The opinion
T.C. Memo. 2007-114
UNITED STATES TAX COURT
PAUL L. BOWMAN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 377-06L. Filed May 3, 2007.
Paul L. Bowman, pro se.
Lisa K. Hunter, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion for summary judgment (respondent’s motion).1 We
shall grant respondent’s motion.
1
Petitioner filed a response (petitioner’s response) to
respondent’s motion. Respondent filed a reply to petitioner’s
response, and petitioner submitted to the Court a document that
the Court had filed as petitioner’s reply to that reply.
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Background
The record establishes and/or the parties do not dispute the
following.
Petitioner resided in Algona, Iowa, at the time he filed the
petition in this case.
Petitioner did not file a Federal income tax (tax) return
for each of his taxable years 2001 and 2002.
On June 15, 2004, respondent issued to petitioner a notice
of deficiency with respect to each of his taxable years 2001
(2001 notice of deficiency) and 2002 (2002 notice of deficiency),
both of which petitioner received. In the 2001 notice of defi-
ciency, respondent determined a deficiency in, and additions
under section 6651(a)(1)2 and 6651(a)(2) to, petitioner’s tax for
his taxable year 2001 in the respective amounts of $3,487.10,
$225.02, and $125.01.3 In the 2002 notice of deficiency, respon-
dent determined a deficiency in, and additions under sections
6651(a)(1), 6651(a)(2), and 6654 to, petitioner’s tax for his
taxable year 2002 in the respective amounts of $14,661,
2
All section references are to the Internal Revenue Code in
effect at all relevant times. Unless otherwise indicated, all
Rule references are to the Tax Court Rules of Practice and
Procedure.
3
With respect to the addition to tax under sec. 6651(a)(2),
respondent determined in the 2001 notice of deficiency that that
“addition to tax will continue to accrue from the due date of the
return at a rate of 0.5 percent each month, or fraction thereof,
of nonpayment, not exceeding 25 percent.”
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$3,298.73, $952.97,4 and $489.93.
Petitioner did not file a petition in the Court with respect
to the 2001 notice of deficiency or the 2002 notice of defi-
ciency.
On November 22, 2004, respondent assessed petitioner’s tax,
as well as additions to tax and interest as provided by law, for
each of his taxable years 2001 and 2002. (We shall refer to
those unpaid assessed amounts, as well as interest as provided by
law accrued after November 22, 2004, as petitioner’s unpaid
liabilities for 2001 and 2002.)
On November 22, 2004, respondent issued to petitioner a
notice of balance due with respect to petitioner’s unpaid liabil-
ities for 2001 and 2002.
On April 9, 2005, 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 petitioner’s unpaid
liabilities for 2001 and 2002.
On May 9, 2005, in response to the notice of intent to levy,
petitioner filed Form 12153, Request for a Collection Due Process
Hearing (petitioner’s Form 12153), and requested a hearing with
respondent’s Appeals Office (Appeals Office). Petitioner at-
4
With respect to the addition to tax under sec. 6651(a)(2),
respondent determined in the 2002 notice of deficiency that that
“addition to tax will continue to accrue from the due date of the
return at a rate of 0.5 percent each month, or fraction thereof,
of nonpayment, not exceeding 25 percent.”
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tached a document to petitioner’s Form 12153. That attachment
stated in pertinent part:
1. Refer to the Tax Reformation Act of 1998.
2. I don’t agree for all the reasons Congress has
determined that I have this hearing.
3. Details will be both provided and disclosed at the
hearing.
4. I fully intend to cassette record the proceedings of
the hearing.
5. I request a face-to-face hearing.
In response to petitioner’s Form 12153, a settlement officer
with the Appeals Office (settlement officer) sent to petitioner a
letter dated October 7, 2005 (settlement officer’s October 7,
2005 letter). That letter stated in pertinent part:
Tax Period(s) Ended:
12/2001 & 2002
Date of Conference:
October 27, 2005
Time of Conference:
1:00 PM
* * * * * * *
We received your request for a Collection Due Process
(CDP) Hearing. While you do not specify the items that
you wish to address in a conference, the information
you provide leads me to believe that your CDP request
is intended to discuss items that:
1. Courts have determined are frivolous or
groundless, or
2. Appeals does not consider. These are
moral, religious, political,
constitutional, conscientious, or similar
grounds.
