T.C. Memo. 2003-62
UNITED STATES TAX COURT
MICHAEL A. MILNES AND ESTHER N. MILNES, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8612-02L. Filed March 4, 2003.
Michael A. Milnes and Esther N. Milnes, pro se.
Trent D. Usitalo, for respondent.
MEMORANDUM OPINION
COLVIN, Judge: This matter is before the Court on
respondent’s motion for summary judgment. The issue is whether
it is appropriate to decide by summary judgment that respondent’s
determination to proceed with collection of petitioners’ tax
liabilities was not an abuse of discretion. For reasons stated
below, we will grant respondent’s motion.
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Section references are to the Internal Revenue Code as
amended, and Rule references are to the Tax Court Rules of
Practice and Procedure.
Background
Petitioners are married and lived in Fresno, California,
when they filed their petition. Michael A. Milnes (petitioner)
is an attorney.
A. The Notices of Federal Tax Lien
On August 27, 1992, respondent filed with the Fresno County
Recorder’s Office a notice of Federal tax lien relating to
petitioners’ income tax liability for tax year 1991. On March
10, 1997, respondent filed with the Fresno County Recorder’s
Office a notice of Federal tax lien relating to petitioners’
income tax liabilities for tax years 1993 and 1995.
B. The Notice of Intent To Levy
On March 26, 2001, respondent issued to petitioners a Final
Notice of Intent to Levy and Notice of Your Right to a Hearing
relating to petitioners’ income tax liabilities for 1991, 1993,
and 1995. On April 25, 2001, petitioners filed a Request for a
Collection Due Process Hearing, Form 12153, for tax years 1987-
951 in which they contended that: (1) Respondent should abate
penalties relating to tax years 1988 and 1989; (2) respondent
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Petitioners’ tax years 1987-90, 1992, and 1994 are not in
issue here because respondent’s notice of intent to levy did not
include those years; only 1991, 1993, and 1995 are at issue here.
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failed to respond to petitioner’s request to abate penalties for
late filing of individual tax returns for 1981-91; (3)
petitioners want to extend the time to assess tax to allow time
to resolve the above issues and to obtain funds to pay taxes due;
and (4) they were entitled to relief on the basis of various
claims relating to employment taxes with respect to petitioner’s
law corporation and the notices of liens filed in 1992 and 1997.
Petitioners stated that they had applied for a loan on real
property, the proceeds of which they would use to pay their tax
liabilities in full.
C. The Section 6330(b) Hearing and Respondent’s Notice of
Determination
On March 8 and April 2, 2002, respondent’s Appeals Office
conducted a hearing on petitioners’ case for tax years 1991,
1993, and 1995. Petitioners attended the hearing. At the
hearing, petitioners offered to obtain a loan on real property to
pay their tax liabilities for the years in issue. Petitioners
did not challenge their underlying tax liability for 1991, 1993,
or 1995 at the hearing. The Appeals officer concluded that
petitioners did not qualify for alternatives to collection, such
as an installment agreement or an offer in compromise, because
petitioners were not currently in compliance with Federal tax
laws and they had not submitted financial information that would
enable respondent to ascertain whether they qualified for any
alternatives to collection once they became compliant.
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On April 11, 2002, respondent sent petitioners a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (the determination letter), in which respondent
denied petitioners’ request for relief.
On May 14, 2002, petitioners filed a petition for lien or
levy action under section 6320(c) or 6330(d). In their petition,
petitioners contended only that: (1) Respondent erred in trying
to collect from petitioners employment taxes owed by petitioner’s
law corporation; and (2) respondent failed to send to their last
known address any notice of the Federal tax liens filed in 1992
and 1997. Petitioners did not propose any alternatives to
collection in their petition.
Respondent filed a motion for summary judgment. The Court
ordered petitioners to file a response to respondent’s motion,
but they did not do so.
Discussion
A. Summary Judgment
Summary judgment is intended to expedite litigation and to
avoid the need for expensive trials. Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). We may grant summary
judgment if the pleadings, answers to interrogatories,
depositions, admissions, affidavits, and any other acceptable
materials show that there is no genuine issue of material fact
and a decision may be rendered as a matter of law. Rule 121(b);
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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). The moving party bears the burden of proving that
there is no genuine issue of material fact. Dahlstrom v.
Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,
79 T.C. 340, 344 (1982).
B. Analysis
Petitioners do not challenge the existence or amounts of
their underlying income tax liabilities for the years in issue.
Where the taxpayer’s underlying tax liability is not at issue, we
review the Commissioner’s administrative determination for abuse
of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000);
Goza v. Commissioner, 114 T.C. 176, 181 (2000).
There are no genuine issues of material fact. We conclude
that summary judgment is appropriate. See Rule 121(b).
1. Whether We Have Jurisdiction Over Employment Taxes
Petitioners contend that respondent erroneously tried to
collect employment taxes related to petitioner’s law corporation
from petitioners. We lack jurisdiction to decide that issue.
Moore v. Commissioner, 114 T.C. 171, 175 (2000).
2. Whether We Have Jurisdiction To Decide Whether
Respondent Sent Notices of Federal Tax Liens to
Petitioners’ Last Known Address
Petitioners contend that respondent did not send notice of
the Federal tax liens for tax years 1991, 1993, and 1995 to their
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last known address. We lack jurisdiction to consider
petitioners’ claim. Respondent filed the notices of Federal tax
lien on August 27, 1992, and March 10, 1997. Section 6320
applies to collection actions initiated after January 19, 1999.
Internal Revenue Restructuring & Reform Act of 1998, Pub. L. 105-
206, sec. 3401, 112 Stat. 746; Hurford v. Commissioner, T.C.
Memo. 2002-94; see Parker v. Commissioner, 117 T.C. 63, 66 (2001)
(liens and levies are separate collection actions for purposes of
sections 6320 and 6330). Because the notices of Federal tax lien
were filed before January 19, 1999, they are not subject to
section 6320.
3. Conclusion
The above discussion rejects the grounds upon which
petitioners relied in their petition. Also, by failing to
respond to respondent’s motion, petitioners waived their right to
contest it. See Rule 121(d); Lunsford v. Commissioner, 117 T.C.
183, 187 (2001). We conclude that respondent’s determination to
proceed with collection of the tax liabilities assessed against
petitioners was not an abuse of discretion. Accordingly, we will
grant respondent’s motion for summary judgment.
An appropriate order and
decision will be entered.