TP Invests in "Bond" - Earns $1K in FrivPen

[The Observer]

LARRY DAVID CAROTHERS,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent

Release Date: DECEMBER 09, 2008


UNITED STATES TAX COURT

Filed December 9, 2008

R prepared a substitute for return for P's 2003 year, showing
income tax due. In response to P's FOIA request, R gave him a
transcript that showed no tax had been assessed. R later issued a
notice of intent to levy, and P timely requested a hearing under
I.R.C. sec. 6330. During the hearing P contended that no
assessment had been made and raised various frivolous arguments.
R's Appeals Office obtained an up-to-date transcript of P's
account to verify, pursuant to sec. 6330(c)(1), that the tax had
been duly assessed, and issued to P a final notice of
determination that it would proceed with a levy. P appealed that
determination to this Court, asserting that "no legal
assessment is on record". R moved for summary judgment, for
penalties under sec. 6673, and for the levy to proceed under sec.
6330(e)(2). P opposed, contending that his 2003 liability had
been settled in full by a "Demand for Set-off of Claim".

Held: R's Appeals Office did not abuse its discretion in
consulting only a transcript of P's account to verify the
assessment, notwithstanding P's reliance on a prior transcript to
dispute the fact of the assessment. P's contention about a
"Demand for Set-off of Claim" lacks any basis in fact or
in law. R's motion for summary judgment will be granted.

Held, further, P's use of frivolous arguments throughout
the collection review procedures is manifestly an attempt to
delay collection without justification. R's motion to permit levy
will be granted.

Held, further, R's motion for a penalty under sec. 6673
will be granted, and P will be required to pay to the United
States a penalty of $ 1,000.

Larry David Carothers, pro se.

G. Chad Barton, for respondent.

MEMORANDUM OPINION

GUSTAFSON, Judge: This collection review case is before the Court on respondent's Motion to Permit Levy, and his Motion for Summary Judgment and to Impose a Penalty under section 6673,/1/ both of which were filed on August 7, 2008. The issues for decision are: (1) Whether respondent's Appeals Office abused its discretion in determining to proceed with the collection action with respect to Mr. Carothers's unpaid income tax liability for tax year 2003; (2) whether respondent has shown good cause to lift suspension of the levy pursuant to section 6330(e)(2); and (3) whether the Court should impose a penalty in an appropriate amount, pursuant to section 6673, on the ground that Mr. Carothers instituted these proceedings primarily for delay.

As explained below, we will (a) grant summary judgment in respondent's favor, sustaining his determination to proceed with the levy action, (b) permit respondent to proceed with the levy notwithstanding the pendency of petitioner's appeal, and (c) impose on petitioner a penalty of $ 1,000 under section 6673.

BACKGROUND

There is no dispute as to the following facts:

For the year 2003, petitioner Larry David Carothers did not timely file a Federal income tax return. As a result, on April 8, 2005, the Internal Revenue Service (IRS) prepared a substitute for return for that year showing a tax due of $ 19,222.80. Shortly thereafter, on April 15, 2005, Mr. Carothers made a Freedom of Information Act (FOIA) request under 5 U.S.C. section 552, in which he asked the IRS for information about his 2003 liability. The IRS responded to his FOIA request with a letter of May 18, 2005, advising Mr. Carothers that "no assessments [had] been made to date at the Ogden Campus" and including a transcript for his tax account for the 2003 year, which showed that, as of May 6, 2005, no liability had been assessed against him.

On June 7, 2005, the IRS issued to Mr. Carothers a statutory notice of deficiency with respect to 2003, pursuant to section 6212(a), which Mr. Carothers admits he received. Mr. Carothers did not file a petition with the Court with respect to that notice. Consequently, an IRS transcript shows that on October 24, 2005, the IRS entered assessments against Mr. Carothers for income tax, additions to tax, and statutory interest, and issued to him a notice of balance due with respect to his unpaid 2003 liability. Mr. Carothers failed to remit the amount due.

