Have we seen Jerry A. Jewett before?

[The Observer]

TIMOTHY L. CLOUSE,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

Release Date: MAY 09, 2007


UNITED STATES TAX COURT

Filed May 9, 2007

Timothy L. Clouse, pro se.

Anita A. Gill, for respondent.

MEMORANDUM OPINION

WELLS, Judge: This matter is before the Court on respondent's motion for summary judgment pursuant to Rule 121./1/ The issue we must decide is whether respondent may proceed to collect petitioner's outstanding tax liability by levy pursuant to section 6330.

BACKGROUND

At the time of filing the petition, petitioner resided in Fremont, Ohio.

Petitioner filed a Federal income tax return for taxable year 1998 showing an amount due. Respondent assessed the amount due and sent petitioner notice and demand for payment. On June 23, 2001, respondent sent petitioner a Letter 1058, Final Notice -- Notice of Intent to Levy and Notice of Your Right to a Hearing. The Letter 1058 shows an outstanding liability for taxable year 1998 of $ 1,290.61.

On July 19, 2001, petitioner submitted a timely Form 12153, Request for a Collection Due Process Hearing. The Form 12153 was accompanied by a letter from petitioner's representative, Jerry A. Jewett (Mr. Jewett),/2/ containing frivolous arguments. On March 21, 2002, respondent's settlement officer held a face-to-face hearing with petitioner and Mr. Jewett. Petitioner provided a court reporter to transcribe the hearing.

On July 12, 2002, respondent issued to petitioner a notice of determination. On August 13, 2002, petitioner submitted a timely petition containing frivolous arguments to this Court.

DISCUSSION

Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials and may be granted where there is no genuine issue of material fact and a decision may be rendered as a matter of law. Rule 121(a) and (b); Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences are viewed in a light most favorable to the nonmoving party. Craig v. Commissioner, 119 T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). The party opposing summary judgment must set forth specific facts that show that a genuine question of material fact exists and may not rely merely on allegations or denials in the pleadings. Grant Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988); Casanova Co. v. Commissioner, 87 T.C. 214, 217 (1986).

Section 6330 provides that no levy may be made on any property or right to property of a person unless the Secretary first notifies him or her in writing of the right to a hearing before the Appeals Office. The Appeals officer must verify at the hearing that the applicable laws and administrative procedures have been followed. Sec. 6330(c)(1). At the hearing, the person requesting a hearing may raise any relevant issues relating to the unpaid tax or the proposed levy, including appropriate spousal defenses, challenges to the appropriateness of collection actions, and collection alternatives. Sec. 6330(c)(2)(A). The person may challenge the existence or amount of the underlying tax, however, only if he or she did not receive any statutory notice of deficiency for the tax liability or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). A taxpayer who has self-assessed a liability has not had the opportunity to dispute his tax liability and may raise the underlying liability in a collection review proceeding. See Montgomery v. Commissioner, 122 T.C. 1, 9 (2004).

Where the validity of the underlying tax liability is properly in issue, the Court will review the matter de novo. Where the validity of the underlying tax is not properly in issue, however, the Court will review the Commissioner's administrative determination for abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

The record indicates that the only issues petitioner raised throughout the section 6330 administrative process and in his petition to this Court were frivolous tax protester arguments. We do not address petitioner's frivolous arguments with somber reasoning and copious citations of precedent, as to do so might suggest that these arguments possess some degree of colorable merit. See Crain v. Commissioner, 737 F.2d 1417, 1417 (5th Cir. 1984).

Accordingly, we hold that no genuine issue of material fact exists requiring trial and that respondent is entitled to summary judgment. Respondent's determination to proceed with the proposed levy to collect petitioner's tax liability for 1998 was not an abuse of discretion.

Section 6673(a)(1) authorizes the Court to impose a penalty not in excess of $ 25,000 when it appears to the Court that, inter alia, the proceedings have been instituted or maintained by the taxpayer primarily for delay or that the position of the taxpayer in the proceedings is frivolous or groundless. In Pierson v. Commissioner, 115 T.C. 576, 581 (2000), we issued a warning concerning the imposition of a penalty under section 6673(a)(1) on those petitioners abusing the protections afforded by sections 6320 and 6330 through the bringing of dilatory or frivolous lien or levy actions. The Court has since repeatedly disposed of cases premised on arguments akin to those raised herein summarily and with imposition of the section 6673 penalty./3/ See, e.g., Craig v. Commissioner, supra at 264-265 (and cases cited thereat).

