T.C. Memo. 2005-79
UNITED STATES TAX COURT
OLIVIA SCIBILIA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8085-04L. Filed April 11, 2005.
Olivia Scibilia, pro se.
Marie E. Small, for respondent.
MEMORANDUM OPINION
LARO, Judge: Petitioner petitioned the Court under section
6330(d) to review a determination of the Commissioner’s Office of
Appeals (Appeals) sustaining respondent’s proposed levy upon her
property.1 Respondent proposed the levy to collect 1998 Federal
1
Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code. Rule
(continued...)
-2-
income taxes with additions thereto totaling approximately
$331,202.39.2 Respondent has filed a motion for summary judgment
under Rule 121, to which petitioner has not responded. We shall
grant respondent’s motion for summary judgment.
Background
Petitioner won the lottery in 1997. In 1998, she sold for
$1,705,000 a portion of her interest in the future lottery
payments and reported the sales price as capital gains income on
her 1998 Federal income tax return. Following an audit,
respondent determined that this amount was taxable as gambling
income at ordinary income tax rates. A notice of deficiency
reflecting this determination was issued on March 19, 2002.
Petitioner did not petition this Court with respect to the
notice.
On August 5, 2002, petitioner’s tax liability was assessed
as determined in the notice of deficiency. When she failed to
pay the amount due, respondent issued a notice of intent to levy
on February 7, 2003. She timely requested a section 6330
hearing, which Appeals conducted telephonically with her
designated representative. During this hearing, petitioner
1
(...continued)
references are to the Tax Court Rules of Practice and Procedure.
2
We say “approximately” as these amounts were computed
before the present proceeding and have since increased on account
of interest.
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attempted to challenge the amount of her underlying tax
liability. On April 14, 2004, respondent mailed to petitioner a
Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330, sustaining the proposed levy. This
petition followed. Petitioner alleges that respondent’s
underlying determination as to liability is invalid because
respondent did not allow her to contest her underlying tax
liability at an appeals hearing before the notice of deficiency
was issued.
Discussion
Summary judgment may be granted with respect to any part of
the legal issues in controversy if the records before the Court
“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); Craig v. Commissioner, 119 T.C. 252, 259-260 (2002).
Respondent bears the burden of proving there is no genuine issue
of material fact; all facts are viewed in the light most
favorable to petitioner. Craig v. Commissioner, supra at 260.
However, petitioner must do more than merely allege or deny
facts; she must set forth “specific facts showing that there is a
genuine issue for trial.” Rule 121(d); Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). Under this standard, petitioner has
failed to raise any genuine issue of material fact, and summary
judgment is appropriate.
-4-
Section 6331(a) provides that where taxpayers refuse to pay
the tax for which they are liable within 10 days after notice and
demand for payment, the Commissioner may collect such tax by levy
on their property. See also sec. 7701(a)(11)(B) and (12).
Section 6330 provides that the Commissioner cannot proceed with
collection by levy until the taxpayer has been given notice and
the opportunity for administrative review. Davis v.
Commissioner, 115 T.C. 35, 37 (2000). The Court reviews
nonliability administrative determinations for abuse of
discretion. Hoffman v. Commissioner, 119 T.C. 140, 144-145
(2002); Sego v. Commissioner, 114 T.C. 604, 610 (2000).
Petitioner raises no valid legal arguments. She alleges in
her petition that respondent erred in not letting her argue to
Appeals that the subject income was properly reported and taxed
as capital gains income. Her argument is mistaken. Petitioner,
having received a notice of deficiency and having forgone the
opportunity to challenge her underlying liability, is barred from
doing so during a section 6330 hearing.3 See sec. 6330(c)(2)(B);
3
Petitioner does not argue that she did not receive the
notice of deficiency. She does appear to argue she had a right
to a hearing with Appeals before the notice of deficiency was
issued, and that respondent’s failure to conduct such a hearing
invalidates the notice of deficiency. We know of no such right
under the minimal standards for notices of deficiency and hold
that the notice is valid. See Abrams v. Commissioner, 84 T.C.
1308 (1985), affd. 814 F.2d 1356 (9th Cir. 1987), affd. 787 F.2d
939 (4th Cir. 1986), affd. sub nom. Donley v. Commissioner, 791
F.2d 383 (5th Cir. 1986), affd. sub nom. Gaska v. Commissioner,
(continued...)
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Sego v. Commissioner, supra. We uphold the determination by
Appeals and shall therefore grant respondent’s motion for summary
judgment.
To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.
3
(...continued)
800 F.2d 633 (6th Cir. 1986), affd. without published opinion sub
nom. Becker v. Commissioner, 799 F.2d 753 (7th Cir. 1986), affd.
sub nom. Spector v. Commissioner, 790 F.2d 51 (8th Cir. 1986),
affd. sub nom. Alford v. Commissioner, 800 F.2d 987 (10th Cir.
1986), affd. sub nom. Benzvi v. Commissioner, 787 F.2d 1541 (11th
Cir. 1986).