UNITED STATES TAX COURT

T.C. Memo. 2002-315

UNITED STATES TAX COURT

CHRISTOPHER KILEY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6676-02L.

Filed December 27, 2002.

Christopher Kiley, pro se.

Rollin G. Thorley and Robin Ferguson, for respondent.

MEMORANDUM OPINION

ARMEN, Special Trial Judge:

This matter is before the Court

on respondent’s Motion For Summary Judgment And To Impose A

Penalty Under I.R.C. Section 6673, filed pursuant to Rule 121.1

Respondent contends that there is no dispute as to any material

1

Unless otherwise indicated, all section references are to

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

are to the Tax Court Rules of Practice and Procedure.

- 2 fact with respect to this levy action and that respondent’s

determination to proceed with collection of petitioner’s

outstanding tax liabilities for 1995, 1997, and 1998 should be

sustained as a matter of law.

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.

Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).

Summary judgment may be

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

controversy "if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law."

Rule 121(a) and (b); see

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753,

754 (1988); Naftel v. Commissioner, 85 T.C. 527, 529 (1985).

The

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

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

manner most favorable to the party opposing summary judgment.

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

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

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

to any material fact, and a decision may be rendered as a matter

of law.

Accordingly, we shall grant respondent’s motion for

- 3 summary judgment.

Background

The record establishes and/or the parties do not dispute the

following:

A.

Petitioner’s Tax Liability for 1995

On or about April 15, 1996, Christopher Kiley (petitioner)

and his wife Sabrena S. Legere2 filed with respondent a joint

Federal income tax return, Form 1040PC, for the taxable year

1995.

Petitioner listed his occupation as “waiter”, and his wife

listed her occupation as “cashier”.

On their return, petitioner and his wife reported adjusted

gross income in the amount of $41,874, consisting of wages and

tips in the amount of $39,590 and taxable pensions/annuities in

the amount of $2,284.3

After reduction for the standard

deduction and personal exemptions, petitioner and his wife

reported taxable income in the amount of $25,324 and a tax

liability in the amount of $4,143.

After reduction for Federal

income tax withheld ($2,871), petitioner and his wife reported

the amount owed as $1,312, consisting of tax in the amount of

2

Ms. Legere did not file with the Court a petition for

lien or levy action. See infra G. Accordingly, she is not a

party to the present proceeding.

3

Petitioner and his wife attached to their return three

Forms W-2, Wage and Tax Statement, showing the payment of wages

and allocated tips, and one Form 1099-R, Distributions From

Pensions, Annuities, Retirement or Profit-Sharing Plans, etc.,

showing the payment of a taxable distribution.

- 4 $1,272 and an “estimated tax penalty” (i.e., addition to tax

under section 6654(a)) in the amount of $40.

Petitioner and his wife did not enclose payment with their

return of the amount reported as owed on their return.

On May 20, 1996, respondent assessed the tax liability

reported by petitioner and his wife on their 1995 return (i.e.,

$4,143), together with the “estimated tax penalty” reported

therein.

On that date, respondent also assessed (1) an addition

to tax under section 6651(a)(2) for failure to pay and (2)

statutory interest.

Petitioner and his wife satisfied their outstanding

liability for tax, additions to tax, and statutory interest

through a series of installment payments, which was completed in

July 1997.

By notice dated September 10, 1997, respondent determined a

deficiency in the Federal income tax of petitioner and his wife

for 1995 in the amount of $226.4

was filed with the Court.

No petition for redetermination

See sec. 6213(a).

Accordingly, on

February 9, 1998, respondent assessed the deficiency, together

with (1) an addition to tax under section 6652(b) for failure to

report tip income and (2) statutory interest.

On that same day,

respondent sent petitioner and his wife a statutory notice of

4

The deficiency in income tax appears to have been based

principally (if not exclusively) on respondent’s determination

that petitioner underreported tip income for 1995.

- 5 balance due, informing them that they had a liability for 1995

and requesting that they pay that liability.

