T.C. Memo. 2003-292
UNITED STATES TAX COURT
CARL R. NEUGEBAUER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8552-02L. Filed October 21, 2003.
Carl R. Neugebauer, pro se.
Karen Nicholson Sommers, for respondent.
MEMORANDUM OPINION
LARO, Judge: Petitioner, while residing in Murrieta,
California, petitioned the Court under section 6330(d) to review
respondent’s proposed collection activity in the form of a levy.
Respondent proposed this action to collect petitioner’s Federal
income tax liability for 1989. Currently, the case is before the
Court on respondent’s motion for summary judgment under Rule
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121(a). Petitioner responded to respondent’s motion under Rule
121(b).
We shall grant respondent’s motion for summary judgment.
Section references are to the applicable versions of the Internal
Revenue Code. Rule references are to the Tax Court Rules of
Practice and Procedure.
Background
Petitioner filed a delinquent Federal income tax return for
1989. Respondent sent a notice of deficiency to petitioner with
respect to his income tax liability for that year. Petitioner
then petitioned the Court contesting his liability specified in
the notice of deficiency. Because the petition was not filed
within the time prescribed by section 6213(a) or 7502, we
dismissed the case for lack of jurisdiction.
On or about April 18, 1994, an income tax deficiency and
related penalties and interest were assessed against petitioner
with respect to 1989. Petitioner failed to pay fully the amounts
assessed. On or about May 7, 2001, respondent issued to
petitioner a letter entitled “Final Notice - Notice of Intent to
Levy and Notice of Your Right to a Hearing Under IRC 6330".
On or about June 8, 2001, petitioner submitted a Form 12153,
Request For A Collection Due Process Hearing. On January 10,
2002, petitioner submitted an offer in compromise and a
collection information statement in connection with his request
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for a hearing. Respondent’s Appeals officer determined that the
offer in compromise should not be accepted because the offer and
supporting financial information were incomplete. Petitioner did
not comply with the Appeals officer’s request to provide the
complete information. On January 17, 2002, a hearing was held
between respondent’s Appeals officer and petitioner’s counsel
Judy E. Hamilton. In connection with the hearing, the Appeals
officer reviewed Internal Revenue Service transcripts of account
for petitioner’s 1989 tax liability.
On April 12, 2002, respondent sent petitioner a Notice of
Determination Concerning Collection Action(s) under Section 6320
and/or 6330 (Notice of Determination) regarding petitioner’s 1989
Federal income tax liability. On May 13, 2002, petitioner filed
with the Court a Petition for Lien or Levy Action. Neither in
the petition nor in the previous request for a hearing did
petitioner raise any issues with respect to the existence or the
amount of the underlying tax liability. Instead, petitioner
alleges that he was denied his right to a hearing under section
6330, that he was denied participation in the proceedings
relating to offer in compromise, and that he was subjected to
punitive conduct by personnel of the Internal Revenue Service
(IRS). In addition, petitioner maintains that the factual
foundation of the Notice of Determination lacked veracity.
Petitioner asks the Court to remand this case to Appeals for
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further consideration of an offer in compromise or,
alternatively, to transfer this case to the appropriate Federal
District Court.
On July 8, 2002, respondent filed with the Court a Motion to
Dismiss for Lack of Jurisdiction and to Strike as to Trust Fund
Recovery Penalty Liabilities on the basis that the Court did not
have jurisdiction under section 6330(d) to decide respondent’s
determination as to those liabilities. On September 26, 2002, we
granted the motion.
On July 11, 2003, respondent moved for summary adjudication
as to the remaining issues. On August 20, 2003, petitioner filed
with the Court a reply to that motion.
