Taxpayer Contends Notices of Determination Were Abuse of Discretion

approximately 2-1/2 inches high, expounding on his frivolous facts are incorporated in our findings by this reference. challenges to the appropriateness of the collection action and taxpayer and is generally satisfied by reliance on a form 4340, had declined a telephone hearing and chosen a correspondence cannot be accomplished. in other words, he would draw a can be "frivolous" since there is no requirement that a submit the case fully stipulated. the motion for summary certificate of assessments, payments, and other specified section 6673 applies. a penalty will be awarded to the united penalty against petitioner's counsel under section 6673(a)(2). opinion). attached to his letter was a stack of documents, jurisdiction did not apply to him, and that irs procedures had the filed form 1040x amended returns for those years states in the amount of $25,000. notices set out a determination that the requirements of law and for efficient collection justified the intrusiveness of the notice to the taxpayer of the filing of a notice of lien and of petitioner was domiciled within one of the 50 united the distributing corporation determined that the i.r.c. respondent's failure to follow, in his endeavor to petitioner resided in florida at the time that he filed his be entered. income subject to the expense provisions of i.r.c. bar association (model rule 3.1), applicable here under rule made or addressed in the prior case, they relate to the existence and 1998. a final notice of intent to levy with respect to those granting the irs' motion for judgment on the pleadings. - 5 - rights on the taxpayer. see, e.g., fargo v. commissioner, 447 arguments have been the basis for sanctions by all courts that respondent never has challenged the corporation's opinion, explained that petitioner `indirect' federal taxation" in which he expounded on his view, docket no. 21270-08l. filed july 13, 2010. litigation and decisions against petitioner. the issues for separately stated form 8825 property was neither in his pretrial memorandum, petitioner described the "issues petition. the internal revenue service (irs) assessed frivolous return that were raised at the cdp hearing or otherwise brought to the the court of appeals held that the district court did not err in on october 23, 2007, the irs issued a final notice of intent as follows: under i.r.c. section 6673. collection actions(s) under section 6320 and/or 6330 were sent to "national" (federal) nor "alien" (foreign) income. "instructions" to prepare a substitute for return (sfr) 119 t.c. 285, 296-305 (2002); nis family trust v. commissioner, k-1 identifying the distribution as just described. to a party. statutory notices of deficiency (one for 1999, 2000, and 2001, whether or not petitioner's current untenable arguments were of trial was columbia. thereafter, however, counsel located in 115 t.c. 523, 547-553 (2000); see also powell v. commissioner, see crain v. commissioner, 737 f.2d 1417 (5th cir. 1984). to do in fact, he only claimed he had not participated in any proposed collection action was ultimately sent to petitioner. donald w. wallis and steven l. zakrocki, for petitioner. section 1366(a) and (b) character and source of the (counsel was sanctioned in part for arguing that a collection eleventh circuit, after this court ruled that it lacked under irc 6320 with respect to the income tax liabilities for substitute for return ("ser") that was prepared by set for trial in columbia on march 1, 2010. on february 18, frivolous, dilatory, and subject to sanctions. see, e.g, united violations involving nonfiled returns", including failure to of limitation is "utterly without merit"); united states v. rice, - 10 - 2000, 2001, and 2002. the irs prepared a substitute for return tax liability, which is at issue as a result of roberts v. commissioner, 118 t.c. 365, 371 (2002), affd. 329 f.3d 6330(c)(2)(b) that a taxpayer may raise at the hearing william r. tinnerman, petitioner v. (2001), affd. 289 f.3d 452, 456-457 (7th cir. 2002); see also at the hearing a taxpayer may raise any relevant issue, including thru 2.9 (01-01-2008) and subsequent sb/se officer's not addressing petitioner's arguments when the parties 919 f.2d 830, 832-833 (2d cir. 1990); roat v. commissioner, 847 3. the validity -- not the existence, not the the briefs were filed, respondent filed a motion seeking a this court against petitioner for all periods at issue, the validity of the statutory notice. (it is only relevant to t.c. memo. 2010-150 matters, absent a showing of irregularity in the assessment. specify certain forms used in assessment and in recording of the to levy and notice of your right to a hearing with respect to the amounts assessed for 1999 through 2002 pursuant to the decisions petitioner misstates the substance of this court's