T.C. Memo. 2005-93
UNITED STATES TAX COURT
ROSIE L. MOORE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21712-04L. Filed May 2, 2005.
Rosie L. Moore, pro se.
Beth A. Nunnink, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion for summary judgment (respondent’s motion). We
shall grant respondent’s motion.
Background
The record establishes and/or the parties do not dispute the
following.
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Petitioner resided in Millington, Tennessee, at the time she
filed the petition in this case.
Petitioner timely filed a Federal income tax (tax) return
for her taxable year 2000 (2000 return). Respondent conducted an
examination of petitioner’s 2000 return. On April 18, 2002,
respondent mailed a 30-day letter (respondent’s 30-day letter) to
petitioner at the following address: 2839 Coach Drive, Apartment
3, Memphis, Tennessee 38128. On May 22, 2002, respondent re-
ceived correspondence from petitioner.
Thereafter, on October 29, 2002, respondent mailed to
petitioner at the address to which respondent mailed respondent’s
30-day letter a notice of deficiency with respect to petitioner’s
taxable year 2000, which she received. Petitioner did not file a
petition in the Court with respect to the notice of deficiency
relating to her taxable year 2000.
On April 21, 2003, respondent assessed petitioner’s tax as
well as interest as provided by law for her taxable year 2000.
(We shall refer to any such unpaid assessed amounts, as well as
interest as provided by law accrued after April 21, 2003, as
petitioner’s unpaid liability for 2000.)
Respondent issued to petitioner a notice of balance due with
respect to petitioner’s unpaid liability for 2000, as required by
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section 6303(a).1
On April 8, 2004, respondent issued to petitioner a final
notice of intent to levy and notice of your right to a hearing
(notice of intent to levy) with respect to her taxable year 2000.
On April 19, 2004, in response to the notice of intent to levy,
petitioner filed Form 12153, Request for a Collection Due Process
Hearing (Form 12153), and requested a hearing with respondent’s
Appeals Office (Appeals Office). Petitioner indicated in her
Form 12153 that she did not agree with the “Filed Notice of
Federal Tax Lien”. However, respondent did not issue to peti-
tioner a notice of Federal tax lien filing with respect to her
taxable year 2000.
On October 13, 2004, respondent’s Appeals officer (Appeals
officer) held a telephonic conference (telephonic conference)
with petitioner. During that telephonic conference, petitioner
attempted to challenge the underlying tax liability for her
taxable year 2000. The Appeals officer refused to consider any
such challenge. That was because petitioner did not file a
petition with the Court with respect to the notice of deficiency
that she received from respondent with respect to her taxable
year 2000. Except for her attempted challenge of the underlying
tax liability for her taxable year 2000, petitioner raised no
1
All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
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other issues during the telephonic conference with the Appeals
officer.
On October 22, 2004, the Appeals Office issued to petitioner
a notice of determination concerning collection action(s) under
section 6320 and/or 6330 (notice of determination) in which the
Appeals Office sustained the issuance of the notice of intent to
levy. An attachment to the notice of determination stated in
pertinent part:
BRIEF BACKGROUND
* * * * * * *
In the Form 12153 you state that: “First, I got a
letter from IRS saying I owed $4000 for the year of
2000. I had to send this information proving I was
head of my household. I sent it twice before they came
to the conclusion that I was head of household. I got
that cleared up OK. Now they’re saying I wasn’t due
the earned income credit for that year. Before they
came up with this they asked me to send proof my de-
pendents were in school. I faxed that information. I
talked to Mr. Brown. He said it was not showing any-
where that they received this information.”
A review of a transcript of your account indicates the
following:
1. The 2000 return was filed by the 4/15/2001
due date.
2. The return reflected a tax liability of
$0.00.
3. Withholding credits of $447 and the earned
income credit of $3154 were claimed.
4. A refund of $3601 was issued 3/26/2001.
5. Your return was subsequently audited.
6. Additional tax of $666 and interest of
$517.91 were assessed 4/21/2003. The earned
income credit of $3154 was not allowed.
7. Your 2002 overpayments of $1207.41 were ap-
plied to the liability.
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8. You have made no other payments.
9. At your request, the audit was reconsidered,
but the adjustments were not changed.
DISCUSSION AND ANALYSIS
Applicable Law and Administrative Procedures
With the best information available, the requirements
of various applicable law or administrative procedures
have been met.
IRC §6331(d) requires that the Service notify a tax-
payer at least 30 days before a Notice of Levy can be
issued. IRC §6330(a) provides that no levy may be made
unless the Service notifies a taxpayer of the opportu-
nity for a hearing with Appeals.
A Letter 1058 Final Notice--Final Notice of Intent to
Levy and Your Right to a Hearing was sent to you by
certified mail 4/8/2004.
