Eric D. Clarkson ( 2022 )

United States Tax Court
T.C. Memo. 2022-92ERIC D. CLARKSON,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 16804-21L. Filed September 7, 2022.
—————
Eric D. Clarkson, pro se.
Marissa J. Savit and Thomas A. Deamus, for respondent.
MEMORANDUM OPINION
LAUBER, Judge: In this collection due process (CDP) case peti-
tioner seeks review pursuant to section 6330(d)(1) of the determination
by the Internal Revenue Service (IRS or respondent) to uphold the filing
of a notice of intent to levy. 1 The notice relates to petitioner’s liability
for frivolous return penalties imposed for submissions he made to the
IRS for tax years 2003–2016. See § 6702(a). Respondent has filed a
Motion for Summary Judgment under Rule 121, contending that there
are no disputes of material fact, that petitioner is liable for the penalties
as a matter of law, and that the settlement officer (SO) did not abuse
her discretion in sustaining the proposed levy. We agree and accord-
ingly will grant the Motion.
1 Unless otherwise indicated, all statutory references are to the Internal Reve-
nue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
Served 09/07/22
2
[*2] Background
The following facts are derived from the parties’ pleadings and
motion papers, including accompanying declarations and exhibits. See
Rule 121(b). Petitioner resided in New Jersey when he filed his Petition.
Petitioner failed to file timely Federal income tax returns for
every year from 2003 to 2016. Using information supplied in third-party
reports, the IRS prepared a substitute for return for each year and is-
sued petitioner notices of deficiency. As of June 2020 his total balance
due was more than $250,000.
Petitioner is no stranger to this Court. He initially petitioned the
Court on October 28, 2015, docket No. 27236-15, disputing the notices of
deficiency for 2003–2008. We dismissed that case for lack of jurisdiction
on February 3, 2016. See § 6213(a). Petitioner did not challenge the
notices of deficiency for 2009–2012, and the IRS duly assessed the tax
for those years. He petitioned this Court, docket No. 14156-16L, chal-
lenging collection action with respect to those liabilities. We granted
summary judgment in respondent’s favor on March 24, 2017, rejecting
petitioner’s challenge to his underlying tax liabilities for 2009–2012 and
sustaining the collection action.
Throughout 2017 the IRS sent petitioner various letters about his
filing and payment obligations, including a Letter 3174 (warning of im-
pending levy action for 2003–2012) and a Letter 729 (asking that he sub-
mit tax returns for 2013–2015). On September 27, 2017, petitioner re-
plied to these letters by submitting a signed Form 1040, U.S. Individual
Income Tax Return, for every year from 2003 to 2015 inclusive. He ex-
plained that he intended these submissions to satisfy the IRS’s request
for delinquent returns. He asked that the “record . . . be corrected” to
reflect that, in the light of the data he put on the Forms 1040, “there has
never been any tax due or owing.” He had previously submitted, on
April 19, 2017, a substantially similar signed Form 1040 for 2016.
Petitioner reported the following on the Form 1040 for 2003:
Wages, salaries and tips -0-
Adjusted gross income -0-
Federal income tax withheld $3,035.36
Overpayment and refund requested 3,035.36
3
[*3] To this Form 1040 he attached a Form 4852, Substitute for Form
W–2, Wage and Tax Statement. He created this Form 4852 himself to
replace the Form W–2 that had been issued to him by Adolph Farmer
Construction, Inc., reporting wages that the company had paid him dur-
ing 2003. He checked a box falsely asserting that he had been “unable
to obtain” or had “received an incorrect” Form W–2.
Petitioner placed the following entries on the Form 4852 he cre-
ated for 2003:
Wages, tips, and other compensation -0-
Federal income tax withheld $1,962.04
State income tax withheld 417.10
Social Security tax withheld 869.88
Medicare tax withheld 203.44
To explain why the entry for wages was zero, despite the withholding of
tax, petitioner asserted that he had not received “any ‘wages’ as defined
in section 3401(a) and section 3121(a).” He added that all other numbers
were derived from “the W–2 sent to me.”
