PURSUANT TO INTERNAL REVENUE CODE
SECTION 7463(b),THIS OPINION MAY NOT
BE TREATED AS PRECEDENT FOR ANY
OTHER CASE.
T.C. Summary Opinion 2014-5
UNITED STATES TAX COURT
FRANK GIBSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14758-12S L. Filed January 9, 2014.
Frank Gibson, pro se.
John F. Driscoll and Thomas A. Friday, for respondent.
SUMMARY OPINION
LAUBER, Judge: This case was heard pursuant to the provisions of section
7463 of the Internal Revenue Code.1 Pursuant to section 7463(b), the decision to
1
All statutory references are to the Internal Revenue Code in effect at the
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure.
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be entered is not reviewable by any other court, and this opinion shall not be
treated as precedent for any other case.
In this collection due process (CDP) case, petitioner seeks review pursuant
to section 6330(d)(1) of the determination by the Internal Revenue Service (IRS or
respondent) to uphold a notice of intent to levy. Respondent has moved for
summary judgment under Rule 121, contending that there are no disputed issues of
material fact and that his action in sustaining the levy was proper as a matter of
law. We agree and accordingly will grant the motion.
Background
Petitioner has offered no rebuttal to the facts respondent outlined. The
following uncontroverted facts are therefore based on the petition, respondent’s
motion for summary judgment, and respondent’s other filings in this case. See,
e.g., Ulloa v. Commissioner, T.C. Memo. 2010-68. Petitioner resided in Alabama
when he filed his petition with this Court.
For the years 2007 and 2008 petitioner did not timely file his Federal
income tax returns. On October 18, 2010, the IRS prepared a substitute for return
for each year and on December 28, 2010, mailed petitioner a notice of deficiency
for both tax years. It is unclear from the record whether petitioner received that
notice. On November 21, 2011, having received no payment from petitioner, the
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IRS issued a notice of intent to levy with respect to petitioner’s tax liabilities for
both years. Petitioner timely submitted Form 12153, Request for a Collection Due
Process or Equivalent Hearing.
On March 5, 2012, the IRS mailed petitioner an acknowledgment letter and
scheduled a CDP hearing for April 4, 2012. The acknowledgment letter informed
petitioner that the IRS at this hearing could “consider whether you owe the amount
due.” The letter also informed petitioner that, if he sought a collection alternative,
he needed to supply financial information to the IRS, including a completed Form
433-A, Collection Information Statement for Wage Earners and Self-Employed
Individuals, and signed tax returns for 2006, 2009, and 2010.
Petitioner provided no documentation and proposed no collection alterna-
tive before the scheduled CDP hearing. He failed to participate in that hearing and
did not request that it be rescheduled. The IRS then mailed petitioner a “last
chance” letter requesting that he submit financial information if he wished the IRS
to consider a collection alternative. Petitioner submitted no information and failed
to contact the IRS regarding his case. Accordingly, on May 8, 2012, the IRS is-
sued a notice of determination to petitioner sustaining the proposed levy. Peti-
tioner timely sought review in this Court.
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On July 19, 2013, respondent filed a motion for summary judgment, and the
Court ordered petitioner to file a response to this motion by September 20, 2013.
The order advised petitioner that “under Tax Court Rule 121(d), judgment may be
entered against a party who fails to respond to a motion for summary judgment.”
Petitioner has not responded either to respondent’s motion or to the Court’s order.
Discussion
A. Summary Judgment
The purpose of summary judgment is to expedite litigation and avoid costly,
time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90
T.C. 678, 681 (1988). Under Rule 121 the Court may grant summary judgment
when there is no genuine dispute as to any material fact and a decision may be
rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98
T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In deciding whether to
grant summary judgment, we construe factual materials and inferences drawn from
them in the light most favorable to the nonmoving party. Sundstrand Corp., 98
T.C. at 520. However, the nonmoving party “may not rest upon mere allegations
or denials” but instead “must set forth specific facts showing there is a genuine
dispute.” Rule 121(d); see Sundstrand Corp., 98 T.C. at 520.
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Because petitioner failed to respond to respondent’s motion for summary
judgment, the Court could enter a decision against him for that reason alone. See
Rule 121(d). We will nevertheless consider the motion on its merits. We
conclude that there are no material facts in dispute and that this case is appropriate
for summary adjudication.
