Motion to Vacate

                            UNITED STATES TAX COURT
                            WASHINGTON, DC 20217  

JANET ANN PATRIOT			} Docket No. 20026-XXX
		Petitioner,		}	     23974-XXX	        
V.					}	
COMMISSIONER OF INTERNAL REVENUE	}  MOTION TO VACATE
		Respondent.		}

Petitioner above named hereby files a Motion to Vacate the Order of The Honorable Joseph R. Goeke dated August 1, 2008, based on the following grounds:

1. This case deals with a $500.00 penalty under §6702 for the year 2004. This penalty was imposed without due process of law, meaning no hearing or day in court or right to appeal, etc. This penalty was imposed for an alleged frivolous tax return.

2. For §6702, no Statutory Notice of Deficiency (SNOD) is issued. Therefore under §6330, Petitioner may challenge the underlying liability of this penalty at her CDPH hearing.

3. The purported CDPH conference did not have any mention of her challenge to the penalty nor was it allowed. The Commissioner did not provide taxpayer with any forms or instructions on the challenge to the frivolous return penalty. No adjudication was held on the §6702 penalty.

4. Congress passed §6330 to allow some type of scrutiny on the imposition of the frivolous penalty with the later opportunity for judicial review. The Commissioner knew very well that this was a penalty case without a SNOD. Therefore the Commissioner had a duty to provide the taxpayer with the IRS instructions on how she could challenge the penalty before the appeals division.

5. The Commissioner failed in his duty to present evidence on the frivolous penalty to the appeals officer. Therefore this case should be reopened and this case remanded to the appeals department for a proper adjudication of the penalty.

6. Taxpayer is entitled to administrative due process, which may not be very much but it does exist. Taxpayer was entitled to notice that the penalty would be adjudicated. The Commissioner failed in his duty

7. In conclusion, this case should be remanded for a proper adjudication of the frivolous penalty before the appeals division.

Certificate of service: I do hereby certify that on this date I properly sent to opposing counsel a copy of this pleading.

_________________________________			Date:  September 3, 2008
Janet A. Patriot
Wise, VA 24293