T.C. Memo. 2019-164
UNITED STATES TAX COURT
WILLIAM J. JAXTHEIMER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11061-17L. Filed December 16, 2019.
William J. Jaxtheimer, pro se.
Sheida Lahabi, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
PUGH, Judge: This case was commenced in response to a Notice of
Determination Concerning Collection Action(s) Under Section 6320 and/or 6330
of the Internal Revenue Code (notice of determination), sustaining the Internal
Revenue Service’s (IRS) filing of a notice of federal tax lien (NFTL) to secure -2-
[*2] petitioner’s unpaid Federal income tax liabilities for 2006, 2007, and 2008
and frivolous return penalties under section 6702(a) for 2013.1
The issues for decision are whether: (1) petitioner may challenge his
underlying tax liabilities for 2006, 2007, and 2008, and the section 6702(a)
frivolous return penalties assessed for 2013, (2) petitioner owes any of those
liabilities (if he may challenge them before this Court), and (3) Settlement Officer
Linda L. Andrews (SO Andrews) abused her discretion in sustaining the filing of
the NFTL regarding petitioner’s unpaid tax liabilities for 2006, 2007, and 2008
and section 6702(a) frivolous return penalties for 2013. For the reasons discussed
below we conclude that (1) petitioner may not challenge the underlying tax
liabilities for 2006, 2007, and 2008, (2) petitioner may challenge the section
6702(a) frivolous return penalties assessed for 2013, (3) petitioner is liable for
only one of the section 6702(a) frivolous return penalties assessed for 2013, and
(4) SO Andrews did not abuse her discretion in determining to sustain the filing of
the NFTL, except as to two of the section 6702(a) penalties.
1 Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986 (Code), as amended and in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure. -3-
[*3] FINDINGS OF FACT
Petitioner refused to stipulate any facts in this case. At trial respondent
moved to enter into evidence a declaration of SO Andrews and two attached
exhibits: the notice of determination and the administrative record that SO
Andrews relied upon in reaching her determination. Petitioner objected to the
admission of this evidence, but we understood his objection to be substantive.
These documents are records kept in the ordinary course of business activity and
are authenticated by the declaration. We therefore will admit the notice of
determination and the administrative record into evidence, as well as the
declaration for purposes of authentication. See Fed. R. Evid. 803(6), 902(11).
Petitioner resided in Colorado when he timely filed his petition. He failed
to file Forms 1040, U.S. Individual Income Tax Return, for 2006, 2007, and 2008
when due.2 The IRS therefore prepared substitutes for returns, and on September
20, 2010, issued separate statutory notices of deficiency for 2006, 2007, and 2008.
Petitioner filed tax returns for 2013 three different times, reporting that he
had zero wages and owed zero tax, and attached documents that purported to
2 Petitioner claims that he previously filed returns that were rejected by the IRS as improper and then filed original returns in 2019 to show he was not a taxpayer. We need not accept his statements because they are irrelevant to our analysis below. -4-
[*4] “correct” third-party information reporting to the contrary. The IRS
determined that these returns were frivolous and completed three Forms 8278,
Assessment and Abatement of Miscellaneous Civil Penalties (one for each return).
All three Forms 8278 were completed by a Mrs. Ranson on September 25, 2014,
and listed “Argument Code: 44”. The box beside “section 6702(a)” and
“Frivolous tax return - Form 1040” was marked; one violation was listed; and the
amount assessed was $5,000. On each of the three forms a different date was
added to the box “Frivolous tax return - Form 1040”. “Dated 4-15-14” was added
to the form that listed “Signature Date 4-14-14”. Two forms listed “Signature
Date 6-30-14”; the “dated 7-5-14” was added to the first and “dated 7-10-14” was
added to the second. All three forms were signed on October 1, 2014, by Mrs.
Ranson’s manager, Rochelle Nichols. On October 27, 2014, the IRS assessed a
section 6702(a) penalty of $5,000 for each return, $15,000 in the aggregate for
2013.