On May 29, 2006, the IRS issued to Mr. Carothers a Final Notice of Intent to Levy and Notice of Your Right to a Hearing, informing Mr. Carothers that the IRS intended to levy to collect his unpaid taxes for 2003 and informing him of his right, under section 6330(b) and (c), to a collection due process hearing (CDP hearing). Mr. Carothers timely requested a CDP hearing by submitting to respondent, on June 26, 2006, a Form 12153, Request for a Collection Due Process or Equivalent Hearing. On Mr. Carothers's Form 12153, he indicated his disagreement with the notice of intent to levy and challenged the validity of the assessment. On January 23, 2007, the IRS Appeals Office sent Mr. Carothers a letter that explained the CDP hearing process, scheduled his telephone CDP hearing for February 28, 2007, and warned him about the penalty for making frivolous arguments./2/ During the CDP hearing process, Mr. Carothers submitted a letter dated February 5, 2007, in which he requested that his CDP hearing be "held by correspondence" and argued, among other things,/3/ that "[t]he IRS's own documentation admitted there was no legal assessment reference signed, dated, on IRS letterhead Disclosure Officer Letters". On March 23, 2007, Mr. Carothers sent respondent a letter stating that "I have as of today, March 23, 2007 went down to the local IRS office in Oklahoma City, Oklahoma and submitted a 1040 for Year 2003 * * *. This should now conclude our communication on this matter."

On April 3, 2007, respondent's Office of Appeals issued to Mr. Carothers a notice of determination sustaining the proposed levy. An attachment to the notice states that the hearing officer verified that "all appropriate requirements of law and administrative procedures for the proposed collection action have been met". To that effect, the hearing record included a TXMODA/4/ transcript dated December 15, 2006. The transcript showed a "T/C 300"/5/ entry dated October 24, 2005, that confirmed the assessment of tax, and a "MF-STS 21"/6/ entry dated October 24, 2005, that confirmed the issuance of a notice and demand for payment. The attachment to the notice of determination reported that the Appeals Office had determined that the levy was appropriate because "[t]he proposed levy is not more intrusive than necessary, because you did not cooperate with Collections regarding the unpaid tax; and have not submitted any information necessary to consider any collection alternatives to the proposed levy." The attachment also warned Mr. Carothers about the penalty for making frivolous arguments in the Tax Court./7/

Mr. Carothers timely mailed to this Court, on May 1, 2007, a petition appealing the IRS's determination to proceed with a levy. At that time, Mr. Carothers resided in Oklahoma. In his petition, Mr. Carothers requested that the IRS "[s]top collection process" because "IRS documents [furnished] to me inform me that no legal assessment is on record"./8/

On August 7, 2008, the IRS moved for summary judgment and to impose penalties under section 6673, arguing that all of Mr. Carothers's argument had been frivolous and/or groundless, and that there is no genuine issue of any material fact for trial, so adjudication can occur as a matter of law. Respondent also filed a Motion to Permit Levy.

On September 11, 2008, Mr. Carothers filed a virtually identical response to each of the IRS's two motions. In those responses, Mr. Carothers makes various statements to the effect that he has resolved his 2003 tax dispute by a "settlement in full", accomplished (he alleges) by a mailing he made to "Henry Paulsen, Secretary of the US Treasury; and additional recipients Internal Revenue Service Criminal Investigation Division and J. Russell George, Treasury Inspector General for Tax Administration (TIGTA)". Mr. Carothers seems to contend that he has mailed something to the Secretary of the Treasury called a "Demand for Set-off of Claim", and/or a "Private Bond for Set-Off", and/or an "Indemnity Bond". Mr. Carothers apparently maintains that his mailing has been "excepted" (probably meaning "accepted") by the Secretary of the Treasury because there was "no return or refusal by any party mentioned above, making this matter resolved." Mr. Carothers did not submit with his responses any copy of any "Demand" or "Bond", nor any other affidavits or exhibits. The authorities he cites are sections 8-501 through -511 of the Uniform Commercial Code and section 6863 of the Internal Revenue Code.