To his Form 1040 for 2003 petitioner also attached a Form 1099–
MISC, Miscellaneous Income. Forms 1099–MISC are issued by payers
of income to payees. But petitioner created this Form 1099–MISC him-
self, putting zero in the box for “Nonemployee compensation” and show-
ing no tax withheld. He asserted that this was a “corrected” Form 1099–
MISC that was intended to “rebut” the Form 1099–MISC issued to him
by Ahera Consultants, Inc. (Ahera), the payer of the income. Petitioner
wrote:
The form is NOT INTENDED to represent a corrected
1099–MISC filed by the party identified therein as
“PAYER.” The corrected form 1099–MISC herein pre-
sented, is submitted to “rebut” a document known to have
been submitted by the party identified therein as the
“PAYER” which or who erroneously alleges a payment or
payments to the party identified therein as “RECIPIENT”
of “gains, profit or incomes” within the meaning of relevant
law, which they ARE NOT.
The payments made to me by this “PAYER” did not result
from any federally taxable activity whatsoever and do not
4
[*4] constitute any taxable income under relevant income tax
law . . . . [T]his payer is not connected with any activity or
of any status which would render payments to me subject
to federal income excise tax, nor am I.
Petitioner reported the following on the Forms 1040 he submitted for
2004–2016:
Wages, salaries and tips -0-
Adjusted gross income -0-
Federal income tax withheld -0-
Overpayment and refund requested -0-
To each Form 1040 he attached a “corrected” Form 1099–MISC. Each
form mirrored the “corrected” Form 1099–MISC he submitted for 2003,
and he appended to each the same explanation. He asserted that each
“corrected” Form 1099–MISC was intended to “‘rebut’ . . . submi[ssions]
by the party identified therein as ‘PAYER.’”
The IRS sent petitioner’s Forms 1040 for 2003–2016 to its Frivo-
lous Returns Program (FRP). FRP, in turn, sent petitioner Letters
3176C warning him that his submissions constituted frivolous tax re-
turns and that, if he did not withdraw them, he would incur a penalty
of $5,000 for each submission.
Petitioner neither amended nor withdrew the Forms 1040 he had
submitted. Instead, in a reply dated March 24, 2018, he reiterated and
elaborated upon the arguments he had made previously. He argued that
he was not an “employee of a corporation or employee of a partnership”
and that he had no “duty . . . concerning . . . tax-related matters of any
kind.” He asserted that he had received no “wages as defined in section
3401(a)” and that his “corrected” Forms 1099–MISC were intended to
“rebut allegations made by others” that he had been paid taxable com-
pensation. He expressed disagreement with the IRS’s characterization
of his Forms 1040 as “submissions,” insisting that they were proper “re-
turns” that the IRS must accept and process. He asserted that these
“returns” could not legally be “withdraw[n] and replace[d]” even if he
had wished to do so.
Lucy Bordley, an examining agent in FRP, proposed a $5,000 pen-
alty for each of the Forms 1040 that petitioner had submitted. She pre-
pared 14 separate Forms 8278, Assessment and Abatement of
5
[*5] Miscellaneous Civil Penalties, recommending assertion of penalties
totaling $70,000. Ms. Bordley signed each form as the “originator” of
the penalties; she signed the forms for 2003–2005 on September 6, 2018,
and she signed the forms for 2006–2016 on September 11, 2018. Michael
Schofield, her immediate supervisor, signed each Form 8278 on Septem-
ber 13, 2018, as the “approver” of the penalties. On November 19, 2018,
the IRS assessed the penalties for 2003–2015, and on April 15, 2019, it
assessed the penalty for 2016.
Petitioner did not pay any of the penalties. In an effort to collect
these unpaid liabilities, the IRS issued him, on November 25, 2019, a
Notice of Intent to Levy and Your Right to a Hearing (levy notice). Pe-
titioner timely requested a CDP hearing, stating that he was disputing
his penalty liabilities for all 14 years. As the basis for his challenge, he
asserted that he did not owe the penalties because he “did not submit
any frivolous returns.” He demanded that the IRS “release the hold on
[his] returns” and “process them.” He repeated his earlier arguments
that he had no Federal tax liabilities because he was not a “federal em-
ployee or one engaged in any government privileged activity that would
give rise to any federal tax liability.” He did not request a collection
alternative.
