T.C. Memo. 2002-114
UNITED STATES TAX COURT
KELLY V. KAECKELL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6607-01L. Filed May 7, 2002.
Kelly V. Kaeckell, pro se.
Karen L. Baker and Charles M. Berlau, 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 121.1 Respondent contends that there is no dispute as to
any material fact with respect to this levy action, and that
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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respondent’s determination to proceed with collection of
petitioner’s outstanding tax liabilities for the taxable years
1990 through 1996 should be sustained as a matter of law.
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. Fla. 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(a) and (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). The moving
party bears the burden of proving that there is no genuine issue
of material fact, and factual inferences will be read in a manner
most favorable to the party opposing summary judgment. Dahlstrom
v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.
Commissioner, 79 T.C. 340, 344 (1982).
As explained in detail below, there is no genuine issue as
to any material fact and a decision may be rendered as a matter
of law. Accordingly, we shall grant respondent’s Motion for
Summary Judgment.
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Background
Petitioner failed to file Federal income tax returns for the
taxable years 1990 through 1996. The record shows that
respondent prepared substitutes for return for petitioner’s
taxable years 1990 through 1996.
On September 21, 1999, respondent issued a notice of
deficiency to petitioner determining deficiencies in and
additions to his Federal income taxes for 1990 through 1996, as
follows:
Additions to tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654(a)
1990 $8,855 $2,213.75 $579.77
1991 1,166 291.50 66.63
1992 559 139.75 24.36
1993 1,800 450.00 75.43
1994 9,154 2,288.50 475.00
1995 11,814 2,953.50 640.60
1996 544 136.00 28.96
The deficiencies were based principally on respondent’s
determination that petitioner failed to report various amounts of
nonemployee compensation as reported to respondent by third-party
payors on Forms 1099.
Petitioner has admitted that he received the September 21,
1999, notice of deficiency. However, petitioner did not file a
petition for redetermination with the Court challenging the
notice of deficiency.
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On July 15, 2000, respondent mailed to petitioner a Final
Notice-–Notice of Intent to Levy and Notice of Your Right to a
Hearing pertaining to petitioner’s outstanding tax liabilities
for the years 1990 through 1996. On August 12, 2000, petitioner
filed with respondent a Form 12153, Request for a Collection Due
Process Hearing, that included allegations challenging the
proposed levy action on the ground that petitioner was not
informed of the statutory provisions imposing a tax liability on
him.
On December 8, 2000, Appeals Officer Shauna Wright wrote a
letter to petitioner informing him of the nature of the Appeals
Office review process and providing him with transcripts of
account for the years 1990 through 1996. The transcripts of
account identified petitioner by name and Social Security number,
identified the type of tax and additions to tax assessed,
specified the taxable years in question, and listed the amounts
and dates that the assessments were entered.
On April 4, 2001, Appeals Officer Wright conducted an
Appeals Office hearing in this matter that petitioner attended.
Prior to the hearing, Appeals Officer Wright reviewed TXMODA
transcripts of account dated October 26, 2000, regarding
petitioner’s accounts for the taxable years 1990 through 1996.2
2
A TXMODA transcript contains current account information
obtained from respondent’s master file. “TXMODA” is the command
(continued...)
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The transcripts indicated that respondent made assessments
against petitioner on February 14, 2000, for the taxes and
additions to tax set forth in the notice of deficiency dated
September 21, 1999, and for statutory interest. In addition, the
transcripts of account indicated that on February 14, 2000,
respondent issued to petitioner notices and demand for payment of
the assessed amounts.
On May 9, 2001, respondent issued to petitioner a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330. The notice states that the Appeals Office
determined that it was appropriate to proceed with the collection
of petitioner’s outstanding tax liabilities by levy. On May 17,
2001, petitioner filed with the Court an imperfect petition for
lien or levy action seeking review of respondent’s notice of
determination.3 On June 19, 2001, petitioner filed an amended
petition alleging that the Appeals officer failed to obtain
verification from the Secretary that the requirements of any
applicable law or administrative procedure were met as required
under section 6330(c)(1).
2
(...continued)
code that is entered into respondent’s integrated data retrieval
system (IDRS) to obtain the transcript. IDRS is essentially the
interface between respondent’s employees and respondent’s various
computer systems.
3
At the time that the petition was filed, petitioner
resided in Mission, Kansas.
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After filing an answer to the amended petition, respondent
filed a Motion for Summary Judgment asserting that there is no
dispute as to a material fact and that respondent is entitled to
judgment as a matter of law. In particular, respondent contends
that the Appeals officer’s review of the TXMODA transcripts of
account dated October 26, 2000, satisfied the verification
requirement imposed under section 6330(c)(1).
Petitioner filed an Objection to respondent’s motion.