Examples of arguments that are considered frivolous or
groundless are provided in “The Truth About Frivolous
Tax Arguments”, a copy of which is enclosed. Please
note that it is not a complete list of frivolous and
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groundless arguments.
Appeals does not provide a face-to-face conference if
the only items you wish to discuss are those mentioned
above. However, you may have a telephone conference,
or discuss with us by correspondence, any relevant
challenges to the filing of the notice of federal tax
lien or the proposed levy.
If you are interested in receiving a face-to-face
conference, you must be prepared to discuss issues
relevant to paying your tax liability. These include,
for example, offering other ways to pay the taxes you
owe, such as an installment agreement or offer in
compromise. The Internal Revenue Manuel determines
whether Appeals can accept your proposal. If you wish
to have a face-to-face conference, please write me
within 15 days from the date of this letter and de-
scribe the legitimate issues you will discuss.
In the meantime, I have scheduled a telephone confer-
ence for you as shown above. If this is not convenient
for you, or if you prefer to conduct the hearing by
correspondence, please contact me as soon as possible.
I will gladly consider other dates within 14 days of
the scheduled conference. Since you provided no tele-
phone number where you could be reached for the confer-
ence, please call me on the above shown date at 1:00
PM. If you provide a phone number, I will contact you
instead.
Records indicate that your income tax returns for
calendar years 2003 and 2004 have not been filed.
Internal third party payer records reflect sufficient
income that requires that you file a return for both
years.
Collection Due Process provisions require that before
alternatives to the proposed levy or filed Notice of
Federal Tax Lien may be considered, except for full
payment, you must be in full compliance with all filing
and payment requirements.
Accordingly, you must file all delinquent tax returns
and bring all delinquent payments up to date before the
conference date shown above, including any required
Estimated Income Tax Payments through the conference
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date. All delinquent returns and payments must be
forwarded directly to my office so that full filing and
payment compliance may be verified.
Additional time will not be extended to file delinquent
returns or make delinquent payments, so that collection
alternatives may be considered.
Assuming that you will be in full compliance by the
date of the conference, I have enclosed a Collection
Information Statement that you should complete and
return to my office, also within 15 days of the date of
this letter.[5] This information is necessary to con-
sider collection alternatives to the proposed levy.
If you do not file the required returns or submit the
required financial information, or if I don’t hear from
you on the scheduled conference date, I will issue the
required determination letter based on the information
in the file.
Please contact me with any questions or concerns you
have regarding this request or the Collection Due
Process procedure itself.
Petitioner did not respond to the settlement officer’s October 7,
2005 letter.
On December 6, 2005, the Appeals Office issued to petitioner
a notice of determination concerning the collection action(s)
under section 6320 and/or 6330 (notice of determination). That
notice stated in pertinent part:
5
The settlement officer did not enclose with the settlement
officer’s October 7, 2005 letter the collection information
statement referred to in that letter. However, the settlement
officer sent to petitioner that collection information statement
by cover letter dated Oct. 11, 2005.
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Summary of Determination
You submitted a timely Collection Due Process Hearing
request after receiving Notice of Intent to Levy and
Your Right to a Hearing. A telephone conference was
scheduled to discuss alternatives to the proposed levy,
since your Collection Due Process hearing request
appeared to propose to discuss only frivolous issues in
a face-to-face conference. You were specifically
warned in the conference letter that if you failed to
respond, your case would be closed without further
action.
You were also advised that you must be in full filing
and payment compliance before collection alternatives
could be discussed, that you should submit a completed
Collection Information Statement, and submit in writing
the relevant issues to be discussed in a face-to-face
conference. Since you provided no phone number where
you could be reached for conference, you were requested
to either provide the same or call the Settlement
Officer to conduct the conference.
You were given an opportunity to present issues rele-
vant to paying you [sic] tax liability, but you did not
present any legitimate, substantive issues for discus-
sion, and did not submit required financial information
or file delinquent returns as requested.
You did not provide a telephone number or contact the
Settlement Officer on the date of the conference as
requested. Mail forwarded to your address was not
returned undeliverable, so it must be assumed that you
received the conference letter.
Therefore, your case is being closed based upon the
best information available in the file, and will be
returned to Collection for appropriate action, unless
you seek judicial review of our determination.