On June 14, 2016, the IRS filed an NFTL and sent to petitioner a Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, notifying
petitioner that respondent had filed a notice of a lien to secure the tax liabilities for
2006, 2007, 2008, and 2013. Petitioner submitted a timely Form 12153, Request
for a Collection Due Process or Equivalent Hearing. On an attachment to the -5-
[*5] Form 12153 petitioner indicated that he wished to contest his underlying
liability for the section 6702(a) frivolous return penalties assessed for 2013 and
challenge the appropriateness of the collection action. He did not request any
collection alternative on the Form 12153.
From late September through December 2016 petitioner and the IRS Office
of Appeals (Appeals Office) exchanged letters concerning scheduling and logistics
for petitioner’s administrative hearing. SO Andrews and petitioner agreed to have
a face-to-face hearing on March 22, 2017. Before the hearing the Appeals Office
advised petitioner multiple times that the assessments for 2006, 2007, and 2008
were based on substitutes for returns and that he should file original Forms 1040
for those years if he disagreed with the assessments and wished to challenge the
underlying tax liabilities. Also before the hearing SO Andrews provided
petitioner copies of the substitutes for returns, a copy of the certified mailing list
that showed the dates that the IRS issued statutory notices of deficiency along with
the addresses the IRS used, and other documents in the administrative record. The
dates and addresses on the certified mailing list match those on the statutory
notices of deficiency.
On March 22, 2017, petitioner did not show up for the scheduled face-to-
face hearing, but petitioner, SO Andrews, and SO Colleen Girard held a telephone -6-
[*6] hearing instead. Petitioner did not provide Form 1040 for 2006, 2007, or
2008 before or during the hearing. Petitioner did not provide any other
information during the hearing regarding his tax liabilities for those years. He
stated that he disagreed with the assessments for those years because the statutory
notices of deficiency were mailed to an old address. SO Andrews explained that
the IRS sends statutory notices of deficiency to the last known address of the
taxpayer, and explained what that term means. Petitioner did not request any
collection alternatives or provide any financial information. He did not articulate
any reason as to why a Federal tax lien was overly intrusive.
On April 13, 2017, the Appeals Office issued to petitioner a notice of
determination sustaining the filing of the NFTL. The notice of determination
stated that petitioner had not properly challenged the tax and penalty assessments
and that the Appeals Office determined that the underlying tax liabilities were
properly assessed. It also included a “Balancing Analysis” that explained why the
collection action balanced the efficient collection of taxes with petitioner’s
concern that the collection action be no more intrusive than necessary.
At trial respondent orally moved the Court to award section 6673 penalties,
arguing that petitioner instituted this proceeding primarily for the purpose of delay
and that petitioner’s positions are frivolous or groundless. -7-
[*7] OPINION
I. Jurisdiction
Shortly before trial petitioner filed a motion to dismiss, arguing that this
Court does not have subject matter jurisdiction to hear this case. It is well settled
that this Court can proceed only if it has jurisdiction and that any party can
question jurisdiction at any time. Romann v. Commissioner, 111 T.C. 273, 280
(1998). This is a Court of limited jurisdiction; we exercise our jurisdiction only as
explicitly authorized by statute. See Naftel v. Commissioner, 85 T.C. 527, 529
(1985). We have jurisdiction to review the Commissioner’s determination to
proceed with a collection action, including review of the Commissioner’s
determinations to collect a section 6702(a) frivolous return penalty. See sec.
6330(d)(1); Callahan v. Commissioner, 130 T.C. 44, 48-49 (2008). And our
jurisdiction can include a review of the underlying liability for a section 6702(a)
frivolous return penalty, if otherwise appropriate. See Callahan v. Commissioner,
130 T.C. at 49.
Petitioner does not dispute that respondent issued a valid notice of
determination to proceed with the collection action and that petitioner timely filed
a petition for review of that determination. Instead he makes a series of frivolous
legal arguments, all of which we reject. See Crain v. Commissioner, 737 F.2d -8-
[*8] 1417 (5th Cir. 1984); Wnuck v. Commissioner, 136 T.C. 498, 510-512 (2011)
(noting that addressing frivolous arguments wastes time and resources and delays
the assessment of tax). Because petitioner properly invoked our jurisdiction we
will deny his motion to dismiss.
