Appellate Court Upholds The FrivPen

[The Observer]

RONALD E. BYERS
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
Appellee

Release Date: SEPTEMBER 16, 2014

UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

Appeal from The United States Tax Court

Submitted: September 4, 2014

Filed: September 16, 2014

[Unpublished]

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.

PER CURIAM.

Ronald Byers appeals from an adverse decision of the Tax Court, 1 challenging that court's determination of his tax-deduction amount for tax year 2003, its refusal to enforce a document subpoena, and its imposition of sanctions.

After careful review, we conclude that the Tax Court (1) did not clearly err in calculating the tax-deduction amount at issue, see Blodgett v. Commissioner, 394 F.3d 1030, 1034-35 (8th Cir. 2005) (standard of review); (2) did not abuse its discretion in declining to enforce Byers's subpoena, see United States v. Roach, 164 F.3d 403, 412 (8th Cir. 1998) (same), cert. denied, 528 U.S. 845 (1999); and (3) did not abuse its discretion in imposing a sanction under these circumstances, see 26 U.S.C. section 6673(a)(1) (stating that the tax court may impose a penalty when the taxpayer maintains proceedings primarily for delay or takes a frivolous or groundless position). Accordingly, we affirm.

FOOTNOTES:

/1/ The Honorable Ronald L. Buch, United States Tax Court Judge.

[operabuff]

I don't think this opinion belongs here. The underlying issue is employee/independent contractor, which Byers has litigated several times before the court. Judge Buch imposed the 6673 penalty not because it was a frivolous argument but because he was making essentially the same argument as he had before without any more factual support. It doesn't look like Byers was arguing any of the usual tax protester kind of arguments.

https://www.ustaxcourt.gov/UstcDockInq/ ... ID=6023529

Byers also successfully litigated a CDP case before Judge Buch:

https://www.ustaxcourt.gov/UstcDockInq/ ... ID=6023784

[AndyK]

Perhaps we could consider merging some of these decisions with the 1.75 x 3.5 thread

As in upside their head

[AndyK]

Although OperaBuff has MAJOR credentials concerning the operations and inner workings of the IRS and the Office of Chief Counsel, I respectfully disagree with his preceeding post.

The CDP case which was referenced relates to only one year. This despite the fact that (from the opinion in that case) "Petitioner did not file Federal income tax returns for 1999, 2000, 2001, 2002, or 2003."

Byers was a tax evader. Irrespective of the employee/contractor controversy, he ignored his requirement to file tax returns.

[The Observer]

I would side with operabuff after reviewing the two Tax Court cases. I had not seen those when I posted the appellate case, so I presumed that the 6673 penalty was based on frivolous arguments were being pursued by the taxpayer.

The fact that the taxpayer had not filed several years of returns cannot be solely relied upon as an indicator that they are a tax protester or at least are pursuing the typical frivolous arguments that we have come to know so well; many of these non-filers are just chronic and horrible procrastinators. As such, they just get caught up in the slow and deliberate gears of IRS collection until they realize that they have gotten in way too deep.

Also, I noted that the case regarding the CDP hearing refers to a lien subordination being pursued by the taxpayer as a collection alternative. That would strongly suggest that the taxpayer was at least trying to do something that would possibly allow for payment towards the delinquent taxes. I have never seen a tax protester ever submit an application for a lien subordination as part of their frivolous argument scheme.

[operabuff]

Here's the opinion where Byers made his original argument, which was that he was an employee and not an independent contractor and that his employer was required to withhold, failed to, and that Byers should not be responsible for the amount that should have been withheld.

The argument is a clear loser, and Byers should have been filing his returns, but it seems a little different in character than the ones that we usually discuss here, arguments that the taxpayer is not liable for income tax at all, whether because the 16th amendment wasn't properly ratified, that income does not include wages paid, etc. That's all I'm saying.
http://www.ustaxcourt.gov/InOpHistoric/ ... CM.WPD.pdf

Byers doesn't seem to be arguing that he's not subject to income tax, just that his employer should have paid it.

[LPC]

Mr. Byers might not be a “tax protester” in the usual sense, but he’s put a lot of effort into litigating procedural issues pro se, and appears to be one of those fanatics who can’t take no for an answer.

In Ronald E. Byers v. Commissioner, No. 11606-05, T.C. Memo 2007-331, the Tax Court upheld deficiencies in income tax and self-employment tax for 199-2002, rejecting claims by Byers that he was an employee. The decision was affirmed by the 8th Circuit, 351 Fed. Appx. 151 (8th Cir. 2009), cert. den. 131 S.Ct. 79 (2010).

In Ronald E. Byers v. Commissioner, No. 022629-07, the Tax Court upheld a deficiency for the year 2004. The Court of Appeals affirmed in part and reversed in part, agreeing that collateral estoppel applied but reversed and remanded because of a denial of a business deduction. 420 Fed. Appx. 658 (8th Cir. 2011). On remand, the Tax Court entered an order allowing the deduction but rejected an argument that the entire late-payment penalty should be denied. That order was also appealed to the 8th Circuit, which affirmed. No. 13-2917 (8th Cir. 8/8/2014).

In Ronald E. Byers v. Commissioner, No. 003032-10L, T.C. Memo 2012-27, the Tax Court upheld the determination of the IRS to collect by levy the taxes assessed for 1999 through 2002, rejecting various procedural complaints, including questions about the constitutionality of the delegation of Appeals Officers to hear collection due process hearings. Byers appealed to the DC Circuit, rather than the 8th Circuit, and won a procedural victory of sorts when the IRS argued that venue was properly in the 8th Circuit and lost. However, Byers lost on the merits of the appeal. Byers v. Commissioner of Internal Revenue, 740 F.3d 668, No. 12-1351 (D.C. Cir. 2014), cert. den., No. (U.S.S.C. 10/6/2014). (It was this recent denial of cert. that got me looking into the history of Mr. Byers's litigation with the IRS.)

In Ronald E. Byers v. Commissioner, No. 015841-11, the Tax Court issued a bench opinion affirming a deficiency for 2003. This is the case that resulted in the 6673 sanction that was affirmed in the opinion quoted at the beginning of this thread.

In Ronald E. Byers v. Commissioner, No. 004201-12L (5/17/2013), Byers won a procedural victory when he challenged a decision by the IRS to file a notice of federal tax lien because the initial assessment for 2003 was admittedly not proper and the Tax Court found that the IRS had failed to address an issue of lien subordination that had been raised, so a decision was entered for Byers.

Whew.

[The Observer]

Today there is another published case on appeal to the 7th Circuit from Tax Court where again the justices use the phrase "frivolous argument" to describe the antics of the appellants. The case is GRAFFIA, ET AL.,v.COMMISSIONER OF INTERNAL REVENUE, in case anyone wants to take a closer look at it. Again, nothing to indicate that the taxpayers were in the koolade barrel, but definitely pushed the envelope in pursuit of stupid arguments.

[The Observer]

Mr. Byers continues his quixotic investigation of government taxation...