An attachment to the notice of determination stated in pertinent
part:
BRIEF BACKGROUND
Notice of Intent to Levy and Your Right to a Hearing
was sent April 9, 2005. Your timely request for a
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Collection Due Process Hearing was received May 9,
2005, within the thirty-day timeframe set forth in
Internal Revenue Code Section 6330.
A telephone conference intended to address collection
alternatives was scheduled for October 27, 2005 by
letter dated October 7, 2005. The letter advised you
that you had to be in full compliance with all filing
and payment requirements before alternatives to the
proposed levy could be considered, and requested that
you submit a completed Collection Information Statement
so that collection alternatives could be explored.
It also advised you clearly that the issues you ap-
peared to present in your hearing request were consid-
ered frivolous. The Settlement Officer enclosed a
package entitled “The Truth About Frivolous Tax Argu-
ments”, noting that such arguments had been turned away
uniformly by the court system.
You were also asked to advise the Settlement Officer
concerning what relevant and legitimate issues you
wished to discuss in the conference by submitting them
in writing within fifteen days.
You did not file your 2003 and 2004 income tax returns,
or pay any required 2005 Estimated Income Tax Payments.
Neither did you submit a completed Collection Informa-
tion Statement, or contact the Settlement Officer on
the conference date, or beforehand to reschedule the
conference.
Since you had been afforded ample opportunity to re-
spond, the Settlement Officer determined that further
efforts to obtain information and filing/payment com-
pliance, or to conduct the hearing, were unwarranted.
DISCUSSION AND ANALYSIS
Transcripts and the case history verify that:
1) the taxes at issue were assessed in accordance
with IRC Section 6201, and that notice and demand
for payment was mailed to your last known address
timely in accordance with IRC Section 6303.
2) there were balances due when the CDP notice was
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issued, as required by IRC Section 6322 and 6331(a),
and that a levy source had been identified.
3) before any levy action was initiated, notice of
intent to levy was issued in accordance with IRC
6331(d), which requires that taxpayers be notified
of the intention to levy no less than thirty days
before levy action is initiated.
4) Collection Due Process Notice was sent by cer-
tified mail, return receipt requested, to your
last known address.
5) The Automated Collection Site attempted to
resolve your case, but was unable to do so.
Therefore, your file was forwarded for appeals
consideration promptly upon receipt of your hear-
ing request.
6) internal account transaction codes were entered
timely to place your accounts in suspended status
pending the outcome of the due process hearing
7) the Settlement Officer in this case has had no
prior involvement with you concerning the taxes at
issue in this due process proceeding, pursuant to
requirements of IRC 6330.
ISSUES RAISED BY THE TAXPAYER
1) no specific issues concerning liability or
collection procedures were raised.
Rather, you indicated only that you wished
a face-to-face hearing, which you intended
to tape record, and that details would be
disclosed at the hearing. You referenced
only the tax reform act of 1998 as the
reason for your hearing request.
Finding: Appeals is not obligated to address the
types of nonspecific issues contained in your
request, as you were advised in our conference
letter. You did not submit specific, legitimate
issues for discussion in writing to qualify for a
face-to-face conference. You were offered an
opportunity for a telephone conference, but failed
to contact the Settlement Officer.
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2) No other substantive issues were raised.
BALANCING THE NEED FOR EFFICIENT COLLECTION OF THE TAX
WITH LEGITIMATE TAXPAYER CONCERN THAT COLLECTION AC-
TIONS BE NO MORE INTRUSIVE THAN NECESSARY
Without question, the proposed levy would have been
very intrusive, since it would have withdrawn funds
that may have been needed to provide for basic health
and welfare needs of the family, or production of
income, thereby creating a potential financial hard-
ship.
Therefore, it is the policy of the Internal Revenue
Service to provide individual taxpayers ample opportu-
nity to resolve their tax problems voluntarily before
such action becomes necessary.
The file indicates that the Service made multiple,
unsuccessful attempts to resolve your accounts on a
mutually agreeable basis before levy action was pro-
posed.
Appeals has determined that issuance of the Notice of
Intent to Levy and Your Right to a Hearing was appro-
priate in your case, absent your cooperation to file
returns or submit financial information. Thus, levy
appears to be the only efficient method to collect the
tax. [Reproduced literally.]
Discussion
The Court may grant summary judgment where there is no
genuine issue of material fact and a decision may be rendered as
a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner,
98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).
