Kevin P. Burke v. CommissionerKevin P. Burke v. Commissioner
R issued to P statutory notices of deficiency for 1993, 1994, 1995, 1996, and 1997. P filed with the Court a petition for redetermination at docket No. 13410-00. By Order and Order of Dismissal and Decision entered Apr. 10, 2002, the Court dismissed the case on the ground P failed properly to prosecute the case. In addition, the Court imposed a penalty on P pursuant to sec. 6673(a), I.R.C. The Court‘s Decision was аffirmed on appeal and became final.
R issued to P a Final Notice of Intent to Levy and Notice of Your Right to Hearing and a Notice of Federal Tax Lien Filing and Your Right to a Hearing with regard to his unpaid taxes for 1993 to 1997. P submitted to R a request for an administrative hearing, and
P‘s case was called for trial. R subsequently filed a Motion to Permit Levy pursuant to
Held: P‘s challenges to R‘s notice of determination are frivolous and groundless. R‘s notice of determination is sustained.
Held, further, P is barred from challenging the existence or amount of the underlying tax liabilities for the years in issue, and R has shown good cause for lifting the suspension of the lеvy. R‘s Motion to Permit Levy is granted.
Held, further, a penalty under
Kevin P. Burke, pro se.
Robin M. Ferguson and Stephen S. Ash, for respondent.
WHERRY, Judge: Petitioner invoked the Court‘s jurisdiction under
This case was submitted to the Court following a trial. Thereafter, respondent filed a Motion to Permit Levy pursuant to
As discussed in detail below, we shall sustain the notice of determination upon which this case is based. In addition, respondent has shown good cause for lifting the suspension of the prоposed levy, and we shall grant respondent‘s Motion to Permit Levy, and shall impose a penalty under
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The parties’ stipulation of facts and the attached exhibits are incorporated herein by this reference. At the time the petition was filed, petitioner resided in Phoenix, Arizona.
On September 27, 2000, respоndent issued to petitioner notices of deficiency for 1993, 1994, 1995, 1996, and 1997.
additions to tax that respondent determined in the notices of deficiency, and imposing a penalty on petitioner pursuant to
On October 7, 2002, respondent entered assessments against petitioner for the income taxes, additions to tax, and penalty under
On March 6, 2003, respondent issued to petitioner a Final Notice of Intent to Levy and Notice of Your Right to a Hearing requesting that petitioner pay his outstanding inсome taxes for the years 1993 to 1997. On or about March 7, 2003, respondent
filed with the County Recorder, Maricopa County, Arizona, a Notice of Federal Tax Lien regarding petitioner‘s unpaid income taxes for 1993 to 1997. On March 13, 2003, respondent issued to petitioner a Notice of Federal Tax Lien Filing and Notice of Your Right to Hearing for the years 1993 to 1997. On April 4, 2003, petitioner submitted to rеspondent a Form 12153, Request for Collection Due Process Hearing, challenging the validity of the assessments for the years in issue.
On September 9, 2003, the Appeals Office issued to petitioner a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 sustaining the filing of the tax lien and determining that it was appropriate to proceed with the proposed levy. The Appeals Office concluded that petitioner had previously challengеd respondent‘s notices of deficiency for 1993 to 1997 in the Tax Court, and, therefore, he was barred from challenging the existence or amount of those tax liabilities pursuant to
governing the assessment and collection of petitioner‘s outstanding tax liabilities for 1993 to 1997 were met.
Petitioner filed with the Court a timely Petition for Lien and Levy Action. Citing Keene v. Commissioner, 121 T.C. 8 (2003), petitioner argued that respondent abused his discretion in issuing a notice of determination without permitting petitioner to make an audio recording of the administrative hearing.
After filing an answer to the petition, respondent filed a Motion for Summary Judgment and to Impose a Penalty Under I.R.C. § 6673. Citing Kemper v. Commissioner, T.C. Memo. 2003-195, respondent asserted that petitioner‘s arguments were frivolous and groundless, and, therefore, it was harmless error to deny petitioner the opportunity to make an audio recording of the administrative hearing. Although the Court denied respondent‘s motion, the Court cautioned petitioner that if he persisted in making frivolous and groundless arguments the Court would consider imposing a penalty on petitioner under
This case was cаlled for trial in Phoenix, Arizona. At the start of the trial, the Court reminded petitioner of the Court‘s earlier admonishment that he should abandon all frivolous arguments. Contrary to the Court‘s warning, petitioner continued to assert during the trial that the notices of deficiency that the Court sustained in the deficiency case at docket No. 13410-00
were invalid and that proper assessments
OPINION
I. Collection Actions
A. Lien and Levy
at an administrative hearing.
(2). Issues at hearing.--
* * * * * * *
(B) Underlying liability.--The person may also raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice оf deficiency
for such tax liability or did not otherwise have an opportunity to dispute such tax liability.
