TIM LEONARD, District Judge
In March 2000, plaintiff submitted Form 1040 income tax returns for tax years 1992 through 1998 to the Internal Revenue Service ("IRS"). On each return plaintiff reported that he had received zero income; the returns thus reflected an income tax liability of zero dollars. Declaration of IRS Appeals Officer Scott Penny at ¶ 8 ("Penny Declaration"). See also Exhibit 5 to Reply to "The United States' Motion to Dismiss Plaintiff's Pleading Entitles (sic) `Appeal of Determination of Collection Due Process Hearing Pursuant to 26 USC 6330'". Thereafter, the IRS assessed civil penalties under 26 U.S.C. § 6702 for each return. Penny Declaration at ¶ 8. On March 22, 2004, the IRS issued to plaintiff a Final Notice and Notice of Intent to Levy for the tax years at issue. Id. at ¶ 4.
On March 18, 2005, plaintiff filed an appeal of determinations by the IRS to levy property for taxes owed. Plaintiff asked the court to vacate those determinations and to order the IRS to hold a collection due process hearing. The government moved to dismiss that portion of plaintiff's appeal that related to plaintiff's income tax liabilities because that matter was pending before the United States Tax Court. With respect to the civil penalties assessed against plaintiff, the government asked the court to remand the matter to the IRS Appeals Office for a collection due process hearing. As plaintiff conceded the merits of defendant's motion, the court granted the motion and remanded the civil penalties issue to the IRS to conduct a face-to-face collection due process hearing. That hearing occurred on July 20, 2005. Penny Declaration at ¶ 9.
IRS revenue officer Scott Penny was assigned to conduct plaintiff's hearing. Id. at ¶ 4. Prior to the hearing, he used the IRS Information Data Retrieval System to verify that the legal and procedural requirements for issuing the Final Notice and Notice of Intent to Levy had been followed. Id. at ¶ 6. At the hearing, Penny provided plaintiff with transcripts of his outstanding income tax and civil penalty liabilities. Id. at ¶ 11. On July 25, 2005, the IRS Appeals Office issued its Supplemental Notice of Determination sustaining the decision to levy. The attachment to the Supplemental Notice reflected:
You did challenge the existence of the liability. However, your arguments that the Internal Revenue Code did not authorize the IRS to make such penalty assessments were considered frivolous and were not addressed during the Hearing. It has been determined that all proper administrative steps have been taken by the Service as demonstrated in fact by the transcripts that were provided to you during your face-to-face Hearing. . . .
Your challenge to the appropriateness of the proposed collection action consisted on (sic) your belief that there is
no statute in the Subtitles A or C of the Internal Revenue Code that make you liable for any taxes and that you have no income from taxable sources as defined in the Internal Revenue Code. This is considered a frivolous argument and was not addressed during the Hearing. The civil penalty assessments arose under IRC 6702 for the filing of a frivolous Form 1040, Income Tax Returns, in which you made these same frivolous arguments. However, it has been determined that all legal and administrative procedures were met in the assessment of the civil penalties assessed against you for the filing of frivolous returns is in accordance with the law.
Exhibit 2 to Memorandum in Support of the United States' Motion to Dismiss Plaintiff's Pleading Entitled "Appeal of Determination of Collection Due Process Hearing Pursuant to 26 USC 6330" at 4-5.
On August 25, 2005, plaintiff filed an appeal of the IRS determination. In his appeal, plaintiff argues the collection due process hearing was "lawless" because the hearing officer did not provide certain documents plaintiff requested. With respect to the civil penalties, plaintiff requested "the document that supports and authorizes the `frivolous' penalties as provided in 26 USC 6751"; "that those who imposed the `frivolous' penalties provide their delegation of authority from the Secretary"; "the Regulation that authorized any IRS employee to impose `frivolous' penalties, and the Regulation that requires Plaintiff to pay them"; "the Section from the Internal Revenue Code (26 USC) which establishes an `income tax liability' for his income taxes at issue"; "the authorization from the Secretary to commence a civil action for penalties per 26 USC 7401"; and "the `verification from the Secretary that the requirements of any applicable law or administrative procedure have been met". Appeal at ¶ 2(h). As relief, he asks the court to vacate the July 25, 2005 determination and order the IRS conduct a third collection due process hearing at which all documents sought by plaintiff will be provided.
This matter is before the court on the government's motion to dismiss. As both parties have submitted matters outside the pleadings, the court will treat the government's motion as one for summary judgment. See Fed.R.Civ.P. 12(b). Summary judgment is appropriate if the pleadings, affidavits, and depositions "show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Any doubt as to the existence of a genuine issue of material fact must be resolved against the party seeking summary judgment. In addition, the inferences drawn from the facts presented must be construed in the light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 863 (1982). Nonetheless, a party opposing a motion for summary judgment may not simply allege that there are disputed issues of fact; rather, the party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). See also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Anderson, 477 U.S. at 249-50 (citations omitted). In addition, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Based on this standard, the court concludes the government is entitled to summary judgment in its favor. Nothing in sections 6330 or 6751 requires the collection due process hearing officer to provide documents to the taxpayer; rather, section 6330 simply requires the hearing officer to verify that all procedural requirements have been satisfied. Nor does the hearing officer need to provide copies of statutes or regulations demonstrating the Secretary's authority to collect taxes and the delegation of that authority. Plaintiff's arguments are frivolous and the relief he seeks is unwarranted.
The United States' Motion to Dismiss (Doc. No. 11) is GRANTED. Judgment will issue accordingly.
It is so ordered.