An SO in the IRS Independent Office of Appeals was assigned to
petitioner’s CDP case. The SO reviewed petitioner’s file and verified
that the penalties had been properly assessed and that all other require-
ments of applicable law and administrative procedure had been satis-
fied. He confirmed that, before the initial determination of the penalty
assessments, supervisory approval had been obtained in compliance
with section 6751(b)(1).
On October 21, 2020, the SO sent petitioner a letter scheduling a
telephone conference and requesting (among other things) a detailed
written explanation as to why petitioner believed the penalties to be im-
proper. Petitioner replied by letter dated October 30, 2020, denying that
his returns were frivolous and requesting that the CDP hearing be con-
ducted by written correspondence. He asked the SO to send him a copy
of the administrative file, which the SO did on November 9, 2020.
By letter dated December 3, 2020, the SO agreed to conduct the
hearing via written correspondence. The letter explained why the IRS
considered the documents petitioner had submitted to be “frivolous tax
returns”: The “corrected” Forms 1099–MISC showing income of zero for
2003–2016, like the Form 4852 petitioner created showing wages of zero
6
[*6] for 2003, were plainly inconsistent with the Forms 1099–MISC and
the Form W–2 that the payers had actually issued to petitioner and sup-
plied to the IRS. The SO gave petitioner until January 5, 2021, to sub-
mit any relevant information.
The SO’s December 3 letter crossed in the mail with a letter peti-
tioner sent on December 1. Petitioner denied that his tax returns were
frivolous; he again argued that the Federal income tax is imposed only
on Federal employees and those engaged in a “Federally connected
‘trade or business’ as that term is defined in 26 USC 7701(a)(26).” Be-
cause petitioner received compensation from a “non-governmental, for-
profit, private sector business,” his earnings were assertedly exempt
from taxation.
Petitioner’s last letter to the SO was dated January 3, 2021. He
declined to submit any of the documents the SO had requested (other
than the explanation, already supplied, as to why his Forms 1040 were
supposedly not frivolous). He said that he was unable to submit a Form
433–A, Collection Information Statement for Wage Earners and Self-
Employed Individuals, because he considered himself to be neither.
The SO received no further documents or communications from
petitioner. After balancing the appropriateness of the collection action
against its intrusiveness, the SO prepared to close the case. After a
pause attributable to the COVID-19 pandemic, the SO on April 12, 2021,
issued a notice of determination concluding that the frivolous return
penalties had been properly assessed and sustaining the levy notice for
all 14 years. 2
Petitioner timely petitioned this Court on May 17, 2021. He con-
tended that his Form 1040 submissions to the IRS for 2003–2016 were
not frivolous returns and that supervisory approval of the assessed pen-
alties, as documented by the Forms 8278, was improperly obtained. On
February 10, 2022, respondent filed the Motion for Summary Judgment,
which petitioner timely opposed.
2 After this notice of determination was issued, the IRS assessed additional
frivolous return penalties against petitioner. But we have jurisdiction over only the
penalties upheld in the notice of determination. See §§ 6320(C), 6330(d)(1); Rule
330(b); Offiler v. Commissioner, 114 T.C. 492, 498 (2000).
7
[*7] Discussion
A. Summary Judgment Standard
The purpose of summary judgment is to expedite litigation and
avoid costly, time-consuming, and unnecessary trials. Fla. Peach Corp.
v. Commissioner, 90 T.C. 678, 681 (1988). The Court may grant sum-
mary judgment when there is no genuine dispute as to any 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), aff’d, 17
F.3d 965 (7th Cir. 1994). Where the moving party properly makes and
supports a motion for summary judgment, “an adverse party may not
rest upon the mere allegations or denials of such party’s pleading” but
must set forth specific facts showing a genuine dispute for trial. Rule
121(d). We find that the questions presented are appropriate for sum-
mary adjudication.
