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prevail, a taxpayer must prove that the Commissioner exercised
this discretion arbitrarily, capriciously, or without sound basis
in fact or law. Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
Petitioner never challenged the appropriateness of the
collection action, and he did not offer any collection
alternative. His objections to the motion for summary judgment
were frivolous. Additionally, petitioner did not properly assert
the Fifth Amendment privilege. But in any event, in a civil tax
case, the taxpayer must accept the consequences of asserting the
Fifth Amendment and cannot avoid the burden of proof by claiming
the privilege and attempting to convert “the shield * * * which
it was intended to be into a sword”. United States v. Rylander,
460 U.S. 752, 758 (1983); see Steinbrecher v. Commissioner, 712
F.2d 195, 198 (5th Cir. 1983), affg. T.C. Memo. 1983-12;
Traficant v. Commissioner, 89 T.C. 501 (1987), affd. 884 F.2d 258
(6th Cir. 1989); see also Wheelis v. Commissioner, T.C. Memo.
2002-102, affd. 63 Fed. Appx. 375 (9th Cir. 2003).
Petitioner did not raise any factual dispute showing that
respondent’s determination was arbitrary, capricious, or without
sound basis in law. We conclude that there was no abuse of
discretion when respondent sustained the proposed levy to collect
petitioner’s unpaid income tax liability for 2001.
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