCLUSION

Based on the foregoing Plaintiff failed to provide a genuine issue of material fact. Plaintiff's arguments are based on the same old tired and failed arguments used by tax protesters and rejected by all levels of the judiciary for years. Plaintiff's tax return for 1997 was clearly frivolous and therefore subject to the penalty imposed under section 6702. In addition, Plaintiff received proper notice regarding the CDP hearing held May 23, 2000. And finally, Plaintiff's CDP hearing was in accord with the requirements of 26 U.S.C. §6330(c)(1-2). Furthermore, the Plaintiff should take note that the Fifth Circuit Court of Appeals held that such frivolous contentions are and should be subject to sanctions. Hyslep [ 85-2 USTC ¶9553], 765 F.2d at 1084.

Accordingly it is hereby RECOMMENDED:

The Defendant's Motion for Summary Judgment should be GRANTED.

Failure to file written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.
ORDER
This matter comes before the Court on Plaintiff's Motion for Reconsideration (Doc. #35) filed on July 7, 2003, as to this Court's order denying Plaintiff's Motion to Compel Discovery.

Whether or not a motion to compel discovery is granted or denied is committed to the discretion of the trial court. Commercial Union Insurance Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984). Plaintiff request that this Court to reconsider her Motion to Compel based upon the Plaintiff's assertion that she did not receive a lawful Collection Due Process hearing (CDP). After reviewing the record and relevant statutory requirements, this Court finds that Plaintiff's CDP hearing was in accord with the requirements of 26 U.S.C §6330(c). As a result, the Court stands behind its order of June 27, 2003 denying the Plaintiff's Motion to Compel Discovery.

Accordingly, it is now

ORDERED:

Plaintiff's Motion to Reconsider this Court's denial of Plaintiff's Motion to Compel Discovery is DENIED.

1 The Defendant claimed in its Motion to Dismiss that the Plaintiff failed to state a claim upon which a relief could be granted.





[2002-2 USTC ¶50,802] Ward Dean, Plaintiff v. United States of America, Defendant 
U.S. District Court, No. Dist. Fla., Pensacola Div., 3:01-cv-430/LAC, 10/23/2002

[Code Secs. 6330 and 6702 ]

Collection Due Process: Assessments: Penalties, civil: Frivolous returns: Zero-income returns: Constitutional arguments.--A Collection Due Process (CDP) determination allowing for the collection of frivolous return penalty against an individual who filed zero-income returns and contended that the requirement that he file returns violated his Fifth Amendment rights was valid. The taxpayer was permitted to challenge the validity of the penalty at the CDP hearing because the statutory deficiency procedures do not apply to such penalties and, thus, he had no prior opportunity to dispute the assessment. 

[Code Secs. 6203 and 6330 ]

Collection Due Process: Assessments: Penalties, civil: Frivolous returns: Notice and demand: IRS Appeals officer: Abuse of discretion: Verification requirements.--A Collection Due Process determination allowing for the collection of the frivolous return penalty against an individual who filed zero-income returns and contended that the requirement that he file returns violated his Fifth Amendment rights was valid. The Appeals officer properly relied on Forms 4340 and other transcripts as verification that the IRS had fully complied with all applicable laws, regulations, and administrative procedures. Those documents established that the penalty and underlying taxes had been properly assessed, the applicable notices had been mailed to the taxpayer, and he had requested a hearing. The Appeals officer did not abuse his discretion in concluding that the taxpayer was afforded the applicable administrative procedures but failed to raise spousal defenses, challenge the appropriateness of the collection action, or propose alternative means of collection. 