Petitioner and his

wife failed to pay the amount owing.

On October 15, 1999, respondent received from petitioner a

Form 1040X, Amended U.S. Individual Income Tax Return, for 1995.5

On line 1 of the Form 1040X, petitioner reduced adjusted gross

income from $41,874, the amount reported on his original return,

to “0".

Similarly, on line 10 of the Form 1040X, petitioner

reduced his tax liability from $4,143, the amount reported on his

original return, to “0", and on line 23, he asked that $4,143 be

refunded to him.

By way of explanation, petitioner wrote as

follows in Part II of the Form 1040X:

LINE #1: Due to ignorance, we reported as “income”

sources of income as being “income” itself, when in

fact, we had no statutory income tax to report.

LINE #10: Apart from #1 above, we also had no statutory

liability with respect to income taxes, and pursuant to

Code sec. 31(a)(1), we have a Constitutional right to

have the wage tax imposed in sec. 3402(a)(1) refunded

since it represents an unapportioned, direct tax on

wages and thus would be unconstitutional if we could

not have them refunded. Because of the misleading

caption on sec. 3402(a)(1), we did not realize that

what was deducted from our pay was not income tax, but

a direct tax on our wages.

Petitioner attached to the Form 1040X a two-page typewritten

statement that stated, in part, as follows:

5

Although the Form 1040X listed both the names of

petitioner and his wife, it was signed only by petitioner.

- 6 I, Christopher Kiley, am submitting this as part of my

amended 1995 income tax return, even though I know that

no section of the Internal Revenue Code:

1) Establishes an income tax “liability” * * *;

2) Provides that income taxes “have to be paid on the

basis of a return” * * *.

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.

*

*

*

*

*

*

*

5) Please note, that my 1995 return also constitutes a

claim for refund pursuant to Code Section 6402.

6) It should also be noted that I had “zero” income

according to the Supreme Court’s definition of income

(See Note #1) * * * .

7) I am also putting the IRS on notice that my 1995 tax

return and claim for refund does not constitute a

“frivolous” return pursuant to Code Section 6702. * * *

8) Moreover, since no assessment for 1995 income taxes

* * * has ever been made against me, the IRS has no

legal basis to hold the $4143 of my money it is now

holding for 1995 income taxes.

*

*

*

*

*

*

*

10) In addition, don’t notify me that the IRS is

“changing” my return, since there is not [sic] statute

that allows the IRS to do that. * * *

*

*

*

*

*

*

*

*NOTE #1: The word “income” is not defined in the

Internal Revenue Code. * * * But, as stated above, it

- 7 can only be a derivitive [sic] of corporate activity.

* * *

By letter dated November 10, 1999, respondent’s Chief of the

Examination Branch in the Ogden, Utah Service Center advised

petitioner and his wife that the Form 1040X was a frivolous

document and that “The position you have taken has no basis in

law”.

By letter dated January 7, 2000, petitioner replied to the

foregoing letter, stating in part as follows:

Your letter of 11/10/99 (attached) identifies you

as being Chief, Examination Branch. However, IRS

Manual * * * defines the duties of the “examination

branch,” in part, as follows:

“The Examination Branch administers an

international examination program involving the

selection and examination of all types of Federal tax

returns filed with the Assistant Commissioner

(International) ...”

Since I am not involved in international commerce,

and since I never filed tax returns with the Assistant

Commissioner (International), and since I am not living

abroad, nor engaged in making an offer and compromise,

nor am I an IRS informant claiming a reward - I can

find no provision in paragraph 1132.74 that would

authorize you to contact me on any basis. This, of

course, means that I do not even have to comment

further on your ludicrous, unauthorized and

extortionary letter, but I will do so anyway - because

I can not allow the fraud and deceit it contains to go

un-addressed.