RONALD E. BYERS,
Plaintiff,
v.
UNITED STATES TAX COURT,
Defendant.

Release Date: SEPTEMBER 30, 2016


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Re Document No.: 5

MEMORANDUM OPINION

GRANTING DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Ronald E. Byers, proceeding pro se, brings this action against the United States Tax Court ("Tax Court" or "Defendant") pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. section 552. Relying predominately on the D.C. Circuit's recent decision in Kuretski v. Commissioner, 755 F.3d 929 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 2309 (2015), Mr. Byers argues that, for the purposes of FOIA, the Tax Court is an agency of the federal government's Executive Branch. See generally Compl., ECF No. 1. Thus, Mr. Byers asks this Court to order the Tax Court to turn over a wide range of records identified in his FOIA request. The Tax Court moves to dismiss the Complaint. Courts of the United States are specifically exempted from FOIA, and the Tax Court argues that Mr. Byers's Complaint should be dismissed because the Tax Court is a court, not an agency. The resolution of the Tax Court's motion to dismiss turns on a single legal question: Is the Tax Court a court or an agency for the purposes of FOIA?

The Tax Court's motion to dismiss is ripe and ready for decision. See generally Def.'s Mot. Dismiss, ECF No. 5; Pl.'s Obj. Def.'s Mot. Dismiss ("Pl.'s Opp'n"), ECF No. 9; Def.'s Reply Mem. Supp. Def.'s Mot. Dismiss ("Def.'s Reply"), ECF No. 11; see also infra note 3 (addressing Mr. Byers's initial intention to file a supplemental brief). First, the Court rejects Mr. Byers's argument that the term "courts of the United States" encompasses only the Judicial Branch, and nothing more. Next, the Court finds that Mr. Byers's reliance on Kuretski is misplaced. Although the D.C. Circuit held that the Tax Court is a part of the Executive Branch for the purposes of constitutional separation of powers, that outcome does not determine whether the Tax Court is subject to FOIA. Instead, a number of factors, including congressional intent, Supreme Court interpretation, and the function of the Tax Court, all suggest that the Tax Court is best understood as a court, not an agency, for the purposes of FOIA. Thus, the Court will grant the Tax Court's motion, and dismiss Mr. Byers's Complaint.

II. STATUTORY AND FACTUAL BACKGROUND

A. The Freedom of Information Act

Congress enacted FOIA so that citizens could discover "what their government is up to." Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)(quoting EPA v. Mink, 410 U.S. 73, 105 (1973)). Congress intended for the statute "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976); see also Mink, 410 U.S. at 80. Among other provisions, FOIA requires "each agency" to respond to appropriate requests and "make the [requested] records promptly available to any person." 5 U.S.C. section 552(a)(3)(A); see also Milner v. Dep't of Navy, 562 U.S. 562, 565 (2011) ("FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions."). To define the term "agency," FOIA relies on the existing definition found in the Administrative Procedure Act ("APA"). See 5 U.S.C. section 552(f)(1) (citing id. section 551(1)). The APA states that "'agency' means each authority of the Government of the United States . . . but does not include . . . the courts of the United States." Id. section 551(1)(B).

B. The United States Tax Court

Congress has made periodic changes to the name and nature of what is now the United States Tax Court. Congress created the original precursor to the Tax Court in 1924. See Kuretski, 755 F.3d at 933 (first citing Harold Dubroff, The United States Tax Court: An Historical Analysis, 40 Alb. L. Rev. 7, 64-66 (1975); and then citing John Kelley Co. v. Comm'r, 326 U.S. 521, 527-28 (1946)). That entity, known as the Board of Tax Appeals (the "Board"), was created as "an independent agency in the executive branch of the Government." Revenue Act of 1924, Pub. L. No. 68-175, section 900(a), (k), 43 Stat. 253, 336, 338 (1924). Two years later, Congress amended the President's authority to remove members of the Board -- guaranteeing the members a public hearing before they could be removed -- and made the Board's decisions reviewable by the United States Courts of Appeals. See Revenue Act of 1926, Pub. L. No. 69-20, section 1000-01, 44 Stat. 9, 105-06, 109-10 (1926).

Congress changed the name of the Board to the Tax Court of the United States in 1942 and stated that its members would be known as judges. See Revenue Act of 1942, Pub. L. No. 77-753, section 504(a), 56 Stat. 798, 957 (1942). Aside from this change, Congress did not upset the authority or status of the former Board. Id. section 504(b). For the purposes of this Court's analysis, the most important change came in 1969, when Congress next addressed the status of what is now the Tax Court. The Tax Reform Act of 1969 declared:

There is hereby established, under article I of the
Constitution of the United States, a court of record
to be known as the United States Tax Court. The members
of the Tax Court shall be the chief judge and the
judges of the Tax Court.

Tax Reform Act of 1969, Pub. L. No. 91-172, section 951, 83 Stat. 487, 730 (1969) (codified at 26 U.S.C. section 7441). The Senate Report accompanying the 1969 Act stated that, because "the Tax Court has only judicial duties, the committee believes it is anomalous to continue to classify it with quasi-judicial executive agencies that have rulemaking and investigatory functions." S. Rep. No. 91-552 (1969), reprinted in 1969 U.S.C.C.A.N. 2027, 2341.

The D.C. Circuit recounted the history of the Tax Court in Kuretski. 755 F.3d at 933. In that case, the court considered a challenge to the constitutionality of the Tax Court, based on the theory that the President's power to remove Tax Court judges, see 26 U.S.C. section 7443(f), violates the separation of powers guaranteed by the Constitution. Kuretski, 755 F.3d at 939. The court concluded, however, that the Tax Court is a part of the Executive Branch, meaning that "removal of a Tax Court judge . . . would constitute an intra -- not inter -- branch removal." Id. at 932. In response to Kuretski, Congress passed a brief "clarification" that states in full, "The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government." Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, section 441, 129 Stat. 2242, 3126 (2015) (codified at 26 U.S.C. section 7441). 1

C. Factual Background

Mr. Byers initially submitted his FOIA request to the Tax Court in March 2015. See Compl. paragraphs 19-21; Compl. Ex. A ("Pl.'s FOIA Request") at 16-21, ECF No. 1. 2 Mr. Byers requested "24 categories of records" related to the Tax Court's internal practices and procedures. Compl. paragraph 20; see also Pl.'s FOIA Request at 18-20. In his request, Mr. Byers argues that the Tax Court is subject to FOIA because it "exercises Executive authority as part of the Executive Branch." Pl.'s FOIA Request at 16 (quoting Kuretski, 755 F.3d at 932).

In a letter responding to Mr. Byers's request, the Tax Court refused to turn over any records and stated that "the Tax Court is not an 'agency' subject to FOIA." Compl. Ex. B at 23, ECF No. 1; see also Compl. paragraphs 22-23. Mr. Byers sent another letter to the Tax Court that appealed the denial of his FOIA request. See Compl. Ex. C at 24-28, ECF No. 1; see also Compl. paragraphs 24-25. In a brief response, the Tax Court denied Mr. Byers's appeal for the same reasons it enumerated in its prior letter. See Compl. Ex. D at 30, ECF No. 1; see also Compl. paragraph 27.