Respondent has not sought a section 6673 penalty in the instant case; however, the Court considers the issue sua sponte. Although we do not impose a penalty on petitioner, we take this opportunity to admonish petitioner that the Court will consider imposing such a penalty should he return to the Court in the future in an attempt to delay collection or advance frivolous or groundless arguments.

To reflect the foregoing,

An appropriate order and decision will be entered.

FOOTNOTES

/1/ Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code, as amended.

/2/ By order dated Feb. 20, 2004, Mr. Jewett was suspended from practicing before this Court for 3 years for failure to comply with the American Bar Association's Model Rules of Professional Conduct. Mr. Jewett subsequently withdrew as counsel of record in the instant case.

/3/ We note that on Dec. 20, 2006, Congress enacted the Tax Relief and Health Care Act of 2006, Pub. L. 109-432, div. A, sec. 407, 120 Stat. 2960, which, through amendments to secs. 6702 and 6330, instructs the Secretary to prescribe a list of positions identified as frivolous. A request for a sec. 6330 hearing based on any such position may then be disregarded and is not subject to further administrative or judicial review. The new provisions are effective only for issues raised after the Secretary prescribes the list of frivolous positions.

[jg]

The tax court had seen Mr. Jewett before.
http://www.ustaxcourt.gov/InOpHistoric/ ... CM.WPD.pdf
T.C. Memo. 2003-230

On January 23, 2002, Jerry Arthur Jewett (Mr. Jewett) executed a power of attorney, Form 2848, Power of Attorney and Declaration of Representative. On February 25, 2002, Mr. Jewett sent to the IRS Appeals Office a letter incorporating and adding to petitioners’ frivolous arguments and asserting:

1. The individual or individuals named above are not “persons or a person” liable for the income tax or required to file a Form 1040, by virtue of nonresidence in, or lack of income earned within, or effectively connected to, any U.S. Territory, Possession and/or enclave deriving authority from Article I, Sec. 2 Cl. 17 or Article 4, Sec. 3, Cl. 2 of the Constitution of the United States. The individual or individuals named herein are natural born Citizens of one of the 50 Republic states, under the Constitution and Law.

Although the pages of the letter were unnumbered, it consisted of 33 pages of tax protester boilerplate.

[Demosthenes]

Long term tax protester/attorney.

The Jewett Case

Appellant Jerry A. Jewett, an Ohio attorney, did not file Ohio income tax returns for tax years 1991, 1992, 1993, and 1994.

Go here to read the rest:

http://www.sconet.state.oh.us/rod/newpd ... o-2166.pdf

[Demosthenes]

He's been busy in District Court recently.