In support of his position that respondent’s motion should
be denied, petitioner argues that in determining whether to grant
respondent’s motion the Court may not consider (1) the 2001
notice of deficiency and the 2002 notice of deficiency and
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(2) Form 4340, Certificate of Assessments, Payments, and Other
Specified Matters (Form 4340), with respect to each of peti-
tioner’s taxable years 2001 and 2002. In support of that argu-
ment, petitioner relies on Robinette v. Commissioner, 439 F.3d
455 (8th Cir. 2006), revg. 123 T.C. 85 (2004).
In Robinette, the United States Court of Appeals for the
Eighth Circuit, to which an appeal in this case would ordinarily
lie, held that its review of whether the Commissioner of Internal
Revenue (Commissioner) abused the Commissioner’s discretion in
determining to proceed with the collection action at issue in
that case was to be limited “to that information which was before
the IRS.” Id. at 462. We shall follow Robinette in the instant
case only if that opinion is squarely in point. Golsen v.
Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th
Cir. 1971).
We turn first to petitioner’s argument that under Robinette
v. Commissioner, supra, the Court may not consider the 2001
notice of deficiency and the 2002 notice of deficiency in deter-
mining whether to grant respondent’s motion. In support of that
argument, petitioner asserts in petitioner’s response:
The Court should note the lack of any consideration
whatsoever by Respondent in the Notice of Determination
regarding the issue of any deficiency notice(s). The
Notice of Determination does not refer in any manner to
the existence, issuance, receipt, or non-receipt of any
deficiency notice(s) for the years at issue. [Fn. ref.
omitted.]
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We reject petitioner’s assertion that under Robinette v.
Commissioner, supra, respondent’s motion should be denied because
the notice of determination did not refer to the 2001 notice of
deficiency and the 2002 notice of deficiency.6 See, e.g., Dues
v. Commissioner, T.C. Memo. 2005-109; Poe v. Commissioner, T.C.
Memo. 2005-107; Stoewer v. Commissioner, T.C. Memo. 2003-71. In
each of those cases, the Commissioner issued a notice of defi-
ciency to the taxpayer. The notice of determination involved in
each such case did not refer explicitly to any such notice.
Nonetheless, the Court granted the Commissioner’s motion for
summary judgment in each such case. We hold that neither
Robinette v. Commissioner, supra, nor any other authority pre-
cludes the Court’s consideration of the 2001 notice of deficiency
and the 2002 notice of deficiency in determining whether to grant
respondent’s motion.7
6
Petitioner also raises a hearsay objection to the 2001
notice of deficiency and the 2002 notice of deficiency. “‘Hear-
say’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Fed. R. Evid. 801(c).
Respondent did not attach as exhibits to respondent’s motion the
2001 notice of deficiency and the 2002 notice of deficiency for
the truth of the matters asserted therein. We reject peti-
tioner’s hearsay objection to the 2001 notice of deficiency and
the 2002 notice of deficiency.
7
We note that sec. 6330(c)(1) does not mandate that the
Appeals Office provide a taxpayer with a copy of the verification
upon which that office relied in satisfying the verification
requirements of that section. Craig v. Commissioner, 119 T.C.
252, 261-262 (2002).
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Even if the Court were to decline to consider the 2001
notice of deficiency and the 2002 notice of deficiency attached
as exhibits to respondent’s motion, the declaration that was
signed by the settlement officer (settlement officer’s declara-
tion) and that was attached to that motion establishes that the
settlement officer considered whether a notice of deficiency was
issued to petitioner with respect to each of his taxable years
2001 and 2002 and determined that such a notice was issued for
each such year. The settlement officer’s declaration states in
pertinent part:
I verified through review of the Internal Revenue
Service’s administrative file and IDRS [integrated data
retrieval system] information, including transcripts of
petitioner’s accounts,[8] copies of which are attached
8
With respect to the “transcripts of petitioner’s accounts”
to which the settlement officer referred in the settlement
officer’s declaration, petitioner asserts:
the alleged ‘transcripts’ * * * are nothing but indeci-
pherable, computer coded gibberish. If anyone is to
make any sense of them, they must obviously be ‘de-
coded’. Respondent has presented absolutely nothing
for ‘decoding’ its ‘transcripts’. Moreover, there is
nothing in the administrative record to indicate that
any decoding actually took place, or, if any did take
place, that it is correct.