II. Standard of Review
If the underlying liability is properly at issue, the Court reviews any
determination regarding that liability de novo; the Court reviews all other
administrative matters for abuse of discretion. Davis v. Commissioner, 115 T.C.
35, 39 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).
III. Whether Petitioner May Challenge the Underlying Tax Liabilities
Petitioner argues that he is not liable for the tax assessed for 2006, 2007,
and 2008 or for the section 6702(a) frivolous return penalties assessed for 2013.
We first consider whether petitioner can challenge these underlying liabilities
before this Court.
A taxpayer may challenge his underlying tax liability during an
administrative hearing if he did not receive a statutory notice of deficiency or did
not otherwise have a prior opportunity to dispute the underlying tax liability. See
sec. 6330(c)(2)(B). The phrase “underlying tax liability” includes the tax -9-
[*9] deficiency, any penalties and additions to tax, and statutory interest. Katz v.
Commissioner, 115 T.C. 329, 338-339 (2000).
This Court considers a taxpayer’s challenge to his underlying tax liability in
a collection action case only if he properly raised that challenge at his
administrative hearing. Giamelli v. Commissioner, 129 T.C. 107, 114-116 (2007);
see sec. 301.6320-1(f)(2), Q&A-F3, Proced. & Admin. Regs. An issue is not
properly raised at the administrative hearing if the taxpayer fails to request
consideration of that issue by the settlement officer or if he requests consideration
but fails to present any evidence after being given a reasonable opportunity to do
so. See sec. 301.6320-1(f)(2), Q&A-F3, Proced. & Admin. Regs.; see also
Giamelli v. Commissioner, 129 T.C. at 115-116; McRae v. Commissioner, T.C.
Memo. 2015-132, at *8-*9 (holding that the taxpayer failed explicitly to contest
his underlying liability during the administrative hearing and failed to provide any
evidence concerning his liability); Zook v. Commissioner, T.C. Memo. 2013-128,
at *6-*7 (holding that the taxpayer failed to raise her underlying liabilities
properly when she failed to provide any documentation of the underlying
liabilities and asserted frivolous arguments). - 10 -
[*10] A. Underlying Tax Liabilities for 2006, 2007, and 2008
Respondent issued statutory notices of deficiency for 2006, 2007, and 2008,
and petitioner did not contest those tax deficiencies before assessment.
Nonetheless, SO Andrews gave him the opportunity to provide original tax returns
for 2006, 2007, and 2008 to address disputes he had with the underlying tax
liabilities. Despite repeated requests, petitioner failed to file returns or provide
any evidence of his tax items to the Appeals Office within a reasonable time.
Instead, he offered only frivolous arguments about why he was not subject to tax.
As we have said before, again and again, “[w]e perceive no need to refute
these arguments with somber reasoning and copious citation of precedent; to do so
might suggest that these arguments have some colorable merit.” Crain v.
Commissioner, 737 F.2d at 1417. Simply put, petitioner is subject to the income
tax laws. See secs. 1, 61, 63. None of petitioner’s arguments absolve him of his
obligations under the Code.