Mr. Byers brought this lawsuit on September 29, 2015. See Compl. at 1. Mr. Byers alleges that the Tax Court is a federal agency subject to FOIA that "has unlawfully withheld from Mr. Byers each of its records that he has duly requested." Compl. paragraph 35. Mr. Byers asks this Court to conclude that FOIA applies to the Tax Court, to order the Tax Court to comply with his FOIA request, and to award him costs incurred in this litigation. See Compl. paragraph 37. The Tax Court moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that "[a]ll indications are that the Tax Court is properly considered a court of the United States," and is thus exempt from FOIA. Def.'s Mem. Supp. Def.'s Mot. Dismiss ("Def.'s Mem.") at 1, ECF No. 5-1. Relying primarily on Kuretski, Mr. Byers maintains that that Tax Court "is an Executive Branch 'agency' that must disclose its records to the American public under the Freedom of Information Act." Pl.'s Opp'n at 1; see also Pl.'s (Initial) Mem. P. & A. Supp. Pl.'s Objection Def.'s Mot. Dismiss ("Pl.'s Mem.") at 1-5, ECF No. 9. 3

III. LEGAL STANDARD

A pro se complaint is held to "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). But even pro se litigants "must comply with the Federal Rules of Civil Procedure." Idrogo v. Foxx, 990 F. Supp. 2d 5, 6 (D.D.C. 2013) (citing Jarrell v. Tisch, 656 F. Supp. 237, 239 (D.D.C. 1987)). The Federal Rules of Civil Procedure require a complaint to contain "a short and plain statement of the claim" to give the defendant fair notice of the claim and the grounds upon which it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson, 551 U.S. at 93. A motion to dismiss under Rule 12(b)(6) does not test a plaintiff's ultimate likelihood of success on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). A court considering such a motion presumes that the complaint's factual allegations are true and construes them liberally in the plaintiff's favor. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).

Nevertheless, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007)). This means that a plaintiff's factual allegations "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 555-56 (citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. A court need not accept a plaintiff's legal conclusions as true, nor must a court presume the veracity of the legal conclusions that are couched as factual allegations. See id.; see also Twombly, 550 U.S. at 555.

A court cannot consider matters outside the pleadings in deciding a Rule 12(b)(6) motion, but it may consider "documents attached as exhibits or incorporated by reference in the complaint." Ward v. D.C. Dep't of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (internal quotation marks omitted) (quoting Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002)). Further, a pro se plaintiff's pleadings must be "considered in toto" to determine whether they "set out allegations sufficient to survive dismissal." Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 151 (D.C. Cir. 2015) (reversing the district court because it failed to consider allegations found in a pro se plaintiff's opposition to a motion to dismiss).

IV. ANALYSIS

The Court begins its analysis with the statutory definitions found in FOIA and the APA. First, the Court considers Mr. Byers's proposition that the term "courts of the United States" encompasses only the Judicial Branch, but no entity outside of it. The Court is not persuaded by Mr. Byers's argument. Next, the Court turns to Kuretski and finds that Mr. Byers's reliance on that case is misplaced. While it is true that Kuretski held that the Tax Court is a part of the Executive Branch -- at least for the purposes of a separation-of-powers analysis -- that holding is not dispositive here. Instead, a number of factors, including the intention of Congress, the Supreme Court's analysis of the Tax Court, and the Tax Court's functions and procedures support this Court's conclusion that the Tax Court is a court, not an agency, for the purposes of FOIA. For the following reasons, the Court will therefore grant the Tax Court's motion to dismiss the Complaint.

A. Statutory Definitions

The task of resolving whether the Tax Court is subject to FOIA "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989). Thus, the Court first turns to the relevant statutory definitions.

FOIA makes clear that its mandate applies to "agencies." See, e.g., 5 U.S.C. section 552(a)(3)(A). FOIA also provides a definition of "agency," which incorporates the APA's definition of the same term. See 5 U.S.C. section 552(f)(1) (citing id. section 551(1)). FOIA's definition states:

"[A]gency" as defined in [5 U.S.C. section 551(1)]
includes any executive department, military department,
Government corporation, Government controlled corporation,
or other establishment in the executive branch of
the Government (including the Executive Office of
the President), or any independent regulatory agency.
. . .

Id. The incorporated APA definition is narrowed, however, by a list of exemptions. The APA states that "'agency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include . . . the courts of the United States." Id. section 551(1)(B). Because of Congress's clear statement, Article III courts are exempt from the reach of FOIA. See, e.g., United States v. Mitchell, No. 03-6938, 2003 WL 22999456, at *1 (4th Cir. Dec. 23, 2003) (per curiam) ("[F]ederal courts do not fall within the definition of 'agency' under FOIA. . . ."); Gaydos v. Mansmann, No. 98-5002, 1998 WL 389104, at *1 (D.C. Cir. June 24, 1998) (per curiam) ("[T]he district court correctly determined that a Freedom of Information Act claim may not be brought against the federal judiciary."); see also Maydak v. U.S. Dep't of Justice, 254 F. Supp. 2d 23, 40 (D.D.C. 2003) ("[A] United States probation office is not subject to the FOIA's disclosure requirements because it is an arm of the federal courts.").

1. Mr. Byers's Argument that "Courts of the United
States" Means Only the Judicial Branch

Mr. Byers argues that the language "courts of the United States" found in the APA "means that this FOIA exemption applies to the entire Article III judicial branch of government," but that it extends no further. Pl.'s Mem. at 4. Mr. Byers concludes that "ecause the Tax Court is not a part of, or is not an adjunct to, the Article III Judicial Branch, it cannot be one of the 'courts of the United States' under [FOIA]." 4 Id. at 5. In support of his position, Mr. Byers relies on the D.C. Circuit's opinion in Washington Legal Foundation v. United States Sentencing Commission, 17 F.3d 1446 (D.C. Cir. 1994), and two citations to Title 28 of the United States Code. See Pl.'s Mem. at 4.

First, Mr. Byers's reliance on Washington Legal Foundation is not convincing. In that case, the court considered whether the United States Sentencing Commission was an agency for the purposes of the Federal Advisory Committee Act ("FACA"). See 17 F.3d at 1147-48. Like FOIA, FACA incorporates the APA's definition of agency. 5 U.S.C. app. 2 section 3(3). The court surveyed past cases and determined that "virtually every case interpreting the APA exemption for 'the courts of the United States' has held that the exemption applies to the entire judicial branch." Washington Legal Found., 17 F.3d at 1449. Nevertheless, the Court ultimately did not reach the issue Mr. Byers relies on, because the court found that it "need not decide whether the APA excludes the entire judicial branch from the definition of 'agency.'" Id. at 1450; see also id. ("[W]e need not interpret the APA at all."). Even if the court had decided that the term "the courts of the United States" encompasses the entire Judicial Branch, it would not necessarily follow that the definition excludes any other entities outside of the Judicial Branch. The court did not address that issue, and it would seem strange if Washington Legal Foundation, which expanded the FOIA exemption beyond Article III courts alone, would be used in this case to limit the scope of the same exemption.

