T.C. Summary Opinion 2007-1
UNITED STATES TAX COURT
JONITA CONNER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2054-06S. Filed January 3, 2007.
Jonita Conner, pro se.
Michael A. Raiken and Ann Welhaf, for respondent.
PANUTHOS, Chief Special Trial Judge: This case was heard
pursuant to the provisions of sections 6330(d) and 7463. The
decision to be entered is not reviewable by any other court, and
this opinion should not be cited as authority. Unless otherwise
indicated, all section references are to the Internal Revenue
Code in effect at relevant times.
- 2 -
This proceeding arises from a petition for judicial review
filed in response to a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330 (notice of
determination) sent to petitioner on December 22, 2005. The
issue for decision is whether respondent abused his discretion in
sustaining a proposed levy action against petitioner.1
Background
Petitioner resided in Silver Spring, Maryland, when her
petition was filed. Petitioner was a practicing physician at the
time of trial.
Petitioner filed late a 2003 Federal income tax return and
did not pay all the tax reported thereon. Respondent assessed
the tax, as well as related penalties and interest, and issued
petitioner a Final Notice of Intent to Levy and Notice of Your
Right to a Hearing. Petitioner timely submitted a Form 12153,
Request for a Collection Due Process Hearing, offering to pay
$100 a month toward her tax liability.
Petitioner’s case was assigned to a settlement officer, who
determined that petitioner had not filed her 2004 tax return. On
November 8, 2005, the settlement officer requested that
petitioner submit a signed 2004 tax return and a Form 433-A,
1
Respondent filed a motion for summary judgment in
September 2006. Because we find there are genuine issues of
material fact, summary judgment is inappropriate. See Naftel v.
Commissioner, 85 T.C. 527, 529 (1985). We therefore shall deny
respondent’s motion.
- 3 -
Collection Information Statement for Wage Earners and Self-
Employed Individuals, which asks the taxpayer to provide certain
financial information. The settlement officer indicated that if
petitioner did not provide the tax return and Form 433-A by
November 28, 2005, respondent would sustain the proposed
collection action. The settlement officer did not receive the
requested documents by that date.
On December 22, 2005, respondent issued petitioner a notice
of determination sustaining the proposed levy. The notice states
that petitioner failed to file the 2004 tax return or submit the
Form 433-A. It also states that the settlement officer verified
that applicable legal and administrative requirements had been
met.
On or about December 23, 2005, petitioner sent a letter to
the settlement officer in response to the notice of
determination. The letter states that petitioner mailed the 2004
tax return and the financial information on November 28, 2005.
Enclosed with the letter were a signed 2004 tax return and a Form
- 4 -
433-F, Collection Information Statement.2 Respondent had not
previously received these documents from petitioner.
Discussion
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 a notice and demand
for payment is made. Section 6331(d) provides that the levy may
be made 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 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)(1). The taxpayer may raise at the hearing any relevant issue
relating to the unpaid tax or the proposed levy. Sec.
2
Both the Form 433-A and the Form 433-F require the
taxpayer to provide financial information. The Form 433-F is a
1-page document that asks the taxpayer to list items such as
monthly income and expenses. The Form 433-A, in contrast, is a
6-page document that requires the taxpayer, inter alia, to list
income and expenses for a 3-month period; attach copies of
documents such as pay stubs, bank statements, and proof of
current expenses; and indicate whether the taxpayer has
transferred assets out of his or her name for less than actual
value.
- 5 -
6330(c)(2)(A). The taxpayer also may 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 that liability. Sec.
6330(c)(2)(B); 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);
Iannone v. Commissioner, 122 T.C. 287, 290 (2004). Where, as
here, the validity of the underlying tax liability is not at
issue, we review the determination for abuse of discretion. Sego
v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner,
114 T.C. 176, 182 (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, 23 (2005). The Commissioner’s refusal to consider
collection alternatives is not an abuse of discretion where the
taxpayer has failed to file all required tax returns or to
provide complete financial information. See Roman v.
Commissioner, T.C. Memo. 2004-20; Rodriguez v. Commissioner, T.C.
Memo. 2003-153 (and cases cited therein).
Petitioner contends she sent the requested information to
respondent on November 28, 2005. Petitioner testified that she
did not send the information by certified or registered mail,
- 6 -
however, and therefore she does not have a receipt of mailing to
corroborate her testimony.
Respondent contends that petitioner has a history of failing
to file tax returns or provide financial information, and,
therefore, petitioner’s testimony is not credible. Respondent’s
settlement officer testified that petitioner had tax liabilities
for previous years that respondent had attempted to collect.
Respondent’s records indicate that although petitioner proposed
collection alternatives for those years, respondent rejected the
proposals due to petitioner’s failure to file tax returns or
provide financial information.
Petitioner did not dispute the settlement officer’s
testimony regarding the prior years’ tax liabilities. In
addition, petitioner acknowledged that she filed her 2005 tax
return late. On the basis of the record, we agree with
respondent that petitioner has demonstrated a pattern of missing
deadlines with respect to filing her tax returns and providing
respondent with requested information. In the absence of
corroborating evidence, we are not required to accept, and do not
accept, petitioner’s self-serving testimony that she mailed the
2004 tax return and Form 433-F to respondent on November 28,
2005. See Tokarski v. Commissioner, 87 T.C. 74, 77 (1986);
Madden v. Commissioner, T.C. Memo. 2006-4.
- 7 -
We note that even if petitioner did mail the Form 433-F on
that date, the settlement officer requested a Form 433-A. As
described above, the Form 433-A requires the taxpayer to provide
substantially more financial information, such as pay stubs and
bank records, than does the Form 433-F. Petitioner does not
contend that she mailed these documents to the settlement
officer. Thus, petitioner did not provide complete financial
information. See Roman v. Commissioner, supra. Moreover, the
Form 433-F that petitioner provided appears incomplete in several
respects. For example, petitioner lists monthly income of $1,500
and monthly expenses of $5,056. The Form 433-F gives no
indication how petitioner covered the shortfall between the
reported income and expenses. Petitioner listed no assets other
than $100 in a checking account. The only debt listed is $450 of
credit card debt. Petitioner also failed to indicate she was a
physician or include a business address as requested on the Form
433-F.
On the basis of our review of the record, we conclude that
respondent satisfied the requirements of section 6330(c) and did
not abuse his discretion in refusing to consider collection
alternatives and sustaining the proposed levy against petitioner.
Respondent’s determination therefore is sustained.
- 8 -
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing,
An appropriate order and
decision will be entered.