Corey White v. Commissioner of Internal Revenue

CLD-194 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1016
___________
COREY D. WHITE,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
____________________________________
On Appeal from the United States Tax Court
(Tax Court No. 7101-09L)
Tax Court Judge: Honorable Thomas B. Wells
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 13, 2010
Before: BARRY, FISHER and COWEN, Circuit Judges.
(Filed: June 23, 2010)
___________
OPINION
___________
PER CURIAM
Corey White, proceeding pro se, appeals an order of the United States Tax Court
granting summary judgment for the Commissioner of Internal Revenue (the
“Commissioner” or “IRS”) in an action challenging a tax collection proceeding. We will
dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
The record reflects that, in August 2008, the IRS notified White that it intended to
levy his property in order to collect overdue taxes in the amount of $13,943.26 for the
year ending December 31, 2002, and $13,942.48 for the year ending December 31, 2003.
The notice also informed White that he could appeal the intended levy by requesting a
Collection Due Process hearing. White requested a hearing and asserted that he
challenged the IRS’s jurisdiction to commence the collection proceeding.
In October 2008, the Memphis Campus Appeals Office sent a letter to White
explaining the appeals process and telling him to inform them if he wished to have a face-
to-face conference at an office near his home or business. The following day, a
Settlement Officer sent White another letter scheduling a telephone conference call for
November 13, 2008, to discuss his disagreement with the collection action and/or
alternatives to the action. This letter advised White that he would not have a face-to-face
conference because the issues raised in his hearing request were either frivolous or
irrelevant. White was afforded additional time to provide non-frivolous issues, such as
collection alternatives.
On October 31, 2008, White responded to the Appeals Office’s first letter and
requested a face-to-face hearing in Philadelphia. He also stated that he wanted to record
the conference. On November 2, 2008, White responded to the second letter, stating that
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a telephone conference was unacceptable and that he required a face-to-face conference
to establish a record of his discourse with the IRS. White again asserted that he
challenged the jurisdiction of the IRS to begin the collection process.1
On November 26, 2008, the Washington, DC Appeals Office notified White that it
had received his case for consideration. On December 15, 2008, a Settlement Officer
notified White that a telephone conference was scheduled for January 14, 2009. Like the
Settlement Officer from the Memphis Appeals Office, the Settlement Officer stated that
White had raised only frivolous or irrelevant issues and that a face-to-face conference
would only be allowed for non-frivolous issues. White was afforded the opportunity to
submit any non-frivolous issues. The Settlement Officer also informed White that he was
not permitted to audio record a telephone conference.
On December 25, 2008, White informed the Settlement Officer by letter that a
conference call was unacceptable, that he was entitled to develop a clear and complete
record of the administrative process, and that the IRS lacked jurisdiction to execute a levy
of his property. White again asserted that he had no duty to file, nor did he file, a report
of income with the IRS for the tax years under consideration. On January 14, 2009, the
day of scheduled telephone conference, the Settlement Officer wrote White a letter stating
1
White asserted, “I am not under a duty of law to file, nor did I file a report of
income with the IRS for the years under consideration. Nor is the IRS permitted to file a
substitute report of income for me without my permission.” Decl. of W. Debeau in
Support of Resp. Motion for Summary Judgment, Ex. K.
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that he had called White but White was unavailable. The Settlement Officer stated that he
would make a determination in his case by reviewing the file. The Settlement Officer
afforded White time to provide any information for his consideration. White responded
that the IRS was seeking to deprive him of property without due process of law.2
On February 24, 2009, the Appeals Office issued a Notice of Determination
sustaining the notice of intent to levy. White then filed a petition in Tax Court asserting
that the Commissioner lacked jurisdiction to deprive him of his personal property without
due process of law. The Tax Court granted summary judgment in favor of the
Commissioner and allowed the Commissioner to proceed with the collection. This appeal
followed.
We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We exercise plenary review
over the Tax Court’s entry of summary judgment. Conn. Gen. Life Ins. Co. v. Comm’r of
Internal Revenue, 177 F.3d 136, 143 (3d Cir. 1999).
White was entitled to a Collection Due Process hearing before the Commissioner
could proceed with a levy of his property. 26 U.S.C. § 6330. Collection Due Process
hearings are informal and may be conducted by correspondence, telephone, or face-to-
face. Living Care Alternatives of Utica, Inc. v. United States, 411 F.3d 621, 624 (6th Cir.
2
White also correctly noted that the Settlement Officer stated in his letter that he
tried to call him on January 14, 2009, at 1:30 p.m., but the conference notice provided that
the call would take place at 9:00 a.m. White, however, made clear that a telephone
conference was unacceptable and did not state that he would have taken the call had it
been placed at 9:00 a.m.
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2005). Under the applicable regulations, a face-to-face hearing will not be granted where
the taxpayer only wishes to raise irrelevant or frivolous issues regarding tax liability. 26
C.F.R. § 301.6330-1(d)(2)(A-D8). A person may challenge the underlying tax liability if
the person did not receive a statutory notice of deficiency for the tax liability or did not
otherwise have an opportunity to dispute the tax liability. 26 U.S.C. § 6330(c)(2)(B). If a
face-to-face or telephone conference is not held, review of the documents in the case file
will constitute the hearing. 26 C.F.R. § 301.6330-1(d)(2)(A-D7).
White did not contend that he did not receive a statutory notice of deficiency for
the tax liability or did not otherwise have an opportunity to dispute the tax liability.
Rather, he disputed the Commissioner’s jurisdiction to begin a collection action against
him and maintained that he had no obligation to file tax returns. These types of tax-
protester arguments have been rejected as patently frivolous. Sauers v. Comm’r of
Internal Revenue, 771 F.2d 64, 66, 69 n.6 (3d Cir. 1985). As such, White was not entitled
to a face-to-face hearing and the Tax Court did not err in sustaining the Notice of
Determination and granting summary judgment in favor of the Commissioner.3
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
3
To the extent White also appeals the Tax Court’s denial of his motion to vacate
the order granting summary judgment, we find no error in the Tax Court’s ruling.
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