T.C. Summary Opinion 2006-21
UNITED STATES TAX COURT
JORGE TORRES, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8004-05S. Filed February 7, 2006.
Jorge Torres, pro se.
Willard N. Timm, Jr., for respondent.
RUWE, Judge: This case was heard pursuant to the provisions
of section 74631 in effect at the time the petition was filed.
The decision to be entered is not reviewable by any other court,
1
Unless otherwise indicated, 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.
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and this opinion should not be cited as authority. This case is
before the Court on respondent’s motion for summary judgment,
pursuant to Rule 121.
Background
At the time the petition was filed in this case, petitioner
resided in Anaheim, California.
Petitioner timely filed his income tax return for the 2001
taxable year. On his return, petitioner’s filing status was
reported as head of household, he listed one dependent, and he
claimed the earned income credit. On June 20, 2003, respondent
sent to petitioner a notice of proposed changes that disallowed
the head of household filing status, the dependency exemption
deduction, and the earned income credit. That notice instructed
petitioner to respond by letter if he did not agree with the
proposed adjustments. Petitioner sent a letter and supporting
documentation to respondent on August 26, 2003.
On August 29, 2003, respondent sent a notice of deficiency
to petitioner’s last known address. Petitioner did not file a
petition within the 90-day period prescribed by section 6213(a),
which expired on November 28, 2003.2
2
The 90th day after the issuance of the notice of
deficiency was Nov. 27, 2003, which was a legal holiday in the
District of Columbia.
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On January 2, 2004, respondent notified petitioner that the
information that he had provided with respect to his 2001 tax
return did not support a change to the proposed adjustments. The
correspondence also informed petitioner that “You have had 90
days to file a petition with the United States Tax Court. If you
did not file a petition and still disagree with our
determination, you may, after paying the additional tax due, file
an amended return or a claim for refund.”
On February 9, 2004, respondent assessed the additional tax
against petitioner as a result of the adjustments and the
disallowance of the earned income credit. Petitioner neither
paid the additional tax assessed for 2001 nor filed an amended
return or claim for refund. On March 29, 2004, petitioner sent a
letter to this Court requesting the necessary documents to file a
petition for redetermination of a deficiency for the 2002 taxable
year.3 This Court treated the letter as a petition and assigned
it docket No. 5812-04S. On April 5, 2004, this Court issued an
order directing petitioner to file a proper amended petition in
docket No. 5812-04S. On May 10, 2004, petitioner filed the
amended petition and disputed the deficiency respondent asserted
for the 2001 taxable year.
3
Although petitioner’s Mar. 29, 2004, letter refers to his
2002 taxable year, respondent did not send petitioner a notice of
deficiency regarding his 2002 taxable year. Petitioner’s
reference to 2002 appears to be an error; in fact, the amended
petition disputes the deficiency for petitioner’s 2001 tax year.
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On August 19, 2004, respondent sent to petitioner a Final
Notice of Intent to Levy and Notice of Your Right to a Hearing
because petitioner failed to pay his outstanding 2001 tax
liability. The notice informed petitioner that respondent
intended to levy to collect the unpaid liability for the 2001
taxable year. The notice also stated that petitioner could
“Appeal the intended levy on your property by requesting a
Collection Due Process hearing within 30 days from the date of
this letter.”
On September 7, 2004, petitioner timely filed a Form 12153,
Request for a Collection Due Process Hearing. Before
respondent’s Appeals officer and petitioner held a section 6330
hearing, the Court scheduled petitioner’s case in docket No.
5812-04S for trial on February 14, 2005. On December 2, 2004,
respondent’s settlement officer conducted a section 6330 hearing
with petitioner and discussed collection alternatives. Although
respondent’s settlement officer researched petitioner’s tax
records and tentatively concluded that petitioner had not acted
on the notice, he elected to postpone his determination until the
Court reached a decision.
Respondent subsequently filed a motion to dismiss for lack
of jurisdiction in docket No. 5812-04S. On March 1, 2005, the
Court granted respondent’s motion to dismiss because petitioner
failed to file the petition in that case within the time
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prescribed by section 6213(a) or 7502. On the basis of the
Court’s order, respondent’s settlement officer concluded that
petitioner had not acted on the notice for the 2001 taxable year.
On April 12, 2005, respondent sent to petitioner a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330. Petitioner filed his petition in this case on May
2, 2005. In his petition, petitioner asserted:
The underlying liability of this collections
action is unjust. I did not have an adequate
opportunity to prove that I was entitled to head of
household, one dependency exemption, and the earned
income credit for the tax year ended 12/31/2001. All I
want is the opportunity to present proof to this Court
that I am entitled to such and that this levy action is
not valid. The appeals office refused to accept my
proof and therefore I am petitioning this court to hear
my argument.
In his motion for summary judgment, respondent argues that
section 6330(c)(2)(B) precludes petitioner from challenging the
underlying tax liability for 2001 because petitioner received a
notice of deficiency and failed to file a petition within the
time prescribed by sections 6213(a) and 7502. In his response to
respondent’s motion for summary judgment, petitioner only argues
that respondent never provided him with a meaningful opportunity
to participate in a hearing regarding his proposed tax liability.