When the Appeals Office issues a Notice Of Determination Concerning Collection Action(s) to a taxpayer following an administrative hearing,
proceeding regarding a Federal tax lien by way of the cross-reference contained in
Petitioner‘s conduct in his earlier deficiency case at docket No. 13410-00, coupled with his actions in this proceeding, clearly demonstrates that petitioner exploited the cоllection review procedures primarily for the purpose of delay. As discussed below, petitioner‘s arguments have absolutely no merit. Moreover, petitioner ignored the opportunity that the Court extended to him at trial to assert a legitimate claim for relief.5
As previously mentioned, petitioner asserted that the notices of deficiency that respondent issued to him for 1993 to 1997 are invalid. This precise issue was previously considered and rejected by the Court when the Court denied petitioner‘s motion to dismiss filed at docket No. 13410-00. The Court‘s Order and Order of Dismissal and Decision entered at docket No. 13410-00 was affirmed on appeal and is now final.
of his underlying tax liabilities for 1993 to 1997 in this proceeding. See
In addition, contrary to petitioner‘s position, the Forms 4340 offered into evidence at trial show that respondent (1) properly assessed the tax liabilities that respondent intends to collect from petitioner, and (2) properly notified petitioner of those assessments by way of notices of balance due. See,
Numerous cases establish that no particular form of verification of an assessment is required, that no particular document need be provided to a taxpayer at an administrative hearing conducted under
Petitioner has not alleged any irregularity in the assessment procedure that would raise a question about the validity of the assessments or the information contained in the Forms 4340. Moreover, petitioner has failed to raise a spousal defense, make a valid challenge to the appropriateness of respondent‘s intended collection action, оr offer alternative
means of collection. These issues are now deemed conceded. Rule 331(b)(4).
The record reflects that the Appeals Office properly verified that all applicable laws and administrative procedures governing the assessment and collection of petitioner‘s tax liabilities were met. Accordingly, we hold that the Appeаls Office did not abuse its discretion in determining to proceed with collection against petitioner.
B. Levy Upon Appeal
We turn now to respondent‘s Motion to Permit Levy.
SEC. 6330(e). Suspension of Collections and Statute of Limitations.--
(1) In general.--Except as provided in paragraph (2), if a hearing is requested under subsection (a)(3)(B), the levy actions which are the subject of the requested hearing and the running of any period of limitations * * * shall be suspended fоr the period during which such hearing, and appeals therein, are pending. In no event shall any such period expire before the 90th day after the day on which there is a final determination in such hearing. Notwithstanding the provisions of section 7421(a), the beginning of a levy or proceeding during the time the suspension under this paragraph is in force may be enjoined by a proceeding in the proper court, including the Tax Court. The Tax Court shall have no jurisdiction under this paragraph to enjoin any action or proceeding unless a timely
appeal has been filed under subsection (d)(1) and then only in respect of the unpaid tax or proposed levy to which the determination being appealed relates. (2) Levy upon appeal.--Paragrаph (1) shall not apply to a levy action while an appeal is
pending if the underlying tax liability is not at issue in the appeal and the court determines that the Secretary has shown good cause not to suspend the levy.
In sum,
We further observe that, in the absence of any other limiting language, the “court” referred to in
review determination is appealed under
As previously discussed, petitioner is barred under
Petitioner is no stranger to the Cоurt. As outlined above, he abused the Court‘s procedures in the deficiency case at docket No. 13410-00, and he has exploited the collection review procedure primarily to delay collection. To permit any further
delay in the collection process would be unconscionable. Accordingly, we shall grant respondent‘s Motion to Permit Levy.
II. Section 6673 Penalty
Petitioner was previously penalized for his frivolous arguments and delay perpetrated on the Court in connection with docket No. 13410-00 concerning his tax liability for the tax years 1993 through 1997. Although in this action petitioner was polite and eliminated several frivolous issues at trial, he nevertheless wasted judicial resources on other frivolous
arguments at the proceedings and in his brief. It is inappropriate that taxpayers who promptly pay their taxes should have the cost of Government and tax collection improperly increased by citizens apparently unwilling to obey the law or shoulder their assigned share of the Government cost.
As respondent correctly notes in the motion for summary judgment, issuеs raised by petitioner during the administrative process, i.e., in his request for a collection due process hearing, have been repeatedly rejected by this and other courts or are refuted by the documentary record. Moreover the Court observes that maintenance of similar arguments has served as grounds for imposition of penalties under section 6673.
At the time of that order, the Court declined to grant summary judgment or impose a
To reflect the foregoing,
An order and decision will be entered granting respondent‘s Motion to Permit Levy, and a decision will be entered for respondent including the imposition of a penalty under section 6673.
Notes
Petitioner failed to comply with the Court‘s Rules and Orders concerning stipulation. He has neither identified nor proven any deductions to which he might be entitled. He has not shown in any way that respondent‘s determination is erroneous, and he has presented only frivolous long-discredited arguments to the Court. He has not properly prosecuted this case, and dismissаl is appropriate.