Thereafter, pursuant to notice, respondent’s motion was called
for hearing at the Court's motions session in Washington, D.C.
Discussion
Section 6331(a) provides that if any person liable to pay
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 on the person’s property. Section
6331(d) provides that at least 30 days before enforcing
collection by levy on the person's property, the Secretary is
obliged to provide the person with a final notice of intent to
levy, including notice of the administrative appeals available to
the person.
Section 6330 generally provides that the Commissioner cannot
proceed with collection by levy until the person has been given
notice and the opportunity for an administrative review of the
matter (in the form of an Appeals Office hearing) and, if
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dissatisfied, with judicial review of the administrative
determination. See Davis v. Commissioner, 115 T.C. 35, 37
(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).
Section 6330(c) prescribes the matters that a person may
raise at an Appeals Office hearing. In sum, section 6330(c)
provides that a person may raise collection issues such as
spousal defenses, the appropriateness of the Commissioner's
intended collection action, and possible alternative means of
collection. Section 6330(c)(2)(B) provides that the existence
and amount of the underlying tax liability can be contested at an
Appeals Office hearing only if the person did not receive a
notice of deficiency for the taxes in question or did not
otherwise have an earlier opportunity to dispute the tax
liability.4 See Sego v. Commissioner, 114 T.C. 604, 609 (2000);
Goza v. Commissioner, supra. Section 6330(d) provides for
judicial review of the administrative determination in the Tax
Court or a Federal District Court, as may be appropriate.
Petitioner argues that the Appeals officer failed to obtain
verification from the Secretary that the requirements of all
applicable laws and administrative procedures were met as
required by section 6330(c)(1). We reject petitioner’s argument
4
As previously stated, petitioner has admitted that he
received the notice of deficiency dated Sept. 21, 1999.
However, petitioner did not file a petition for redetermination
with the Court challenging the notice of deficiency.
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because the record establishes that the Appeals officer obtained
and reviewed transcripts of account for petitioner’s taxable
years 1990 through 1996.
Federal tax assessments are formally recorded on a record of
assessment. Sec. 6203. “The summary record, through supporting
records, shall provide identification of the taxpayer, the
character of the liability assessed, the taxable period, if
applicable, and the amount of the assessment.” Sec. 301.6203-1,
Proced. & Admin. Regs.
Section 6330(c)(1) does not require the Commissioner to rely
on a particular document to satisfy the verification requirement
imposed therein. Weishan v. Commissioner, T.C. Memo. 2002-88;
Lindsey v. Commissioner, T.C. Memo. 2002-87; Tolotti v.
Commissioner, T.C. Memo. 2002-86; Duffield v. Commissioner, T.C.
Memo. 2002-53; Kuglin v. Commissioner, T.C. Memo. 2002-51. In
this regard, we observe that the transcripts of account on which
the Appeals officer relied, as well as the transcripts of account
that she furnished to petitioner before the hearing, contained
all the information prescribed in section 301.6203-1, Proced. &
Admin. Regs. See Weishan v. Commissioner, supra; Lindsey v.
Commissioner, supra; Tolotti v. Commissioner, supra; Duffield v.
Commissioner, supra; Kuglin v. Commissioner, supra.
Petitioner has not alleged any irregularity in the
assessment procedure that would raise a question about the
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validity of the assessments or the information contained in the
transcripts of account. See Davis v. Commissioner, 115 T.C. 35,
40-41 (2000); Mann v. Commissioner, T.C. Memo. 2002-48.
Accordingly, we hold that the Appeals officer satisfied the
verification requirement of section 6330(c)(1). Cf. Nicklaus v.
Commissioner, 117 T.C. 117, 120-121 (2001).
Petitioner has failed to raise a spousal defense, make a
valid challenge to the appropriateness of respondent’s intended
collection action, or offer alternative means of collection.
These issues are now deemed conceded. Rule 331(b)(4). In the
absence of a justiciable issue for review, we conclude that
respondent is entitled to judgment as a matter of law sustaining
the notice of determination dated May 9, 2001.
Finally, we mention section 6673(a)(1), which authorizes the
Tax Court to require a taxpayer to pay to the United States a
penalty not in excess of $25,000 whenever it appears that
proceedings have been instituted or maintained by the taxpayer
primarily for delay or that the taxpayer's position in such
proceeding is frivolous or groundless. The Court has indicated
its willingness to impose such penalties in collection review
cases. Pierson v. Commissioner, 115 T.C. 576 (2000). Although
we will not impose a penalty on petitioner pursuant to section
6673(a)(1) in the present case, we admonish petitioner that the
Court shall consider imposing such a penalty should he return to
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the Court in the future and advance similar arguments.
To reflect the foregoing,
An order and decision will
be entered granting respondent’s
motion for summary judgment.