ORDER GRANTING SUMMARY JUDGMENT
COLLIER, District Judge:
Pending before the Court is Defendant UNITED STATES OF AMERICA's Motion for Summary Judgment and documents in support thereof (Docs. 12, 13). Plaintiff WARD DEAN filed a memorandum and evidentiary materials in opposition 1 (Docs. 17, 18). The Court has taken summary judgment under advisement (Doc. 14) and is now prepared to rule on Defendant's motion. For the reasons stated below, the motion for summary judgment is GRANTED, and Plaintiff's request for a sua sponte grant of summary judgment in Plaintiff's favor (Doc. 17, p. 7) is DENIED.
I. STATEMENT OF THE CASE
A. Background
For the purposes of ruling on Defendant's Motion for Summary Judgment (Doc. 12), the following facts are either undisputed or viewed in the light most favorable to the Plaintiff. 2 On or about April 20, 1999, Plaintiff filed a 1997 federal income tax return, Form 1040EZ (Docs. 13, ¶1; 18, ¶1). On that return, Plaintiff stated that: (1) the total amount of wages, salaries, and tips comprising the gross income that he received for the 1997 tax year was $0.00; (2) the adjusted gross income was $0.00; (3) his taxable income for the 1997 tax year was $0.00; and (4) the amount of tax owed by him for the 1997 tax year was $0.00 (Docs. 13, ¶¶2-5; 18, ¶2-5). Plaintiff then signed the tax return, under penalty of perjury, declaring that the return was true and correct (Docs. 13, ¶6; 18, ¶6). Beneath the signature line, Plaintiff wrote "signed and submitted under duress" (Docs. 13, ¶7; 18, ¶7).
Along with the tax return, Plaintiff submitted a couple of IRS forms and a typed letter. Plaintiff's Form W-2 showed that Plaintiff had earned $109,264.16 in wages, tips, and other compensation in 1997 with $10,394.28 in federal withholdings (Docs. 13, ¶8; 18, ¶8). Plaintiff's Form 1099-R, entitled "Distributions from Pensions, Annuities, Retirement or Profit Sharing Plans, IRSAs, Insurance Contracts, Etc.," shows that Plaintiff had received (for the 1997 taxable year) a gross distribution of $37,236.00 with $1,657.26 in federal income tax withheld (Docs. 13, ¶¶9-10; 18, ¶¶9-10). In addition to the two forms, Plaintiff also submitted a letter (dated March 27, 1999) to the Department of Treasury. Plaintiff's letter argued that: (1) Plaintiff was not required to file an income tax return, (2) filing an income tax return violated his Fifth Amendment rights, (3) he was claiming a refund of withheld funds, and (4) the IRS may not change his return (Docs. 13, ¶11; 18, ¶11).
On April 3, 2000, the Internal Revenue Service ("IRS") assessed a $500.00 frivolous filing penalty against Plaintiff, pursuant to 26 U.S.C. §6702 (Docs. 13, ¶12; 18, ¶12). There is an issue of whether or not Plaintiff received proper notice of this assessment under the Tax Code. Defendant maintains that notice of the assessment of the frivolous filing penalty and demand for payment was made by the IRS on April 3, 2000 (Doc. 13, ¶13). Plaintiff argues that the IRS did not make notice of the assessment or demand by using Form 17 (which plaintiff claims is the only form duly authorized as a notice and demand for payment) (Doc. 18, ¶13).
On July 1, 2000, the IRS issued to Plaintiff a Final Notice of Intent to Levy and Notice of Your Right to Hearing, and this "Final Notice" advised the Plaintiff of the IRS's intent to levy upon (or file a lien against) Plaintiff's property and rights to property (Docs. 13, ¶14; 18, ¶15). Five days later, Plaintiff requested a Collection Due Process Hearing pursuant to 26 U.S.C. §6330 (Docs. 13, ¶15; 18, ¶16). On August 29, 2001, as part of the Collection Due Process Hearing, the IRS provided Plaintiff a conference with an Appeals Officer (Daniel Shirah) (Docs. 13, ¶16-17; 18, ¶17). During the Collection Due Process Hearing, Plaintiff challenged the validity of the assessment of the frivolous penalty for the 1997 tax year (Docs. 13, ¶17; 18, ¶18). Plaintiff presented no concerns that the collection action (i.e., levy) was more intrusive than necessary (Doc. 13, ¶19).
When considering the validity of the frivolous filing penalty, Mr. Shirah considered the following: (1) Certificates of Assessment and Payments, (2) Plaintiff's 1997 federal income tax return, (3) and transcripts of Plaintiff's accounts (Docs. 13, ¶20; 18, ¶20). 3 In reaching his determination, Mr. Shirah considered all matters set forth in the Notice of Determination and attachment thereto (Docs. 13, ¶21; 13, Ex. 6, ¶13; 18, ¶22). 4 On October 10, 2001, Mr. Shirah issued the Notice of Determination to Plaintiff concluding that: (1) collection by levy of the frivolous filing penalty was appropriate, (2) the IRS had satisfied all legal and procedural requirements, (3) there were no spousal defenses relevant to the issue, (4) there were no collection alternatives to be considered, and (5) the frivolous filing penalty was correct (Docs. 13, ¶22; 18, ¶23).
B. Procedural History
On July 1, 2000, a Final Notice of Intent to Levy and Notice of Your Right to Hearing was issued to Plaintiff by the IRS, and then on August 29, 2001, Plaintiff met with Appeals Officer Shirah as part of the Collection Due Process Hearing that was requested by Plaintiff (Docs. 13, ¶14-16; 18, ¶15-17). On October 10, 2001, Mr. Shirah upheld the assessment of the penalty and determined collection by levy to be appropriate (Docs. 13, ¶22; 18, ¶23). On November 8, 2001, Plaintiff (who is pro se) then filed the current appeal for judicial review of Mr. Shirah's determinations in this case (Doc. 1, ¶1). On May 9, 2002, after the expiration of discovery, Defendant filed the current Motion for Summary Judgment (Doc. 12) and Statement of Material Facts (Doc. 13). Then on May 28, 2002, Plaintiff filed Plaintiff's Memorandum in Opposition to the Defendant's Motion for Summary Judgment (Doc. 17) and a Statement of Material Facts (Doc. 18).
II. MOTION FOR SUMMARY JUDGMENT
A. Standard
Summary judgment is appropriate where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue of fact is material if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case. See id. at 248, 106 S.Ct. at 2510.
At the summary judgment stage, a court's function is not to weigh the evidence to determine the truth of the matter, but to determine whether a genuine issue of fact exists for trial. See id. at 249, 106 S.Ct. at 2510-11. A genuine issue exists only if sufficient evidence is presented favoring the nonmoving party for a jury to return a verdict for that party. See id. "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
When assessing the sufficiency of the evidence in favor of the nonmoving party, the court must view all the evidence, and all factual inferences reasonably drawn from the evidence, in the light most favorable to the nonmoving party. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993). The court is not obliged, however, to deny summary judgment for the moving party when the evidence favoring the nonmoving party is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. A mere scintilla of evidence in support of the nonmoving party's position will not suffice to demonstrate a material issue of genuine fact that precludes summary judgment. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
B. Discussion
For the reasons stated below, Defendant has satisfied its burden of demonstrating to the Court that there is an absence of a genuine issue of material fact in the current case. Once that burden is satisfied, Plaintiff then has the burden to show that there is a genuine issue of material fact necessary for trial. Plaintiff has not come forward with any genuine issues of material fact that would necessitate a trial on the merits. Therefore, the Court will dispose of this case based upon relevant law.
1. Statutory Scheme
Title 26, United States Code, Section 6331(a) provides, in relevant part: "[i]f any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax . . . by levy upon all property and rights to property . . . belonging to such person . . ." 26 U.S.C. §6331(a) (2002). 5 The IRS must provide taxpayers with notice of an intent to levy and the availability of administrative appeals. See 26 U.S.C. §6331(d) (2002). A levy "may not be made on any property or right to property of any person unless the Secretary [of the Treasury] has notified such person in writing of their right to a hearing . . . before such levy is made." 26 U.S.C. §6330(a) (2002). The hearing referred to in §6330(a) is called a Collection Due Process Hearing. The Hearing does not have to be an in person meeting between an Appeals Officer and a taxpayer (but it can be). See Treas. Reg. §301.6330-1(d)(2) Q & A-D6 (2002). It can consist of any written correspondence between the parties regarding the substantive issues. See id.