We hold that petitioner did not properly raise the issue of his underlying tax
liabilities for 2006, 2007, and 2008 during his administrative hearing. Therefore,
we do not consider those underlying tax liabilities. See Giamelli v. Commissioner,
129 T.C. at 115. - 11 -
[*11] B. Underlying Liability for 2013 Section 6702(a) Penalties
We now turn to whether petitioner may challenge his liability for the section
6702(a) frivolous return penalties assessed for 2013. Because these are assessable
penalties, petitioner was not given an opportunity to challenge them before
assessment. See sec. 6703(b). Petitioner contested his liability for these section
6702(a) frivolous return penalties in his Form 12153 and disputed during his
administrative hearing that he had taken frivolous positions in the returns he filed
for 2013. Therefore, petitioner may challenge, and we may consider, petitioner’s
liability for the section 6702(a) frivolous return penalties assessed for 2013. See
Callahan v. Commissioner, 130 T.C. at 50 (“As petitioners have not otherwise had
an opportunity to dispute the imposition of the frivolous return penalties, they may
contest the penalties both at their section 6330 hearing and before this Court.”);
see also Shirley v. Commissioner, T.C. Memo. 2014-10, at *14-*17 (holding that
the Court could consider the taxpayer’s liability for a section 6702(a) penalty de
novo for 2001, but that the Court could not consider underlying tax liability for
2003 because a notice of deficiency was issued and the taxpayer failed to properly
raise the issue in his administrative hearing because he failed to present any
evidence regarding liability to the settlement officer after being given a reasonable
time). - 12 -
[*12] IV. Whether Petitioner Is Liable for Section 6702(a) Penalties
A taxpayer is liable for a $5,000 frivolous return penalty under section
6702(a) if three requirements are met. First, the taxpayer must file a document
that purports to be an income tax return. Sec. 6702(a)(1). Second, the purported
return must either omit information on which the substantial correctness of the
self-assessment may be judged or contain information that on its face indicates
that the self-assessment is substantially incorrect. Id. And third, the defect must
be based on a position that the Secretary has identified as frivolous or reflect a
desire (which appears on the purported return) to delay or impede the
administration of Federal tax laws. Sec. 6702(a)(2). The Secretary has prescribed
a list of positions which the Secretary has identified as frivolous for purposes of
section 6702(a)(2). See sec. 6702(c); Notice 2010-33, 2010-17 I.R.B. 609. The
list includes arguments that compliance with internal revenue laws is voluntary or
optional and not required by law, such as arguments that the taxpayer may file a
return reporting zero income and zero tax liability even if the taxpayer received
income during the period for which the return is filed. See Notice 2010-33, supra.
The Secretary bears the burden of production and the burden of proof
regarding a taxpayer’s liability for a section 6702(a) frivolous return penalty. See
secs. 6703(a), 7491(c). The Secretary’s burden of production includes showing - 13 -
[*13] compliance with the supervisory approval requirement of section
6751(b)(1), which requires that the initial determination to assess certain penalties
be “personally approved (in writing) by the immediate supervisor of the individual
making such determination”. See Kestin v. Commissioner, 153 T.C. ___, ___ (slip
op. at 24-25) (Aug. 29, 2019); Graev v. Commissioner, 149 T.C. 485, 492-493
(2017), supplementing and overruling in part 147 T.C. 460 (2016).
Respondent asserts that petitioner filed three “zero returns” in 2014 for the
2013 tax year. Generally we look to the face of the documents to determine
whether a taxpayer is liable for a frivolous return penalty as a matter of law. See
Callahan v. Commissioner, 130 T.C. at 51. The record does not include the
documents at issue, but it does include three Forms 8278 for the frivolous return
penalties, each of which states “Argument Code: 44” in the “remarks” section,
indicating that the IRS assessed these penalties because petitioner filed returns for
2013 reporting zero income despite third-party information reporting to the - 14 -
[*14] contrary. See Internal Revenue Manual pt. 4.10.12.1.1 (Sept. 5, 2014).3
And in his motion to dismiss petitioner admits to doing just that, stating:
The documents filed under penalty of perjury with the Respondent for each of the years at issue were to correct information in the system of records maintained by the Respondent erroneously populated by third-party information providers and even populated by the Petitioner himself upon the propaganda promulgated by the Respondent.
* * * * * * *
The Respondent tampered with Petitioner’s testimony by refusing to perform his duty to file documents under guise of being frivolous and applying a penalty under * * * [section 6702(a)].
The Petitioner’s filed documents assess all of federal liability to return a federal Direct tax on his property under Subtitle A of the IRC as a non-taxpayer at zero dollars and corrected third party information
3 This part, Internal Revenue Manual pt. 4.10.12.1.1 (Sept. 5, 2014), includes a nonexhaustive list of frivolous arguments, including:
44. Zero Wages on a Substitute Form: Taxpayer generally attaches either a substitute Form W-2, Form 1099, or Form 4852 that shows “$0” wages or no wage information. A statement may be included indicating the taxpayer is rebutting information submitted to the IRS by the payer. Entries are usually for Federal Income Tax Withheld, Social Security Tax Withheld, and/or Medicare Tax Withheld. An explanation on the Form 4852 may cite “statutory language behind IRC 3401 and IRC 3121”, or may include some reference to the company refusing to issue a corrected Form W-2 for fear of IRS retaliation. - 15 -
[*15] returns purporting that the Petitioner received income subject to reporting thereof to the Respondent.
