The opinion
T.C. Memo. 2002-3
UNITED STATES TAX COURT
WALTHER GUERRIER, JR., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4512-01L. Filed January 7, 2002.
Walther Guerrier, Jr., pro se.
Rosemarie D. Camacho and Lewis J. Abrahams, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before us on petitioner’s
motion to dismiss for lack of jurisdiction (petitioner’s motion)
and respondent’s motion to dismiss for lack of jurisdiction
(respondent’s motion). The Court held a hearing on each of those
motions. We shall deny petitioner’s motion and grant respon-
dent’s motion.
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Background
The record establishes and/or the parties do not dispute the
following:
At the time the petition for lien or levy action under
section 6320(c) or 6330(d)1 was filed, petitioner resided in Far
Rockaway, New York.
Respondent’s transcripts for petitioner’s taxable years 1994
and 1996 indicate that he did not file a Federal income tax
return (return) for either of those years and that respondent
prepared a substitute for return for each such year. On a date
not disclosed by the record, respondent mailed to petitioner a
notice of deficiency (notice) with respect to his taxable years
1994 and 1996. The U.S. Postal Service (Postal Service) returned
that notice to respondent because petitioner no longer resided at
the address for petitioner shown on the envelope in which the
notice was mailed and petitioner’s request to the Postal Service
to forward his mail to a new address had expired.
On October 11, 1999, respondent assessed the Federal income
tax (tax) due for each of the petitioner’s taxable years 1994 and
1996, as shown in the substitute for return for each such year
that respondent had prepared, and issued notices and demands for
payment of such taxes.
1
All section references are to sections of the Internal
Revenue Code in effect at all relevant times. All Rule refer-
ences are to the Tax Court Rules of Practice and Procedure.
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On May 3, 2000, respondent issued to petitioner a notice of
intent to levy with respect to his assessed tax liability for
each of the years 1994 and 1996 (notice of intent to levy).
On June 1, 2000, petitioner timely filed Form 12153, Request
for a Collection Due Process Hearing (request for Appeals Office
hearing), with respect to the notice of intent to levy. In an
attachment to the request for Appeals Office hearing, petitioner
stated in pertinent part:
I am “challenging the appropriateness of (the) collec-
tion action” as specified in [section]6330(c)(2)(A)(ii)
since the IRS denied all of my requests for the initial
“examinations” and “interviews” as provided for in
Publications 1 & 5. In addition, no lien for taxes
pursuant to Code Sections 6321 and 6322 is possible
because no valid, underlying assessment was ever made.
In addition, I never received the statutory “notice and
demand” for payment of the taxes at issue as required
by Code Sections 6203, 6321, and 6331. If the appeals
officer is going to claim that a particular document
sent to me by the IRS was a “Notice and Demand” for
payment, then I am requesting that he also provide me
with a T.D. or Treas. Reg. which identifies that spe-
cific document as being the official, statutory “Notice
and Demand” for payment.
In addition, I am “challenging the existence of
the underlying tax liability” as I am authorized to do
in Code Section 6330(c)(2)(B). In addition, I did not
receive a (valid) notice of deficiency in connection
with any of the years at issue. I am also requesting
that the appeals officer have at the “Due Process
Hearing” a copy of the “Summary Record of Assessment”
(Form 23 C) together with the “pertinent parts of the
assessment which set forth the name of the taxpayer,
the date of the assessment, the character of the lia-
bility assessed, the taxable period, and the amount
assessed” as provided for in Treas. Reg. [section]
301.6203-1.
In addition, I want to see proof that a purported
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“Deficiency Notice” was actually sent to me. Also,
since Section 6330(c)(1) requires that “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,” I am
requesting that the Appeals Officer have such verifica-
tion with him at the Appeals Conference. However, if
the verification called for by [section] 6330(c)(1) is
signed by someone other than the Secretary himself,
than [sic] - in line with the Supreme Court’s holding
in Federal Crop Ins. Corp. v. Merril, 92 L.Ed. 11 - I
am requesting that the Appeals officer also have a
Delegation Order from the Secretary delegating to that
person the authority to prepare such a “verification.”
In response to petitioner’s request for Appeals Office
hearing, on January 10, 2001, Appeals Officer Carol Berger
(Appeals Officer), who at that time was with respondent’s Appeals
Office in New York City, sent a letter (Appeals Officer’s January
10, 2001 letter) to petitioner, in which she scheduled an Appeals
Office hearing on February 12, 2001. In the Appeals Officer’s
January 10, 2001 letter, the Appeals Officer asked petitioner to
bring to the scheduled Appeals Office hearing a completed return
for each of the years 1994 and 1996, as well as any other docu-
ments pertaining to petitioner’s tax liability for each of those
years. The Appeals Officer made that request to petitioner
because any such returns and documents might have served as a
means of reducing or eliminating the amount of petitioner’s
respective tax liabilities for 1994 and 1996 that respondent had
assessed against him.