DISCUSSION

I. Respondent's Motion for Summary Judgment

A. Summary Judgment Standards

Where the pertinent facts are not in dispute, a party may move for summary judgment to expedite the litigation and avoid an unnecessary (and potentially expensive) trial. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted where there is no genuine issue as to any material fact, and a decision may be rendered as a matter of law. Rule 121(a) and (b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994), cert. denied, 513 U.S. 821 (1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988). The party moving for summary judgment (here, the IRS) bears the burden of showing that there is no genuine issue as to any material fact, and factual inferences will be drawn in the manner most favorable to the party opposing summary judgment (here, Mr. Carothers). Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). This case can be resolved on the basis of the undisputed facts.

B. Collection Review Procedure

Section 6330 generally provides that taxpayers are entitled to administrative and judicial review before the Commissioner may collect unpaid taxes by way of a levy on the taxpayer's property. Administrative review is carried out by way of an Appeals Office hearing and, if the taxpayer is dissatisfied with the outcome there, an appeal of that determination to the Tax Court.

The pertinent procedures for the administrative CDP hearing are set forth in section 6330(c). First, the appeals officer must obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met. Sec. 6330(c)(1)./9/ Second, the taxpayer may raise any issue relevant to the unpaid tax or proposed collection action at the hearing, including challenges to the appropriateness of the collection action and offers of collection alternatives. Sec. 6330(c)(2)(A). Additionally, the taxpayer may contest the existence and amount of the underlying tax liability, but only if he did not receive a notice of deficiency or otherwise have an opportunity to dispute the tax liability./10/ Sec. 6330(c)(2)(B).

C. The IRS's Entitlement to Summary Judgment

The IRS has moved for summary judgment, showing that it complied with the requirements of section 6330 and that Mr. Carothers has not raised any non-frivolous reason why the IRS should not be allowed to proceed to collect his 2003 tax liability. The IRS's motion is well founded. Because most of Mr. Carothers's contentions are patently frivolous and have been abandoned, we discuss only two of his contentions here:

1. The Making of the Assessment

In his petition commencing this suit, Mr. Carothers asserted "that no legal assessment is on record."/11/ This could be a colorable argument, if it were factually well founded. Section 6330(c)(1) mandates that "The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." In the case of a levy to collect an income tax liability, the requirements to be verified include the IRS's timely assessment of the liability. Secs. 6201(a)(1), 6501(a).

Putting aside his frivolous contentions about what the IRS must show to establish the existence of an assessment, see supra note 8, what Mr. Carothers has shown is that he received an IRS letter and transcript indicating that, as of the date of the letter, there was no assessment against him for 2003. However, he is unable to support his contention that no assessment has ever been made.

The IRS documents that had been furnished to Mr. Carothers, which he believed showed "that no legal assessment is on record", were the letter and transcript furnished in May 2005 in response to his FOIA request, giving information that was current as of that time -- i.e., as of May 2005. However, that information is irrelevant. The IRS did not issue its notice of deficiency (pursuant to section 6212) until June 2005; and the assessment was in fact not made until October 24, 2005./12/ A statement by the IRS "that no legal assessment is on record" as of May 2005 is irrelevant for the purpose of showing whether an assessment was later made on October 24, 2005. The transcript generated after that later date does indeed show an assessment, and the zero balances on the earlier transcript do not constitute any irregularity/13/ or anomaly that might call that later transcript into question and might prompt a need for extraordinary verification.

2. Petitioner's Alleged "Bond" or "Demand"

In the virtually identical responses that Mr. Carothers filed on September 11, 2008, to the IRS's two motions, Mr. Carothers argues that he has resolved his 2003 tax dispute by submitting to the Secretary of the Treasury and others a "Demand for Set-off of Claim", and/or a "Private Bond for Set-Off", and/or an "Indemnity Bond". However, Mr. Carothers failed to provide any explanation or substantiation of this claim.