Second, Mr. Byers relies on two provisions of Title 28 of the United States Code. Mr. Byers argues that Congress "has defined the phrase 'courts of the United States' for the entire United States Judicial Code." Pl.'s Mem. at 4. The provision Mr. Byers refers to defines the term to "include[] the Supreme Court of the United States, courts of appeals, district courts . . ., and any court created by Act of Congress the judges of which are entitled to hold office during good behavior." 28 U.S.C. section 451. In contrast, Mr. Byers asserts that when Congress means to refer to Article I courts, "it identifies them as the 'courts established by Act of Congress.'" Pl.'s Mem. at 4 (quoting 28 U.S.C. section 1651(a)). 5

Mr. Byers's reliance on these provisions is misplaced. The definition of "court of the United States" found in Title 28 is explicitly limited to that Title. See 28 U.S.C. section 451 ("As used in this title: The term 'court of the United States' includes. . . ."). The Supreme Court has held that definitions found in Title I of the Employee Retirement Income Security Act ("ERISA") were "not necessarily applicable to Title IV, because they are limited by the introductory phrase, 'For the purposes of this title.'" Nachman Corp. v. Pension Ben. Guar. Corp., 446 U.S. 359, 370 (1980). The logic of Nachman is even more powerful in this case, because the definition put forward by Mr. Byers appears not in a separate part of the same Act, but in an entirely different Title of the United States Code. See also Comm'r v. Bedford's Estate, 325 U.S. 283, 291-92 (1945) ("The definition of a 'partial liquidation' in [section ] 115(i) is specifically limited to use in [section ] 115. To attempt to carry it over to [section ] 112 would distort its purpose."). Furthermore, the list of definitions found in 28 U.S.C. section 451 also includes a definition of "agency," as that term is used in Title 28. The definition of "agency" found in FOIA (including that definition's incorporation of the APA) should certainly control this case, not the definition of the same term found in another Title. For the same reasons, the Court is not persuaded that the definition of "court of the United States" found in Title 28 should be dispositive here.

Finally, the Court notes that there is no direct link between the definition of the term "courts of the United States" and anything found in Article III. The Supreme Court has held that the term "Courts of Law" found in the Appointments Clause is "not limit[ed] . . . to those courts established under Article III of the Constitution." Freytag v. Comm'r, 501 U.S. 868, 888-89 (1991); see also American Ins. Co. v. 356 Bales of Cotton, 26 U.S. 511, 546 (1828) (holding that the judicial power of the United States is not limited to the judicial power defined under Article III); Williams v. United States, 289 U.S. 553, 565-567 (1933) (same). It would be a strange result if, as Mr. Byers's argument implies, these Courts of Law, sanctioned by the government of the United States, were not considered "courts of the United States." For all of these reasons, the Court is not persuaded by Mr. Byers's argument that the term "courts of the United States" includes only the Judicial Branch, and nothing more. 6

2. Mr. Byers's Reliance on Kuretski

Mr. Byers's FOIA request and Complaint are largely motivated by the D.C. Circuit's decision in Kuretski. See, e.g., Compl. paragraphs 1, 30; Pl.'s FOIA Request at 16. In that case, the court held that the Tax Court is part of the Executive Branch, at least in the context of a separation-of-powers analysis. Kuretski, 755 F.3d at 943. Mr. Byers argues that because Kuretski placed the Tax Court in the Executive Branch, the Tax Court is necessarily subject to FOIA. See Compl. paragraphs 30-33. The Court finds that Mr. Byers's reliance on Kuretski is overbroad and misreads the definition of agency found in FOIA.

Kuretski involved a constitutional challenge to the structure of the Tax Court filed by Peter and Kathleen Kuretski. See 755 F.3d at 932. The plaintiffs argued that the President's authority to remove Tax Court judges, see 26 U.S.C. section 7443(f), violates the constitutional guarantee of the separation of powers, see Kuretski, 755 F.3d at 938-39. The D.C. Circuit rejected that challenge and held that the Tax Court is a part of the Executive Branch and thus the "removal of a Tax Court judge . . . would constitute an intra -- not inter -- branch removal." Id. at 932. To reach that conclusion, the court first concluded that the Tax Court was not a part of the Judicial Branch because "its judges do not exercise 'the judicial Power of the United States' under Article III." Id. at 940. Next, the court found that the Tax Court is "not in the business of making . . . laws" and, although it is called a legislative court, that nomenclature does not place an entity in the Legislative Branch. Id. at 942-943; see also Williams v. United States, 289 U.S. 553, 565-66 (1933). Logically, the court concluded, the Tax Court must therefore be a part of the Executive Branch. Id. at 942-43.

Mr. Byers also points to other cases that hold that the Tax Court is a part of the Executive Branch of the federal government. See S.C. State Ports Auth. v. Fed. Mar. Comm'n, 243 F.3d 165, 171 (4th Cir. 2001) (considering Freytag and stating that "the Tax Court is a Court of Law despite being part of the Executive Branch), aff'd, 535 U.S. 743 (2002); Samuels, Kramer & Co. v. Comm'r, 930 F.2 975, 991 (2d Cir. 1991) (concluding that the Tax Court is an Executive Department), abrogated by Freytag, 501 U.S. 868. Next, Mr. Byers points to FOIA's definition of "agency," which, "as defined in [5 U.S.C. section 551(1)] includes any . . . other establishment in the executive branch of the Government." 5 U.S.C. section 552(f)(1). Mr. Byers's argument, in other words, is that because Kuretski places the Tax Court in the Executive Branch, it is an "establishment in the executive branch" that is necessarily subject to FOIA. See Compl. paragraphs 1, 30; Pl.'s FOIA Request at 16.

In Kuretski, the D.C. Circuit alluded to the issue presented in this case. Although the court had "no need to reach the issue," it noted that "Congress, in establishing . . . entities [such as the Tax Court] as a 'court' rather than an 'agency,' perhaps also exempted them from statutes that apply solely to executive 'agencies.'" Id. at 944 (citing Megibow v. Clerk of the U.S. Tax Court, No. 04-3321, 2004 WL 1961591 at *4-6 (S.D.N.Y. Aug. 31, 2004), aff'd, 432 F.3d 387(2d Cir. 2005) (per curiam).