We reject those assertions. The respective “transcripts of
petitioner’s accounts” with respect to petitioner’s taxable years
2001 and 2002 are coded computer-generated transcripts (coded
transcripts of account) that show certain information in the
official computer records of the Internal Revenue Service (IRS)
with respect to those years. The respective Forms 4340 with
respect to petitioner’s taxable years 2001 and 2002 are noncoded
computer-generated transcripts that show certain information in
those same official computer records with respect to those years.
(continued...)
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hereto as Exhibit C,[9] that the 2001 and 2002 income
taxes at issue, plus penalties and interest, had been
properly assessed against petitioner after he was
issued notices of deficiency for 2001 and 2002 and
failed to contest the notices in Tax Court. * * *
At the time the determinations set forth in the notice of
determination and the attachment to that notice were made, the
settlement officer was aware of and relied upon, inter alia,
respondent’s issuance of the 2001 notice of deficiency and the
2002 notice of deficiency.10
8
(...continued)
Although petitioner might not be able to decode the respective
coded transcripts of account with respect to petitioner’s taxable
years 2001 and 2002, the settlement officer’s declaration makes
clear that the settlement officer was able to do so.
9
Petitioner also raises an evidentiary objection under rule
1006 of the Federal Rules of Evidence (FRE) with respect to the
respective coded transcripts of account relating to petitioner’s
taxable years 2001 and 2002. According to petitioner, each such
transcript is a summary record within the meaning of that rule.
FRE 1006 provides that the contents of voluminous writings that
cannot conveniently be examined in court may be presented in
summary form if the writing is made available for examination or
copying, or both, by other parties at a reasonable time and
place. The respective coded transcripts of account with respect
to petitioner’s taxable years 2001 and 2002 are not summary
records within the meaning of FRE 1006. As discussed supra note
8, those respective transcripts are coded computer-generated
transcripts that show certain information in the official com-
puter records of the IRS with respect to petitioner’s taxable
years 2001 and 2002. We note that, even if we were to decline to
consider the respective coded transcripts of account with respect
to petitioner’s taxable years 2001 and 2002, our findings and
conclusions herein would not change.
10
We reject petitioner’s assertion that there is a genuine
issue of material fact regarding whether, at the time the deter-
minations set forth in the notice of determination and the
attachment to that notice were made, the settlement officer
considered respondent’s issuance of the 2001 notice of deficiency
(continued...)
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We turn now to petitioner’s argument that under Robinette v.
Commissioner, 439 F.3d 455 (8th Cir. 2006), the Court may not
consider the respective Forms 4340 with respect to petitioner’s
taxable years 2001 and 2002 in determining whether to grant
respondent’s motion. In support of that argument, petitioner
asserts in petitioner’s response:
this is a review of an administrative decision. As
such, the Court is limited to reviewing the conclusions
made in the decision, the reasons given for the conclu-
sions, and it must base its review on the same record
that was considered by the administrative hearing
officer. See Robinette v Commissioner, 439 F.3d 455,
459 (8th Cir 2006). Outside of limited exceptions, the
Court may not conduct a trial de novo, make decisions
in the first instance (i.e. decide issues not decided
at the administrative level), or consider new materi-
als/evidence not considered by the administrative
hearing officer. Id. These limitations would neces-
sarily exclude materials dated after the administrative
decision, such as Respondent’s exhibits E and F [Form
4340 with respect to petitioner’s taxable years 2001
and 2002] (which are dated March 2006; the administra-
tive decision was issued December 2005). [Fn. ref.
omitted.] [Reproduced literally.]
Petitioner’s argument regarding the respective Forms 4340
with respect to petitioner’s taxable years 2001 and 2002 appears
to be based on his misunderstanding as to what Form 4340 is. As
discussed above, Form 4340 is a noncoded computer-generated
transcript that is generated on a specified date and that shows
(1) certain information in the official computer records of the
10
(...continued)
and the 2002 notice of deficiency. Petitioner does not assert
that there are any other genuine issues of material fact regard-
ing the questions raised in respondent’s motion.
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IRS with respect to a stated taxpayer for a particular taxable
year regarding assessments, payments, and other specified matters
and (2) the respective dates on which such respective assessments
and payments were made and such other matters were undertaken.