*

*

*

*

*

*

*

If I am wrong in my assumption that no provision

of the Internal Revenue Code makes me “liable” for

income taxes * * *, then please identify any such

section for me. I note that your new “Mission

Statement” says that the IRS is supposed to help

- 8 taxpayers “understand and meet (their) tax

responsibilities and by applying the tax law with

integrity and fairness to all.” Well you can start off

by showing me the “tax law” that makes me “liable” for

income taxes, since I cannot find it on my own. * * *

Constitutionally yours,

/s/ Christopher Kiley

Law Abiding Citizen

By letter dated February 4, 2000, respondent formally denied

the claim for refund made by petitioner in his Form 1040X.

B.

Petitioner’s Tax Liability for 1997

On April 17, 1999, petitioner and his wife submitted to

respondent a joint Form 1040, U.S. Individual Income Tax Return,

for the taxable year 1997.

On the Form 1040, petitioner listed

his occupation as “cashier”; petitioner’s wife did not list her

occupation.

Petitioner and his wife entered zeros on every line of the

income portion of the Form 1040, specifically including line 7

for wages and tips, line 22 for total income, lines 33 and 34 for

adjusted gross income, and line 39 for taxable income.

Petitioner and his wife also entered zeros on line 40 for tax and

on line 56 for total tax.

Petitioner and his wife then claimed a

refund in the amount of $731.22, which was equal to the amount of

Federal income tax that had been withheld from petitioner’s

wages, as discussed in the following paragraph.

- 9 Petitioner and his wife attached to their Form 1040 a Form

W-2, Wage and Tax Statement, disclosing the payment of wages to

petitioner during 1997.

The Form W-2 was from Palace Station

Hotel and Casino in Las Vegas, Nevada; it disclosed the payment

of wages to petitioner in the amount of $19,989.32 and the

withholding of Federal income tax in the amount of $731.22.

Petitioner and his wife also attached to their Form 1040 a

two-page typewritten statement that began, as follows:

I, Christopher Kiley, am submitting this as a part of

my 1997 income tax return, even though I know that no

section of the Internal Revenue Code:

The rest of the statement was essentially the same as the

statement attached to petitioner’s Form 1040X for 1995.

See

supra A.

By letter dated May 21, 1999, respondent‘s Chief of the

Examination Branch in the Ogden, Utah Service Center advised

petitioner and his wife that “the information you sent”, i.e.,

their Form 1040 for 1997 (as well as their Form 1040 for 1998,

see infra C), “is frivolous and your position has no basis in

law.”

By letter dated June 19, 1999, petitioner replied to the

foregoing letter.

Although petitioner’s letter was much

lengthier than his previously described letter dated January 7,

2000 (see supra A), the tenor of the two letters was the same.

- 10 By notice dated February 25, 2000, respondent determined a

deficiency in the Federal income tax of petitioner and his wife

for 1997 in the amount of $2,951, together with an accuracyrelated penalty under section 6662(a) and (b)(1) in the amount of

$247.16.6

Court.

No petition for redetermination was filed with the

See sec. 6213(a).

Accordingly, on August 7, 2000,

respondent assessed the deficiency, together with the accuracyrelated penalty and statutory interest.

On that same day,

respondent sent petitioner and his wife a statutory notice of

balance due, informing them that they had a liability for 1997

and requesting that they pay that liability.

Petitioner and his

wife failed to pay the amount owing.

C.

Petitioner’s Tax Liability for 1998

On April 15, 1999, petitioner and his wife submitted to

respondent a joint Form 1040, U.S. Individual Income Tax Return,

for the taxable year 1998.

On the Form 1040, petitioner listed

6

The deficiency in income tax was based on respondent’s

determination that petitioner and his wife received, but failed

to report: (1) Wages in the amount of $19,989 from Palace Station

Hotel and Casino; (2) wages in the amount of $16,419 from Lucky

Stores; (3) wages in the amount of $759 from UFCE Local 711; (4)

gambling winnings in the amount of $1,429 from Palace Station

Hotel and Casino; and (5) a capital gain in the amount of $1,250

from Chicago Trust.

We note that respondent has credited petitioner and his wife

for the amount withheld from wages insofar as their ultimate tax

liability is concerned. However, we note further that the

determination of a statutory deficiency does not take such amount

into account. See sec. 6211(b)(1).