Discussion
Summary judgment serves to “expedite litigation and avoid
unnecessary and expensive trials.” Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). Either party may move for
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a summary judgment upon all or any part of the legal issues in
controversy. Rule 121(a). Rule 121(b) provides that the Court
shall render a decision when the pleadings, answers to
interrogatories, depositions, admissions, affidavits, and any
other acceptable materials show that “no genuine issue as to any
material fact” exists and “that a decision may be rendered as a
matter of law.” 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); Naftel v. Commissioner, 85
T.C. 527, 529 (1985). The Court will view any factual material
and inferences in the light most favorable to the nonmoving
party. Dahlstrom v. Commissioner, supra at 821; Naftel v.
Commissioner, supra at 529. Because there are no genuine issues
of material fact, as discussed infra, we agree with respondent
that summary judgment is appropriate in this case.
Section 6330(a)(1) requires the Commissioner to provide a
taxpayer with written notice of the right to a hearing before the
Commissioner may levy on any property or property right. The
notice must inform the taxpayer of the right to request a hearing
during the 30-day period before the first levy. Sec. 6330(a)(2)
and (3). If the taxpayer requests a hearing, an Appeals officer
of the Commissioner shall hold the hearing. Sec. 6330(b)(1).
At the hearing, the taxpayer may raise any relevant issue
relating to the unpaid tax or the proposed levy, including
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appropriate spousal defenses, challenges to the appropriateness
of collection actions, and offers of collection alternatives.
Sec. 6330(c)(2)(A). Section 6330(c)(2)(B) limits the taxpayer’s
ability to challenge the underlying tax liability during the
hearing. Specifically, the taxpayer may “raise at the hearing
challenges to the existence or amount of the underlying tax
liability for any tax period if the person 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 taxpayer may seek judicial review of a determination
made by the Appeals officer. Sec. 6330(d). This Court has
jurisdiction to review the Commissioner’s administrative
determination where the underlying tax liability is of a type
over which this Court normally has deficiency jurisdiction. Id.;
Goza v. Commissioner, 114 T.C. 176, 181 (2000). When the
underlying tax liability is properly at issue, the Court will
review the administrative determination on a de novo basis. Sego
v. Commissioner, 114 T.C. 604, 610 (2000) (quoting H. Conf. Rept.
105-599, at 266 (1998), 1998-3 C.B. 747, 1020). When the
validity of the underlying tax liability is not properly at
issue, the Court will review the Appeals officer’s determination
for abuse of discretion. Id.
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This Court has held that taxpayers have had an opportunity
to dispute the underlying tax liability when they have received a
notice of deficiency. Goza v. Commissioner, supra at 182-183;
Sego v. Commissioner, supra. Whether the underlying tax
liability is properly at issue in a section 6330 administrative
hearing depends on whether the taxpayer had an opportunity to
challenge the liability, not whether the taxpayer acted upon that
opportunity. See sec. 6330(c)(2)(B); Sego v. Commissioner, supra
at 611. Even though the taxpayer neglected to file a petition
with this Court to challenge the underlying tax liability, the
notice of deficiency offered the taxpayer the opportunity to
oppose the underlying liability. See Sego v. Commissioner,
supra. When the taxpayer declines an opportunity to challenge
the underlying liability, section 6330(c)(2)(B) precludes the
taxpayer from contesting the underlying tax liability before the
Appeals officer. See Goza v. Commissioner, supra; Sego v.
Commissioner, supra at 610-611.
Petitioner argues that “There is a genuine issue of material
fact in this case, being that the petitioner has never had the
opportunity for a hearing regarding his tax liability.” We
disagree. Petitioner does not dispute that he received a notice
of deficiency regarding his 2001 tax liability. The notice of
deficiency provided petitioner with an opportunity to challenge
his 2001 tax liability. Petitioner failed to petition this Court
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within the 90-day period prescribed by section 6312. Because
petitioner had an opportunity to contest his income tax liability
and failed to do so, section 6330(c)(2)(B) precluded petitioner
from questioning that underlying liability at his section 6330
hearing. See Goza v. Commissioner, supra at 182-183 (“Although
* * * [the taxpayer] received a notice of deficiency * * * he did
not avail himself of the opportunity to file a petition for
redetermination with the Court pursuant to section 6213(a).
Consistent with section 6330(c)(2)(B), * * * [the taxpayer]
therefore was precluded from contesting his liability for the
underlying taxes before the Appeals Office.”). As petitioner’s
underlying tax liability was not properly at issue in the section
6330 hearing, we hold that the validity of the underlying tax
liability is not properly before this Court. See Sego v.
Commissioner, supra at 611.
Petitioner failed to raise any other relevant issues or
challenges in the petition. Pursuant to Rule 331(b)(4), all
other issues are deemed conceded.
The decision in this case will indicate that we sustain
respondent’s administrative determination to proceed with
collection against petitioner. Our decision does not serve as a
review of respondent’s determination as to petitioner’s
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underlying tax liability for 2001. For the reasons set forth
herein, respondent’s motion for summary judgment will be granted.
An appropriate order and
decision will be entered for
respondent.