T.C. Memo. 2004-25
UNITED STATES TAX COURT
SUE TAYLOR, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13491-03L. Filed February 3, 2004.
Sue Taylor, pro se.
Erin K. Huss, for respondent.
MEMORANDUM OPINION
GERBER, Judge: Respondent, in a motion filed on November 6,
2003, moved for summary judgment on the question of whether
respondent may proceed with collection of Federal income tax
assessed against petitioner. Petitioner, on November 14, 2003,
filed a cross-motion for summary judgment on the question of
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whether this case should be remanded to respondent’s Appeals
Office for a recorded administrative hearing. Petitioner objects
to respondent’s motion, and respondent objects to petitioner’s
motion. All section references are to the Internal Revenue Code
in effect for the year in issue, and all Rule references are to
the Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
Background
On June 21, 2001, respondent mailed to petitioner a
statutory notice of deficiency for the taxable period ending
December 31, 1997. Petitioner received the statutory notice, but
failed to petition this Court. On November 26, 2001, respondent
assessed petitioner’s 1997 Federal income tax deficiency.
A Form 1058, Final Notice--Notice of Intent to Levy and
Notice of Your Right to a Hearing, was sent to petitioner on
April 2, 2002. On April 9, 2002, respondent sent petitioner a
letter entitled, “Notice of Federal Tax Lien Filing and Your
Right to a Hearing under I.R.C. §6320”. Petitioner’s designated
representative timely requested an administrative hearing under
sections 6320 and 6330. Petitioner’s sole contention in the
administrative hearing request was that “there are egregious
errors that once corrected would mitigate the collection
activity.”
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On June 23, 2003, respondent’s Appeals officer sent
petitioners’s designated representative a letter scheduling the
date and time of the requested hearing for July 10, 2003, at
9 a.m. Attached to the letter was a copy of petitioner’s Form
4340, Certificate of Assessments, Payments, and Other Specified
Matters, with respect to petitioner’s 1997 tax year. The Appeals
officer also noted in the letter that petitioner’s representative
could request a phone conference instead of an in-person meeting
if he preferred.
Neither petitioner nor her designated representative
appeared for the scheduled conference. Further neither
petitioner nor her representative attempted to schedule an
alternative conference date. At this point, the Appeals officer
reviewed petitioner’s certified transcript and the information in
petitioner’s file. After this review, respondent issued a Notice
of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330, dated July 17, 2003, wherein respondent
determined the proposed collection action was appropriate.
Petitioner asserts that the Appeals officer refused to allow
petitioner to make a recording of the administrative hearing.
Respondent, however, points out that neither petitioner nor her
representative made a request to record an administrative
hearing. Respondent also reiterates the fact that neither
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petitioner nor her representative appeared for the scheduled
hearing and no attempt was made to reschedule.
Discussion
Respondent seeks summary judgment with respect to whether he
may proceed with collection against petitioner, and petitioner
seeks summary judgment on whether this case should be remanded to
respondent’s Appeals Office for a recorded administrative
hearing. Rule 121 provides for summary judgment to be employed
as to part or all of the legal issues in controversy if there is
no genuine issue as to any material fact and a summary
adjudication may be rendered as a matter of law. See also
Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.
17 F.3d 965 (7th Cir. 1994). In that regard, summary judgment is
intended to expedite litigation and avoid unnecessary and
expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678,
681 (1988).
There is no genuine issue as to any material fact in this
case. Respondent had filed a notice of Federal tax lien and
pursuant to section 6331(a) was seeking to levy on petitioner’s
property. In accord with sections 6330(a) and 6331(d),
respondent provided petitioner with final notice of intent to
levy, which also included notice of petitioner’s right
to an administrative appeal before such levy was made.
In that regard, the Commissioner cannot collect by levy
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without the opportunity for a taxpayer to seek an administrative
review of the proposed levy and filed lien and/or the opportunity
for judicial review of the administrative determination to
proceed with collection. Davis v. Commissioner, 115 T.C. 35, 37
(2000).
Petitioner opted for an administrative review and, after
respondent’s determination to go forward with collection, sought
review by this Court. Petitioner did not file a petition for her
1997 tax year following respondent’s issuance of a statutory
notice of deficiency. Accordingly, petitioner is afforded review
by this Court solely on the question of abuse of discretion
because the validity of the underlying liability is not at issue.
Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 610
(2000).
Because petitioner is not entitled to question the
underlying tax liability, her administrative review was limited
to collection issues, including spousal defenses, the
appropriateness of respondent’s intended collection action, and
possible alternatives to collection. Sec. 6330(c)(2). However,
when the hearing date arrived, neither petitioner nor her
designated representative appeared for the scheduled conference,
and neither one had attempted to schedule an alternative
conference date.
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Once a taxpayer has been given an opportunity for a hearing
but fails to avail herself of that opportunity, the Appeals
officer may proceed in making a determination by reviewing the
case file. See Mann v. Commissioner, T.C. Memo. 2002-48; sec.
301.6330-1(d)(2) Q&A-D7, Proced. & Admin. Regs. When neither
petitioner nor her representative appeared for the hearing, the
Appeals officer reviewed petitioner’s case, and considered the
sole issue raised by petitioner, that “there are egregious errors
that once corrected would mitigate the collection activity.”
Petitioner did not allege specific errors, nor did she challenge
the appropriateness of the intended method of collection or offer
a collection alternative. Also, petitioner did not raise any
other defenses to collection. After this review, respondent
issued the Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330.
Petitioner does not raise the issue of whether she had an
opportunity for a hearing. Rather, petitioner asserts that she
was denied the opportunity to record the administrative hearing,
and is therefore entitled to have her case remanded for a second
hearing. Recently, in Keene v. Commissioner, 121 T.C. 8, 9
(2003), we held that a taxpayer is entitled to audio record his
section 6330 hearing pursuant to section 7521(a)(1). Section
7521(a)(1) essentially provides that a taxpayer, in connection
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with an in-person interview and upon advance request, will be
allowed to make an audio recording of the interview.
In this case, however, petitioner did not make a request to
record, and as required in section 7521(a)(1), such requests must
be made in advance. In her response to respondent’s motion for
summary judgment, petitioner tacitly admits that she did not make
a request to record the Appeals conference. Significantly,
neither petitioner nor her representative attended the meeting
with the Appeals officer, and neither of them requested or was
refused the opportunity to record. Therefore, petitioner’s
argument fails.
Accordingly, we hold that there is no genuine issue as to
any material fact supporting petitioner’s claim that there was an
abuse of discretion in respondent’s determination concerning the
collection action(s) under section 6320 and/or 6330. As such, we
further hold that respondent is entitled to proceed with
collection of petitioner’s 1997 tax liability. We have
considered all of petitioner’s arguments, and, to the extent that
they are not mentioned herein, we find them to be moot,
irrelevant, or without merit.
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To reflect the foregoing,
An order and decision will be
entered granting respondent’s
motion for summary judgment and
denying petitioner’s cross-motion.