We find that his statements and the Forms 8278 together are sufficient to
establish that petitioner filed at least one purported tax return for 2013 that showed
on its face that his self-assessments were substantially incorrect. Petitioner has
admitted as much, stating to the Court that his filings asserted that he had zero
income and owed zero Federal tax while attached documents purported to
“correct” third-party information reporting to the contrary.4 The Secretary has
identified this position as frivolous. See Notice 2010-33, supra. And this Court
has repeatedly characterized returns reflecting zero income and zero tax as
frivolous. See Grunsted v. Commissioner, 136 T.C. 455, 460 (2011); Blaga v.
Commissioner, T.C. Memo. 2010-170. Therefore, we hold that petitioner is liable
under section 6702(a) for one frivolous return penalty assessed for 2013.
However, on the record before us we cannot determine whether petitioner
filed three separate frivolous returns rather than one frivolous return and two
copies. See Kestin v. Commissioner, 153 T.C. at ___ (slip op. at 19-24) (holding
4 In Martens v. Commissioner, T.C. Memo. 2015-213, by contrast, the Commissioner failed to produce a copy of the taxpayer’s return that was at issue or any other documents that proved by a preponderance of the evidence that the taxpayer filed a document purporting to be a tax return so we rejected the sec. 6702 penalty determination. - 16 -
[*16] that plainly marked photocopies of returns attached to the taxpayer’s letters
did not purport to be tax returns and therefore were not subject to the section
6702(a) penalty). Two of the Forms 8278 list the same signature date calling into
question whether those were duplicate filings. And petitioner’s statements to the
Court do not acknowledge three separate submissions. Without the documents
themselves we cannot conclude that the two additional section 6702(a) penalties
are appropriate.
As to the section 6702(a) penalty that we uphold, we also conclude that
respondent has met his burden of production under section 7491(c) to show
compliance with the supervisory approval requirement of section 6751(b)(1). The
Forms 8278 evince timely supervisory approval for each of the frivolous return
penalties assessed. See Kestin v. Commissioner, 153 T.C. at ___ (slip op. at 7, 26)
(holding that section 6751(b)(1) supervisory approval requirement was satisfied
where Form 8278 recommending section 6702 penalty was prepared by an
examining agent and then signed by the immediate supervisor before assessment).
V. Collection Action
In an administrative hearing concerning a Federal tax lien, the settlement
officer must verify that the requirements of any applicable law or administrative
procedure have been met, consider issues properly raised by the taxpayer, and - 17 -
[*17] consider whether the proposed collection action balances the need for the
efficient collection of taxes with the taxpayer’s legitimate concern that any
collection action be no more intrusive than necessary. See secs. 6320(b) and (c),
6330(b), (c)(3). The taxpayer bears the burden of proving that the settlement
officer’s determinations were arbitrary, capricious, or without sound basis in fact
or law. Rule 142(a); Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
At trial petitioner stated that “administratively * * * [the administrative
hearing] went the way it should go”. However, he also made arguments--during
his administrative hearing, at trial, and in his motion to dismiss--concerning
whether SO Andrews obtained verification that the requirements of applicable law
and administrative procedure had been met. See sec. 6330(c)(1). Many of those
arguments are similar or identical to the frivolous arguments we rejected above,
but one argument merits brief discussion.
Petitioner argued that he never received the notices of deficiency for 2006,
2007, and 2008 because respondent sent them to an old address. As part of the
settlement officer’s determination, she must verify that a valid notice of deficiency
was issued to the taxpayer at the taxpayer’s last known address. See sec.
6330(c)(1); Jordan v. Commissioner, 134 T.C. 1, 12 (2010), supplemented by T.C.