Now that the issue has been properly raised, this Court is not persuaded by Mr. Byers's argument. First, Section 552(f) incorporates the APA's definition of agency found in Section 551, and that provision expressly exempts the courts of the United States. See 5 U.S.C. section 552(f)(1) (citing id. section 551(1)). The Court is not convinced that the definition is limited only to Article III courts. See supra Part IV.A.1. Thus, FOIA's exemption for courts should apply here as well. Second, the root of Mr. Byers's argument -- that all Executive Branch entities are subject to FOIA -- is overbroad. Many parts of the Executive Branch, notably entities within the Office of the President, are exempt from FOIA. See, e.g., Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980); Citizens for Responsibility & Ethics in Wash. v. Office of Admin, 566 F.3d 219 (D.C. Cir. 2009); Armstrong v. Exec. Office of the President, 90F.3d 553 (D.C. Cir. 1996); Rushforth v. Council of Econ Advisers, 762 F.2d 1038 (D.C. Cir. 1985). For these reasons, the Court finds that, although Kuretski held that the Tax Court is a part of the Executive Branch for the purposes of a separation-of-powers analysis, that conclusion is not dispositive here. If the Tax Court is one of the "courts of the United States," it must be exempt from FOIA, even if it is part of the Executive Branch.

B. The Tax Court is a Court

This case is not resolved by the Court's conclusion that the statutory term "courts of the United States" encompasses more than Article III courts and that the Tax Court's status as a part of the Executive Branch does not necessarily subject it to FOIA. The Court must resolve an additional question of statutory interpretation. In order to determine whether the Tax Court is a court or an agency for the purposes of FOIA, the Court will consider the characteristics of the Tax Court, including its authorizing statute, interpretation by the Supreme Court, and the functions it performs. Each of those factors weighs in favor of treating the Tax Court as a court, not an agency, for the purposes of FOIA.

1. Congress's Treatment of the Tax Court

A review of Congress's treatment of the Tax Court and the limited, relevant case law on the issue suggests that Congress intended the Tax Court to be considered a court for the purposes of FOIA. A recent clarification, despite raising some additional questions, appears to confirm Congress's view that the Tax Court is not an agency.

As previously described, the original precursor to the Tax Court was known as the Board of Tax Appeals, and was enacted as "an independent agency in the executive branch of the Government." Revenue Act of 1924, Pub. L. No. 68-175, section 900(a), (k), 43 Stat. 253, 336, 338 (1924). The Board was renamed the Tax Court of the United States in 1942, but Congress made clear that the new court's "jurisdiction, powers, and duties . . . shall be the same as by existing law." See Revenue Act of 1942, Pub. L. No. 77-753, section 504(b), 56 Stat. 798, 957 (1942). In contrast, the 1969 restructuring made clear that instead of simply modifying the existing agency, Congress "established, under article I of the Constitution of the United States, a court of record." Tax Reform Act of 1969, Pub. L. No. 91-172, section 951, 83 Stat. 487, 730 (1969) (emphasis added) (codified at 26 U.S.C. section 7441).

Accompanying legislative history noted that "the Tax Court has only judicial duties" and confirms that the 1969 Act gives the Tax Court "the same powers regarding contempt, and the carrying out of its writs, orders, etc., that Congress has previously given to the District Courts." S. Rep. No. 91-552 (1969), reprinted in 1969 U.S.C.C.A.N. 2027, 2341, 2343. One of the only two courts to have considered this issue relied heavily on the 1969 legislation to determine that the Tax Court was a court, not an agency, and thus exempt from FOIA. See Ostheimer v. Chumbley, 498 F. Supp. 890, 892 (D. Mont. 1980) ("Congress intended that the Tax Court operate as a court and considered it to have only judicial functions. . . ."), aff'd, 746 F.2d 1487 (9th Cir. 1984) (unpublished table opinion). The Ninth Circuit affirmed that decision without comment in an unpublished opinion. Id. Congress's treatment of the Tax Court, especially the evolution of the precursor entities, shows that, as of the 1969 restructuring, the legislature understood that the Tax Court is a court. This conclusion bolsters the Court's interpretation that "courts of the United States" includes the Tax Court.

The parties dispute the effect of recent legislation addressing the status of the Tax Court. Following the D.C. Circuit's Kuretski decision, Congress passed a brief "clarification" that states, "The Tax Court is not an agency of, and shall be independent of, the executive branch of the Government." Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, section 441, 129 Stat. 2242, 3126 (2015) (codified at 26 U.S.C. section 7441). An accompanying report from the Senate Finance Committee raised concerns that Kuretski could "lead the public to question the independence of the Tax Court" and stated the Committee's intention to "remove any uncertainty . . ., and to ensure that there is no appearance of institutional bias." See S. Rep. No. 114-14, at 10 (2015).

The Tax Court argues that this clarification "codifies what was already quite plain" -- that the Tax Court is a court, not an agency. Def.'s Mem. at 1; see also id. at 7 (addressing the clarification). Mr. Byers also believes that Congress merely restated existing law. See Pl.'s Mem. at 13. In contrast, of course, he argues for a different status quo ante -- that the Tax Court has been subject to FOIA at least since Kuretski. Id. at 12-13. Mr. Byers suggests that the clarification only addressed "the public's possible perception that Kuretski meant the Tax Court was not an independent entity." Id. at 13. Mr. Byers also argues that if Congress had meant to exempt the Tax Court from FOIA, it could have been more specific, either explicitly stating that the Tax Court is not part of the Executive Branch or defining the Tax Court as one of the "courts of the United States." Id. at 13-14. Finally, Mr. Byers argues that Congress "used the term 'agency' merely in its generic sense, not in its FOIA sense." Id. at 13.

The Court finds the Tax Court's interpretation of the clarification to be more persuasive. When Congress states that the Tax Court "is not an agency of . . . the executive branch of the Government," 26 U.S.C. section 7441, the Court should take the legislature at its word. See Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980) ("[T]he starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive."). In administrative law, "agency" is a term of art. See, e.g., 5 U.S.C. section 552(f)(1), 551(1). Mr. Byers has provided no authority in support of his argument that "agency" should be interpreted in its "generic sense." Pl.'s Mem. at 13. In fact, the most common use of "agency" in this context would seem to be the same as the definition found in the APA. Although the Court is aware of possible contradictions in the recent legislation, 7 the Court finds that Congress's clarification that the Tax Court is "not an agency" provides further support for the conclusion that the Tax Court should be considered a court, not an agency, for the purposes of FOIA. 8

2. Supreme Court Interpretation

The Court will next turn to the Supreme Court's interpretation of the role and constitutional status of the Tax Court. Although not dispositive of the issue before the Court, the Supreme Court's analysis of the Tax Court suggests that it should be treated as a court, not an agency, for the purposes of FOIA.

The Supreme Court explored the status of the Tax Court in Freytag v. Commissioner, 501 U.S. 868 (1991). In Freytag, taxpayers challenged a statute that allows the Chief Judge of the Tax Court to appoint "special trial judges" for certain purposes. See 26 U.S.C. section 7443A. The taxpayers argued that the statute violated the Appointments Clause of Article II, which gives Congress the power to "vest the Appointment of . . . inferior Officers . . . in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const. art. II, section 2, cl. 2. The Supreme Court rejected the argument that "the Chief Judge of the Tax Court does not fall within any of the Constitution's three repositories of the appointment power," and therefore cannot appoint "a special trial judge." Freytag, 501 U.S. at 878. Instead, the majority held that, at least for the purposes of the Appointments Clause, the Tax Court is a "Court of Law," and thus, the Chief Judge does have the authority to appoint inferior officers. See id. at 892. Central to the Court's analysis was the conclusion that the Tax Court "exercises a portion of the judicial power of the United States" 9 and that its "function and role in the federal judicial scheme closely resemble those of the federal district courts." Id. at 891.