At the Collection Due Process Hearing, an IRS Appeals Officer must verify that any and all requirements of the applicable law or the administrative procedures have been met. See 26 U.S.C. §6330(c)(1) (2002). 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 the collection actions; and (iii) offers of collection alternatives. . . ." 26 U.S.C. §6330(c)(2)(A) (2002). In addition, the taxpayer "may also raise . . . challenges to the existence or the amount of the underlying tax liability for any period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." 26 U.S.C. §6330(c)(2)(B) (2002). If the taxpayer does not agree with the Appeals Officer's written determination, the taxpayer can appeal the determination to the Tax Court or to a United States District Court (if the Tax Court does not have jurisdiction over the underlying tax liability). See 26 U.S.C. §6330(d)(1) (2002). 6
2. Standard of Review on Appeal
For appeals from Collection Due Process Hearing determinations, the Court reviews the validity of the tax assessments de novo. See Konkel v. Commissioner [2001-2 USTC ¶50,520 ], 2000 WL 1819417, 3 (M.D. Fla. 2000) (citing Davis v. Commissioner [CCH Dec. 53,969 ], 115 T.C.35, 39 (2000)); See also H.R. Rep. No 599 (1998). "When the underlying tax liability is not in issue, the court reviews the decision of an appeals officer using an abuse of discretion standard of review." See Konkel v. Commissioner [2001-2 USTC ¶50,520 ], 2000 WL 1819417, 3 (M.D. Fla. 2000) (citing Davis v. Commissioner [CCH Dec. 53,969 ], 115 T.C.35, 39 (2000)); See also H.R. Rep. No 599 (1998). As a result, the validity of the frivolous assessment against Plaintiff is reviewed de novo, while the determination that collection by levy was appropriate is reviewed under an abuse of discretion standard. Judicial review is limited to those issues properly raised during the Collection Due Process Hearing. See Treas. Reg. §301.6330-1(f), Q-F5 (2002). 7
3. Validity of Assessment
Title 26, United States Code, Section 6702 provides, in relevant part:
(a) Civil penalty.--If--
(1) any individual files what purports to be a return of the tax imposed by subtitle A but which--
(A) does not contain information on which the substantial correctness of the self-assessment may be judged, or
(B) contains information that on its face indicates that the self-assessment is substantially incorrect; and
(2) the conduct referred to in paragraph (1) is due to--
(A) a position which is frivolous, or
(B) a desire (which appears on the purported return) to delay or impede the administration of Federal income tax laws,
then such individual shall pay a penalty of $500.
26 U.S.C. §6702(a) (2002) (emphasis added).
Under 26 U.S.C. §6703, the burden of proving that a taxpayer is liable for a frivolous filing penalty shall be on the Secretary of the Treasury (i.e., the United States). See 26 U.S.C. §6703(a) (2002). In the present case, Defendant has met its burden of proof. While Plaintiff's Form W-2 and Form 1099-R indicated taxable income of roughly $146,500 (for the 1997 tax year), Plaintiff did not include any of this income on Plaintiff's Form 1040EZ. Thus, Plaintiff's self-assessment of $0.00 gross and taxable income was obviously incorrect.
Furthermore, the incorrect information was due to Plaintiff's frivolous justifications. First, Plaintiff claimed that the Internal Revenue Code did not require him to submit an income tax return (Doc. 13, Ex. 4). Plaintiff's argument is without merit. "The . . . obligation to file [a] federal income tax returns is governed by the requirements of [26 U.S.C. §6012 of] the Internal Revenue Code." In re Bradford, 1994 WL 680987, 2 (E.D. Va. 1994) (citing 26 U.S.C. §6012)). Thus, the Internal Revenue Code itself explicitly states who is required to file an income tax return, and the Plaintiff so qualifies as a person required to make returns of income under 26 U.S.C. §6012.
Second, Plaintiff argued that he should not have to file a tax return because doing so would violate his Fifth Amendment right against self-incrimination (Id.). The Court rejects Plaintiff's claim that the Fifth Amendment entitles him to refuse to file adequate returns. Plaintiff has "not demonstrated any 'real danger' of self-incrimination, nor is such danger readily apparent." Davis v. U.S. Government [84-2 USTC ¶9808 ], 742 F.2d 171, 172 (5th Cir. 1984) (citing Steinbrecher v. CIR [83-2 USTC ¶9531 ], 712 F.2d 195 197-98 (5th Cir. 1983)); See also Ricket v. United States [85-2 USTC ¶9740 ], 773 F.2d 1214, 1215 (11th Cir. 1985); Turner v. Secretary of the Treasury and United States of America [84-2 USTC ¶9805 ], 1984 WL 3077, 6 (S.D. Ind. 1984).
Third, at the hearing, Plaintiff argued that the IRS did not provide him adequate notice and demand for a §6702 penalty (Doc. 1, Attach., p. 21-22). Plaintiff maintained that §6331 requires that a notice of deficiency be made before assessment, and since the IRS had not so notified Plaintiff prior to the assessment in this case, Plaintiff argued that the assessment was contrary to the law (Id.). Under 26 U.S.C. §6703, deficiency procedures (such as those in §6331) do not apply with respect to the assessment or the collection of penalties provided by §6702. See 26 U.S.C. §6703(b) (2002); See Turner v. Secretary of the Treasury and United States of America [84-2 USTC ¶9805 ], 1984 WL 3077, 4 (S.D. Ind. 1984). 8 For a §6702 penalty, the IRS does not have to provide a statutory notice of deficiency prior to assessment of the penalty.
Fourth, Plaintiff argues that Mr. Shirah must obtain verification from the Secretary of the Treasury that any applicable laws or administrative procedures have been met in regards to the assessment of the penalty in the current case (Doc. 1, Attach., pp. 26-30). Basically, Plaintiff argued that, since Mr. Shirah did not have a separate verification form issued by the Secretary personally, the assessed penalty is not valid. "Literal transcripts" (such as TXMODA and Forms 4340 used by Mr. Shirah) are a valid verification that the requirements of any applicable law or administrative procedure have been met. See Standifird v. Commissioner of Internal Revenue [CCH Dec. 54,889(M) ], 2002 WL 31151194, T.C. Memo. 2002-245 (U.S. Tax Ct. 2002). 9
Plaintiff's arguments against the validity of the assessment are without merit. Defendant has satisfied its burden of proof as to the Plaintiff's violation of §6702. As a result, the assessment of the $500.00 frivolous filing penalty against Plaintiff with respect to the 1997 tax year was valid.
4. Collection Due Process Hearing Determination
Title 26, United States Code, Section 6330 provides, in relevant part:
(c) Matters considered at hearing.--In the case of any hearing conducted under this section--
(1) Requirement of investigation.--The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.
(2) Issues at hearing.--
(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
(iii) 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.
(B) Underlying liability.--The person may also raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.
(3) Basis for the determination.--The determination by an appeals officer under this subsection shall take into consideration--
(A) the verification presented under paragraph (1);
(B) the issues raised under paragraph (2); and
(C) whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary.
(4) Certain issues precluded.--An issue may not be raised at the hearing if--
(A) the issue was raised and considered at a previous hearing under section 6320 or in any other previous administrative or judicial proceeding; and
(B) the person seeking to raise the issue participated meaningfully in such hearing or proceeding.
This paragraph shall not apply to any issue with respect to which subsection (d)(2)(B) applies.
Thus, there are certain issues that an IRS Appeals Officer must consider when making his/her determination.
During Plaintiff's Collection Due Process Hearing, Mr. Shirah complied with the above provision of the Tax Code when making his determination that a levy was appropriate to collect Plaintiff's frivolous filing penalty. The validity of the underlying tax (i.e., the penalty) was verified through a review of the tax return, transcripts, and a Certificate of Assessment and Payment. Said Certificate demonstrated that: (1) there was an assessment, (2) post-assessment notice to the taxpayer, and (3) Plaintiff failed to pay the outstanding tax (i.e., penalty). In addition, Mr. Shirah verified that notice and demand for payment was made on April 3, 2000. 10