Discussion
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). The moving party bears the burden of proving
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that there is no genuine issue of material fact, and factual
inferences are drawn 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 will be shown in the discussion that follows, petitioner
has raised no genuine issue as to any material fact. Respondent
supported his motion for summary judgment with the pleadings,
exhibits, and an affidavit of one of his attorneys. Petitioner’s
reply was supported by materials not responsive to the merits of
respondent’s motion. The reply also did not set forth any
specific facts showing a genuine issue for trial. We view “the
pleadings, answers to interrogatories, depositions, admissions,
and any other acceptable materials, together with the
affidavits”, and find no genuine issue as to any material fact.
Rule 121(b). Accordingly, we conclude that this case is ripe for
summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
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 may collect such tax
by levy on the person’s property. Section 6331(d) states that at
least 30 days before enforcing collection by levy on the person’s
property, the Secretary must furnish the person with a final
notice of intent to levy, including notice of the administrative
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appeals available to the person.
Under section 6330, 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 dissatisfied, with
judicial review of the administrative determination. Davis v.
Commissioner, 115 T.C. 35, 37 (2000); Goza v. Commissioner, 114
T.C. 176, 179 (2000). In the case of such judicial review, the
Court will review a taxpayer’s liability under the de novo
standard where the validity of the underlying tax liability is at
issue. A taxpayer’s underlying tax liability may be at issue if
he or she “did not receive any statutory notice of deficiency for
such tax liability or did not otherwise have an opportunity to
dispute such tax liability.” Sec. 6330(c)(2)(B). The Court will
review the Commissioner’s administrative determination for abuse
of discretion with respect to all other issues. Sego v.
Commissioner, 114 T.C. 604, 610 (2000).
Here, petitioner does not dispute the existence or the
amount of an underlying tax liability. Therefore, the proper
standard for our review of respondent’s determination is abuse of
discretion. Under section 6330(c)(3), the determination of an
Appeals officer must take into consideration (A) the verification
that the requirements of applicable law and administrative
procedures have been met, (B) issues raised by the taxpayer, and
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(C) whether any proposed collection action balances the need for
the efficient collection of taxes with the legitimate concern of
the person that any collection be no more intrusive than
necessary.
Here, the Appeals officer addressed all these matters.
He satisfied the first requirement by reviewing the Internal
Revenue Service transcripts of petitioner’s account. Hill v.
Commissioner, T.C. Memo. 2002-272; Weishan v. Commissioner, T.C.
Memo. 2002-88; Kuglin v. Commissioner, T.C. Memo. 2002-51.
The Appeals officer satisfied the second requirement by
considering the issues raised by petitioner. The only issue
raised by petitioner was his inability to pay the liability in
full, and, in that regard, petitioner requested that he be
allowed to satisfy the liability through an offer in compromise.
The Appeals officer addressed this request by reviewing the
information submitted, explaining that it was incomplete, and
asking for additional information. Petitioner failed to submit a
properly completed Form 656, Offer in Compromise, and the
required financial information for the consideration of his
request.
As to the third requirement, the Appeals officer properly
balanced the need for efficient collection of taxes through the
proposed levy against the concern that any collection action be
no more intrusive than necessary. Petitioner failed to provide
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the information required in order to consider an alternative
collection action.
Throughout the proceeding, petitioner’s conduct demonstrates
propensity to cause delay in collecting his outstanding tax
liabilities. We sustain respondent’s determination regarding the
proposed levy as a permissible exercise of discretion. We note
as to the allegations set forth in the petition that petitioner
did receive a hearing under section 6330, that petitioner was
given an opportunity to participate in the proceeding relating to
an offer in compromise, and that petitioner’s unsupported
allegations raise no triable issue of fact concerning “punitive
conduct” by the IRS personnel.
Regarding the petitioner’s request to refer this case to a
different forum, we observe that this Court has jurisdiction over
the appeal of the administrative determinations where the
underlying tax liability concerns unpaid income taxes, as opposed
to certain other taxes. See, e.g., Goza v. Commissioner, supra
at 182. We decline to grant the petitioner’s request.
We have considered all arguments raised by the parties and
have found those arguments not discussed herein to be irrelevant
and/or without merit. Accordingly,
An appropriate order and
decision will be entered for
respondent.