The Tax Court argues that Freytag "confirms that the Tax Court is a court." Def.'s Mem. at 10. On the other hand, Mr. Byers argues that the Court was not presented with the option of finding that the Tax Court "was only an executive component, rather than a higher executive department." Pl.'s Mem. at 6. Mr. Byers also notes that four justices would have held that the Tax Court is an executive department, and he argues that Freytag should be limited to the context of the Appointments Clause. Id. at 5-6.

Again, the Court finds the Tax Court's argument more persuasive. The Supreme Court has made clear that the Tax Court is a "Court of Law" for the purposes of the Appointments Clause. Freytag, 501 U.S. at 892. That holding is not dispositive in this case -- the precise question at issue here, of course, was not before the Court -- but the majority opinion's reasoning and analysis are relevant and persuasive. Because the Tax Court "exercises a portion of the judicial power of the United States . . . to the exclusion of any other function," Freytag, 501 U.S. at 891, the Tax Court is best understood as one of the "courts of the United States." 5 U.S.C. section 551(1). This conclusion is not disturbed by Kuretski, which maintained that the Tax Court "may be considered a 'Court of Law' for purposes of the Appointments Clause" and that it exercises the judicial power of the United States, even if only in the "enlarged," non-Article-III sense of that term. Kuretski, 755 F.3d at 940-41 (quoting Murray's Lessee, 59 U.S. at 280). Thus, the Court finds that Freytag provides additional support for the view that the Tax Court is a court, not an agency, for the purposes of FOIA.

3. The Functions and Procedures of the Tax Court

The Tax Court asserts that it "operates as a court in every respect." 10 Def.'s Mem. at 7. This Court agrees. A functional analysis of the Tax Court suggests that it should be considered one of the "courts of the United States" for the purposes of FOIA. In fact, one of the two other courts to consider whether the Tax Court is subject to FOIA relied predominately on an examination of the Tax Court's functions and procedures to determine that it is a court, not an agency. See Megibow v. Clerk of U.S. Tax Court, No. 04-3321, 2004 WL 1961591, at *4 (S.D.N.Y. Aug. 31, 2004), aff'd, 432 F.3d 387 (2d Cir. 2005) (per curiam).

The Tax Court is made up of nineteen judges, who are appointed by the President with the advice and consent of the Senate. See 26 U.S.C. section 7443(a)-(b). The judges, who receive the same salaries as district court judges, sit for fifteen year terms and may only be removed by the President "for inefficiency, neglect of duty, or malfeasance in office." Id. section 7443(c), (e)-(f). Congress mandated that the Tax Court conduct its proceedings in accordance with the Federal Rules of Evidence, but otherwise permitted it to prescribe its own rules of practice and procedure. Id. section 7453. Proceedings before the Tax Court "in all respects resemble the rules of other courts." See Megibow, 2004 WL 1961591, at *4. The Tax Court's rules provide for the commencement of a case, Tax Ct. R. 20, the types of pleadings permitted, Tax Ct. R. 30, the filing of motions, Tax Ct. R. 50-58, discovery, Tax Ct. R. 70-74, and trial, Tax Ct. R. 140-152. Tax Court decisions are appealable to the United States Courts of Appeals and ultimately to the Supreme Court through a petition for a writ of certiorari. See 26 U.S.C. section 7482(a)(1). The Supreme Court has stated that the Tax Court "exercises judicial, rather than executive, legislative, or administrative, power." Freytag v. Comm'r, 501 U.S. 868, 890-91 (1991). Legislative history also suggests that the Tax Court's function is purely adjudicative. See generally S. Rep. No. 91-552 (1969), reprinted in 1969 U.S.C.C.A.N. 2027, 2341 ("[T]he Tax Court has only judicial duties, [therefore] the committee believes it is anomalous to continue to classify it with quasi-judicial executive agencies that have rulemaking and investigatory functions.").

In Megibow, one of two decisions to consider FOIA's applicability to the Tax Court, the court held that "FOIA's application to a particular governmental entity depends not on the label attached to that entity but on an examination of its functions." 2004 WL 1961591, at *5. After considering the functions and procedures of the Tax Court, the Megibow court found that it is "absolutely clear that the Tax Court is not an agency. Functionally, the Tax Court acts as a judicial body -- a court." Id. The Second Circuit affirmed in a brief opinion that commended the "thorough and well-reasoned opinion" of the district court. Megibow v. Clerk of U.S. Tax Court, 432 F.3d 387, 388 (2d Cir. 2005) (per curiam).

The Court is persuaded by the reasoning of Megibow. The Tax Court's functions and procedures are purely adjudicative and mirror other courts, such as this one. See Freytag, 501 U.S. at 891. The similarities between the Tax Court and other courts, as well as its obvious differences from agencies conducting rulemaking or enforcement, provide further support for the Court's conclusion that the Tax Court should be considered a court, not an agency, for the purposes of FOIA.

Thus, all of the factors considered by the Court support the conclusion that the Tax Court is best understood as a court. Because the Tax Court is a "court of the United States," it is exempt from FOIA. Mr. Byers's Complaint, therefore, cannot state a claim for relief and must be dismissed.

V. CONCLUSION

For the foregoing reasons, Defendant United States Tax Court's Motion to Dismiss (ECF No. 5) is GRANTED. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 30, 2016

Rudolph Contreras
United States District Judge

FOOTNOTES:

/1/ The report of the Senate Finance Committee accompanying the legislation explicitly referenced Kuretski. See S. Rep. No. 114-14, at 10 (2015) ("The Committee is concerned that statements in Kuretski v. Commissioner may lead the public to question the independence of the Tax Court. . . . The Committee wishes to remove any uncertainty caused by Kuretski v. Commissioner, and to ensure that there is no appearance of institutional bias.").

/2/ To avoid confusion, the Court will cite the page numbers automatically generated by the Court's ECF system when referring to the exhibits of Mr. Byers's Complaint, even where an exhibit contains pre-existing page numbers.

/3/ In his opposition to the Tax Court's motion, Mr. Byers explains that he "expects to supplement his accompanying points and authority memorandum soon because he was unable to afford representation." Pl.'s Opp'n at 2. The Tax Court responds that "no authority exists" for Mr. Byers to file multiple briefs, and argues that the Court "should treat Defendant's motion to dismiss as fully briefed." Def.'s Reply at 3 n.1. The Court notes that no attorney has appeared on Mr. Byers's behalf and that Mr. Byers has not filed any supplementary briefing. Furthermore, Mr. Byers states in his opposition to the motion that, "[a]lthough rushed, the memorandum . . . file[d] with this objection alone should cause the Court to deny Defendant's motion to dismiss." Pl.'s Opp'n at 2. Because of the lack of authority Mr. Byers presents in support of filing serial briefs, as well as Mr. Byers's failure to file an additional brief and his position that his initial brief "alone" is sufficient, the Court finds that the Tax Court's motion is fully briefed and ripe for decision.