- 11 his occupation as “cashier”, and petitioner’s wife listed her

occupation as “unemployed”.

Petitioner and his wife entered zeros on every line of the

income portion of the Form 1040, specifically including line 7

for wages and tips, line 22 for total income, lines 33 and 34 for

adjusted gross income, and line 39 for taxable income.

Petitioner and his wife also entered zeros on line 40 for tax and

on line 56 for total tax.

Petitioner and his wife then claimed a

refund in the amount of $1,178.72, which was equal to the amount

of Federal income tax that had been withheld from petitioner’s

wages, as discussed in the following paragraph.

Petitioner and his wife attached to their Form 1040 a Form

W-2, Wage and Tax Statement, disclosing the payment of wages to

petitioner during 1998.

The Form W-2 was from Palace Station

Hotel and Casino in Las Vegas, Nevada; it disclosed the payment

of wages to petitioner in the amount of $18,823.15 and the

withholding of Federal income tax in the amount of $1,178.72.

Petitioner and his wife also attached to their Form 1040 a

two-page typewritten statement that began, as follows:

I, Christopher Kiley, am submitting this as a part of

my 1998 income tax return, even though I know that no

section of the Internal Revenue Code:

The rest of the statement was essentially the same as the

statement attached to petitioner’s Form 1040X for 1995 and Form

1040 for 1997.

See supra A and B.

- 12 As previously stated (see supra B), by letter dated May 21,

1999, respondent‘s Chief of the Examination Branch in the Ogden,

Utah Service Center advised petitioner and his wife that “the

information you sent”; i.e., their Form 1040 for 1998, “is

frivolous and your position has no basis in law.”

Also as

previously stated (see supra B), by letter dated June 19, 1999,

petitioner replied to the foregoing letter.

Although

petitioner’s letter was much lengthier than his previously

described letter dated January 7, 2000 (see supra A), the tenor

of the two letters was the same.

By notice dated February 25, 2000, respondent determined a

deficiency in the Federal income tax of petitioner and his wife

for 1998 in the amount of $16,174, together with an accuracyrelated penalty under section 6662(a) and (b)(1) in the amount of

$3,830.06.7

Court.

No petition for redetermination was filed with the

See sec. 6213(a).

Accordingly, on August 7, 2000,

7

The deficiency in income tax was based on respondent’s

determination that petitioner and his wife received but failed to

report: (1) Wages in the amount of $14,466 from Lucky Stores, and

(2) a capital gain in the amount of $83,550. In determining the

deficiency, it would appear that respondent failed to consider

the Form W-2 issued by Palace Station Hotel and Casino reporting

the payment of wages to petitioner in the amount of $18,823.15,

as discussed in the text. If this were the case, the deficiency

in income tax and the accuracy-related penalty were understated.

We note that respondent has credited petitioner and his wife

for the amount withheld from wages insofar as their ultimate tax

liability is concerned. However, we note further that the

determination of a statutory deficiency does not take such amount

into account. See sec. 6211(b)(1).

- 13 respondent assessed the deficiency, together with the accuracyrelated penalty and statutory interest.

On that same day,

respondent sent petitioner and his wife a statutory notice of

balance due, informing them that they had a liability for 1998

and requesting that they pay that liability.

Petitioner and his

wife failed to pay the amount owing.

D.

Respondent’s Final Notices and Petitioner’s Responses

On November 16, 2000, respondent mailed to petitioner and

his wife a Final Notice--Notice of Intent to Levy and Notice of

Your Right to a Hearing in respect of their outstanding tax

liabilities for 1997 and 1998 (but not 1995).

Thereafter, on

December 12, 2000, respondent received from petitioner a Form

12153, Request for a Collection Due Process Hearing.

Petitioner

attached to the Form 12153 a 2-page typewritten statement and a

copy of various Treasury regulations.