B. Standard of Review
Section 6330(d)(1) does not prescribe the standard of review that
this Court should apply in reviewing an IRS administrative determina-
tion in a CDP case. The general parameters for such review are marked
out by our precedents. Where the taxpayer’s underlying tax liability is
properly at issue, we review the IRS determination de novo. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C.
176, 181–82 (2000). A taxpayer may challenge his underlying liability
at a CDP hearing if he did not receive a statutory notice of deficiency for
that liability or did not otherwise have a prior opportunity to dispute it.
§ 6330(c)(2)(B). Where the taxpayer’s underlying liability is not properly
in dispute, we review the IRS decision for abuse of discretion only. Jones
v. Commissioner, 338 F.3d 463, 466 (5th Cir. 2003); Goza, 114 T.C. at
182. Abuse of discretion exists when a determination is arbitrary, ca-
pricious, or without sound basis in fact or law. See Murphy v. Commis-
sioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006).
Frivolous return penalties imposed under section 6702(a) are “as-
sessable penalties” not subject to deficiency procedures. See § 6703(b).
Petitioner did not receive, and could not have received, a statutory notice
of deficiency that would have enabled him to petition this Court for re-
determination of the penalties. Petitioner was thus entitled to challenge
his underlying liabilities for the penalties during his CDP hearing. We
review the SO’s resolution of this issue de novo.
8
[*8] C. Underlying Liability
1. Frivolous Tax Return Penalties
Section 6702(a) imposes a civil penalty of $5,000 for filing “frivo-
lous tax returns.” In any proceeding involving the issue of liability for a
section 6702(a) penalty, “the burden of proof with respect to such issue
shall be on the Secretary.” § 6703(a); see Osband v. Commissioner, T.C.
Memo. 2013-188, 106 T.C.M. (CCH) 124, 128. 3
A frivolous return penalty applies where three conditions are met.
First, the taxpayer must have filed a document that “purports to be a
return of a tax imposed by this title.” § 6702(a)(1). Second, the pur-
ported return must be a document that either “does not contain infor-
mation on which the substantial correctness of the self-assessment may
be judged” or “contains information that on its face indicates that the
self-assessment is substantially incorrect.” § 6702(a)(1). Third, the tax-
payer’s conduct must either be “based on a position which the Secretary
has identified as frivolous” or must “reflect[] a desire to delay or impede
the administration of Federal tax laws.” § 6702(a)(2). Congress directed
the IRS to prescribe and periodically revise “a list of positions which the
Secretary has identified as being frivolous for purposes of this subsec-
tion.” § 6702(c).
Courts generally look to the face of the document to determine
whether a purported return is “frivolous.” See Grunsted v. Commis-
sioner, 136 T.C. 455, 459 (2011); Callahan v. Commissioner, 130 T.C. 44,
51 (2008); Yuen v. United States, 290 F. Supp. 2d 1220, 1224 (D. Nev.
2003). If a purported return reflects a position that the IRS has identi-
fied as “frivolous,” then the taxpayer’s belief in the correctness of his
position cannot serve as a defense to the penalty. See Hudson v. United
States, 766 F.2d 1288, 1291 (9th Cir. 1985) (per curiam); Alexander v.
Commissioner, T.C. Memo. 2012-75, 103 T.C.M. (CCH) 1405, 1407;
Lindberg v. Commissioner, T.C. Memo. 2010-67, 99 T.C.M. (CCH) 1273,
3 Petitioner errs in contending that respondent has not met the requirements
of Rule 36(b) that “the answer shall contain a clear and concise statement of every
ground, together with the facts in support thereof on which the Commissioner relies
and has the burden of proof.” Taken as a whole, respondent’s answer meets the re-
quirements of Rule 36(b) and gives petitioner “fair notice of the matters in controversy
and the basis for their respective positions.” Rule 31(a); see Warshaw v. Commissioner,
T.C. Memo 1992-401; Trasatti v. Commissioner, T.C. Memo. 1989-448.
9
[*9] 1278; Vaughn v. United States, 589 F. Supp. 1528, 1532 (W.D. La.