Rule 121(d) provides that where the moving party (here, the IRS) properly makes and supports a motion for summary judgment, "an adverse party [here, Mr. Carothers] may not rest upon the mere allegations or denials of such party's pleading, but such party's response, by affidavits or as otherwise provided in this Rule [i.e., "interrogatories, depositions, further affidavits, or other acceptable materials"], must set forth specific facts showing that there is a genuine issue for trial." Rule 1002 of the Federal Rules of Evidence requires that, "[t]o prove the content of a writing, * * * the original writing * * * is required". However, Mr. Carothers did not submit with his responses to respondent's motions any copy of any "Demand" or "Bond", nor even any affidavit or other exhibit illuminating his contention. Instead, Mr. Carothers's response begins and ends with his terse and cryptic description of his alleged submission. Such unexplained and unsupported allegations are simply not enough to withstand a motion for summary judgment. See Rule 121(d).

Moreover, to make this argument, Mr. Carothers cites two authorities, neither of which has any connection here: First, Mr. Carothers apparently argues that his submission of a "Private Bond for Set Off" constitutes an accord and satisfaction under the "Uniform Commercial Code (U.C.C.) doctrine, U.C.C. 8-501 thru 511" because there was "no return or refusal [of the demand for setoff] by any party mentioned above, making this matter resolved." However, those sections of the U.C.C. (as enacted in Okla. Stat. Ann. tit. 12A, art. 8, pt. 5 (West 2001)) do not contain any of the terms "demand", "set-off", "indemnity", or "bond". Moreover, the U.C.C. has no bearing on this question of Federal tax law. See Bear v. Commissioner, T.C. Memo. 1992-690, 64 TCM (CCH) 1430, 1432 (1992), citing Burnet v. Harmel, 287 U.S. 103, 110 (1932), affd. without published opinion 19 F.3d 26 (9th Cir. 1994). No settlement was effected by this supposed "Private Bond for Set Off".

Second, Mr. Carothers's reliance on section 6863 is likewise misplaced. Section 6863 (entitled "Stay of collection of jeopardy assessments") does include the word "bond", but its relation to Mr. Carothers's argument ends there. Section 6863(a) provides for a "Bond to stay collection" in the case of termination assessments and jeopardy assessments "under section 6851, 6852, 6861 or 6862"./14/ Section 6863 allows a taxpayer to file a bond to stop the IRS from collection activity while the taxpayer is litigating the validity of the underlying assessment and seizure. The assessment in Mr. Carothers's case is not a jeopardy assessment but is instead a garden-variety assessment of an income tax deficiency under section 6213. Section 6863 is thus irrelevant in Mr. Carothers's case.

We conclude that there is no genuine issue of material fact requiring a trial in this case, and we hold that respondent is entitled to the entry of a decision sustaining the determination and proposed levy as a matter of law.

II. Respondent's Motion to Permit Levy

Section 6330(e)(1) sets forth the general rule that, when an administrative hearing is requested to review a proposed levy, "the levy actions * * * shall be suspended" during the administrative hearing and during any judicial appeal. However, section 6330(e)(2), entitled "Levy upon appeal", provides an exception to this general rule, which exception the IRS may invoke if two conditions are met:

Paragraph (1) shall not apply to a levy action while an appeal is
pending if [A] the underlying tax liability is not at issue in
the appeal and the court determines that the Secretary has
shown good cause not to suspend the levy.

As discussed supra note 10, Mr. Carothers is barred under section 6330(c)(2)(B) from challenging the existence or amount of his underlying tax liability for 2003 in this proceeding. Accordingly, the first condition that respondent must meet to proceed with the levy under section 6330(e)(2) ("the underlying tax liability is not at issue") is satisfied.

As to the second condition (whether the IRS "has shown good cause not to suspend the levy"), section 6330 does not include a definition of the term "good cause". We have previously held that "respondent may show good cause that a levy should not be suspended where * * * the taxpayer has used the collection review procedure to espouse frivolous and groundless arguments and otherwise needlessly delay collection." Burke v. Commissioner, 124 T.C. 189, 196-197 (2005).

Mr. Carothers's use of frivolous and groundless arguments throughout the collection review procedures, see supra notes 2, 3, and 8, is manifestly an attempt to delay collection without justification. Accordingly, we shall grant respondent's Motion to Permit Levy.