On April 28, 2001, respondent mailed to petitioner and his

wife a Final Notice--Notice of Intent to Levy and Notice of Your

Right to a Hearing (the final notice) in respect of their

outstanding tax liabilities for 1995, 1997, and 1998.

The final

notice stated that the total amount then due from petitioner and

his wife was as follows:

- 14 Year

1995

1997

1998

Total

Amount Due

$511.71

2,020.53

22,451.65

24,983.89

No later than May 27, 2001, respondent received from

petitioner another Form 12153, Request for a Collection Due

Process Hearing.

Petitioner attached to this Form 12153 the same

2-page typewritten statement and exhibit that he attached to his

previously filed Form 12153.8

The following passage from the statement attached to

petitioner’s Form 12153 reflects its tenor:

It is clear that before any appeals officer can

recommend the seizure of any property pursuant to Code

Section 6331 certain elements have to be present. For

one thing (pursuant to that statute) that person has to

statutorily “liable to pay” the taxes at issue, and

only after he “neglects or refuses to pay the same

within 10 days after notice and demand,” can his

property be subject to seizure. Therefore, apart from

the appeals officer having to identify the statute that

makes me “liable to pay” the taxes at issue, he needs

to have a copy of the “notice and demand” which I

“neglected” and “refused” to pay. In addition, I can’t

be “liable” to pay an income tax, if the tax in

question has never been assessed against me as required

by Code Sections 6201 and 6203. So I will need to see

a copy of the record of my assessments. And since (as

provided by Code Section 6201(a)(1) and IRS Transaction

Code 150) all assessments have to be based of filed

returns, I will have to see a copy of the return which

any claimed assessment is based.

8

As indicated in the text, neither Form 12153 was executed

by petitioner’s wife, nor did either purport to be filed on her

behalf.

- 15 E.

Respondent’s Efforts To Schedule an Administrative

Hearing

By letter dated October 23, 2001, an Appeals officer in

respondent’s Appeals Office in Albuquerque, New Mexico, scheduled

an administrative hearing for petitioner on December 17, 2001, in

Las Vegas, Nevada, the location closest to petitioner’s residence

in Pahrump, Nevada, in respect of the 3 taxable years in issue.

The penultimate paragraph of the Appeals officer’s letter stated

as follows:

IF YOU FAIL TO APPEAR FOR THE HEARING: This will be

your only opportunity for a face-to-face hearing. If

you cannot appear for the Hearing, I have scheduled a

telephone Hearing for you on January 15, 2002 at 9:00

A.M. (MST). Please call me on the scheduled date and

at the scheduled time if you cannot attend the face-toface hearing. If I do not hear from you by the date

scheduled for the telephone hearing, your hearing will

consist of a review of your administrative file and all

correspondence provided by you.

The Appeals officer included with his October 23, 2001, letter

Form 4340, Certificate of Assessments, Payments and Other

Specified Matters, for each of the 3 taxable years in issue.

Petitioner did not attend the December 17, 2001,

administrative hearing in Las Vegas, Nevada, nor did petitioner

participate in a telephone conference on January 15, 2002.

F.

Respondent’s Notice of Determination

On February 14, 2002, respondent’s Appeals Office issued to

petitioner a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 with regard to his tax

- 16 liabilities for 1995, 1997, and 1998.

In the notice, the Appeals

Office concluded that respondent’s determination to proceed with

collection by way of levy should be sustained.

G.

Petitioner’s Petition and Amended Petition

On March 25, 2002, petitioner filed with the Court a

Petition for Lien or Levy Action seeking review of respondent’s

notice of determination.9

Thereafter, on June 19, 2002,

an

Amended Petition for Lien or Levy Action was filed.

In the amended petition, petitioner challenges “the

appropriateness of (the) collection action” and “the existence of

the underlying liability”.

Petitioner also alleges: (1) The

Appeals officer failed to obtain verification from the Secretary

that the requirements of applicable law or administrative

procedure were met as required under section 6330(c)(1); (2)

petitioner never received notice and demand for payment for the

liabilities in issue; and (3) no “valid” assessment was ever

made.