2 JEWETT, JERRY A. ohndce 1:2002cv00540 03/21/2002 870 07/23/2002
Herip v. United States of America
3 JEWETT, JERRY A. ohndce 1:2003cv01828 08/29/2003 870 12/03/2003
Snyder v. Commissioner of Internal Revenue
4 JEWETT, JERRY A. ohndce 3:2003cv07087 03/03/2003 870 12/18/2003
Clouse v. Commissioner of Internal Revenue
5 JEWETT, JERRY A. ohndce 3:2003cv07292 06/13/2003 870 01/30/2004
Everman v. Commissioner of Internal Revenue
6 JEWETT, JERRY A. ohndce 3:2002cv07294 06/13/2002 870 02/06/2003
Raft v. Commissioner of Internal Revenue
7 JEWETT, JERRY A. ohndce 3:2003cv07465 08/06/2003 870 10/07/2003
Jewett v. Commissioner of Internal Revenue
8 JEWETT, JERRY A. ohndce 3:2002cv07542 11/06/2002 870 02/20/2003
Plaster v. Commissioner of Internal Revenue
9 JEWETT, JERRY A. ohndce 3:2002cv07592 12/12/2002 870 05/30/2003
Henning v. Commissioner of Internal Revenue
10 JEWETT, JERRY A. ohndce 3:2004cv07640 10/13/2004 871 02/18/2005
Jewett v. United States
11 JEWETT, JERRY ARTHUR ohsdce 2:2004mc00077 08/09/2004
JEWETT, JERRY ARTHUR
12 JEWETT, JERRY ARTHUR paedce 2:2002cv01812 04/03/2002 870 12/16/2003
USA v. SUMMERS
13 JEWETT, JERRY ARTHUR ohndce 3:2002mc07009 05/02/2002 999 01/23/2003
Pahl, et al v. USA
14 JEWETT, JERRY ARTHUR ohndce 3:2002mc07018 06/24/2002 888 03/20/2003
Hostler v. USA
15 JEWETT, JERRY ARTHUR ohndce 3:1993mc07086 06/10/1993 999 06/16/1993
Farrell v. Wheeling & Lake Rwy
16 JEWETT, JERRY ARTHUR ohndce 3:1993mc07152 09/21/1993 999 01/12/1994
Reich v. Goebels Emergency
17 JEWETT, JERRY ARTHUR ohndce 3:1994cv07284 06/03/1994 320 04/21/1995
Brown v. Whirlpool Corp
18 JEWETT, JERRY ARTHUR ohndce 3:1993cv07340 06/16/1993 790 07/12/1994
Farrell v. Wheeling Lk Erie Rwy
19 JEWETT, JERRY ARTHUR ohndce 3:1992cv07364 07/01/1992 870 07/22/1992
Goebel, et al v. USA
20 JEWETT, JERRY ARTHUR ohndce 3:2003cv07465 08/06/2003 870 10/07/2003
Jewett v. Commissioner of Internal Revenue
21 JEWETT, JERRY ARTHUR ohndce 3:1996cv07551 09/03/1996 870 03/13/1997
Goebel, et al v. USA, et al
22 JEWETT, JERRY ARTHUR ohndce 3:2004cv07640 10/13/2004 871 02/18/2005
Jewett v. United States
23 JEWETT, JERRY ARTHUR paedce 2:2002cv09008 12/11/2002 870 12/16/2003
UNITED STATES OF AMERICA v. SUMMERS

[Demosthenes]

[Cite as Disciplinary Counsel v. Jewett, 103 Ohio St.3d 74, 2004-Ohio-4440.]

DISCIPLINARY COUNSEL v. JEWETT.

[Cite as Disciplinary Counsel v. Jewett, 103 Ohio St.3d 74, 2004-Ohio-4440.]

Attorneys at law — Reciprocal discipline from the United States Tax Court — Three-year suspension from the practice of law, with reinstatement conditioned on reinstatement by the United States Tax Court — Gov.Bar R. V(11)(F)(4).

(No. 2004-0926 — Submitted July 20, 2004 — Decided August 2, 2004.)

ON CERTIFIED ORDER of the United States Tax Court.
__________________

This cause is pending before the Supreme Court of Ohio in accordance with the reciprocal discipline provisions of Gov.Bar R. V(11)(F).

On June 10, 2004, relator, Disciplinary Counsel, filed with this court a certified copy of an order of the United States Tax Court entered February 20, 2004, in In re Jerry Arthur Jewett, suspending respondent for a period of three years. On June 15, 2004, this court ordered respondent to show cause why identical or comparable discipline should not be imposed in this state. Respondent filed no response to the show-cause order. This cause was considered by the court and on consideration thereof,

IT IS ORDERED AND ADJUDGED by this court that pursuant to Gov.Bar R. V(11)(F)(4), respondent, Jerry Arthur Jewett, Attorney Registration No. 0032721, last known business address in Fremont, Ohio, be suspended for a period of three years and respondent will not be reinstated to the practice of law in Ohio until such time as respondent is reinstated to the practice of law in the United States Tax Court.

IT IS FURTHER ORDERED that respondent immediately cease and desist from the practice of law in any form and is hereby forbidden to appear on behalf of another before any court, judge, commission, board, administrative agency or other public authority.

