Opinion
CV-S-01-1035-LDG (PAL)
March 31, 2003
ORDER
The United States has filed a motion to dismiss, or in the alternative for summary judgment (#9, opposition #13, reply #16). In his complaint, plaintiff seeks to set aside an allegedly invalid collection due process determination pursuant to 26 U.S.C. § 6330. On August 6, 2001, the IRS issued a notice of determination regarding collection activity relating to a frivolous return penalty assessed against plaintiff. The frivolous return penalty resulted from plaintiff's 1999 federal income tax return which contained zeros on all lines, except for the claimed withholding in the amount of $30. The return claimed a refund in that amount. Plaintiff attached to his return copies of W-2 wage statements reflecting income for 1999, and also attached materials containing arguments challenging the validity of the federal income tax laws. On November 30, 2000, the IRS sent plaintiff a notice of intent to levy and plaintiffs right to a hearing. A collection due process hearing was held on October 16, 2001, and the IRS subsequently issued a notice of determination stating that the decision to file the notice of federal tax lien was appropriate. The United States moves for summary judgment.
Plaintiff argues that the hearing officer did not verify that the proper administrative procedures were followed with respect to the frivolous return penalty determination. However, the hearing officer indicated that the IRS had submitted sufficient verification that all applicable laws and procedures and been followed. The hearing officer was entitled to rely on the records and transcripts presented by the IRS in making that determination. Davis v. Commissioner, 115 T.C. 35, 40 (2000).
Plaintiff argues that certain information submitted by the United States in support of its motion for summary judgment must not be considered because it was not presented at the collections due process hearing. Here, plaintiff received an opportunity to contest the frivolous return penalties at the hearing, although he presented only frivolous arguments. Reviewing the amount of tax liability de novo, Goza v. Commissioner, 114 T.C. 176, 180 (2000), the court finds that from a review of the returns and the attached documents the return was frivolous.
Finally, plaintiff asserts that he did not receive a notice of assessment. However, deficiency procedures do not apply to frivolous return penalties, and the IRS need not send a notice of deficiency in such a case. See Hansen v. United States, 7 F.3d 137 (9th Cir. 1993). Morever, plaintiff received notice of the intent to levy, and of the collection due process hearing. Based on the above,
The court ORDERS that the United States' motion for summary judgment (#9) is GRANTED.