Finally, petitioner alleges that he never received a

“valid notice of deficiency” for any of the years in issue.

The

amended petition contains no facts in support of any of the

foregoing allegations.

H.

Respondent’s Motion For Summary Judgment

As stated, respondent filed a Motion For Summary Judgment

9

At the time that the petition was filed, petitioner

resided in Pahrump, Nevada.

- 17 And To Impose A Penalty Under I.R.C. Section 6673.

Respondent

also filed a Declaration in support of the motion.

Attached to

the Declaration are Forms 4340, Certificate of Assessments,

Payments and Other Specified Matters, for petitioner’s accounts

for 1995, 1997, and 1998.

Together, the Forms 4340 show, inter

alia: (1) Assessments on February 9, 1998, in respect of the

taxable year 1995, and on August 7, 2000, in respect of the

taxable years 1997 and 1998; (2) the issuance of notices of

balance due on the dates of assessment for the corresponding

taxable year(s); and (3) the issuance of the final notice of

intent to levy on April 28, 2001.

See supra A through D.

Petitioner filed an Objection to respondent’s motion,

disagreeing with the imposition of any penalty under section

6673.

Thereafter, pursuant to notice, respondent’s motion was

called for hearing at the Court's motions session in Washington,

D.C.

Petitioner did not attend the hearing, nor did he submit

any written statement pursuant to Rule 50(c).

Discussion

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

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

notice and demand for payment, the Secretary is authorized to

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

Section

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

collection by levy on the person's property, the Secretary is

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

levy, including notice of the administrative appeals available to

the person.

Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the person has been given

notice and the opportunity for an administrative review of the

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

dissatisfied, with judicial review of the administrative

determination.

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

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).

Section 6330(c) prescribes the matters that a person may

raise at an Appeals Office hearing.

In sum, section 6330(c)

provides that a person may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner's

intended collection action, and possible alternative means of

collection.

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

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

Appeals Office hearing only if the person did not receive a

notice of deficiency for the tax in question or did not otherwise

have an earlier opportunity to dispute the tax liability.

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

Commissioner, supra.

See

Goza v.

Section 6330(d) provides for judicial

review of the administrative determination in the Tax Court or a

Federal District Court, as may be appropriate.

- 19 A.

Summary Judgment

In the amended petition, petitioner challenges “the

existence of the underlying tax liability”.

Respondent contends

that petitioner is barred under section 6330(c)(2)(B) from

challenging the existence or amount of his underlying tax

liabilities in this collection review proceeding because

petitioner received notices of deficiency for the taxes in

question.

Respondent deduces the

factual predicate for this

contention from petitioner’s failure to deny receiving notices of

deficiency; rather, petitioner has only denied receiving “valid”

notices of deficiency.

See Rennie v. Commissioner, T.C. Memo.

2002-296 (taxpayer’s denial of receiving “legal notice of

deficiency” did not mean that taxpayer failed to receive notice

of deficiency); Schmith v. Commissioner, T.C. Memo. 2002-252

(taxpayer’s denial of receiving “valid notice of deficiency” did

not mean that taxpayer failed to receive notice of deficiency);

see also Nestor v. Commissioner, 118 T.C. 162, 165-166 (2002)

(section 6330(c)(2)(B) bars a taxpayer from challenging the

existence or amount of the taxpayer’s underlying tax liability in

a collection review proceeding if the taxpayer received a notice

of deficiency and disregarded the opportunity to file a petition

for redetermination with this Court).

Rule 121(d) provides in relevant part as follows:

When a motion for summary judgment is made and

supported as provided in this Rule, an adverse party

- 20 may not rest upon the mere allegations or denials of

such party’s pleading, but such party’s response, by

affidavits or as otherwise provided in this Rule, must

set forth specific facts showing that there is a

genuine issue for trial. If the adverse party does not

so respond, then a decision, if appropriate, may be

entered against such party.

In the amended petition, petitioner does not indicate on

what basis he challenges “the existence of the underlying

liability”.