At the hearing, Plaintiff attempted to challenge the validity of the underlying tax by making meritless arguments about the applicability of the law to his case. Plaintiff did not assert a spousal defense nor did Plaintiff offer a realistic collection alternative. Plaintiff offered, with checkbook in-hand, to pay the $500.00 penalty to Mr. Shirah if Mr. Shirah would identify any Code section that made Plaintiff liable for the tax (Doc. 1, Attach., p. 41). Mr. Shirah attempted to explain §6702 and relevant case law to Plaintiff, but Plaintiff would not accept the validity of Mr. Shirah's statements (which were accurate) (Id. at p. 43). Such an attempt by Plaintiff was not a realistic collection alternative, because, based on Plaintiff's position on the law as well as his demeanor, Plaintiff would not have accepted anything that Mr. Shirah had to say (unless of course Mr. Shirah had agreed with Plaintiff's position).
In addition, Mr. Shirah balanced the efficient collection of the tax against the intrusiveness of a collection action against Plaintiff. Based on the facts and circumstances of the case, Mr. Shirah weighed the interests involved and concluded that levy was necessary in order for the IRS to collect the outstanding tax. Thus, at conclusion of the hearing, the penalty had been assessed, the IRS had made notice and demand, Plaintiff had raised no meritorious arguments, and Plaintiff had not paid the tax. Therefore, Mr. Shirah made a proper determination that the IRS had complied with all applicable laws and procedures, and Mr. Shirah's decision as to the appropriateness of the levy was not an abuse of discretion (based on the facts and circumstances of this case).
Defendant has satisfied its burden of demonstrating to the Court that there is an absence of a genuine issue of material fact in the current case. Plaintiff has not come forward with any genuine issues of material fact that would necessitate a trial on the merits. After considering the relevant, applicable law, Defendant's Motion for Summary Judgment (Doc. 12) is hereby GRANTED, and Plaintiff's request for a sua sponte grant of summary judgment in Plaintiff's favor (Doc. 17, p. 7) is hereby DENIED.
III. SUMMARY
The Court's ruling in this matter may be summarized as follows, and IT IS HEREBY ORDERED:
1. Defendant's Motion for Summary Judgment (Doc. 12) is hereby GRANTED.
2. Plaintiff's request for a sua sponte grant of summary judgment in favor of the Plaintiff (Doc. 17, p. 7) is hereby DENIED.
3. Consistent with this order, the Clerk of Court is directed to enter summary judgment in favor of Defendant. Plaintiff shall take nothing by this action and goes without day.
JUDGMENT
This action came before the Honorable Lacey A. Collier and a decision has been rendered.
Judgment is hereby entered in favor of Defendant, UNITED STATES OF AMERICA. Plaintiff, WARD DEAN, shall take nothing by this action and goes without day.
1 As to Plaintiff's Statement of Material Facts (Doc. 18), Plaintiff has failed to comply with Local Rule 56.1(A). Plaintiff did not reference any supporting material (such as affidavits, admissions, etc.) "or other detail sufficient to permit the court to readily locate and check the source." Loc. R. 56.1(A) (1999). In light of Plaintiff's pro se status, Plaintiff's Statement of Material Facts will be admitted under Local Rule 56.1(A), since Plaintiff's Statement is practically identical to Defendant's Statement of Material Facts (which is supported by appropriate references). However, admitting or denying Plaintiff's Statement will not affect the Court's determination of the current motion, because summary judgment for the Defendant is warranted either way.
2 Some of the facts are construed according to Local Rule 56.1(A). Where the Court cites to the Defendant's statement of facts (Doc. 13, ¶X), Plaintiff has failed to controvert that specific fact, and it is therefore deemed admitted for the limited purpose of ruling on Defendant's motion for summary judgment.
3 In addition, Plaintiff argues that "Appeals Officer Shirah did not review any documents which stated the basis of the determination, or the reason for the finding by the individual who made the determination, thus failing to obtain verification from the Secretary [of the Treasury] that the determination was procedurally correct" (Doc. 18, ¶¶20-21).
4 Plaintiff also argues that "the Notice of Determination and attachments thereto . . . did not include any documentation from the individual who made the initial determination that Plaintiff's return was frivolous" (Doc. 18, ¶22). Furthermore, Plaintiff (citing Mr. Shirah's notes) claims that "Appeals Officer Shirah himself questioned the validity of the determination in light of the assessment of $0.00 in taxes for Plaintiff (Doc. 18, ¶22).
5 The frivolous filing penalty (pursuant to 26 U.S.C. §6702) at issue in the present case is a tax, even though it is called a "penalty." See 26 U.S.C. §§6671, 6702 (2002).
6 The Tax Court has jurisdiction to redetermine the amount of some tax deficiencies. See 26 U.S.C. §6214(a) (2002). Deficiency procedures do not apply to frivolous filing penalties. See 26 U.S.C. §6703(b) (2002). Therefore, since Plaintiff is appealing a determination involving a frivolous filing penalty, Plaintiff was required to bring his appeal before this Court.
7 Plaintiff argues that the Court should follow "generally accepted standards for review of agency actions," or in other words, the "arbitrary and capricious" standard of review under the Administrative Procedure Act (Doc. 17, p. 6). Such argument is without merit. Not only have the proper standards been determined in prior case law, but, in the House of Representatives Conference Report on §6330, Congress explicitly intended the standards of review that the Court has described above apply when reviewing Collection Due Process Hearings. See Konkel v. Commissioner [2001-2 USTC ¶50,520 ], 2000 WL 1819417, 3 (M.D. Fla. 2000); Davis v. Commissioner [CCH Dec. 53,969 ], 115 T.C. 35, 39 (2000); Goza v. Commissioner [CCH Dec. 53,803 ], 114 T.C. 176, 181-182 (2000); H.R. Rep. No. 599 (1988). Assuming arguendo that the standard of review were arbitrary and capricious, the Defendant would still prevail.
8 This Court would like to address a comment made by Plaintiff during the Collection Due Process Hearing. Mr. Shirah attempted to explain to Plaintiff that Turner and §6703 specifically give the IRS the ability to assess the frivolous filing penalty without prior notification (Doc. 1., Attach., p.21). In response, Plaintiff said: "Well, Code Section 6001 says that I have to comply with rules and regulations, it does not say anything about me having to comply with court cases" (Doc. 1, Attach., p. 22). Plaintiff then said: "Your own regulation here, 601-106F says that the appeals representative shall hue to the law, it doesn't say that you shall hue to court cases, it says you shall hue to the law" (Doc. 1, Attach., p. 23). Later in the hearing, Mr. Shirah tried again to explain to Plaintiff that, regardless of Turner, §6702 still gave the IRS the authority to assess the penalty against Plaintiff (Doc. 1, Attach., p. 46). Plaintiff responded: "But I'm supposed to comply with regulations" (Doc. 1, Attach., p. 46).
First of all, court cases are law, too. Second, legislators write statutory laws, which are later interpreted by the courts when those statutes are challenged. That interpretation is then used by citizens and government officials to conform their conduct accordingly (and by other courts in subsequent cases). Third, regulations are agency interpretations of statutory laws, and those regulations are subject to judicial review as well. [So in reality, Plaintiff needs to be more concerned about complying with statutory and case law rather than looking for an agency regulation to follow]. As a result, Plaintiff's arguments (quoted above) are without merit.
9 Plaintiff argues that use of a transcript during a collection due process hearing in invalid (i.e., inadmissible without proper foundation) (Doc. 17, p. 6). In support of this proposition, Plaintiff cites two cases, Huff v. United States and United States v. Buford. In Huff, the Court stated that the IRS could not rely solely on Forms 4340 in order to prove that the tax at issue in that case was valid. See Huff v. United States [93-2 USTC ¶50,633 ], 10 F.3d 1440, 1446 (9th Cir. 1993). In the present case, Mr. Shirah relied on more than just a Form 4340; Mr. Shirah also relied on transcripts and the actual 1997 income tax return in question. In Buford, the issue involved was whether or not an Individual Master File (also called an IMF) was discoverable by the taxpayer and whether the trial court had committed error by not conducting an in camera inspection of the IMF. See United States v. Buford [89-2 USTC ¶9676 ], 889 F.2d 1406,1408 (5th Cir. 1989). Buford in no way stands for Plaintiff's asserted proposition.
10 Such post-assessment notice was made pursuant to 26 U.S.C. §6303(a) within the required 60 days after assessment.