B. Standard of Review
Section 6330(d)(1) does not prescribe the standard of review that this Court
should apply in reviewing an IRS administrative determination in a CDP case.
The general parameters for such review are marked out by our precedents. Where
the validity of the underlying tax liability is at issue, the Court will review the
Commissioner’s determination de novo. Goza v. Commissioner, 114 T.C. 176,
181-182 (2000). Where there is no dispute concerning the underlying tax liability,
the Court reviews the IRS decision for abuse of discretion. Id. at 182. 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).
In seeking Tax Court review of a notice of determination, the taxpayer can
challenge his underlying tax liabilities for the years at issue only if he properly
raised such a challenge at his CDP hearing. See sec. 301.6330-1(f)(2), Q&A-F3,
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Proced. & Admin. Regs. An issue is not properly raised if the taxpayer fails to
request consideration of that issue by Appeals or if he requests consideration but
fails to present evidence to Appeals concerning that issue after being given a
reasonable opportunity to do so. Id.; see Thompson v. Commissioner, 140 T.C.
173, 178 (2013) (“A taxpayer is precluded from disputing the underlying liability
if it was not properly raised in the CDP hearing.”).
Although petitioner had an opportunity to raise questions concerning his
underlying tax liabilities at his CDP hearing, he failed to do so because he did not
participate in that hearing or request that it be rescheduled. He likewise failed to
make any subsequent attempt to contact the IRS or provide the information it had
requested. Because petitioner failed to raise his underlying tax liabilities at his
CDP hearing, he is precluded from disputing them now. We will therefore review
the IRS’ determination only for abuse of discretion. See Goza, 114 T.C. at 182.
C. Analysis
The only question before us is whether the IRS properly sustained a levy to
collect petitioner’s liabilities. We review the record to determine whether: (1) the
Appeals officer properly verified that the requirements of any applicable law or
administrative procedure have been met; (2) any issues raised by the taxpayer have
merit; and (3) “any proposed collection action balances the need for the efficient
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collection of taxes with the legitimate concern of the person that any collection
action be no more intrusive than necessary.” Sec. 6330(c)(3).
From our review of the record we conclude that the Appeals officer verified
that the requirements of applicable law and administrative procedure were
followed and that in sustaining the levy the Appeals officer properly balanced “the
need for the efficient collection of taxes with the legitimate concern of * * *
[petitioner] that any collection action be no more intrusive than necessary.” See
id. The only issue left for us to decide is whether petitioner has raised any issue
that has merit. In his petition to this Court, petitioner asserted that he timely filed
his 2007 and 2008 tax returns and had a refund due for 2008 that would be
sufficient to cover his 2007 deficiency. Petitioner failed to raise either of these
issues before the Appeals officer because he neglected to participate in his CDP
hearing. In his petition, petitioner does not dispute that he missed his CDP
hearing and failed to provide any information to the Appeals officer. Because we
cannot consider claims that petitioner failed to advance at the CDP hearing, he has
failed to present any claim that is reviewable by this Court. See Giamelli v.
Commissioner, 129 T.C. 107, 115 (2007); Magana v. Commissioner, 118 T.C.
488, 493 (2002).
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In any event, it is clear that the Appeals officer did not abuse his discretion.
Once a taxpayer has been given a reasonable opportunity for a hearing but fails to
avail himself of it, the Commissioner may proceed to make a determination based
on the case file. See, e.g., Oropeza v. Commissioner, T.C. Memo. 2008-94, aff’d,
402 Fed. Appx. 221 (9th Cir. 2010); Taylor v. Commissioner, T.C. Memo. 2004-
25, aff’d, 130 Fed. Appx. 934 (9th Cir. 2005); sec. 301.6330-1(d)(2), Q&A-D7,
Proced. & Admin. Regs. The IRS scheduled a telephone CDP hearing with
petitioner and, when he failed to call in, gave him a final opportunity to contest the
levy by mailing him a “last chance” letter. Still, petitioner failed to contact the
IRS to schedule an alternative conference date or provide any information or docu-
mentation. On the basis of the record before us, we find that petitioner was given
a reasonable opportunity for a hearing but failed to avail himself of it. Finding no
abuse of discretion in any respect, we will grant summary judgment for respondent
and in a separate order affirm the proposed collection action.
To reflect the foregoing,
An appropriate order and decision
will be entered.