Howard v. Commissioner

T.C. Memo. 2000-319

UNITED STATES TAX COURT

WILLIAM W. HOWARD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13447-99L. Filed October 13, 2000.

William W. Howard, pro se.

Michael D. Zima and Kerry Bryan, for respondent.

MEMORANDUM OPINION

ARMEN, Special Trial Judge: This matter is before the Court

on respondent's Motion for Summary Judgment, filed pursuant to

Rule 121(a).1 As explained in detail below, we shall grant

respondent’s motion.

1
All Rule references to the Tax Court Rules of Practice
and Procedure, and unless otherwise indicated, all section
references are to the Internal Revenue Code, as amended.
 - 2 -

Background

On November 14, 1995, respondent issued a notice of

deficiency to petitioner determining deficiencies in, and

additions to, his Federal income taxes for 1987 and 1988. The

deficiencies were attributable to respondent's determination that

petitioner, an attorney, had embezzled funds from the Estate of

Zelda Willey Putman and had failed to report such amounts as

income.

On November 21, 1995, petitioner commenced a case in this

Court by filing a petition for redetermination, which was

assigned docket No. 24572-95. Petitioner contested respondent’s

determinations in the notice of deficiency on the ground that the

funds that he received from the Putman estate were loans. The

case was tried to the Court in the spring of 1997. Following the

filing of briefs by the parties, the Court issued a memorandum

opinion (Howard v. Commissioner, T.C. Memo. 1997-473) on October

16, 1997, essentially sustaining respondent's determinations.2

Thereafter, on January 21, 1998, the Court entered decision

against petitioner. Petitioner did not file any posttrial

motions, see Rules 161 and 162, nor did he file a notice of

appeal. Accordingly, the Court’s decision became final on April

21, 1998. See secs. 7481(a)(1), 7483.

2
Respondent conceded that petitioner’s embezzlement income
for 1988 was slightly less than the amount determined in the
notice of deficiency.
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On March 31, 1999, respondent mailed to petitioner a final

notice of intent to levy. See sec. 6331. The notice stated that

petitioner owed taxes, penalties, and interest totaling

$329,918.45 and $147,568.72 for the taxable years 1987 and 1988,

respectively, and that respondent was preparing to collect these

amounts by levy. The notice further stated that petitioner would

be given 30 days to request a hearing with respondent's Appeals

Office.

Petitioner timely filed a request for a hearing with

respondent's Appeals Office. On August 2, 1999, respondent's

Appeals Office issued to petitioner a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330

(the determination letter). The determination letter stated that

because petitioner had been issued a notice of deficiency for

1987 and 1988 and had contested the notice in the Tax Court,

petitioner was not permitted to contest his liability for the

underlying taxes in the Appeals hearing. The determination

letter further stated that respondent would proceed with the

proposed collection action.

On August 6, 1999, petitioner filed with the Court an

imperfect petition for review of the determination letter,

followed by an amended petition on September 20, 1999.

Petitioner contends that the Appeals Office erred in failing to
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consider "new evidence" purportedly establishing that petitioner

is not liable for the underlying deficiencies for the years in

issue. In particular, petitioner asserts that he instituted two

civil actions in Florida State court in June 1989 and December

1993 in which the State court recently ruled in his favor on

certain breach of contract claims related to his handling of the

Putman estate. Petitioner contends that these holdings establish

that he did not have the criminal intent to embezzle funds from

the Putman estate.

After filing an answer to the amended petition, respondent

filed a Motion for Summary Judgment. Respondent maintains that

because petitioner received (and contested) a notice of

deficiency for the years in issue, the question of petitioner's

liability for the underlying taxes cannot be raised in this

proceeding. Petitioner filed a response in opposition to

respondent's motion.

This matter was called for hearing at the Court's motions

session in Washington, D.C., on September 6, 2000. Counsel for

respondent appeared at the hearing and presented argument in

support of respondent's motion. Although no appearance was made

by or on behalf of petitioner at the hearing, petitioner did file

a Rule 50(c) statement with the Court.

Discussion

Section 6331(a) provides that if any person liable to pay
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any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon property belonging to the taxpayer.

Section 6331(d) provides that the Secretary is obliged to provide

the taxpayer with notice before proceeding with collection by

levy on the taxpayer's property, including notice of the

administrative appeals available to the taxpayer.