1984). 4
We conclude that petitioner’s submissions satisfy all three condi-
tions specified in section 6702(a) for a “frivolous return.” First, each of
his 14 submissions “purport[ed] to be a return of a tax.” See § 6702(a)(1).
Each submission was made on a Form 1040 and each bore his original
signature. None of the Forms 1040 was marked “copy” or otherwise in-
dicated that the IRS should not process it as a return of tax. Cf. Kestin
v. Commissioner, 153 T.C. 14, 17, 19, 26 (2019) (declining to impose sec-
tion 6702(a) penalties where the taxpayer submitted six copies of a pre-
viously filed return, each marked “photocopy – do not process”).
Petitioner submitted the Forms 1040 for 2003–2015 with a cover
letter identifying them as his response to the IRS’s request that he sub-
mit returns for 2013–2015. These submissions are virtually identical to
the Form 1040 for 2016 that he had submitted a few months earlier. See
Whitaker v. Commissioner, T.C. Memo. 2017-192, 114 T.C.M (CCH) 377,
380 (holding that a Form 1040 submitted in response to a notice in-
structing the taxpayer to file a corrected return within 30 days was a
purported return).
Petitioner repeatedly characterized his Form 1040 submissions
as “tax returns.” Indeed, when FRP sent him Letters 3176C warning
that it considered his “submissions” frivolous and offering him the op-
portunity to withdraw them, he replied that they were not mere “sub-
missions” and demanded that the IRS process them as “returns.” See
Jaxtheimer v. Commissioner, T.C. Memo. 2019-164, 118 T.C.M. (CCH)
483, 486 (concluding that the taxpayer’s characterization of his submis-
sions as tax returns showed that the documents purported to be tax re-
turns), aff’d, 854 F. App’x 263 (10th Cir. 2021).
Second, petitioner’s purported returns “contain[ed] information
that on its face indicate[d] that the self-assessment [was] substantially
incorrect.” See § 6702(a)(1)(B). Each Form 1040 that petitioner
4 Because petitioner’s 2003–2012 tax liabilities had been finally determined by
this Court by the time he submitted the Forms 1040, it is unclear what effect he in-
tended his submissions to have for tax years 2003–2012. But these circumstances do
not prevent the IRS from imposing a frivolous return penalty where a taxpayer “files
what purports to be a return of tax.” § 6702(a)(1). A taxpayer may be penalized for
filing a frivolous return even if he was not required to file a return or owed no tax for
the year in question. See Lister v. United States, 77 F. App’x 465, 466 (10th Cir. 2003);
Bradley v. United States, 817 F.2d 1400, 1403 (9th Cir. 1987).
10
[*10] submitted reported zero taxable income. He attached to each
Form 1040 a “corrected” Form 1099–MISC that he said was intended to
“rebut” the Form 1099–MISC issued by Ahera, the payer of his income.
By way of explanation, he asserted that Ahera’s payments to him were
“not the result [of] any federally taxable activity whatsoever and do not
constitute any taxable income.” Petitioner thus conceded that he re-
ceived payments from Ahera and advanced a common tax protester ar-
gument—the same argument he later adopted in the CDP hearing and
in his filings with this Court—that private sector employees are not sub-
ject to Federal income tax. Because this is a frivolous argument, his
Forms 1040 indicated on their face that his self-assessment was “sub-
stantially incorrect.” See § 6702(a)(1)(B).
Assuming arguendo that petitioner did not intend to advance this
tax protester argument, then each of his returns “does not contain infor-
mation on which the substantial correctness of the self-assessment may
be judged.” See § 6702(a)(1)(A). In that event, petitioner’s returns con-
ceded that he received income but reported it as nontaxable, without any
explanation. See Olson v. United States, 760 F.2d 1003, 1005 (9th Cir.
1985) (per curiam) (finding section 6702(a)(1)(A) satisfied where a re-
turn listing zero taxable income was accompanied by a Form W–2 re-
porting wages, which was marked “incorrect” but “made no attempt to
explain th[e] discrepancy”).
