T.C. Summary Opinion 2006-38
UNITED STATES TAX COURT
TERRIE ELAINE BANKS, Petitioner v. COMMISSIONER OF INTERNAL
REVENUE, Respondent
Docket No. 6501-05S. Filed March 14, 2006.
Terrie Elaine Banks, pro se.
Lauren B. Epstein, for respondent.
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of sections 6330(d) and 7463.1 The
decision to be entered is not reviewable by any other court, and
this opinion should not be cited as authority.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended.
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Respondent issued petitioner a Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
(notice of determination) for unpaid Federal income tax for the
taxable year 1995. The notice of determination relates to a
notice of intent to levy dated September 11, 2004.
The issue for decision is whether, in the context of
respondent’s motion for summary judgment, respondent’s
determination to proceed with a notice of levy was an abuse of
discretion.
Background
Petitioner resided in Orlando, Florida, at the time the
petition was filed.
On February 12, 2002, respondent issued to petitioner a
notice of deficiency for the taxable year 1995. The notice
determined a $12,222 deficiency and a $1,872.50 addition to tax
pursuant to section 6651(a)(1). On May 31, 2002, the Court
received a petition submitted by Terrie Elaine Banks, to which
the Court assigned docket No. 9220-02S. The petition sought to
challenge the notice of deficiency for the taxable year 1995.
The petition arrived in an envelope bearing a private postage
meter postmark (Winter Garden, FL) dated May 13, 2002, and a U.S.
Postal Service postmark (Orlando, FL) dated May 14, 2002.
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By order of dismissal entered August 21, 2002, the Court
granted respondent’s motion to dismiss for lack of jurisdiction.
The Court concluded that, considering the U.S. Postal Service
postmark, the petition was mailed 91 days after the mailing of
the notice of deficiency and accordingly, the petition was
untimely. See Malekzad v. Commissioner, 76 T.C. 963 (1981); sec.
301.7502-1(c)(1)(iii), Proced. & Admin. Regs.
After the dismissal of that case, respondent assessed the
deficiency and addition to tax. On September 11, 2004, a notice
of intent to levy was sent to petitioner. Petitioner timely
requested a hearing. The tax liability, including addition to
tax and interest, at this point was $13,914.58. In the request
for hearing, petitioner questioned the Court’s prior dismissal of
the deficiency case and asked that it be reopened.2
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
summary judgment upon all or any part of the legal issues in
controversy. Rule 121(a). Because there are no genuine issues
2
Petitioner also objected on the basis that a notice of
Federal tax lien had been filed on July 17, 1996, and that this
proceeding represents “double taxation”. Petitioner attached a
copy of the notice of lien which lists the taxpayer as “Terrie
Canaday Banks, Aim Alternatives in Managed Care”. The notice of
lien is for employment taxes for periods in 1996.
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of material fact, as discussed infra, we conclude that summary
judgment is appropriate in this case. Naftel v. Commissioner, 85
T.C. 527, 529 (1985).
Section 6331(a) authorizes the Secretary to levy upon
property and property rights of a taxpayer liable for taxes who
fails to pay those taxes within 10 days after the notice and
demand for payment is made. Section 6331(d) provides that the
levy authorized in section 6331(a) may be made with respect to
“unpaid tax” only if the Secretary has given written notice to
the taxpayer 30 days before the levy. Section 6330(a) requires
the Secretary to send a written notice to the taxpayer of the
amount of the unpaid tax and of the taxpayer’s right to a section
6330 hearing at least 30 days before the levy is begun.
If a section 6330 hearing is requested, the hearing is to be
conducted by the Office of Appeals, and, at the hearing, the
Appeals officer conducting it must verify that the requirements
of any applicable law or administrative procedure have been met.
Sec. 6330(b)(1), (c)(2). The taxpayer may raise at the hearing
“any relevant issue relating to the unpaid tax or the proposed
levy”. Sec. 6330(c)(2)(A). The taxpayer may also raise
challenges to the existence or amount of the underlying tax
liability at a hearing if the taxpayer did not receive a
statutory notice of deficiency with respect to the underlying tax
liability or did not otherwise have an opportunity to dispute
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that liability. Sec. 6330(c)(2)(B); see Montgomery v.
Commissioner, 122 T.C. 1 (2004).
This Court has jurisdiction under section 6330 to review the
Commissioner’s administrative determinations. Sec. 6330(d); see
Iannone v. Commissioner, 122 T.C. 287, 290 (2004). When the
validity of the underlying tax liability is properly at issue, we
review the determination on a de novo basis. When the underlying
liability is not properly at issue, the Court will review the
Appeals officer’s determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 183 (2000). Whether an abuse of discretion has
occurred depends upon whether the exercise of discretion is
without sound basis in fact or law. See Freije v. Commissioner,
125 T.C. 14 (2005); Ansley-Sheppard-Burgess Co. v. Commissioner,
104 T.C. 367, 371 (1995).
The record is clear that a notice of deficiency was issued
to petitioner for the taxable year 1995 on February 12, 2002.
Petitioner does not assert that it was not sent to her last known
address or that she did not receive it in time to file a timely
petition. Petitioner filed a petition in response to the notice
of deficiency, and as clearly set forth in the Court’s order of
dismissal entered August 21, 2002, the petition was untimely.
The Court concludes that petitioner received the notice of
deficiency and was given an opportunity to dispute the underlying
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tax liability for 1995. Accordingly, it follows that petitioner
is not entitled to challenge the existence or the amount of the
underlying tax liability for 1995 in this collection review
proceeding. See sec. 6330(c)(2)(B); Goza v. Commissioner, supra.
In this connection we note that petitioner’s reference to a
notice of lien filed in 1996 for employment taxes is not related
to this proceeding and has no bearing on the collection
proceeding at issue in this case.
Petitioner has not alleged any irregularity in the
assessment procedure that would raise a question about the
validity of the assessments or the information contained in the
transcript of account. Moreover, petitioner has failed to raise
a spousal defense, make a valid challenge to the appropriateness
of respondent’s intended collection action, or offer alternative
means of collection. These issues are now deemed conceded. Rule
331(b)(4). Under the circumstances, we conclude that respondent
is entitled to a judgment as a matter of law sustaining the
notice of determination.
Reviewed and adopted as the report of the Small Tax Case
Division.
To give effect to the foregoing,
An appropriate order and
decision will be entered for respondent.