In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress

enacted new sections 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide protections for taxpayers in

tax collection matters. Section 6330 generally provides that the

Commissioner cannot proceed with the collection of taxes by way

of a levy on a taxpayer's property until the taxpayer has been

given notice of, and the opportunity for, an administrative

review of the matter (in the form of an Appeals Office hearing);

if dissatisfied with the outcome of such hearing, the taxpayer

may seek judicial review of the administrative determination in

either the Tax Court or a Federal District Court, during which

review the suspension of the levy continues.

Section 6330(c)(2)(B) provides that the existence or the

amount of the underlying tax liability can be contested at an

Appeals Office hearing if the taxpayer did not receive a notice

of deficiency for the taxes in question or did not otherwise have
 - 6 -

an earlier opportunity to dispute such tax liability. Section

6330(d)(1)(A) provides that a taxpayer may file a petition for

review of the Commissioner's administrative determination with

the Tax Court if the Court has jurisdiction of the underlying tax

liability.

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials. See Florida Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may

be granted with respect to all or any part of the legal issues in

controversy "if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law." Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).

In Goza v. Commissioner, 114 T.C. 176 (2000), we explained

that section 6330(c) provides for an Appeals Office hearing to

address collection issues such as spousal defenses, the

appropriateness of the Commissioner's intended collection

activities, and possible alternative means of collection. The

taxpayer in Goza received a notice of deficiency, yet failed to

file a petition for redetermination with the Court. When the
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taxpayer subsequently attempted to use the Court's procedures

governing Lien and Levy Actions3 as a forum to assert frivolous

and groundless constitutional arguments against the Federal

income tax, we cited the statutory limitation imposed under

section 6330(c)(2)(B) and dismissed the petition for failure to

state a claim upon which relief can be granted.4

As was the case in Goza v. Commissioner, supra, petitioner

received a notice of deficiency for the years in issue. Further,

petitioner took advantage of the opportunity to contest

respondent’s deficiency determinations in the Tax Court. In

Howard v. Commissioner, T.C. Memo. 1997-473, the Court sustained

respondent's deficiency determinations. Petitioner now seeks to

use this Lien and Levy Action to present "new evidence" to

establish that he is not liable for the underlying tax

liabilities.5 However, section 6330(c)(2)(B) clearly bars

3
See Title XXXII of the Tax Court Rules of Practice and
Procedure.
4
In Goza v. Commissioner, 114 T.C. 176 (2000), the
Commissioner moved to dismiss for failure to state a claim before
filing an answer. In the present case, respondent did not move
for summary judgment until well after the case was at issue
within the meaning of Rule 38.
5
As previously stated, petitioner’s “new evidence” relates
to two civil actions that he instituted in Florida State court in
June 1989 and December 1993. However, both of these civil
actions were pending at the time that petitioner tried his case
in this Court at docket No. 24572-95; further, petitioner failed
to file any posttrial motion or notice of appeal in that docket.
Under these circumstances, we fail to see how the outcome of the
(continued...)
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petitioner from contesting the existence or amount of his tax

liabilities in proceedings before the Appeals Office or the

Court.6 Petitioner has not, in either the Appeals Office hearing

or in his Lien and Levy Action petition filed with the Court,

raised a spousal defense or challenged respondent's proposed levy

by offering a less intrusive means for collecting the taxes. See

sec. 6330(c)(2)(A). These issues are now deemed conceded. See

Rule 331(b)(4). In short, petitioner has failed to raise any

justiciable claim for relief.7

Based upon the record presented, we agree that respondent is

entitled to summary judgment in this case. Simply put, there is

no genuine issue as to any material fact, and a decision may be

rendered as a matter of law in respondent's favor.

5
(...continued)
two civil actions in Florida State court constitutes “new
evidence” under any conceivable view of that phrase. In any
event, sec. 6330(c)(2)(B) precludes reconsideration in the
present proceeding of petitioner’s tax liabilities for 1987 and
1988.
6
Petitioner’s liability for deficiencies in income taxes
and additions to tax under secs. 6651(a)(1) and 6654 for the
taxable years 1987 and 1988 is established by the Court’s
decision entered on January 21, 1998, in docket No. 24572-95,
which decision became final on April 21, 1998. The doctrine of
res judicata precludes petitioner from relitigating that
liability. See, e.g., Krueger v. Commissioner, 48 T.C. 824, 829-
830 (1967).
7
As for petitioner’s professed concern about the welfare
of the heirs of the Putman estate, we refer petitioner to Howard
v. Commissioner, T.C. Memo. 1997-473 n.4.
 - 9 -

To reflect the foregoing,

An order granting respondent’s

motion for summary judgment and decision

will be entered.