/4/ This argument is closely related to Mr. Byers's argument that the Tax Court must be subject to FOIA because the D.C. Circuit has held that the Tax Court is part of the Executive Branch, at least for the purposes of a constitutional separation-of-powers analysis. See infra Part IV.A.2.

/5/ Mr. Byers's reference to the All Writs Act also raises two additional problems. See 28 U.S.C. section 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.). First, all inferior Article III courts, not just Article I courts, are created by Congress. See U.S. Const. art. III. In other words, "courts established by Act of Congress" include both Article I courts like the Tax Court, and all district courts and circuit courts. Second, Mr. Byers's reading would mean the All Writs Act applies only to Article I courts, contrary to Article III courts' longstanding reliance on the Act. See, e.g., In re al-Nashiri, 791 F.3d 71, 75-76 (D.C. Cir. 2015); Nixon v. Sirica, 487 F.2d 700, 707 (D.C. Cir. 1973).

/6/ Although the argument does not appear in his Complaint or his opposition to the Tax Court's motion, Mr. Byers relied on a citation to 26 U.S.C. section 7457 in his administrative appeal. See Compl. Ex. C at 26-27. Section 7457 provides for witness fees and mileage in the Tax Court that are the same as those provided for "witnesses in courts of the United States." 26 U.S.C. section 7457(a). Mr. Byers argues that this statute shows that the Tax Court is not one of the "courts of the United States." See Compl. Ex. C at 27. But the Court is persuaded by the Tax Court's argument that this provision was enacted when the precursor to the Tax Court was still an "independent agency," thus requiring the comparison to existing courts. See Def.'s Mem. at 16-17; see also Internal Revenue Code of 1954, Pub. L. No. 83-591, section 7457, 68A Stat. 730, 886 (1954); supra Part II.B (explaining that the Tax Court was not "established" as an Article I court until 1969).

/7/ See, e.g., Chris Walker, The Tax Court and the Administrative State: Congress Responds to the D.C. Circuit's Decision in Kuretski, Yale J. on Reg.: Notice & Comment (Dec. 29, 2015), http://yalejreg.com/nc/the-tax-court-an ... in-kurets/; Kristin Hickman, What is the Tax Court? Congress Speaks, Tax Prof Blog (Dec. 28, 2015), http://taxprof.typepad.com/taxprof_blog ... peaks.html. Specifically, the recent legislation also enacted 26 U.S.C. section 7470 which grants the Tax Court certain powers to the same degree as a "court of the United States." Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, section 432, 129 Stat. 2242, 3126 (2015) (codified at 26 U.S.C. section 7470).

/8/ As the Tax Court notes, Congress surely has the power to determine whether the Tax Court is subject to FOIA, even if it cannot independently dictate the branch of government where an entity sits. See Def.'s Reply at 8 n. 5 (citing Dept. Transp. v. Ass'n Am. Railroads, 135 S. Ct. 1225, 1233 (2015)).

/9/ The D.C. Circuit interpreted this language to mean the judicial power of the United States only in an "enlarged sense" that is distinct from the judicial power described in Article III. See Kuretski, 755 F.3d at 941 (quoting Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 280 (1856)).

/10/ Mr. Byers does not appear to address this argument.

[The Observer]

Byers pushes on in his pursuit of prevailing over the government and gets punished by a $10k frivpen.

RONALD E. BYERS,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

Release Date: FEBRUARY 06, 2017


UNITED STATES TAX COURT

Filed February 6, 2017

Ronald E. Byers, pro se.

Melissa Jane Hedtke and John Schmittdiel, for respondent.

MEMORANDUM OPINION

NEGA, Judge: Petitioner seeks review pursuant to sections 6320(c) and 6330(d)(1) 1 of respondent's determination to sustain the filing of a notice of [*2] Federal tax lien with respect to petitioner's unpaid Federal income tax liabilities, additions to tax, and interest for tax years 1999-2002. Respondent has moved for summary judgment under Rule 121. For the reasons explained below, we will grant the motion.

BACKGROUND

The following facts are derived from the petition, the exhibits attached to respondent's motion for summary judgment, and the parties' other filings in this case. Petitioner resided in Minnesota when the petition was filed.

Petitioner failed to file Federal income tax returns for 1999 through 2002 (taxable years at issue). On March 22, 2005, respondent sent petitioner a notice of deficiency relating to petitioner's Federal income and self-employment taxes for the taxable years at issue. Petitioner filed a petition in this Court challenging respondent's deficiency determination and additions to tax for each of the taxable years at issue. After a trial, this Court issued its written opinion upholding respondent's deficiency determinations and additions to tax against petitioner. Byers v. Commissioner, T.C. Memo. 2007-331, aff'd, 351 F. App'x 161 (8th Cir. 2009).

Petitioner did not post a bond to stay assessment and collection of the aforementioned deficiencies sustained by this Court, and therefore on May 12, [*3] 2008, respondent assessed the taxes, additions to tax, and interest as he had determined. See Rule 192.

On October 22, 2013, respondent filed a notice of Federal tax lien against petitioner for the taxable years at issue and sent petitioner a Letter 3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under Section 6320, with respect to his unpaid Federal income tax liabilities, additions to tax, and interest for the taxable years at issue.

In response petitioner timely submitted Form 12153, Request for a Collection Due Process or Equivalent Hearing. Petitioner did not specify a collection alternative but rather created and checked his own checkbox, labeled "Collection Alternative". Petitioner also requested the lien be subordinated, discharged, or withdrawn because it was overly intrusive and unwarranted. Lastly, petitioner requested that the collection due process (CDP) hearing be held "exclusively by correspondence".

The correspondence between petitioner and respondent lasted from January 9 until August 22, 2014. During this time respondent informed petitioner of the available collection alternatives (full payment, installment agreement, offer-in-compromise, currently not collectible, discharge of lien, withdrawal of lien, subordination of lien, and substitution of other assets) and their associated [*4] requirements. Specifically, respondent informed petitioner that in order for the settlement officer (SO) to consider the substitution of other assets as a collection alternative, petitioner had to send the SO specific information on the asset(s) he would like substituted, including a description, the location, and an appraisal or detailed valuation of the assets. Respondent also informed petitioner that for any collection alternative to be considered, petitioner had to complete a Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, and file signed tax returns for tax years 2008-13.

Petitioner never requested a collection alternative. 2 Furthermore, petitioner did not submit a Form 433-A, file signed tax returns for 2008-13, or supply the required financial information with respect to any collection alternative.

On September 26, 2014, respondent issued petitioner a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 of the Internal Revenue Code, sustaining the notice of Federal tax lien filing. Petitioner timely filed a petition for review of respondent's determination.