Third, petitioner’s conduct was “based on a position [that] the Sec-
retary has identified as frivolous.” See § 6702(a)(2)(A). All the Forms
1040 petitioner submitted were “zero returns.” The Secretary long ago
identified as frivolous the position that a taxpayer can “elect to file a tax
return reporting zero taxable income and zero tax liability even if [he]
received taxable income.” Notice 2010-33, 2010-17 I.R.B. 609, 609; see
also Rev. Rul. 2004-34, 2004-1 C.B. 619. The courts have agreed that
“zero returns” reflect frivolous positions. Grunsted, 136 T.C. at 460; see
also Olson, 760 F.2d at 1005.
Petitioner’s “zero returns” were based on his assertions that
wages are not income and that the Federal Government has no authority
to tax private sector income. Similar statements often accompany “zero
returns” filed by tax protesters. See, e.g., Smith v. Commissioner, T.C.
Memo. 2021-29, 121 T.C.M. (CCH) 1195, 1197; Hendrickson v. Commis-
sioner, T.C. Memo. 2019-10, 117 T.C.M. (CCH) 1041, 1043, aff’d per or-
der, 2020 WL 2563412 (6th Cir. 2020). The Secretary has identified
these arguments as “frivolous positions.” Notice 2010-33, 2010-17 I.R.B.
at 609. And the courts have repeatedly done the same. See, e.g., Walker
11
[*11] v. Commissioner, T.C. Memo. 2022-63; Briggs v. Commissioner,
T.C. Memo. 2016-86; Lovely v. Commissioner, T.C. Memo. 2015-135,
aff’d per curiam, 642 F. App’x 268 (4th Cir. 2016). 5
In sum, respondent has carried his burden of establishing that all
14 of petitioner’s submissions satisfy the three conditions specified in
section 6702(a) for a “frivolous tax return.” Petitioner is therefore liable
for a $5,000 penalty for each Form 1040 that he filed.
2. Supervisory Approval of Penalties
Section 6751(b)(1) provides that “[n]o penalty under this title
shall be assessed unless the initial determination of such assessment is
personally approved (in writing) by the immediate supervisor of the in-
dividual making such determination.” Written supervisory approval
must therefore be obtained before a section 6702(a) penalty is assessed.
But approval need not be secured before the Commissioner sends the
taxpayer a Letter 3176C extending the opportunity to recant and avoid
the penalty. See Kestin, 153 T.C. at 28–30.
The administrative record includes 14 distinct civil penalty ap-
proval forms, each on a Form 8278. Ms. Bordley, the “originator” of the
penalties, signed those forms on September 6 and 11, 2018. Mr.
Schofield, Ms. Bordley’s immediate supervisor, signed each form as the
“approver” of the penalties on September 13, 2018. Respondent has sub-
mitted a declaration under penalties of perjury averring that Mr.
Schofield was Ms. Bordley’s immediate supervisor at that time. Written
supervisory approval of the proposed penalties was thus secured several
months before the penalties were assessed, on November 19, 2018, and
April 15, 2019, and communicated to petitioner.
Petitioner asserts that there are disputes of fact about whether
the IRS actually complied with section 6751(b)(1). He contends that the
IRS employee who averred in a sworn declaration that Mr. Schofield was
Ms. Bordley’s supervisor lacked personal knowledge of that fact; that
the employee’s signature on the declaration was somehow improper;
that Mr. Schofield’s signature on the Forms 8278 is illegible; and that
5 Hendrickson v. Commissioner, T.C. Memo. 2019-10, involved Peter Hendrick-
son, the author of Cracking the Code, a compendium of tax protester nonsense. As we
have previously noted, Hendrickson is a “felon and serial tax evader,” and the positions
he espoused in Cracking the Code are “so lacking in merit that they are sanctionable
if sincerely believed.” Waltner v. Commissioner, T.C. Memo. 2014-35, 107 T.C.M.
(CCH) 1189, 1197, 1203, aff’d, 659 F. App’x 440 (9th Cir. 2016).