On February 12, 2001, petitioner attended an Appeals Office
hearing with the Appeals Officer with respect to the notice of
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intent to levy regarding petitioner’s tax liabilities for 1994
and 1996 (February 12, 2001 Appeals Office hearing). At that
hearing, petitioner showed the Appeals Officer Form 1040A, U.S.
Individual Income Tax Return (Form 1040A), that he had prepared
for each of his taxable years 1994 and 1996. Petitioner’s
signature appeared on each of those forms. Next to petitioner’s
signature in Form 1040A for 1994 was the date May 3, 2000. Next
to petitioner’s signature in the Form 1040A for 1996 was the date
April 1, 2000. In Form 1040A for each of the years 1994 and
1996, petitioner (1) reported $0 of wage or any other income,
(2) claimed no deductions or exemptions, and (3) requested a
refund in an amount equal to the total tax that he claimed was
withheld for each of those years. Attached to Form 1040A for
each of petitioner’s taxable years 1994 and 1996 was a two-page
document. That document stated in part:
I, Walther Guerrier, Jr., am submitting this as part of
my * * * return, even though I know that no section of
the Internal Revenue Code:
1) Establishes an income tax “liability” as, for exam-
ple, Code Sections 4401, 5005, and 5703 do with respect
to wagering, alcohol, and tobacco taxes;
2) Provides that income taxes “have to be paid on the
basis of a return” as, for example, Code Sections 4374,
4401(c), 5061(a) and 5703(b) do with respect to other
taxes; I am filing anyway because I know the government
has prosecuted others for failing to file income tax
returns by (erroneously) invoking Code Sections 7201
and 7203. Therefore, this return is not being filed
voluntarily, but is being filed out of fear that if I
did not file this return I could also be (illegally)
prosecuted for failing to file income tax return * * *.
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3) In addition to the above, I am filing even though
the “Privacy Act Notice” as contained in a 1040 booklet
clearly informs me that I am not required to file. It
does so in at least two places.
a) In one place, it states that I need only file a
return for “any tax” I may be “liable” for. Since
no Code Section makes me “liable” for income
taxes, this provision notifies me that I do not
have to file an income tax return.
b) In another place, it directs me to Code Section
6001. This section provides, in relevant part,
that “Whenever in the judgment of the Secretary it
is necessary, he may require any person by notice
served on such person or by regulations, to make
such returns, render such statements, or keep such
records, as the Secretary deems sufficient to show
whether or not such person is liable for tax under
this title.” Since the Secretary of the Treasury
did not “serve” me with any such “notice” and
since no legislative regulation exists requiring
anyone to file an income tax return, I am again
informed by the “Privacy Act Notice” that I am not
required to file an income tax return.
4) 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 ‘zeros’ inserted in the
space provided * * * qualified as a return.” * * *
* * * * * * *
6) It should also be noted that I had “zero” income
according to the Supreme Court’s definition of income
* * * since in Merchant’s Loan & Trust C. V. Smietanka,
255 U.S. 509 (at pages 518 & 519) that court held that
“The word (income) must be given the same meaning in
all the Income Tax Acts of Congress that was given to
it in the Corporation Excise Tax Act of 1909.” There-
fore, since I had no earnings * * * that would have
been taxable as “income” under the Corporation Excise
Tax Act of 1909, I can only swear to having “zero”
income * * *. Obviously, since I know the legal defi-
nition of “income,” if I were to swear to having re-
ceived any other amount of “income,” I would be commit-
ting perjury * * *. Therefore, not wishing to commit
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perjury * * *, I can only swear to having “zero” income
* * *.
In addition to the foregoing contentions and arguments of
petitioner that appeared in the two-page document that he
attached to each of the Forms 1040A for 1994 and 1996 that he
prepared, petitioner advanced additional contentions and argu-
ments in that document, all of which the Court finds to be
groundless and frivolous.
At the February 12, 2001 Appeals Office hearing, petitioner
informed the Appeals Officer that he had filed returns for each
of the years 1994 and 1996 and that he had received a notice from
respondent in which respondent indicated that respondent consid-
ered each of those returns to be frivolous.