A levy source was identified prior to issuance of the
Notice of Intent to Levy.
IRC §6330(c)(2)(A) allows the taxpayer to raise any
relevant issue relating to the unpaid tax or the pro-
posed levy at the hearing.
You were provided the opportunity to raise any issue at
the hearing.
IRC §6330(c)(2)(B) provides that a taxpayer may only
raise challenges to the existence or amount of the
underlying tax liability if the person did not receive
a statutory notice of deficiency for such tax liablity
or did not otherwise have an opportunity to dispute the
liability.
The Appeals Officer has had no prior involvement with
respect to these liabilities as required by IRC
§6330(b)(3).
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Relevant Issues Presented by the Taxpayer
Challenge to the amount of the liability
You indicate in the Form 12153 that you do not agree
with the amount of the liability.
A statutory notice of deficiency was issued on
10/29/2002 to:
Rosie Moore
2839 Coach Dr Apt 3
Memphis, TN 38128
The notice was not returned by the Post Office as
undeliverable or unclaimed.
A copy of the notice is in the file.
When asked during the hearing whether you received the
statutory notice * * * you stated that you could not
recall.
The information in the file shows that you requested
and received reconsideration of your audit. However,
the audit adjustments were unchanged. The Appeals
Officer explained that head of household filing status
and the earned income credit were not allowed since it
was determined that you did not meet the definition of
“certain married individuals living apart” found in IRC
§7703.
Since you were previously given the opportunity to
contest the liability, the liability issue cannot be
considered in the Collection Due Process Hearing.
Challenges to the appropriateness
of the collection action
You raised no specific challenge to the appropriateness
of the collection action.
Other issues
In a letter dated 9/16/2004, the Appeals Officer ad-
vised you that to be considered for an installment
agreement or offer in compromise, you must provide a
completed Collection Information Statement (Form 433-
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A). This information was to be submitted within 14
days of the date of the letter, but was never provided.
In the CDP hearing, you refused to discuss payment
alternatives to the levy.
You raised no other issues.
Balancing Efficient Collection and Intrusiveness
The issuance of the Notice of Intent to Levy was not
unnecessarily intrusive. You did not contact the
Service to make arrangements to pay or otherwise re-
solve the liabilities. The proposed collection action
balances the need for the efficient collection of taxes
with the legitimate concern that any collection action
be no more intrusive than necesssary.
MY EVALUATION
Since you were previously given the opportunity to
contest the liability, the liability issue cannot be
considered in the CDP hearing. The liability remains
unpaid. You have offered no payment alternative to the
levy. The Notice of Intent to Levy issued 4/8/2004 for
tax year ending 12/2000 is sustained.
Discussion
The Court may grant summary judgment where there is no
genuine issue of material fact and a decision may be rendered as
a matter of law. Rule 121(b); Sunstrand Corp. v. Commissioner,
98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). In
petitioner’s response to respondent’s motion (petitioner’s
response), petitioner agrees with the material facts set forth in
respondent’s motion and the attachments thereto. We conclude
that there are no genuine issues of material fact regarding the
questions raised in respondent’s motion.
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The only issue raised in petitioner’s petition and in
petitioner’s response is the underlying tax liability for peti-
tioner’s taxable year 2000. In petitioner’s response, petitioner
states:
3. Please allow Petitioner to re-emphasize the
overall issue in question raised by I.R.S. audit was
that of Petitioner Rosie L. Moore’s legal filing status
for calendar year 2000.
4. The question of legal filing status for Rosie
L. Moore led to Respondent’s presumption of said under-
lying liability.
5. Petitioner provided proper documentation in
support of filing status claimed by said Petitioner in
year 2000.
Petitioner received a notice of deficiency with respect to
her taxable year 2000, but she did not file a petition with
respect to that notice. On the instant record, we find that
petitioner may not challenge the existence or the amount of
petitioner’s unpaid liability for 2000. See sec. 6330(c)(2)(B);
Sego v. Commissioner, 114 T.C. 604, 610-611 (2000); Goza v.
Commissioner, 114 T.C. 176, 182-183 (2000).
Where, as is the case here, the validity of the underlying
tax liability is not properly placed at issue, the Court will
review the determination of the Commissioner of the Internal
Revenue for abuse of discretion. Sego v. Commissioner, supra at
610; Goza v. Commissioner, supra at 182.
Based upon our examination of the entire record before us,
we find that respondent did not abuse respondent’s discretion in
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determining to proceed with the collection action as determined
in the notice of determination with respect to petitioner’s
taxable year 2000.
On the record before us, we shall grant respondent’s motion.
To reflect the foregoing,
An appropriate order granting
respondent’s motion and decision will be
entered for respondent.