[2002-2 USTC ¶50,719] Ryan K. Harrison and Amy K. Harrison, Plaintiffs v. United States of America, Defendant 
U.S. District Court, Dist. Nev., CV-S-02-0143-LRH (LRL), 9/5/2002

[Code Secs. 6330 and 6702 ]

Collection Due Process: Notice of determination: Validity of notice: Issues raised at hearing: Tax protestors: Individuals liable for tax.--Married taxpayers failed to set forth a valid argument to support their claim that a notice of determination issued to them should be vacated. They raised the same issues in the district court that they had raised in their Collection Due Process (CDP) hearing. Their tax protest arguments were rejected, as was their challenge to the frivolous return penalty imposed in connection with their return that contained zeros while an attached Form W-2 showed income. Moreover, their conclusory allegation that their CDP hearing was improperly conducted was unsupported, as were their contentions that the Treasury Secretary was required to send the notice of determination, and that computer generated transcripts were invalid to show notice and amounts owed. 
ORDER
HICKS, District Judge:
On April 3, 2002, Defendant United States of America filed a motion to dismiss for insufficiency of service of process pursuant to Fed. R. Civ. P. 12(b)(5), a motion to dismiss for failure to state a claim pursuant to Fed R. Civ. P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. (Docket #2). Plaintiffs 1 responded with a motion for extension of time in which to respond to Defendant's motion to dismiss on April 10, 2002. (#3). That motion is granted for good cause shown and because of Defendant's non-opposition. Plaintiffs then filed their opposition to the motion to dismiss on May 7, 2002. (#5). Most recently, on August 29, 2002, the United States filed an unopposed motion for a protective order. (#7).
I. Background
Plaintiffs Ryan K. Harrison and Amy M. Harrison filed a Complaint seeking damages and requesting that the Court set aside an invalid collection determination pursuant to 26 U.S.C §6330. In essence, the Complaint alleges that the "determination" issued by the Internal Revenue Service ("IRS") on January 3, 2002, after a Collection Due Process Hearing was invalid.
The Collection Due Process Hearing was held on November 8, 2001, pursuant to 26 U.S.C. §§6320(a), 6330(a) and (b) after Plaintiff had received a Notice of Federal Tax Lien. The Notice of Federal Tax Lien was allegedly sent to Plaintiffs because their 1992 through 1998 individual tax returns contained a row of zeros down the right hand column while Plaintiffs' respective W-2s for those years revealed income.
Plaintiffs' Complaint attaches numerous exhibits, but does not attach their tax returns on which the IRS sought to impose civil penalties. These income tax returns, however, are attached to the United States' motions and will be considered by the Court. Consequently, the motion to dismiss is converted to a motion for summary judgment. Fed. R. Civ. P. 12(b)(6).
II. Analysis
A. Standard of Review
A motion for summary judgment terminates, without a trial, actions in which "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
The movant is entitled to summary judgment if the non-moving party, who bears the burden of persuasion, fails to designate " 'specific facts showing that there is a genuine issue for trial.' " Celotex Corp, v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(e)). Thus, in order to preclude a grant of summary judgment, the non-moving party must set forth " 'specific facts showing that there is a genuine issue for trial.' " Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)). The substantive law defines which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All justifiable inferences must be viewed in the light most favorable to the non-moving party. County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001) (citing Zenith Radio Corp., 475 U.S. at 587).
Section 6330(d) does not specify the standard of review a district court should apply to an appeal of a Notice of Determination. However, the legislative history indicates that the court should conduct a de novo review only "where the validity of the tax liability was properly at issue at the administrative hearing." H. Conf. Rept. 105-599, 105th Cong.2d Sess. 266 (1998). Where the amount of the underlying tax liability is not properly part of the appeal, the court reviews a Notice of Determination for abuse of discretion. See Sego v. Comm'r of Internal Revenue [CCH Dec. 53,938 ], 114 T.C. 604, 609-10 (2000).
B. Plaintiffs' Section 6330 Appeal
Plaintiffs raise many of the same issues before this Court that they raised at the November 9, 2001, hearing. First, they argue that they are not liable for income tax. The Supreme Court, however, has held early and often that it is lawful to impose a tax on "every person residing in the United States . . . upon the entire net income arising from all sources." S. Pacific Co. v. Lowe [1 USTC ¶19], 247 U.S. 330, 333-34 (1918). "Income" is defined in its everyday usage meaning a monetary gain acquired from capital or labor or both combined. United States v. Richards [84-1 USTC ¶9130 ], 723 F.2d 646, 648 (8th Cir. 1983) (internal citation omitted).
Second, Plaintiffs challenge the $500 frivolous return penalty imposed upon them as invalid. This Circuit found that a tax return containing zeros while attaching W-2s showing income amount to the filing a frivolous return that is subject to a penalty. See Olson v. United States [85-1 USTC ¶9401 ], 760 F.2d 1003, 1005 (9th Cir. 1985); Bradley v. United States [87-1 USTC ¶9336 ], 817 F.2d 1400, 1403 (9th Cir. 1987).
Third, Plaintiff makes the conclusory allegation that the Collection Due Process Hearing was not in accordance with law. Such a conclusory allegation need not be accepted in the absence of facts. In actual fact, Plaintiff did not appear to raise any of the statutory-specified issues that may be raised at a Collection Due Process Hearing such as spousal defenses, the appropriateness of the intended collection action or the possibility of alternative means of collection. 26 U.S.C. §6330(c).
Fourth, Plaintiff argues that the Notice of Determination is invalid because it was not sent by the Secretary of the Treasury. This argument, that IRS employees are not "delegates" of the Secretary of the Treasury has been previously rejected. Browder v. Commissioner [CCH Dec. 46,775(M) ], T.C. Memo 1990-408, 1990 WL 108316.
Fifth, Plaintiff questions whether computer generated transcripts are valid to show notice and amounts owed. Again, this argument has been uniformly rejected. Davis v. Commissioner [CCH Dec. 53,969 ], 115 T.C. 35, 40 (2000).
III. Conclusion
In summary, Plaintiffs have failed to set forth a valid argument to support their claim that the Notice of Determination of October 16, 2001, should be vacated. Because Plaintiff fails to raise a disputed issue of material fact, Defendant's Motion for Summary Judgment (#2) is GRANTED. Defendant's Motion for an extension of time (#5) is GRANTED. The United States' motion for a protective order (#7) is DENIED as moot. The clerk is directed to close the file.
IT IS SO ORDERED.
1 Both Plaintiffs signed the Complaint but only one Plaintiff, Ryan K. Henderson, appears to have signed the motion for extension of time and opposition. Ordinarily, each pro se party needs to sign a pleading. Fed. R. Civ. P. 11(a). The Court will, however, overlook this omission in the interests of justice. Fed. R. Civ. P. 1.