opinion returns. where a taxpayer's underlying tax liability is not in (the deficiency cases) were consolidated for trial and resulted situation in lonsdale v. united states, 919 f.2d 1440, 1448 (10th that his frivolous arguments justified a penalty of $10,000 under other things, the court of appeals, in its unpublished per curiam 1133 (11th cir. 2008); united states v. ward, 833 f.2d 1538, 1539 6320(c). similarly, before proceeding with a levy, the irs must 2007, in which he denied that he was a taxpayer, denied that he memorandum opinion offered to him and failed to use the faxed notice of federal tax lien filing and your right to a hearing declined either a face-to-face or telephone conference with the including i.r.c. section 6702 penalties for periods so would be to indulge petitioner's dilatory tactics. as although petitioner claims that the forms 4340 in this case taxable income passed through from his solely owned corporation is merely a rephrasing of an argument made by petitioner during the distribution was not subject to reporting, and he at issue and that petitioner was required to file a discretion. see sego v. commissioner, 114 t.c. 604, 610 (2000); notwithstanding greater leeway generally allowed under model rule section 1.265-1. pursuant to i.r.c. section 6037(a) distributions to petitioner of earnings and profits for the hearing the appeals office must make a determination whether cir. 1990), "we are confronted here with taxpayers who simply (citing woodral v. commissioner, 112 t.c. 19, 23 (1999)); see reach the same conclusion. arguments depend on the claimed invalidity of substitutes for - 13 - documents that he titled "the federal judiciary & internal substitute for return under section 6020 is thus irrelevant to amount, but rather the validity -- of the underlying petitioner filed a petition in this court at docket no. 10187-04l liability to file federal income tax returns. - 11 - - 4 - on october 12, 2004, petitioner filed an appeal of the return. pursuant to i.r.c. section 1363(b) and (c), based on that determination and on petitioner's non- however, petitioner's arguments are no more than recycled refuse to accept the judgments of the courts." in this 1999 through 2002, the section 6673 penalties imposed by this was required to file any return, and denied that he was involved others. such interpretative arguments have been consistently sustained by the district court and the court of appeals for the and was required to file returns for the years in issue. his provisions do not apply to his income as he characterizes it and dispute, the court reviews the irs' determination for abuse of from that point, petitioner's argument is that the section 6020 by way of example, petitioner's brief sets out his premises rejected and referred to by terms such as "inane" and commissioner, t.c. memo. 1989-479. the existence or absence of a - 3 - hearing below abused his discretion by failing to 3.1); charczuk v. commissioner, 771 f.2d 471 (10th cir. 1985), present any financial information upon which collection provisions prohibit it. for federal income tax purposes as items of exempt issue this warning for the future to present counsel and to those and the court lacked jurisdiction to enter the decisions issues that could be raised during the section 6330 hearing. see abuse of discretion, the taxpayer must show that the decision court, and the section 6702 penalties for 1996 through 1998. 659 f.2d 524, 528 (5th cir. 1981) (describing the defendant's 1224 (11th cir. 2003). briefs demonstrate reckless disregard of the facts and the petitioner's arguments. we decline to address them further here. affg. t.c. memo. 1983-433. we will deny respondent's motion for the lien filing was appropriate and is required to consider: (1) commissioner, t.c. memo. 2006-250. as set forth in that opinion, section 6330, and a notice of determination sustaining the assessment process. "preposterous". united states v. latham, 754 f.2d 747, 750 (7th have reviewed them. see, e.g., united states v. morse, supra at penalties was sent to petitioner on december 19, 2003. activity that would bring out tax liability, the the second, we can find no abuse of discretion in the settlement for the reasons explained above, collection context, there is an unavoidable inference that his 21, 2006, and were not appealed. the income taxes, additions to see hoyle v. commissioner, 131 t.c. 197, 202-203 (2008). that 149, affd. 119 fed. appx. 293 (d.c. cir. 2005). we recognize seeks a penalty under section 6673, it remains pending. after the taxpayer's right to an administrative hearing on the matter. after a demand for the payment of the taxes has been made and the have stipulated to transcripts reflecting assessments of the have an opportunity to dispute such tax liability." on analysis, requirements consistent with irm provisions in 3.21.3.2 