III. Section 6673 Penalty

Section 6673(a) authorizes the Tax Court to impose a penalty not in excess of $ 25,000, whenever it appears that proceedings have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceeding is frivolous or groundless. The statute grants the Court discretion in deciding whether to impose the penalty. See Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 102 (2000), affd. 299 F.3d 221 (3d Cir. 2002). Respondent proposes that we impose such a penalty on Mr. Carothers.

The "Bond" or "Demand" argument that Mr. Carothers asserted to oppose the IRS's motions is certainly frivolous, and it was articulated with so little elaboration and so little support of any kind that it seems he must have known that it had no prospect of success. The best that can be said for Mr. Carothers is this: His "Bond" or Demand" argument was first asserted in response to the IRS's motion for summary judgment, so that the IRS was not ever put to the trouble of answering it. His case will be resolved without requiring any trial or hearing. He abandoned the other frivolous arguments he had asserted at the agency-level hearing, see supra notes 2 and 3, and in his petition, see supra note 8. And it is possible that he was genuinely confused by the May 2005 transcript and that he believed (albeit wrongly) that the transcript indicated that no liability had been properly assessed against him for 2003.

However, none of these considerations, taken individually or all together, immunizes a taxpayer from a penalty under section 6673(a). All taxpayers are on notice that abusing the procedural protections afforded by sections 6320 and 6330 by pursuing frivolous lien or levy actions for purposes of delaying collection can result in sanctions under section 6673(a). See Pierson v. Commissioner, 115 T.C. 576, 581 (2000). The IRS gave Mr. Carothers express notice of this penalty. See supra notes 2 and 7. While Mr. Carothers did abandon his other frivolous arguments, he seems to move from one set of frivolous positions to another -- a pattern that is abusive. We take into account, in judging his culpability for his contentions here, the fact that his current frivolous argument is the latest in a string of frivolous arguments.

On the foregoing facts, we will impose a penalty of $ 1,000.

To reflect the foregoing,

An appropriate order and decision will be entered.

FOOTNOTES

/1/ Except as otherwise noted, all section references are to the Internal Revenue Code (26 U.S.C.) and all Rule references are to the Tax Court Rules of Practice and Procedure.

/2/ Mr. Carothers had included with his Form 12153 certain documents that contained frivolous contentions (e.g., Form 1040, U.S. Individual Income Tax Return, "is a bootleg and outlaw form"; the IRS failed to establish that it "is an agency of the Federal government united States of America or Federal government united states"; the IRS failed to show that it "has jurisdiction in any of the sovereign states of the Union"; etc.). We will not address 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 1417, 1417 (5th Cir. 1984). In its letter of January 23, 2007, the Appeals Office advised Mr. Carothers that --

The issues you raise in your CDP Request are those that
Courts have determined are frivolous or Appeals does not
consider. [Underlining and italics in original.]

* * * * * * *

Before you decide whether to petition a notice of determination,
you should know that the Tax Court is empowered to impose
monetary sanction up to $ 25,000 for institution or maintaining an
action before it primarily for delay or for taking a position
that is frivolous or groundless * * *.

Mr. Carothers did not repeat these contentions in his response to the IRS's motion for summary judgment, and we deem these contentions to have been abandoned.

/3/ The other arguments in Mr. Carothers's letter of February 5, 2007 (e.g., that sec. 7851 renders him not liable), were not raised in his response to the motion for summary judgment, lack any visible merit, and are deemed to have been abandoned.

/4/ A TXMODA transcript contains current account information obtained from the IRS's master file. "TXMODA" is the command code (CC) that is entered into the IRS's integrated data retrieval system (IDRS) to obtain the transcript. IDRS is essentially the interface between the IRS's employees and respondent's various computer systems. See Crow v. Commissioner, T.C. Memo. 2002-149, 83 T.C.M. (CCH) 1853, 1857 n.6 (2002).