Memo. 2011-243; Hoyle v. Commissioner, 131 T.C. 197, 200 (2008), - 18 -
[*18] supplemented by 136 T.C. 463 (2011). And if the notice is mailed to the
taxpayer at the taxpayer’s last known address, actual receipt of the notice is not
necessary; the notice is valid. See, e.g., Mabbett v. Commissioner, 610 F. App’x
760, 763 (10th Cir. 2015).5
It is the taxpayer’s responsibility to provide the IRS clear and concise
notification of any change in address. See sec. 301.6212-2(a), Proced. & Admin.
Regs. The taxpayer’s “last known address” is the address on the taxpayer’s most
recently filed and properly processed return unless the IRS has been given “clear
and concise notification” of a different address. Id. The taxpayer may submit a
change of address by indicating a new address on his next return, by filing a
written or electronic notice of change of address with the IRS, or by providing an
updated address to the U.S. Postal Service for inclusion in its National Change of
Address database. Id. paras. (a) and (b). The taxpayer has the burden of proving
that a notice of deficiency was not sent to his last known address. Yusko v.
Commissioner, 89 T.C. 806, 808 (1987).
5 Whether petitioner actually received the notices of deficiency would be relevant if there was a dispute as to whether petitioner was entitled to challenge his underlying tax liabilities for 2006, 2007, and 2008 during his administrative hearing. But as discussed above the Appeals Office gave petitioner an opportunity to properly raise the issue during his administrative hearing, and petitioner failed to do so. So actual receipt is irrelevant in this case. - 19 -
[*19] The administrative record includes copies of the statutory notices of
deficiency as well as a certified mailing list showing mailing to the address on the
notices. Petitioner did not dispute that the statutory notices of deficiency for 2006,
2007, and 2008 were mailed to that address, or that he previously lived there; he
asserted only that he had moved several years before the notices were mailed.
Petitioner did not file Forms 1040 for 2006, 2007, and 2008, and he did not allege
that some prior Form 1040 indicated that his address had changed. Neither did he
claim that he had provided the IRS with a clear and concise notification of his
change of address after moving and before the notices of deficiency were issued.
Instead, he argued that third-party information returns were sent to the IRS for
these years, containing his then-current address, which should have put the IRS on
notice that he had moved. But information he may have provided to third parties
is insufficient to change his last known address. See sec. 301.6212-2(b)(1),
Proced. & Admin. Regs. (providing that change of address information that a
taxpayer provides to third-party payors is not clear and concise notification of a
different address for purposes of determining a taxpayer’s last known address).
Petitioner has not met his burden of showing that the statutory notices of
deficiency were not mailed to his last known address. Therefore, we hold that SO
Andrews was justified in concluding that the statutory notices of deficiency were - 20 -
[*20] sent to petitioner’s last known address and were accordingly valid. Our
review of the entire administrative record reveals no abuse of discretion by SO
Andrews.
VI. Section 6673 Penalty
Finally, we warned petitioner at trial that section 6673 authorizes the Court
to impose a penalty of up to $25,000 for frivolous and groundless arguments or
whenever it appears to the Court that “proceedings before * * * [us] have been
instituted or maintained by the taxpayer primarily for delay”. Sec. 6673(a)(1)(A).
That appears to us to be the case here; but since this is petitioner’s first case before
this Court, we will not impose the section 6673 penalty. However, we warn
petitioner that he may expect a penalty in the future if he persists in maintaining
frivolous and meritless positions or uses the Court primarily for delay, despite our
warning. Accordingly, we will deny respondent’s motion to impose a section
6673 penalty.
Conclusion
We find that petitioner is liable for one of the three section 6702(a)
frivolous return penalties assessed for 2013. After review of the entire
administrative record, we conclude that SO Andrews satisfied the verification
requirements of section 6330 and did not abuse her discretion in determining to - 21 -
[*21] sustain the filing of the NFTL as to the tax liabilities for 2006, 2007, and
2008 and one section 6702(a) penalty for 2013; but we do not sustain her
determination concerning the collection action with respect to the two additional
section 6702(a) penalties for 2013. Any contentions we have not addressed are
irrelevant, moot, or meritless.
To reflect the foregoing,
An appropriate order and decision
will be entered.