His failure to do so is contrary to Rule 331(b)(5),

requiring “Clear and concise lettered statements of the facts on

which the petitioner bases each assignment of error.”

Cf. Parker

v. Commissioner, 117 F.3d 785 (5th Cir. 1997); White v.

Commissioner, T.C. Memo. 1997-459.

Petitioner’s failure to do so

after the filing of respondent’s motion for summary judgment is

contrary to Rule 121(d) and justifies summary judgment for

respondent on this issue.10

Petitioner also challenges “the appropriateness of (the)

collection action”.

Again, however, he fails to allege any facts

in support of this assignment of error.

See Rule 331(b)(5).

Moreover, he fails to suggest any alternative means of

collection.

See, e.g., sec. 6330(c)(2)(A)(iii).

As before,

petitioner’s failure to do so after the filing of respondent’s

motion for summary judgment is contrary to Rule 121(d) and

10

Even if petitioner were permitted to challenge his

underlying tax liabilities, it is clear that the arguments he has

advanced (see supra Background, A through D) are frivolous and

groundless. E.g., Keene v. Commissioner, T.C. Memo. 2002-277.

- 21 justifies summary judgment for respondent on this issue.

We likewise reject petitioner’s argument that the Appeals

officer failed to obtain verification from the Secretary that the

requirements of all applicable laws and administrative procedures

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

The record shows

that the Appeals officer obtained and reviewed transcripts of

petitioner’s accounts for 1995, 1997, and 1998.

Federal tax assessments are formally recorded on a record of

assessment.

Sec. 6203.

“The summary record, through supporting

records, shall provide identification of the taxpayer, the

character of the liability assessed, the taxable period, if

applicable, and the amount of the assessment.”

Sec. 301.6203-1,

Proced. & Admin. Regs.

Section 6330(c)(1) does not require the Commissioner to rely

on a particular document (e.g., the summary record itself rather

than transcripts of account) to satisfy the verification

requirement imposed therein.

Roberts v. Commissioner, 118 T.C.

365, 371 n.10 (2002); Standifird v. Commissioner, T.C. Memo.

2002-245; Weishan v. Commissioner, T.C. Memo. 2002-88; Lindsey v.

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

Memo. 2002-86; Duffield v. Commissioner, T.C. Memo. 2002-53;

Kuglin v. Commissioner, T.C. Memo. 2002-51.

In this regard, we

observe that the Forms 4340 furnished to petitioner by the

Appeals officer and attached to respondent’s Declaration

- 22 contained all the information prescribed in section 301.6203-1,

Proced. & Admin. Regs.

See Weishan v. Commissioner, supra;

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

Duffield v. Commissioner, supra; Kuglin v. Commissioner, supra.11

Petitioner has not alleged any irregularity in the

assessment procedure that would raise a legitimate question about

the validity of the assessments or the information contained in

the Forms 4340.

See Davis v. Commissioner, 115 T.C. at 41; Mann

v. Commissioner, T.C. Memo. 2002-48.

Accordingly, we hold that

the Appeals officer satisfied the verification requirement of

section 6330(c)(1).

Cf. Nicklaus v. Commissioner, 117 T.C. 117,

120-121 (2001).

Petitioner also contends that he never received a notice and

demand for payment of his tax liabilities for 1997 and 1998.

The

requirement that the Secretary issue a notice and demand for

payment is set forth in section 6303(a), which provides in

pertinent part:

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

otherwise provided by this title, the Secretary shall,

as soon as practicable, and within 60 days, after the

11

To the extent that petitioner may be arguing that the

Appeals officer failed to provide him with a copy of the

verification, we note that sec. 6330(c)(1) does not require that

the Appeals officer provide the taxpayer with a copy of the

verification at the administrative hearing. Nestor v.

Commissioner, 118 T.C. 162, 166 (2002); sec. 301.6330-1(e)(1),

Proced. & Admin Regs. In any event, both the Appeals officer and

respondent’s counsel provided petitioner with Forms 4340 for the

3 taxable years in issue.