/5/ "T/C 300" is the code indicating that there was an additional tax assessment made by the Examination Division. See Transaction Pocket Guide, IRS Document 10978 (Rev. 12-99); Internal Revenue Manual (IRM) pt. 5.1.19.3 (Feb. 15, 2005).

/6/ "MF-STS 21" indicates that the IRS issued a Master File Settlement Notice (also known as the First Notice), mandated by law. See IRM Exh. 5.19.1-1; see also Schupp v. United States, 71 AFTR 2d 917, at 93-917, 93-1 USTC par. 50,215, at 87,815 (E.D. Tex. 1993) ("MF STAT-21 is an IMF computer status code indicating that a notice and demand was prepared and sent"), affd. without published opinion 58 F.3d 636 (5th Cir. 1995).

/7/ The attachment to the notice of determination stated (with boldface in the original):

Before you decide whether to petition this notice of
determination, you should know that the Tax Court is empowered to
impose monetary sanction up to $ 25,000 for institution or
maintaining an action before it primarily for delay or for taking
a position that is frivolous or groundless. Pierson v.
Commissioner, 115 T.C. No. 39 (2000). It is our view that the
positions you have taken have no merit and are groundless.

/8/ The petition argued, in particular, that there is no legal assessment in the absence of the IRS's producing the Form 23-C, Assessment Certificate -- Summary of Record Assessments, reflecting the making of the assessment. This position is frivolous, see, e.g., Cain v. Commissioner, T.C. Memo. 2006-148, 92 T.C.M. (CCH) 27, 28 (2007); Rev. Rul. 2007-21, 2007-14 I.R.B. 865; and on the contrary, an appeals officer does not abuse his discretion when, to obtain the verification required by section 6330(c)(1), he relies on an IRS transcript, rather than producing or relying upon a Form 23C. Nestor v. Commissioner, 118 T.C. 162, 166-167 (2002); see also Cox v. Commissioner, 126 T.C. 237, 255 (2006) (holding the verification requirement to be met "where the Appeals officer had secured formal or informal transcripts showing both that the subject taxes were properly assessed and that the taxpayer had been notified of those assessments through issuance of notices of balance due"), revd. on other grounds 514 F.3d 1119 (10th Cir. 2008); March v. IRS, 335 F.3d 1186, 1188 (10th Cir. 2003) (holding that the computer-generated certificate of assessment satisfied the regulatory requirements), cert. denied, 541 U.S. 1031 (2004). We deem that Mr. Carothers has abandoned this frivolous argument, because it is not asserted in his response to the IRS's motion for summary judgment.

/9/ In the case of a levy to collect an income tax liability, the basic requirements (see sec. 6331(a), (d)) for which the appeals officer obtains verification are: the issuance of a notice of deficiency (see sec. 6212(a)); the IRS's timely assessment of the liability (secs. 6201(a)(1), 6501(a)); the giving to the taxpayer of notice and demand for payment of the liability (sec. 6303); and the giving to the taxpayer of notice of intention to levy and of the taxpayer's right to a hearing (secs. 6330(a), 6331(d)).

/10/ Mr. Carothers admits he received a notice of deficiency regarding his 2003 income tax liability, but he did not petition the Court with respect to that notice. He therefore had the opportunity to challenge the validity of the underlying tax liability, but declined to do so, and accordingly is barred under section 6330(c)(2)(B) from challenging in this proceeding the existence or amount of his underlying tax liability for tax year 2003. See Goza v. Commissioner, 114 T.C. 176 (2000).

/11/ In his response to the motion for summary judgment, Mr. Carothers did not repeat his dispute as to the making of the assessment. However, the verification of compliance with the statutory requirements as to the assessment is an issue in every suit under section 6330, by virtue of the express provisions of section 6330(c)(1) and (c)(3)(A). Clough v. Commissioner, T.C. Memo. 2007-106, 93 T.C.M. (CCH) 1170, 1174 (2007).

/12/ This passage of time between the issuance of the statutory notice and the making of the assessment is accounted for by the fact that the agency was barred (by section 6213) from making any assessment until September 2005 at the earliest.