were invalid, his petitions in the deficiency cases were invalid, because the case would not be resolved any sooner than it would v. sullivan, 274 u.s. 259, 264 (1927). the internal revenue 2010, respondent filed a motion for summary judgment and to pay estimated taxes for each year. petitioner filed petitions in deficiencies due from petitioner for periods from 1996 to 2002. prejudice. on november 4, 2005, the district court judgment was collection action. the notices further explained that petitioner - 15 - the filing of a federal tax lien and a notice of intent to levy moreover, petitioner's arguments take items out of context a return or pay a tax, and asserted that the irs records (10th cir. 2008).) to the extent that all of petitioner's refused to execute the i.r.c. section 6020(a) sec. 6330(c)(2)(b). the settlement officer was correct in his in the opinion filed november 14, 2006, as tinnerman v. mcdonald v. commissioner, t.c. memo. 1992-586; mccarthy v. him, and he was not yet considered a taxpayer. he also tinnerman v. commissioner, t.c. memo. 2006-250 (citing cabirac v. goza v. commissioner, 114 t.c. 176, 182 (2000). to establish an were fraudulent, that the additions to tax were appropriate, and the third item identified in petitioner's pretrial and (c)(4), the corporation issued to petitioner a form court rules of practice and procedure. jurisdiction over them. f.3d 706, 713 (9th cir. 2006), affg. t.c. memo. 2004-13; carlson hearing could be used to contest previously determined dismissed for lack of jurisdiction on september 14, 2004. petitioner requested a hearing by a letter dated november 19, a notice of deficiency, however. see schiff v. united states, petitioner requested a collection due process (cdp) hearing under - 12 - the settlement officer satisfied his obligation under followed. he then argues that because the notices of deficiency a penalty against counsel under section 6673(a)(2). however, we laws have been consistently rejected for decades, and frivolous the right to an administrative hearing. sec. 6330(a) and (b)(1). versions of unsuccessful arguments that he has made since 1996. underlying liabilities, and petitioner has not identified any lien. he stated the facts upon which he relied as follows: applicable rules and regulations that govern the "conjurer's circle" around his tax liability. see united states of discretion and whether a penalty under section 6673 should be appeals settlement officer (the settlement officer) sent a letter t.c. memo. 2009-174; edwards v. commissioner, t.c. memo. 2003- commissioner, 120 t.c. 163, 170 (2003)). see wheeler v. contained unspecified and unidentifiable "irregularities". among the liability assessed"; the validity of the notice of - 9 - stipulation, but the filings in responses to motions and in commissioner, 127 t.c. 200, 209-210 (2006), affd. 521 f.3d 1289 and a separate one for 2002) deficiencies and additions to tax 1985). petitioner's contentions are merely stale and recycled 2008, petitioner sent the settlement officer 177 pages of background united states v. collins, 920 f.2d 619, 624-628 (10th cir. 1990); acquired citizenship without legislative act, and liabilities in issue. in several subsequent letters, petitioner randall l. eager, for respondent. settled law and contentions so lacking in merit as to be commissioner of internal revenue, respondent returns prepared under section 6020(b), they all fail to affect states v. patridge, 507 f.3d 1092, 1095-1097 (7th cir. 2007) response and did not abuse his discretion in refusing to address of any applicable law or administrative procedure have been met. other things, petitioner argued that despite the limitation on has not presented a single meritorious argument * * *. refused to participate in the telephonic cdp hearing has respondent ever challenged the accuracy of the additions to tax under section 6651(a)(2), as discussed in were not properly the subject of substitutes for returns. (9th cir. 2009). in reviewing for abuse of discretion, we this court in response to both notices of deficiency. the cases supra at 115; magana v. commissioner, 118 t.c. 488, 493 (2002). "challenges to the existence or amount of the underlying tax opportunity to raise meritorious challenges to his tax petitioner's request for a hearing was acknowledged with the taxpayer's concerns that the collection action be no notices of determination concerning collection action sustaining st. augustine, florida, entered their appearances. the case was excise, individual circumstance (i.e. petitioner with respect to civil penalties, additions to tax, and income tax section 6212, it notified petitioner of the same. notified petitioner that an information return had all opinions, orders and decisions previously issued by section 6321 imposes a lien in favor of the united states on discussed below, persisting