- 23 making of an assessment of a tax pursuant to section

6203, give notice to each person liable for the unpaid

tax, stating the amount and demanding payment thereof.

* * *

In particular, the Forms 4340 show that respondent sent

petitioner notices of balance due on the same dates that

respondent made assessments against petitioner for the taxes and

accuracy-related penalties determined in the notices of

deficiency.

A notice of balance due constitutes a notice and

demand for payment within the meaning of section 6303(a).

See,

e.g., Hughes v. United States, 953 F.2d 531, 536 (9th Cir. 1992);

Schaper v. Commissioner, T.C. Memo. 2002-203; Weishan v.

Commissioner, supra; see also Hansen v. United States, 7 F.3d

137, 138 (9th Cir. 1993).

In addition, other notices were sent

to petitioner, at least one of which (the final notice, discussed

supra D) petitioner received; likewise, petitioner received the

Forms 4340.

Such notices and forms were sufficient to constitute

notice and demand within the meaning of section 6303(a) because

they informed petitioner of the amount owed and requested

payment.

Standifird v. Commissioner, supra; Hack v.

Commissioner, T.C. Memo. 2002-244; Hack v. Commissioner, T.C.

Memo. 2002-243; see Elias v. Connett, 908 F.2d 521, 525 (9th Cir.

1990) (“The form on which a notice of assessment and demand for

payment is made is irrelevant as long as it provides the taxpayer

with all the information required under 26 U.S.C. § 6303(a).”).

Finally, petitioner has failed to raise a spousal defense.

- 24 Such potential issue is now deemed conceded.

Rule 331(b)(4).

In

the absence of a valid issue for review, we conclude that

respondent is entitled to judgment as a matter of law sustaining

the notice of determination dated February 14, 2002.

B.

Imposition of a Penalty Under Section 6673

We turn now to that part of respondent’s motion that moves

for the imposition of a penalty on petitioner under section 6673.

As relevant herein, section 6673(a)(1) authorizes the Tax

Court to require a taxpayer to pay to the United States a penalty

not in excess of $25,000 whenever it appears that proceedings

have been instituted or maintained by the taxpayer primarily for

delay or that the taxpayer's position in such proceeding is

frivolous or groundless.

The Court has indicated its willingness

to impose such penalty in lien and levy cases, Pierson v.

Commissioner, 115 T.C. 576, 580-581 (2000), and has in fact

imposed a penalty in a number of such cases.12

We are convinced that petitioner instituted the present

proceeding primarily for delay.

In this regard, it is clear that

petitioner regards this proceeding as nothing but a vehicle to

12

E.g., Craig v. Commissioner, 119 T.C.

(2002)

(imposing a penalty in the amount of $2,500); Roberts v.

Commissioner, 118 T.C. 365 (2002) (imposing a penalty in the

amount of $10,000); Rennie v. Commissioner, T.C. Memo. 2002-296

(imposing a penalty in the amount of $1,500); Tornichio v.

Commissioner, T.C. Memo. 2002-291 (imposing a penalty in the

amount of $12,500); Keene v. Commissioner, T.C. Memo. 2002-277

(imposing a penalty in the amount of $5,000), and numerous other

cases cited therein at n.14.

- 25 protest the tax laws of this country and to espouse his own

misguided views, which we regard as frivolous and groundless.

E.g., Tolotti v. Commissioner, T.C. Memo. 2002-86.

In short,

having to deal with this matter wasted the Court's time, as well

as respondent's, and taxpayers with genuine controversies may

have been delayed.

Under the circumstances, we shall grant that part of

respondent’s motion that moves for the imposition of a penalty in

that we shall impose a penalty on petitioner pursuant to section

6673(a)(1) in the amount of $5,000.

C.

Conclusion

We have considered all of petitioner’s arguments that are

not discussed herein, and we find them to be without merit and/or

irrelevant.

In order to give effect to the foregoing,

An appropriate order granting

respondent's motion and decision

for respondent will be entered.