DISCUSSION

[*5] I. Summary Judgment

The purpose of summary judgment is to expedite litigation and avoid unnecessary and time-consuming trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The Court may grant summary judgment where there is no genuine dispute as to any material fact and a decision may be rendered as a matter of law. Rule 121(b); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving party bears the burden of proving there is no genuine issue of material fact. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). The opposing party cannot rest upon mere allegations or denials in his pleadings and must "set forth specific facts showing that there is a genuine dispute for trial." Rule 121(d). The factual materials and inferences drawn from them will be considered in the light most favorable to the nonmoving party. Bond v. Commissioner, 100 T.C. 32, 36 (1993).

Sections 6321 and 6323 impose a valid lien, which arises when assessment is made, in favor of the United States on all property and property rights of a person who is liable for unpaid Federal taxes after demand for payment has been made. See sec. 6322. Section 6320(a) requires the Secretary to send written [*6] notice to the taxpayer of the filing of a notice of lien and of the taxpayer's right to an administrative hearing on the matter.

At the hearing a taxpayer may raise any relevant issue, including challenges to the appropriateness of the collection action and possible collection alternatives. See secs. 6320(c), 6330(c)(2)(A). Taxpayers are to provide all relevant information requested by Appeals. Secs. 301.6320-1(e)(1), 301.6330-1(e)(1), Proced. & Admin. Regs.

Where, as here, the underlying tax liability is not at issue, this Court reviews the Appeals officer's determinations for abuse of discretion. Goza v. Commissioner, 114 T.C. 176, 182 (2000). Abuse of discretion exists when a determination is arbitrary, capricious, or without sound basis in fact or law. See Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff'd, 469 F.3d 27 (1st Cir. 2006). The Court of Appeals for the Eighth Circuit has held that judicial review of nonliability issues under section 6330(d) is limited to the administrative record (i.e., the administrative record rule). See Robinette v. Commissioner, 439 F.3d 455, 460 (8th Cir. 2006), rev'g 123 T.C. 85 (2004). 3

[*7] Petitioner has failed to set forth specific facts showing that there is a genuine dispute for trial. A review of the administrative record indicates that the SO verified that (1) the CDP hearing was conducted by an officer or employee who had no prior involvement, per section 6320(b)(3); (2) the requirements of applicable law and administrative procedure were met; and (3) the SO properly balanced the need for the efficient collection of taxes with petitioner's legitimate concern that any collection action be no more intrusive than necessary. Furthermore, petitioner did not request any collection alternative. Irrespective, the SO informed petitioner of all available collection alternatives as well as the documentation required to pursue each.

Petitioner alleges that the SO engaged in prohibited ex parte communications and that respondent omitted or concealed material documents [*8] from the administrative record. A review of the record fails to show any prohibited ex parte communications. Further, petitioner does not specify which documents were omitted or concealed but merely rests on his assertions, thereby failing to set forth specific facts showing there is a genuine dispute for trial.

The remainder of petitioner's alleged "factual disputes" are nothing more than legal arguments in the form of tax-protester rhetoric and have been universally rejected by this and other courts. See e.g., Byers v. Commissioner (Byers I), T.C. Memo. 2012-27, aff'd, 740 F.3d 668 (D.C. Cir. 2014). We shall not painstakingly address petitioner's assertions "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 1417, 1417 (5th Cir. 1984).

We conclude that there is no genuine dispute as to a material fact and that respondent is entitled to a decision as a matter of law.

II. Section 6673 Penalty

Section 6673(a)(1) authorizes this Court to require a taxpayer to pay to the United States a penalty not in excess of $ 25,000 if it appears that the taxpayer has instituted or maintained proceedings primarily for delay or the taxpayer's position is frivolous or groundless.

[*9] Petitioner has appeared before this Court numerous times, including in Byers v. Commissioner, T.C. Dkt. No. 15841-11 (Apr. 24, 2013) (bench opinion), aff'd per order, No. 13-3292 (8th Cir. Oct. 28, 2014), where the Court imposed a section 6673(a)(1) penalty of $ 5,000 for instituting and maintaining the proceeding primarily for delay and for advancing frivolous and groundless arguments after petitioner had been cautioned in a prior case against asserting previously rejected arguments. Petitioner again appeared before the Court in Byers I, where he challenged respondent's notice of intent to levy with respect to the same taxable years currently at issue by advancing substantially similar and equally frivolous contentions. 4

Petitioner now is before this Court again and has persisted in instituting and maintaining this proceeding primarily for delay and has advanced the same frivolous arguments as in Byers I. We therefore require petitioner to pay to the United States under section 6673(a)(1) a penalty of $ 10,000. We warn petitioner that the assertion of frivolous positions, or the instituting and maintaining of any proceeding primarily for delay, in any future appearance before this Court may result in a higher penalty.

[*10] To reflect the foregoing,

An appropriate order and decision will be entered.

FOOTNOTES:

/1/ Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.

/2/ Petitioner "tentatively proposed" (his own words) the substitution of other assets under sec. 6330(c)(2)(A)(iii) but never affirmatively requested it as a collection alternative nor actively pursued it with the SO.

/3/ The Court of Appeals for the District of Columbia Circuit held in Byers v. Commissioner, 740 F.3d 668, 675-677 (D.C. Cir. 2014), aff'g T.C. Memo. 2012-27, that under sec. 7482 the Court of Appeals for the District of Columbia Circuit is the proper appellate venue in collection cases under secs. 6320 and 6330 where the underlying liability is not at issue. The court in Byers v. Commissioner, 740 F.3d at 677, however, stated: "We have no occasion to decide in this case whether a taxpayer who is seeking review of a CDP decision on a collection method may file in a court of appeals other than the D.C. Circuit if the parties have not stipulated to venue in another circuit." The Court of Appeals for the District of Columbia Circuit has not yet weighed in on the question of whether the administrative record rule governs in a collection review hearing under secs. 6320 and 6330. Furthermore, the newly enacted sec. 7482(b)(1)(G), providing proper venue for petitions under sec. 6320 or 6330 to the U.S. Court of Appeals for the circuit in which is located the legal residence of the petitioner if the petitioner is an individual, is inapplicable in this case because it applies only for petitions filed after December 18, 2015. Petitioner filed his petition on October 14, 2014.

/4/ The Court specifically addressed, and rejected at length, petitioner's argument that the CDP hearing and notice of determination were unconstitutional because they were in violation of the U.S. Constitution's Appointments Clause.

[Famspear]

......Petitioner did not specify a collection alternative but rather created and checked his own checkbox, labeled "Collection Alternative"....

Ah, yes! The old "create my own checkbox on the government form" gambit. Similar, I am sure, to the old "create my own Internal Revenue Code section that makes my income not be taxable" gambit, which of course is similar to the old "create my own theory about what is income and what is not income" gambit, which of course is similar to the old "create my own imaginary rule about the constitutionality of federal income taxes" gambit, which of course.......

[Pottapaug1938]

Byers seems to have our new national motto in mind. Goodbye "E Pluribus Unum" and "In God We Trust" -- now, it's "I Doan' Wanna DO That, An' You Can't MAKE Me!" (delivered in the tone of voice of a petulant six-year-old child).