in frivolous arguments for purposes issues relating to the unpaid tax or the proposed levy petitioner failed to offer any collection alternatives or to raised no legitimate issues. petitioner has concocted multiple theories, based in part on notice of determination regarding the section 6702 penalties with we agree that the first item is an issue here. with respect to - 17 - the taxpayer; and (3) whether the proposed collection action jurisdiction over the "presumed" underlying tax as the place of trial, he moved to change the place of trial to more intrusive than necessary. sec. 6330(c)(3). the hearing generally shall be conducted consistent with penalties against petitioner under section 6702 for 1996, 1997, under section 6020(b) for each year and determined in two because he had no obligation to file tax returns. the parties 3.1 of the model rules of professional conduct of the american (2008). 1132-1133; madison v. united states, 758 f.2d 573, 574 (11th cir. furthermore, the court must withdraw and vacate internal revenue code and regulations did not apply to assess that liability, all material, relevant and 6330(c)(3)(b) that he consider all of the relevant be ordered to refund the amounts shown due on those - 6 - sustaining the deficiencies, additions to tax, and penalties. in tax, and penalties were assessed for 1999 through 2002. judgment and the motion to permit levy were denied as untimely correspondence, and as the parties have stipulated, petitioner sb/se for each period. sb/se determined a deficiency neither a return nor a substitute for return is a prerequisite to generally consider only the arguments, issues, and other matters an examiner in respondent's sb/se division binding against respondent in litigation; it does not confer any and administrative procedure; (2) the relevant issues raised by alternatives could be considered. during the exchange of similarly situated. substantive liabilities); johnson v. commissioner, 116 t.c. 111 argument as a "frivolous non-sequitur"). purpose was primarily for delay. see roberts v. commissioner, k-1. as the court of appeals for the tenth circuit described the liability exists. statutory and constitutional t.c. 542, 546 (1975); see also brenner v. commissioner, t.c. the court concluded that petitioner received income passed correspondence with the appeals officer as an in any taxable activities (i.e., the same arguments characterized on the merits" as follows: reported a distribution to petitioner for the periods 1. whether this court should impose a penalty 329 f.3d at 1229. his conduct is precisely the type to which memo. 1991-237; barnes v. commissioner, 130 t.c. 248, 255-256 taxpayer has received a notice of deficiency under section recharacterize them as relating to the "validity" of the during the hearing. even without that stipulation, we would return that reported petitioner's receipt of the united states tax court to petitioner proposing to schedule a conference. on march 1, 6330(c)(2)(b), he was entitled to challenge: "the character of his correspondence hearing. thus, it is also an argument cir. 1989) (sanctions were imposed on counsel in criminal cases, that procedures set out in the internal revenue manual were not internal revenue code, and all rule references are to the tax the attention of petitioner's counsel is directed to rule and assert that use of a particular form for one purpose means 201(a), and to section 6673(a)(2). see takaba v. commissioner, south carolina, had agreed to represent him but only if the place although petitioner initially requested birmingham, alabama, collection alternatives. obligation does not involve providing any particular form to the - 8 - contained irregularities, his arguments are simply a refrain of through from his solely owned s corporation and was required to he was not required to file tax returns, that this court's attention of the irs appeals office. giamelli v. commissioner, appropriately balances the need for efficient collection of taxes - 14 - 2. whether the appeals settlement officer in the determination of tax liability on his income has not been and notice of deficiency for such tax liability or did not otherwise not been followed with respect to assessment of the tax v. united states, 126 f.3d 915, 922 (7th cir. 1997); tavano v. the parties thereafter executed the stipulation and agreed to preserve priority and put other creditors on notice. see sec. arguments concerning the underlying tax liabilities when a applicable to the property distribution at issue, no procedures set forth in section 6330(c), (d), (e), and (g). sec. by the irs appeals team manager, and, on february 26, 2008, an contentions. discussion described in the stipulation as not legitimate. the argument is (11th cir. 1987) (per curiam) (interpreting "include" as a term the internal revenue manual, to support his premise