Opinion
CV-S-02-0794-LDG (PAL)
March 31, 2003
ORDER
The United States has filed a motion to dismiss, or in the alternative for summary judgment (#6, opposition #10, reply #11). In his complaint, plaintiff alleges that the May 9, 2002, notice of determination concerning collection action under 26 U.S.C. § 6330 is invalid because plaintiff did not have the opportunity to rebut evidence presented by the IRS or to call or confront witnesses prior to the collection due process hearing. Plaintiff further alleges that IRS employees acted illegally in imposing the frivolous return penalty at issue. Finally, plaintiff alleges that there is no authorization for the imposition of the frivolous return penalty.
Plaintiff is not entitled to a hearing prior to the assessment of a frivolous return penalty. Eicher v. United States, 774 F.2d 27, 29 (1st Cir. 1985). Taxpayers are entitled to a hearing prior to the issuance of an administrative tax levy to collect such a penalty. 26 U.S.C. § 6330. This hearing is informal, and plaintiff is not entitled to subpoena witnesses or documents. 26 C.F.R. § 301.6336-1 (d)(2) QA-D-6 (2002).
Based on the record before the court, the frivolous return penalty was properly assessed; therefore there was no illegality on the part of IRS employees. The contentions listed in plaintiff's return statement in support of his position that he is not liable for income tax for his tax year 1999 are frivolous. Morever, the form W-2 and Form 1099-DIV attached to the return statement show that plaintiff's position is erroneous. Regulations are not necessary in order for the IRS to impose the frivolous return penalty at issue. See 26 U.S.C. § 7805 (a) (IRS has general grant of authority to impose interpretive regulations; not mandated that regulations be promulgated before enforcement of Code provisions). Accordingly, plaintiff has failed to raise a factual or legal dispute regarding the contentions in his complaint.
The court hereby ORDERS that the United States' motion for summary judgment (#6) is GRANTED.