IT IS FURTHER ORDERED that respondent is hereby forbidden to counsel or advise or prepare legal instruments for others or in any manner perform such services.

IT IS FURTHER ORDERED that respondent is hereby divested of each, any, and all of the rights, privileges and prerogatives customarily accorded to a member in good standing of the legal profession of Ohio.

IT IS FURTHER ORDERED that, pursuant to Gov.Bar R. X(3)(G), respondent shall complete one credit hour of continuing legal education for each month, or portion of a month, of the suspension. As part of the total credit hours of continuing legal education required by Gov.Bar R. X(3)(G), respondent shall complete one credit hour of instruction related to professional conduct required by Gov.Bar R. X(3)(A)(1), for each six months, or portion of six months, of the suspension.

IT IS FURTHER ORDERED, sua sponte, by the court, that within 90 days of the date of this order, respondent shall reimburse any amounts that have been awarded against the respondent by the Clients’ Security Fund pursuant to Gov.Bar R. VIII(7)(F). It is further ordered, sua sponte, by the court that if, after the date of this order, the Clients’ Security Fund awards any amount against the respondent pursuant to Gov.Bar R. VIII(7)(F), the respondent shall reimburse that amount to the Clients’ Security Fund within 90 days of the notice of such award.

IT IS FURTHER ORDERED that respondent shall not be reinstated to the practice of law in Ohio until (1) respondent complies with the requirements for reinstatement set forth in the Supreme Court Rules for the Government of the Bar of Ohio; (2) respondent complies with the Supreme Court Rules for the Government of the Bar of Ohio; (3) respondent files evidence with the Clerk of this court and with Disciplinary Counsel demonstrating his reinstatement to the practice of law in the United States Tax Court; (4) respondent complies with this and all other orders issued by this court; and (5) this court orders respondent reinstated.

IT IS FURTHER ORDERED that on or before 30 days from the date of this order, respondent shall:

1. Notify all clients being represented in pending matters and any co-counsel of respondent’s suspension and consequent disqualification to act as an attorney after the effective date of this order and, in the absence of co-counsel, also notify the clients to seek legal service elsewhere, calling attention to any urgency in seeking the substitution of another attorney in his place;

2. Regardless of any fees or expenses due respondent, deliver to all clients being represented in pending matters any papers or other property pertaining to the client, or notify the clients or co-counsel, if any, of a suitable time and place where the papers or other property may be obtained, calling attention to any urgency for obtaining such papers or other property;

3. Refund any part of any fees or expenses paid in advance that are unearned or not paid, and account for any trust money or property in the possession or control of respondent;

4. Notify opposing counsel in pending litigation or, in the absence of counsel, the adverse parties, of respondent’s disqualification to act as an attorney after the effective date of this order, and file a notice of disqualification of respondent with the court or agency before which the litigation is pending for inclusion in the respective file or files;

5. Send all notices required by this order by certified mail with a return address where communications may thereafter be directed to respondent;

6. File with the Clerk of this court and the Disciplinary Counsel of the Supreme Court an affidavit showing compliance with this order, showing proof of service of notices required herein, and setting forth the address where the affiant may receive communications; and

7. Retain and maintain a record of the various steps taken by respondent pursuant to this order.

IT IS FURTHER ORDERED that on or before 30 days from the date of this order, respondent surrender the attorney registration card for the 2003/2005 biennium.

IT IS FURTHER ORDERED that until such time as respondent fully complies with this order, respondent shall keep the Clerk and the Disciplinary Counsel advised of any change of address where respondent may receive communications.

IT IS FURTHER ORDERED, sua sponte, that all documents filed with this court in this case shall meet the filing requirements set forth in the Rules of Practice of the Supreme Court of Ohio, including requirements as to form, number, and timeliness of filings.

IT IS FURTHER ORDERED, sua sponte, that service shall be deemed made on respondent by sending this order, and all other orders in this case, by certified mail to the most recent address respondent has given to the Attorney Registration Section.

IT IS FURTHER ORDERED that the Clerk of this court issue certified copies of this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be made as provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs of publication.

MOYER, C.J., RESNICK, F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON, O’CONNOR and O’DONNELL, JJ., concur.