that the states), the corporation classified the distribution commissioner, 986 f.2d 1389, 1390 (11th cir. 1993), affg. t.c. - 7 - the propriety of the lien or the proposed levy. section 6330 with respect to verification that the requirements notices of determination will columbia, south carolina, asserting that counsel in greenville, among other things, that income taxes did not apply to him, that section 6673. decisions were entered in each case on november (c) when no return is filed, without irm reporting liability * * * if the person did not receive any statutory cohen, judge: this case was commenced in response to credible irregularity or deficiency in the assessment procedures that counsel cooperated in presenting this case on the that were raised by petitioner at the hearing below. deficiency; and the method of assessment of the taxes in dispute. may 11, 2005, the district court case was dismissed with - 16 - he ignores the fact that the section 6702 penalties were 1996-1998 involving identical circumstances. none of decision are whether the notices of determination were an abuse manual, however, does not have the force of law and is not imposed against petitioner. all section references are to the irs, 156 fed. appx. 111, 112-113 (11th cir. 2005).] - 2 - memorandum and subsequently briefed at great length by petitioner in tax, and, by its apparent authority under i.r.c. made. sec. 6322. the irs files a notice of federal tax lien to the claim that all of the actions taken by the irs are invalid possible collection alternatives. sec. 6330(c)(2)(a). following obviously intended to avoid the provision in section central premise is that the distributions from the corporation challenging the notice of determination, but that case was whether the secretary has met the requirements of applicable law complained of is arbitrary, capricious, or without sound basis in statutory requirement to make a corporate level respondent then issued a notice of deficiency. each of the amounts in dispute was the subject of prior the case stems from i.r.c. section 1368(b) united states v. nelson (in re becraft), 885 f.2d 547, 548 (9th a decision sustaining the petitioner sustaining the lien filing and the proposed levy. the 6323. section 6320(a) requires the secretary to send written determination of the distribution's exempt status, nor as meritless by the court of appeals in its november 4, 2005, in the petition, petitioner asserted "procedural due process keller v. commissioner, t.c. memo. 2006-166, affd. 568 f.3d 710 administrative procedure had been met and explained that the need entered november 21, 2006. on november 6, 2007, the irs issued a return be filed at all. therefore, respondent should or in the lien or levy procedures. cir. 1985); see also united states v. morse, 532 f.3d 1130, 1132- issue a final notice of intent to levy and notify the taxpayer of all property and property rights of a taxpayer liable for taxes versions of his contentions that he is not a taxpayer and has no distribution. petitioner disagreed on the grounds that settlement officer, denied that there was any requirement to file of delay is a basis for sanctions against a party and/or counsel liability. he was provided an opportunity to be heard be if decided on the stipulation. insofar as respondent's motion but did not take advantage of it. * * * [tinnerman v. on july 31, 2008, two notices of determination concerning taxpayer fails to pay. the lien arises when the assessment is f.2d 1379, 1381-1382 (9th cir. 1988); hartman v. commissioner, 65 fact or law. giamelli v. commissioner, 129 t.c. 107, 111 (2007) all of the facts have been stipulated, and the stipulated have stipulated that petitioner raised no legitimate issues information that the corporation reported on the form hearing; petitioner had presented only frivolous or groundless memo. 2004-202, affd. 164 fed. appx. 848, 850 (11th cir. 2006); in the deficiency cases, which concluded that petitioner had the u.s. district court for the middle district of florida. on affirmed by the court of appeals for the eleventh circuit. among file returns for the years in issue, that his failures to file challenges to the authority of the irs to enforce the tax petitioner failed to file timely tax returns for 1999, addition to seeking removal of the lien, he concludes: which petitioner did not file an individual income tax and petitioner had failed to provide financial information or that it can be used only for that purpose, to the exclusion of issues; petitioner had not complied with his filing obligations; follow the requirement imposed by i.r.c. section impose a penalty under section 6673 and a motion to permit levy. liabilities is fallacious. his repetitious claims were not for petitioner's failure to file, failure to pay, and failure to of the underlying liabilities, and his current attempt to