[2002-2 USTC ¶50,499] Donald D. Hoffman, Plaintiff v. United States of America, Defendant 
U.S. District Court, West. Dist. Wash. at Tacoma, C02-5023RJB, 5/3/2002

[Code Secs. 6330 and 6702 ]

Liens and levies: Penalties, civil: Frivolous return penalty: Form 1040: Frivolous position.--An individual's suit against the government challenging a levy in response to his nonpayment of a frivolous return penalty was dismissed. Imposition of the penalty was proper as his Form 1040 lacked information such that its correctness could not be judged. Moreover, a document attached to the Form 1040 indicated that the omissions from the Form 1040 were attributable to a frivolous position. He received proper notice and opportunity to appeal the penalty prior to his Collection Due Process hearing in which he failed to raise any relevant issues, focusing instead on the validity of the underlying taxes. All other assertions were dismissed as meritless. 

ORDER GRANTING UNITED STATES' MOTION FOR SUMMARY JUDGMENT AND DISMISSING CASE WITH PREJUDICE
BRYAN, District Judge:
This matter comes before the court on the United States' Motion for Summary Judgment. Dkt. 9. The court has considered the pleadings filed in support of and in opposition to the motion and the file herein, and has determined that the matter may be decided without oral argument.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt."). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial--e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
PROCEDURAL AND FACTUAL HISTORY
On March 22, 1999, plaintiff filed a Form 1040 individual income tax return for 1997. Dkt. 10, Exh. A. At the top of the first page of the return, plaintiff wrote his name, social security number, address, filing status (single), and number of exemptions (1). At the bottom of the first page and on the second page, in the sections regarding income, adjusted gross income, computations, credits, other taxes, and payments, plaintiff wrote zeros or left the lines blank. In the refund section on the bottom of page two, plaintiff claimed an overpayment of $10,400, and requested that all of that amount be refunded. In line 64, for the amount of tax owed, plaintiff inserted a zero. He signed and dated the return, describing his occupation as "Retired."
Attached to the Form 1040 was a document that stated in relevant part:
I, Donald D. Hoffman, am submitting this as part of my 1997 income tax return even though I know that no section of the Internal Revenue Code:
(1) Establishes an income tax "liability" * * *
(5) Section 6103(h) and (l) provides [sic] that all return information can be used against me to determine and impose both civil and criminal fines. Therefore, I do not see how any law can compel me to provide information to the government that can be used against me in this manner, consistent with my Fifth Amendment right not to be compelled to be a witness against myself. * * *
(6) With respect to the information I included in my return, I wish to point out that the courts have ruled that "A(1040) form with 'zeroes' inserted in the space provided . . . qualifies as a return." * * *
(7) Please note that my 1997 return also constitutes a claim for refund pursuant to Code Section 6402.
(8) * * * Therefore, since I had no Earnings in 1997, that would have been taxable as "income" under the Corporation Excise Tax Act of 1909, I can only swear to having "zero" income in 1997.
(9) I am also putting the IRS on notice that my 1997 tax return and claim for refund does not constitute a "frivolous" return pursuant to Code Section 6702. * * *
(10) Moreover, since no assessment for 1997 income taxes (as provided in Chapter 63) has ever been made against me, the IRS has no legal basis to hold the S10,400.00 of my money that it is now holding for 1997 income taxes. * * *
(13) In addition, I will hold IRS employees who disregard the statutes, court decisions, Privacy Act Notice provisions and other references contained in this document accountable pursuant to 26 USC 7214 and 18 USC 241. Section 7214 makes it a crime for IRS agents to seek to extract "other or greater sums than authorized by law" and to engage in "extortion and willful oppression under color of law." To the extent that IRS employees capriciously, wantonly and arbitrarily disregard the court decisions, statutes and other references contained in this document, they will be in criminal violation of these statutes, and you are accordingly being put on such notice. * * *
Id. Emphasis in original.
On September 4, 2000, the Internal Revenue Service (IRS) assessed plaintiff a $500 civil penalty under I.R.C. §6702, "Frivolous Income Tax Return," for filing the above-described Form 1040. Dkt. 10. Exh. B.
On November 30, 2000, the IRS issued plaintiff a "Final Notice--Notice of Intent to Levy and Notice of Your Right to a Hearing" with regard to the frivolous return penalty. Dkt. 1, Exh. 4. On December 18, 2000, plaintiff filed a timely request with the IRS for a collection due process (CDP) hearing under 26 U.S.C. §6330. Dkt. 1, Exh. 2. On September 27, 2001, plaintiff submitted a document to the Appeals Office that expressed plaintiff's position that the income tax laws are unenforceable Dkt. 1, Exh. 3.
On October 15, 2001, the Appeals Office, through Appeals Settlement Officer Tim Paul, conducted the CDP hearing related to the appeal of his frivolous return penalty. Dkt. 1, Exh. 5. On December 17, 2001, the IRS denied plaintiff's CDP appeal in a "Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330." Dkt. 1, Exh. 1. The denial stated that "[a]ppeals has heard your appeal and is sustaining Collection function's proposed enforced collection actions as per Letter 11, Notice of Intent to Levy." Dkt. 1, Exh. 1.
On January 15, 2001, plaintiff filed this action for judicial review of the Appeals Office's determination pursuant to 26 U.S.C. §6330(d)(1)(B). Dkt. 1. In his complaint and in his response to defendant's motion for summary judgment, plaintiff contends that the Appeals Officer failed to verify that (1) the notice entitling him to a CDP hearing was not sent to him by the Secretary of the Treasury and there was no proof that the person who sent the notice had been properly delegated to do so; (2) no document supporting imposition of the penalties at issue was ever produced by the IRS; (3) the IRS offered no proof that those who determined and imposed the penalties were authorized to do so; (4) plaintiff was never sent the Statutory Notice and Demand for payment with regard to the penalties at issue; (5) no Treasury Department regulation requires that plaintiff pay the penalties at issue and defendant has not produced any such regulation; (6) no statute establishes an underlying liability for the income tax to which the penalties relate, and defendant has not identified any such statute; and (7) the IRS presented no verification at the CDP hearing that applicable laws or administrative procedures have been met.
DISCUSSION
26 U.S.C. §6702(a) provides for the immediate assessment of a civil penalty of $500 against any individual who files what purports to be a return of income tax where (1) the document filed either does not contain information on which the substantial correctness of the self-assessment may be judged or contains information that on its face indicates that the self-assessment is substantially incorrect; and (2) such conduct arises either from a position which is frivolous or from a desire which appears on the purported return to delay or impede the administration of Federal income tax laws.
26 U.S.C. §6330 provides the procedures for administrative collection actions. The law requires that (1) the IRS give 30 days' written notice of the taxpayer's right to a CDP hearing before making a levy; (2) a hearing be conducted by an officer or employee who has no prior involvement with the subject tax liability; (3) the Appeals Office obtain verification from the IRS that the requirements of any applicable law or administrative procedure have been met; (4) the taxpayer may raise any relevant issue relating to the unpaid tax or the proposed levy at the CDP hearing, including challenges to the appropriateness of collection actions and offers of collection alternatives; (5) the taxpayer may challenge the existence or amount of the underlying tax liability under some circumstances; and (6) the final determination by the Appeals Officer shall take into consideration (a) the verification that applicable law and administrative procedures have been met, (b) the issues raised by the taxpayer, and (c) whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary. See 26 U.S.C. §6330(a), (b)(1),(c), (c)(2)(B), and (c)(3)(C).