12
[*12] “M. Schofield” printed next to his signature may not refer to “Mi-
chael Schofield” but to some other IRS employee with the same first in-
itial and last name.
We have repeatedly held that a supervisor’s signature on a civil
penalty approval form “is sufficient to satisfy the statutory require-
ments.” Belair Woods, LLC v. Commissioner, 154 T.C. 1, 17 (2020). And
we have regularly decided section 6751(b)(1) questions on summary
judgment, on the basis of IRS records and declarations from relevant
IRS officers. See, e.g., Sand Inv. Co. v. Commissioner, 157 T.C. 136(2021); Thompson v. Commissioner, T.C. Memo. 2022-80. We will do the
same here. Petitioner’s alleged factual disputes are entirely speculative.
Rule 121(d) requires that a party opposing summary judgment set forth
“specific facts,” including facts established “by affidavits or declara-
tions.” Petitioner has failed to do so, and it seems clear that he inter-
poses these arguments for the purpose of delay.
D. Abuse of Discretion
In deciding whether the SO abused his discretion in sustaining
the collection action, we consider whether he (1) properly verified that
the requirements of applicable law and administrative procedure have
been met, (2) considered any relevant issues petitioner raised, and
(3) considered “whether any proposed collection action balances the need
for the efficient collection of taxes with the legitimate concern of [peti-
tioner] that any collection action be no more intrusive than necessary.”
§ 6330(c)(3). Our review of the administrative record establishes that
the SO properly discharged all of his responsibilities under sec-
tion 6330(c).
Petitioner contends that the SO, lacking financial information
about him, could not have properly balanced his interests with the need
for efficient tax collection. But the only reason the SO lacked this infor-
mation was that petitioner refused to provide it. And petitioner’s ra-
tionale for refusing to provide it—that he could not complete a Form
433–A because he was neither a “wage earner” nor a “self-employed”
person—was just another frivolous argument.
Petitioner proposed no collection alternative. An SO is not obli-
gated to pursue a collection alternative where no such proposal is made.
See McLaine v. Commissioner, 138 T.C. 228, 243 (2012). Finding no
abuse of discretion in any respect, we will grant respondent’s Motion
and sustain the collection action.
13
[*13] E. Frivolous Position Penalty
Section 6673(a)(1) authorizes this Court to require a taxpayer to
pay to the United States a penalty, not in excess of $25,000, “[w]henever
it appears to the Tax Court that—(A) proceedings before it have been
instituted or maintained . . . primarily for delay, [or] (B) the taxpayer’s
position in such proceeding is frivolous or groundless.” The purpose of
section 6673 is to compel taxpayers to conform their conduct to settled
tax principles and to deter the waste of judicial and IRS resources. Cole-
man v. Commissioner, 791 F.2d 68, 71–72 (7th Cir. 1986); Salzer v. Com-
missioner, T.C. Memo. 2014-188, 108 T.C.M. (CCH) 284, 287. “Frivolous
and groundless claims divert the Court’s time, energy, and resources
away from more serious claims and increase the needless cost imposed
on other litigants . . . .” Kernan v. Commissioner, T.C. Memo. 2014-228,
108 T.C.M. (CCH) 503, 512, aff’d, 670 F. App’x 944 (9th Cir. 2016); see
Kile v. Commissioner, 739 F.2d 265, 269–70 (7th Cir. 1984) (“[W]e can
no longer tolerate abuse of the judicial review process by irresponsible
taxpayers who press stale and frivolous arguments[.]”), aff’g Basic Bible
Church v. Commissioner, 74 T.C. 846 (1980), and Basic Bible Church of
Am., Auxiliary Chapter 11004 v. Commissioner, T.C. Memo. 1983-287.
Because we have not yet had occasion to warn petitioner about
the risk he runs under section 6673(a)(1), we will not impose a penalty
at this time. But he is advised that he is likely to be penalized if he
continues to raise frivolous arguments, either in this proceeding or in
any future proceeding in this Court.
We have considered all arguments made by the parties and, to the
extent not addressed above, find them to be irrelevant or without merit.
To reflect the foregoing,
An appropriate order and decision will be entered.