That Form 4340 is generated on a stated date does not mean that
the information reflected in such form regarding assessments,
payments, and other specified matters did not appear in the
official computer records of the IRS, or that such assessments,
payments, and other specified matters did not occur, before such
stated date. The information that is shown in Form 4340 with
respect to each of petitioner’s taxable years 2001 and 2002 is
information that appeared in the official computer records of the
IRS on dates that preceded the date on which the settlement
officer reviewed the administrative file and the information in
the IRS’s integrated data retrieval system relating to each such
year. Such information pertained to assessments and payments
made and other specified matters undertaken on the dates speci-
fied in Form 4340 relating to each of petitioner’s taxable years
2001 and 2002, all of which dates preceded the date on which the
settlement officer made that review with respect to each of those
years. We hold that neither Robinette v. Commissioner, supra,
nor any other authority precludes the Court’s consideration of
Form 4340 with respect to each of petitioner’s taxable years 2001
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and 2002 in determining whether to grant respondent’s motion.11
Petitioner does not dispute that respondent issued to him
the 2001 notice of deficiency and the 2002 notice of deficiency,
that he received such notices, and that he failed to file a
petition in the Court with respect to such notices.12 Where, as
is the case here, the validity of the underlying tax liability is
11
Petitioner also raises evidentiary objections under FRE
1004 and FRE 1006 with respect to the respective Forms 4340
relating to petitioner’s taxable years 2001 and 2002. According
to petitioner, each such form is (1) “other evidence” of the
coded transcript of account with respect to each of petitioner’s
taxable years 2001 and 2002 within the meaning of FRE 1004 and
(2) a summary record within the meaning of FRE 1006.
With respect to petitioner’s objection under FRE 1004, that
rule provides that other evidence of an original writing is
admissible under certain circumstances. We reject petitioner’s
argument that Form 4340 with respect to each of petitioner’s
taxable years 2001 and 2002 is other evidence of the coded
transcript of account relating to each of those years within the
meaning of FRE 1004. See supra note 8.
With respect to petitioner’s objection under FRE 1006, as
discussed above, that rule provides that the contents of volumi-
nous writings that cannot conveniently be examined in court may
be presented in summary form if the writing is made available for
examination or copying, or both, by other parties at a reasonable
time and place. We reject petitioner’s argument that Form 4340
with respect to each of petitioner’s taxable years 2001 and 2002
is a summary record within the meaning of FRE 1006. See supra
notes 8 and 9.
We note that Form 4340 with respect to each of petitioner’s
taxable years 2001 and 2002 is a self-authenticating document
under FRE 902. We further note that, even if we were to decline
to consider each such form, our findings and conclusions herein
would not change.
12
Nor does petitioner dispute that he is liable for 2001 and
2002 for the respective deficiencies in, and the respective
additions to, petitioner’s tax that respondent determined in the
2001 notice of deficiency and the 2002 notice of deficiency.
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not properly placed at issue, the Court will review the determi-
nation of the Commissioner for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 181-182 (2000).
We conclude that there are no genuine issues of material
fact regarding the questions raised in respondent’s motion.
Based upon our examination of the entire 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
taxable years 2001 and 2002.
Although respondent does not ask the Court to impose a
penalty on petitioner under section 6673(a)(1), we consider sua
sponte whether the Court should impose a penalty on petitioner
under that section. Section 6673(a)(1) authorizes the Court to
require a taxpayer to pay a penalty to the United States in an
amount not to exceed $25,000 whenever it appears that a taxpayer
instituted or maintained a proceeding in the Court primarily for
delay or that a taxpayer’s position in such a proceeding is
frivolous or groundless.
We believe that petitioner instituted and maintained the
instant proceeding primarily for delay. We shall not impose a
penalty under section 6673(a)(1) on petitioner. However, we
caution him that he may be subject to such a penalty if in the
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future he institutes or maintains a proceeding in this Court
primarily for delay and/or his position in any such proceeding is
frivolous or groundless. See Abrams v. Commissioner, 82 T.C.
403, 409-413 (1984); White v. Commissioner, 72 T.C. 1126, 1135-
1136 (1979).
We have considered all of the parties’ contentions and
arguments that are not discussed herein, and we find them to be
without merit and/or irrelevant.
On the record before us, we shall grant respondent’s motion.
To reflect the foregoing,
An order granting respondent’s
motion and decision will be entered
for respondent.