An appropriate order and decision will be entered.
LAUBER, Judge: In this collection due process (CDP) case, petitioners seek review pursuant to
The following facts are based on the parties' pleadings and respondent's motions, including the attached affidavits and exhibits. See
Petitioners filed their Federal income tax returns for 2008 and 2009 late and failed to pay the full amounts of tax shown as due*163 on those returns. The IRS assessed the tax shown as due and commenced an examination of both returns. For 2008 the IRS made adjustments to petitioners' tax on account of mathematical or clerical errors on the return. See
For 2009 the IRS sent petitioners a notice of deficiency determining a deficiency of $36,958, a
The IRS assessed the additional tax for 2008 flowing from*164 the mathematical or clerical adjustments and, after petitioners failed to petition from the 2009 notice, the IRS assessed the deficiency, penalty, and addition to tax determined for 2009. In an effort to collect these assessed amounts, the IRS sent petitioners, in October 2012, a Final Notice of Intent to Levy and Notice of Your Right to a Hearing for tax year 2009 and a Notice of Federal Tax Lien Filing and Your Right to a Hearing for tax years 2008 and 2009. Petitioners timely submitted Form 12153, Request for a Collection Due Process or Equivalent Hearing, which challenged both notices. In their request, petitioners did not seek a collection alternative. Rather, they argued that they owed no tax for 2008 and that their additional liability for 2009 was less than $3,000. *169 On January 31, 2013, a settlement officer (SO) from the IRS Appeals Office sent petitioners a letter scheduling a telephone CDP hearing for March 12, 2013. The SO informed petitioners that they could not challenge their underlying tax liability for 2009 because they had had an earlier opportunity to do so but had failed to take advantage of it by filing a Tax Court petition. The SO informed petitioners that they*165 were entitled to challenge their additional liability for 2008 but that they needed to provide her, before the hearing, with valid SSNs for the claimed dependent and for petitioner-wife. The SO informed petitioners that, if they wished her to consider a collection alternative, they would need to provide her with a copy of a completed Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, with supporting financial information.
Neither petitioners nor their counsel provided the requested documentation before the scheduled CDP hearing. Petitioners' counsel did call in for the hearing, but only to ask that it be rescheduled. He indicated that he had not read in its entirety the letter scheduling the hearing and was thus unaware of the requirement that the requested information be supplied at or before the hearing. The SO declined to reschedule the hearing, noting that petitioners had already been allowed 14 more days than is generally permitted to supply the requested information. On *170 March 26, 2013, the IRS issued petitioners a notice of determination sustaining the proposed collection actions, and they timely sought review in this Court.
Petitioners*166 initially requested that this case be conducted under the Court's small tax case (S) procedures. On July 11, 2013, respondent filed a motion to remove the S designation because the total unpaid tax, penalty, and addition to tax for 2008 and 2009 exceed $50,000. See
On February 27, 2014, respondent filed a motion for summary judgment. The Court ordered petitioners to file a response by April 9, 2014. Petitioners have responded neither to respondent's motion nor to the Court's order.
DiscussionA. Summary JudgmentThe purpose of summary judgment is to expedite litigation and avoid costly, time-consuming, and unnecessary trials.
Because petitioners failed to respond to respondent's motion for summary judgment, the Court could enter a decision against them for that reason alone. See
Neither
For 2008 the IRS made a summary assessment under
Although the SO gave petitioners an opportunity to challenge their underlying tax liability for 2008 at the CDP hearing, petitioners failed to mount a proper challenge because they submitted no evidence. The only information the SO requested consisted of valid SSNs for petitioner-wife and for the individual claimed as a dependent on petitioners' 2008 return. This information, if it exists, is not time consuming to supply. The SO gave petitioners more than a month to furnish these SSNs, and they have not explained why they were unable to provide the SSNs within that period. Indeed, when respondent filed his motion for summary judgment—more than 11 months after the CDP hearing—the IRS had yet to receive valid SSNs from petitioners. Given these facts, we conclude that petitioners did not properly raise their underlying tax*170 liability for 2008 at the CDP hearing and, *174 hence, that they are barred from disputing that liability in this Court. We will therefore review the SO's determination for 2008, as well as for 2009, for abuse of discretion only. See
The remaining question is whether the SO abused her discretion in sustaining the proposed collection actions. We review the record to determine whether: (1) the SO 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 collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary."
As to the first point, this Court has authority to review an SO's satisfaction of the verification requirement regardless of whether the taxpayer raised that issue at the CDP hearing. See
In any event, even if petitioners had properly preserved this issue, they have set forth no specific facts showing that there is a genuine issue for trial concerning the propriety of the 2008 summary assessment. Where an assessment arises from a mathematical or clerical error on the return, a notice of deficiency is not required. See
In the instant case, the "mathematical or clerical error" consisted of petitioners' failure to provide a correct SSN for petitioner-wife*172 and a valid SSN for the dependent they claimed on their 2008 return. See
Our review of the record establishes that the SO verified that all other requirements of applicable law and administrative procedure had been satisfied, both as to 2008 and as to 2009. We also find that, in sustaining the proposed collection actions, the SO properly balanced "the need for the efficient collection of taxes with the legitimate concern of * * * [petitioners] that any collection action be no more intrusive than necessary."
Finally, none of the other issues raised by petitioners has merit. As explained above, petitioners may not challenge in this Court their underlying tax liabilities for 2008 and 2009. Petitioners assert in their petition that they paid their outstanding balance for 2008 and made a partial payment against their 2009 tax *177 liability, leaving less than $3,000 owed. However, the IRS transcript of their 2008 account shows a balance due, as of December 6, 2013, of $2,821 (including additional interest and penalty), and the IRS transcript of their 2009 account shows a balance due, as of December 6, 2013, of $53,487 (including additional interest and penalty). If petitioners wanted to contend that these account balances are incorrect, they were obligated to come forward with some facts showing that they paid the liabilities in question. When confronted with a motion for summary judgment, the nonmoving party "may not rest upon the mere allegations or denials" but instead "must set forth specific facts showing there is a genuine dispute."
*178 Finding no abuse of discretion in any respect, we will grant summary judgment for respondent and affirm the proposed collection action. To reflect the foregoing,
An appropriate order and decision will be entered.
Footnotes
1. All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar.↩
2. In
Perkins v. Commissioner, 129 T.C. 58">129 T.C. 58 (2007), the Court held that a taxpayer in a CDP case was entitled to challenge the underlying tax liability attributable to a summary assessment made by the IRS undersection 6213(b)(1) on account of a math error. Seeid. at 65 n.8 ("Respondent does not contend that petitioner's right to invoke deficiency procedures with respect to the asserted liability pursuant tosec. 6213(b)(2)(A) [concerning requests for abatement of mathematical or clerical errors] constituted 'an opportunity to dispute' the liability within the meaning ofsec. 6330(c)(2)(B)↩ .").