At the February 12, 2001 Appeals Office hearing, the Appeals
Officer attempted to discuss with petitioner the amount of tax
that he owed for each of the years 1994 and 1996 and the proper
way to prepare Form 1040 for each of those years. Petitioner did
not provide the Appeals Officer with a return for each of the
years 1994 and 1996, in which he reported his wage and any other
income and claimed deductions or a filing status different from
that shown in the substitute for return that respondent prepared
for each of those years. If he had, the Appeals Officer would
have sent such returns and any other information that petitioner
provided to her to respondent’s examination division for review
in order to determine whether petitioner’s tax liability for each
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of the years 1994 and 1996 should be reduced from the respective
tax liabilities for those years which respondent had computed and
assessed and to which the notice of intent to levy pertained.
At the February 12, 2001 Appeals Office hearing, the Appeals
Officer attempted to explain to petitioner respondent’s basis for
the tax assessment against him for each of the years 1994 and
1996. The Appeals Officer explained to petitioner that respon-
dent calculated his tax liability for each of the years 1994 and
1996 by preparing a substitute for return for each of those years
on the basis of the information reflected in Form W-2, Wage and
Tax Statement (Form W-2), and Form 1099 that certain payors
issued to petitioner for each of those years. The Appeals
Officer further explained to petitioner that, in preparing each
such substitute for return in order to arrive at petitioner’s tax
liability for each of the years 1994 and 1996, respondent deter-
mined petitioner’s tax bracket and the amount of tax due and
subtracted any credits to which he was entitled.
Petitioner did not want to discuss at the February 12, 2001
Appeals Office hearing the amount of tax that he owed for each of
the years 1994 and 1996 or the proper way in which to prepare
Form 1040 for each of those years. Nor did petitioner wish to
discuss collection alternatives at the February 12, 2001 Appeals
Office hearing.
At the February 12, 2001 Appeals Office hearing, petitioner
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advised the Appeals Officer that he did not believe that wages
are income.2 At that hearing, petitioner raised various matters
with the Appeals Officer relating to why he had to pay tax, why
he had to file a return, who had the authority to sign a notice
of deficiency, and what provision of the law made him liable for
tax.
At the conclusion of the February 12, 2001 Appeals Office
hearing, the Appeals Officer advised petitioner that she intended
to sustain the proposed levy action and that he would have the
right to appeal her decision to this Court.
On February 21, 2001, respondent’s Appeals Office sent
petitioner a “NOTICE OF DETERMINATION CONCERNING COLLECTION
ACTION(S) UNDER SECTION 6320 and/or 6330" with respect to his
taxable years 1994 and 1996 (notice of determination). The
notice of determination stated in pertinent part: “If you want
to dispute this determination in court, you must file a petition
with the United States Tax Court for a redetermination within 30
days from the date of this letter.”
On April 2, 2001, petitioner filed a petition in response to
the notice of determination. That petition was mailed to the
2
At the hearing that the Court held on petitioner’s motion,
petitioner conceded that he received Form W-2 for each of the
years 1994 and 1996 and that each of those forms correctly
reflected the amount of wages that he received during each of
those years. According to petitioner, Form 1040A that he pre-
pared for each of the years 1994 and 1996 reported $0 of wage
income because wages are not income.
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Court via Postal Service Express Mail. The Postal Service
postmark for that mailing bore the date March 31, 2001.
Discussion
Petitioner’s Motion
In petitioner’s motion, petitioner asks the Court to dismiss
this case for lack of jurisdiction on the ground that the notice
of determination is invalid because he did not have an Appeals
Office hearing. In addition to petitioner’s motion, petitioner
filed a document entitled “MEMORANDUM OF LAW IN SUPPORT OF
PETITIONER’S MOTION TO DISMISS FOR LACK OF JURISDICTION” (peti-
tioner’s memorandum). We believe that petitioner’s memorandum is
a document that was used in another context and that it is not
pertinent or relevant to the instant case. By way of illustra-
tion, petitioner’s memorandum refers consistently throughout to
petitioner as being a woman, and not a man.3 In addition, peti-
tioner’s memorandum identifies respondent’s Appeals Officer who
3
For example, petitioner’s memorandum states in pertinent
part:
Petitioner refused to waive her right to the CDP hear-
ing referred to over and over again in both the law and
its implementing regulation. In addition, Petitioner
expected her daughter (to whom she had given her power
of attorney) to represent her at the hearing since her
daughter is far more articulate then [sic] is peti-
tioner, and she also has a greater understanding of the
laws at issue. * * * Petitioner also wanted a court
reporter present at her hearing, so she would have an
official transcript to support any Petition she might
subsequently file with the Tax Court to contest any
adverse CDP determination. * * * [Emphasis added.]