A taxpayer may appeal the determination of the Appeals Office to the Tax Court or to a federal district court, whichever has jurisdiction over the underlying tax liability. 26 U.S.C. §6330(d). For frivolous return penalties under 26 U.S.C. §6702, the federal district court has jurisdiction. See 26 C.F.R. & 301.6330-1(f)(2)(Q-F3 and A-F3); Hart v. IRS, 87 A.F.T.R. 2d 2001-1531, 2001-1 USTC ¶50,328 (E.D. Pa. 2001); Johnson v. Commissioner [CCH Dec. 54,554] , 117 T.C. 204 (2001).
A review of the record shows that plaintiff voluntarily filed the tax return at issue. He participated in a hearing that was conducted by an Appeals Officer who had no previous involvement with the unpaid civil penalty at issue. The Appeals Officer verified that plaintiff actually received the first notice and demand for payment of the penalty, dated September 4, 2000. Plaintiff was permitted an opportunity to raise relevant issues, although at the hearing he focused on argument related to protesting the underlying taxes rather than the frivolous filing penalty. Dkt. 1. Exh. 5. However, the validity of the underlying taxes were not properly before the Appeals Officer in this CDP hearing on the frivolous filing penalty. Finally, in the December 17, 2001, determination sustaining the collection action, the Appeals Office balanced the need for the efficient collection of taxes with the legitimate concern that the collection action be no more intrusive than necessary. Dkt. 1, Exh. 1.
A review of the record supports the final determination of the Appeals Office. The Form 1040 in this case satisfies both prongs of 26 U.S.C. §6702(a). First, it does not contain information on which the substantial correctness of the self-assessment may be judged. It contains zeroes or is blank except for plaintiff's name, address, signature, occupation and the alleged overpayment/refund due of $10,400. Second, the document attached to the Form 1040 shows that the information was omitted due to a position which is frivolous or from a desire, which appears on the purported return, to delay or impede the administration of Federal income tax laws. See Bradley v. United States [87-1 USTC ¶9336] , 817 F.2d 1400, 1404 (9th Cir. 1987) (a position taken in a tax return is frivolous when the position has no basis in fact or law).
Plaintiff appears to argue that the court cannot look to the merits of his 1997 Form 1040, and therefore, that the IRS determination to assess the frivolous filing penalty is without basis. This is not the case. The return's lack of merit is relevant to the imposition of the frivolous return penalty.
Plaintiff maintains that there is no such thing as a frivolous return, and that he made a return when he filed the Form 1040 and the attached document. Whether plaintiff filed a return is not the issue. The issue is whether the return was frivolous. There is ample evidence to support the determination of the Appeals Office that it was.
Plaintiff raises several arguments in this appeal, and those arguments are addressed as follows:
Inadequacy of Notice. Plaintiff contends that the notice entitling him to a CDP hearing was not sent to him by the Secretary of the Treasury and there was no proof that the person who sent the notice had been properly delegated to do so. Plaintiff received the notice, signed by a representative of the IRS. The Secretary of the Treasury properly delegated his authority pursuant to statute and regulation to IRS employees. See 26 U.S.C. §7701(a)(11)(A); 26 U.S.C. §7701(a)(12)(A)(i): Treas. Reg. §301.7701-9 (26 C.F.R.); Delegation Order 193 (Rev. 6), Dkt. 14, Exh.A. This argument is frivolous and without merit.
Adequacy of Supporting Documentation. Plaintiff contends that the IRS has never produced a document supporting imposition of the penalties at issue. He does not believe that a computer transcript is adequate to verify an assessment. However, an Appeals Officer may rely on computer transcripts that contain the requisite information in order to verify an assessment. See Lunsford v. Commissioner [CCH Dec. 54,553] , 117 T.C. 159 (2001). In this case, the Appeals Officer relied on an IRS computer printout that showed that $500 tax penalty assessment. Dkt. 10, Exh. B. Plaintiff has not shown that the tax assessment on the computer printout was in error. This argument is frivolous and without merit.
Persons Authorized to Determine and Impose Penalties. Plaintiff claims that the IRS offered no proof that those who determined and imposed the penalties were authorized to do so. Plaintiff was afforded notice of the imposition of a penalty by an employee of the IRS. He was afforded the opportunity to appeal that decision, which he did. This claim is frivolous and without merit.
Statutory Notice and Demand by Payment. Plaintiff contends that he was never sent the required Statutory Notice and Demand for payment with regard to the penalties at issue. Plaintiff received notice of the assessment and an opportunity to appeal that assessment. Plaintiff contends that he should have received a Form 17 A, rather than the notice he received. Form 17 A relates to assessment of unpaid income tax. Dkt. 12, Exh. 9. Notice and demand is not required to be sent on any particular form so long as the requisite information is included. Hughes v. United States [92-1 USTC ¶50,086] , 953 F.2d 531, 536 (9th Cir. 1991). Notice and demand is not required to be sent on a For 17 or Form 17A. Schiff v. United States, 71A A.F.T.R. 2d 93-3271, 89-2 USTC ¶9551 (D. Conn. 1989). This argument is frivolous and without merit.
Regulation Requiring Plaintiff to Pay Penalty. Plaintiff contends that no Treasury Department regulation requires that plaintiff pay the penalties at issue and defendant has not produced any such regulation. 26 U.S.C. §6702(a) provides the statutory authority for assessing the penalty. This argument is frivolous and without merit. To the extent that plaintiff contends that the IRS did not comply with 26 U.S.C. §6751, that argument is without merit because the penalty at issue in this case was assessed September 4, 2000: Section 6751 applies only to penalties assessed after June 30, 2001. Further, 26 U.S.C. §6702, which governs frivolous return penalties, does not by its terms require any implementing regulations.
Underlying Liability for Income Tax. Plaintiff contends that no statute establishes an underlying liability for the income tax to which the penalties relate, and that the IRS has not identified any such statute. Plaintiff's underlying tax liability is not an issue in this case, although he consistently tried to make it so at the appeals hearing and before this court. Plaintiff's remedy with regard to the underlying tax liability would have been to file a petition with the Tax Court to contest the proposed deficiency in tax before he received his CDP notice. This argument is frivolous and without merit.
CDP Hearing. Plaintiff contends that the IRS presented no verification at the CDP hearing that applicable laws or administrative procedures have been met. As discussed above, plaintiff received the proper notices and the opportunity to appeal the $500 frivolous filing penalty. An Appeals Officer conducted a hearing in compliance with applicable statutes and regulations.
The United States's Motion for Summary Judgment should be granted and the case should be dismissed with prejudice.
Therefore, it is hereby
ORDERED that United States' Motion for Summary Judgment is GRANTED. This case is DISMISSED WITH PREJUDICE.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.



[2001-2 USTC ¶50,615] Charlie Vaughn, Plaintiff v. Internal Revenue Service and State of Michigan, Defendants 
U.S. District Court, East. Dist. Mich., So. Div., 00-75589, 7/18/2001, 2001 U.S. Dist. LEXIS 11432.