/13/ Cf. Roberts v. Commissioner, 118 T.C. 365, 371 n.10 (2002) (quoting Davis v. Commissioner, 115 T.C. 35, 40-41 (2000) ("Petitioner has not demonstrated any irregularity in the assessment procedure that would raise a question about the validity of the assessments" (emphasis added)), affd. 329 F.3d 1224 (11th Cir. 2003); Nestor v. Commissioner, 118 T.C. at 167; Chief Counsel Notice CC-2006-19 (an appeals officer "may rely on a Form 4340 to verify the validity of an assessment, unless the taxpayer can identify an irregularity in the assessment procedure" (emphasis added); where it is alleged that a notice of deficiency was not mailed, the appeals officer may be required "to examine underlying documents in addition to the tax transcripts, such as the taxpayer's return, a copy of the notice of deficiency, and the certified mailing list").

/14/ These sections cross-referenced in section 6863 relate to "Termination assessments of income tax" (sec. 6851), "Termination assessments in case of flagrant political expenditures of section 501(c)(3) organizations" (sec. 6852), "Jeopardy assessments of income, estate, gift, and certain excise taxes" (sec. 6861), and "Jeopardy assessment of taxes other than income, estate, gift, and certain excise taxes" (sec. 6862).

[LaVidaRoja]

Only $1,000 in penalties? Major victory!!

[The Observer]

Only $1,000 in penalties? Major victory!!

Yeah, but how much did he pay for that "set-off" in the first place? And has it occurred to him that he could have still gotten the $1k in penalties without buying it in the first place?

[LPC]

I suspect that if the tp had filed a correct return when he got the chance, he might have owed little or no tax.

He can still file an amended return, and it's possible that the IRS will provide administrative relief, but he doesn't have any judicial remedies until he's paid the full amount assessed by the IRS, plus interest and penalties.

[Quixote]

During the CDP hearing process, Mr. Carothers submitted a letter dated February 5, 2007, in which he requested that his CDP hearing be "held by correspondence" and argued, among other things,/3/ that "[t]he IRS's own documentation admitted there was no legal assessment reference signed, dated, on IRS letterhead Disclosure Officer Letters".

TPs seem to suffer from an inability to understand the concept of "time". Carothers apparently believed that the status of his account on May 6, 2005 was not subject to change.

[Kestrel]

He's baaaccckkk!

Larry David Carothers got his tax case put on hold when he filed Chapter 13 bankruptcy on November 13, 2008. After a four-year trip through bankruptcy court, Carothers managed to get his Chapter 13 bankruptcy case dismissed in August 5, 2012, instead of discharged. That was four years down the drain with nothing to show for it except a higher bill for unpaid interest on his unpaid taxes.

It took the tax court another 8 months to pick the case back up, but, like an avalanche, once the court started moving Carothers quickly found himself SOL. The court's Memorandum Opinion was published this past Monday. The tax court case is 10553-07.

Monday's opinion must have been an easy one to write. The court merely tweaked their withdrawn 2008 order, making official notice of the sov'run spelling and grammar, and copied it word-for-word into this opinion.

Mr. Carothers had included with his Form 12153 certain documents that
contained frivolous contentions (e.g., Form 1040, U.S. Individual Income Tax
Return, “IS A BOOTLEG AND OUTLAW FORM”; the IRS failed to establish
that it “is an agency of the Federal government united States of America or Federal
government united States” (sic); the IRS failed to show that it “has jurisdiction in
any of the sovereign states of the Union”; etc.).

One thing changed: the $1,000 penalty was lifted... for now....

And it is possible that he was genuinely confused by the
May 2005 transcript and that he believed (albeit wrongly) that the transcript
indicated that no liability had been properly assessed against him for 2003.
Moreover, Mr. Carothers now admits his frivolous positions were “ill-advised”,
and he undertakes to file tax returns in compliance with the law.
We will therefore impose no penalty, but we warn Mr. Carothers that, if he
were to engage in frivolous or dilatory litigation in the future, he should not expect
leniency from this Court.

[grixit]

Victory!