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held the hearing with petitioner as “Jose Gonzales”, and not
Carol Berger. Petitioner’s memorandum also indicates that
“Petitioner has an anxiety disorder and suffers from depression
and so could not effectively represent herself at a CDP ‘hear-
ing,’ especially an ersatz one, conducted over the telephone.”
Appeals Officer Carol Berger held a face-to-face hearing, and not
a hearing conducted over the telephone, with petitioner on
February 12, 2001. Moreover, there is no suggestion in the
record that petitioner was suffering from any kind of anxiety
disorder or depression at that hearing.4 A final illustration
that petitioner’s memorandum is a document that was used in
another context and that is not pertinent or relevant to the
instant case is the reference in that memorandum to taxable years
that are not involved in the instant case and to other informa-
tion that is inapplicable to this case.
At the Court’s hearing on petitioner’s motion, petitioner
testified that he did not have an Appeals Office hearing. In
support of that position, petitioner further testified that the
Appeals Officer did not discuss with him the issues that he
wanted to raise, such as what law makes him liable for tax, how
respondent calculated his tax liability for each of the years
1994 and 1996, and similar matters.
4
At the Court’s hearing on petitioner’s motion, petitioner
did not appear to the Court to have any kind of disorder whatso-
ever, whether due to anxiety, depression, or any other cause.
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We recently held that, in determining the validity of a
notice of determination for jurisdictional purposes, we shall not
look behind such a notice in order to ascertain whether the
taxpayer was afforded an appropriate hearing with respondent’s
Appeals Office.5 Lunsford v. Commissioner, 117 T.C. ___ (2001).
In so holding in Lunsford, we overruled Meyer v. Commissioner,
115 T.C. 417 (2000), to the extent that it required the Court to
look behind a notice of determination to ascertain whether a
proper hearing opportunity was given in order to decide whether
such a notice was valid. Lunsford v. Commissioner, supra.
In the instant case, we are not required to look behind the
notice of determination in order to determine the validity of
that notice. Id. Without looking behind the notice of determi-
nation in the instant case, we find on the record before us that
that notice is facially valid. We shall deny petitioner’s
motion.
Respondent’s Motion
In respondent’s motion, respondent asks the Court to dismiss
5
Although under Lunsford v. Commissioner, 117 T.C. ___
(2001), we shall not look behind a notice of determination in
order to ascertain whether the taxpayer was afforded an appropri-
ate hearing with respondent’s Appeals Office, on the record
before us, we reject petitioner’s contention that the Appeals
Office did not hold the hearing to which he was entitled under
sec. 6330(b)(1). On that record, we find that on Feb. 12, 2001,
the Appeals Office held the hearing with petitioner that sec.
6330(b)(1) requires and allowed petitioner to raise at that
hearing relevant issues relating to the proposed levy for each of
his taxable years 1994 and 1996.
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this case for lack of jurisdiction on the ground that petitioner
filed the petition in this case after the 30-day period pre-
scribed by section 6330(d). Petitioner does not dispute that his
petition in response to the notice of determination was mailed
via Postal Service Express Mail on March 31, 2001, or that the
petition was filed on April 2, 2001, both of which dates exceed
the 30-day period prescribed by section 6330(d). Instead,
petitioner argues that respondent’s motion should be denied
because it was not clear to him whether, in calculating the 30-
day period prescribed by section 6330(d), the days to which that
section refers and to which the notice of determination refers
are calendar days or business days.
We conclude that the 30 days provided in section 6330(d) for
timely filing a petition in the Tax Court with respect to a
determination under section 6330 (and section 6320) are 30
calendar days, and not 30 business days. See McGuire v. Commis-
sioner, 52 T.C. 468 (1969). On the record before us, we find
that petitioner was required to file a petition in response to
the notice of determination on or before March 23, 2001, which
was not a Saturday, a Sunday, or a legal holiday in the District
of Columbia and which is 30 calendar days after February 21,
2001, the date on which respondent issued the notice of determi-
nation. See sec. 6330(d); see also Rule 25. Petitioner filed
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the petition in this case on April 2, 2001.6 On the instant
record, we find that petitioner did not file the petition within
the 30-day period prescribed by section 6330(d). We shall grant
respondent’s motion.
An appropriate order denying
petitioner’s motion and granting respon-
dent’s motion will be entered.
6
Petitioner is not considered to have filed the petition on
Mar. 31, 2001, the date of the Postal Service postmark on the
envelope in which he mailed his petition to the Court. That is
because Mar. 31, 2001, does not fall within the 30-day period
prescribed by sec. 6330(d). See sec. 7502(a)(1) and (2)(A).