[Code Secs. 7402 , 7422 and 7433 ]

Suits by taxpayers: District Court: Jurisdiction: Sovereign immunity: Failure to state claim: Reckless or intentional disregard: Illegal or wrongful collection: Federal Tort Claims Act.--Jurisdiction was lacking over a pro se individual's suit against the IRS because the government, rather than the IRS, was the proper party defendant in the taxpayer's suit challenging an allegedly erroneous assessment of a tax deficiency. No ground for waiver of sovereign immunity by the United States was established. The taxpayer sought damages rather than a refund, and his complaint centered on the wrongful assessment, rather than collection, of the deficiency. Additionally, an action under the Federal Tort Claims Act was unavailable because the taxpayer failed to exhaust his administrative remedies prior to bringing suit. BACK REFERENCES: ¶41,605.2046 , ¶41,605.3406 , ¶41,688.11 , ¶41,688.49 and ¶41,778.18 
Charlie Vaughn, Detroit, Mich., pro se. Thomas P. Cole, Department of Justice, Washington, D.C. 20530, for I.R.S. Emily S. Jampel, Detroit, Mich., for State of Michigan.
ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
EDMUNDS, District Judge:
This matter has come before the Court on the Magistrate Judge's Report and Recommendation. Being fully advised in the premises and having reviewed the record and the pleadings, including the Report and Recommendation and any objections thereto, the Court hereby ACCEPTS AND ADOPTS the Magistrate Judge's Report and Recommendation. It is further ordered that Defendant's motion for summary judgment is hereby GRANTED, and the case is hereby DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
JUDGMENT
The Court having reviewed and fully considered the pleadings filed by the parties, the Magistrate's Report and Recommendation, and any objections thereto in accordance with 28 U.S.C. §636(b)(1), and the Court further having made a de novo determination of those portions of the Report and Recommendation to which objections may have been made; and for the reasons set forth in an Order dated 18 JUL 2001 and filed herein;
The Report and Recommendation of the Magistrate is hereby accepted and adopted as the findings and conclusions of the Court.
IT IS HEREBY ORDERED AND ADJUDGED that that [sic] Defendant's motion for summary judgment is hereby GRANTED, and the case is hereby DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
REPORT AND RECOMMENDATION
I. RECOMMENDATION:
KOMIVES, Magistrate Judge: The Court should grant defendants' motions to dismiss plaintiff's complaint. This dismissal should be without prejudice to plaintiff's ability to pursue whatever administrative or state court remedies he may have.
II. REPORT:
A. Procedural Background
Plaintiff Charlie Vaughn commenced this action on December 28, 2000, against defendants the Internal Revenue Service (IRS) and the State of Michigan. In his handwritten pro se complaint, plaintiff alleges that defendants mistakenly assessed a tax deficiency against him. They eventually returned the money, but by that point plaintiff had had to mortgage his home to pay the deficiency assessment. Defendants' actions, plaintiff alleges, caused him to incur closing costs and interest associated with the mortgage, which later turned out to be unnecessary once defendants recognized their error. Although the complaint is not entirely clear on this point, it appears that plaintiff seeks reimbursement of these costs as damages.
On April 24, 2001, the United States, asserting itself as the proper party in place of the IRS, filed a motion to dismiss. The United States argues that plaintiff's claims against it are barred by the government's sovereign immunity from suit. The State filed a motion to dismiss on May 1, 2001, similarly arguing that plaintiff's claims against it are barred by its sovereign immunity under the Eleventh Amendment. The State also argues that jurisdiction over plaintiff's claim against the state is vested exclusively in the state court of claims. Plaintiff filed a letter response to the motions on May 8, 2001. For the reasons that follow, the Court should dismiss the complaint.
B. Legal Standard
Rule 12 of the Federal Rules of Civil Procedure provides that a party may, by motion, raise the defense of "lack of jurisdiction over the subject matter." FED. R. CIV. P. 12(b)(1). As the Sixth Circuit has explained, there are two types of challenges to subject matter jurisdiction that may be brought under Rule 12(b)(1). The first is a facial attack, which "is a challenge to the sufficiency of the pleading itself." United States v. Ritchie [94-1 USTC ¶50,076], 15 F.3d 592, 598 (6th Cir. 1994). The second is a factual attack, which attacks not the sufficiency of the pleading but "the factual existence of subject matter jurisdiction." Id. Here, defendants raise a facial attack. The State asserts that jurisdiction is lacking because plaintiff's claims are barred by the Eleventh Amendment, and the United States asserts that jurisdiction is lacking because plaintiff's claims are barred by its sovereign immunity.
In deciding a facial attack on subject matter jurisdiction, the Court applies the same standard as it applies to a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Community Treatment Ctrs., Inc. v. City of Westland, 970 F.Supp. 1197, 1205 (E.D. Mich. 1997) (Rosen, J.). In other words, "the court must accept the well-pleaded allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor." Id.; accord Ritchie [94-1 USTC ¶50,076], 15 F.3d at 598; Jolly v. Klein, 923 F.Supp. 931, 941 (S.D. Tex. 1996). In order for a court to dismiss a complaint for failure to state a claim, it must appear beyond doubt that plaintiff can prove no set of facts supporting the claim that would entitle plaintiff to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L.Ed.2d 80, 78 S.Ct. 99 (1957). The reviewing court must construe the complaint in the light most favorable to plaintiff and must presume all factual allegations in the complaint as true. See Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
A court can only decide a Rule 12(b)(6) motion on the basis of the pleadings. See Song v. City of Elyria, Ohio, 985 F.2d 840, 842 (6th Cir. 1993). Dismissal is appropriate if the complaint fails to set forth an allegation of a required element of a claim. See Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489-90 (6th Cir. 1990). The Court can treat the motion as one for summary judgment if "matters outside the pleading are presented to and not excluded by the court." FED. R. CIV. P. 12(b). Although the State has submitted some evidence in support of its position, this evidence is not related to the jurisdiction issues raised in either defendant's motion, and neither party has treated the motion as one for summary judgment. Accordingly, the Court should exclude this evidence and treat the motion solely as one for dismissal under Rule 12.
Finally, relevant to dismissal under both Rule 12(b)(1) and Rule 12(b)(6), plaintiff's pro se complaint is entitled to a generous construction. "In . . . cases where the plaintiff appears pro se, the court must construe the pleadings liberally and must afford the plaintiff the benefit of any doubt." Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir. 1988); see also, Boag v. MacDougall, 454 U.S. 364, 365, 70 L.Ed.2d 551, 102 S.Ct. 700 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L.Ed.2d 652, 92 S.Ct. 594 (1972) (per curiam); Estelle v. Gamble, 429 U.S. 97, 106, 50 L.Ed.2d 251, 97 S.Ct. 285 (1976) ("handwritten pro se document is to be liberally construed"); Lyons v. Powell, 838 F.2d 28, 31 (1st Cir. 1988). "[A] pro se complaint, 'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle, 429 U.S. at 106 (quoting Haines, 404 U.S. at 520); see also, Hughes v. Rowe, 449 U.S. 5, 9-10 &, 66 L.Ed.2d 163, 101 S.Ct. 173 (1980) (per curiam).
C. Sovereign Immunity of the United States
"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." THE FEDERALIST NO. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed. 1961).