T.C. Memo. 2007-64
UNITED STATES TAX COURT
ROBERT J. GUADAGNO, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8019-06L. Filed March 20, 2007.
Robert J. Guadagno, pro se.
Donald A. Glasel, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion for summary judgment (respondent’s motion).1 We
shall grant respondent’s motion.
1
Although the Court ordered petitioner to file a response to
respondent’s motion, he failed to do so.
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Background
The record establishes and/or the parties do not dispute the
following.
Petitioner resided in Massapequa, New York, at the time he
filed the petition in this case.
On June 10, 2002, respondent issued to petitioner a notice
of deficiency (notice) with respect to his taxable years 1995 and
1998, which he received. In that notice, respondent determined
deficiencies in, and additions to, petitioner’s Federal income
tax (tax) for each of his taxable years 1995 and 1998, as fol-
lows:
Additions to Tax
Sec. Sec. Sec.
Year Deficiency 6651(a)(1)2 6651(a)(2) 6654
1995 $13,063 $2,939 $3,266 $708
1998 23,239 5,229 3,602 1,063
On August 22, 2002, petitioner submitted a document to the
Court with respect to the notice relating to his taxable years
1995 and 1998 that the Court had filed as a petition and that
commenced the case at docket No. 14560-02. On September 16,
2002, the Court issued an Order in that case (September 16, 2002
Order in the case at docket No. 14560-02) ordering petitioner to
file a proper amended petition in the form enclosed with that
2
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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Order and to pay the filing fee of $60 on or before November 15,
2002. The September 16, 2002 Order in the case at docket No.
14560-02 further provided that if an amended petition and the
filing fee were not received on or before November 15, 2002, the
Court would dismiss the case at docket No. 14560-02 or take such
other action as the Court deemed appropriate. Petitioner did not
file a response to the Court’s September 16, 2002 Order in the
case at docket No. 14560-02. As a result, on March 4, 2003, the
Court entered an order of dismissal for lack of jurisdiction in
that case.
On September 20, 2004, respondent assessed petitioner’s tax
and the additions to tax determined in the notice relating to
petitioner’s taxable years 1995 and 1998, as well as interest as
provided for law, for each of those years. (We shall refer to
those assessed amounts, as well as interest as provided by law
accrued after September 20, 2004, as petitioner’s unpaid liabili-
ties for 1995 and 1998.)
Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to his unpaid
liabilities for 1995 and 1998.
On October 31, 2005, 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 his taxable years 1995
and 1998. On or about November 30, 2005, in response to the
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notice of intent to levy, petitioner timely filed Form 12153,
Request for a Collection Due Process Hearing (petitioner’s Form
12153), and requested a hearing with respondent’s Appeals Office
(Appeals Office).3
On March 15, 2006, a settlement officer with the Appeals
Office (settlement officer) held an Appeals Office hearing with
petitioner with respect to the notice of intent to levy. At that
hearing, petitioner indicated that he was not liable for peti-
tioner’s unpaid liabilities for 1995 and 1998.
On April 5, 2006, the Appeals Office issued to petitioner a
notice of determination concerning collection action(s) under
section 6320 and/or 6330 (notice of determination). That notice
stated in pertinent part: “Collection is sustained. No collec-
tion alternatives were offered for consideration by Appeals.” An
attachment to the notice of determination stated in pertinent
part:
SUMMARY
* * * * * * *
The liabilities arose from your failure to file returns
for 1995 and 1998. You were sent a Statutory Notice of
Deficiency. You had a prior opportunity to appear at
an Appeal’s conference and an opportunity to petition
the US Tax Court. Therefore, the underlying liability
issue is precluded from this determination under Treas.
Reg. 301.7122 and IRC §6330.
3
Petitioner apparently attached a document to petitioner’s
Form 12153 that is not part of the record in this case.
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BRIEF BACKGROUND
On February 7, 2006, Settlement Officer Elissa Dellosso
sent you a letter giving you an opportunity for a
telephonic hearing for March 9, 2006. You were advised
in that letter that the underlying liability issue that
was raised in your CDP request was precluded from this
hearing, but that she would consider other collection
alternatives. Ms. Dellosso sent you a Collection
Information Statement to prepare and send back to her
by February 21, 2006. She did not receive it. On
March 6, 2006 you requested a postponement and a face
to face hearing, which was granted. On March 15, 2006
you appeared in her office and she conducted a face-to-
face hearing with you. You did not submit the Collec-
tion Information Statement and stated you wanted an-
other postponement because you had just hired a firm to
represent you. This request was denied because you had
sufficient time to obtain representation prior to the
original scheduled hearing date.
1. Verification - Legal and Procedural Requirements
a. General Verification Requirements
The assessment was properly made per IRC § 6201 for the
12/31/1995 and 12/31/1998 tax periods. A statutory
notice of deficiency was mailed to you via Certified
Mail on June 10, 2002. The administrative file shows
that on August 22, 2002 the US Tax Court ordered you to
perfect the petition and pay the fee by 11/15/2002.
You did not do so and the Court dismissed your case.
The notice and demand for payment letter was mailed to
your current address, within 60 days of the assessment,
as required by IRC § 6303.
There was a balance due when the CDP levy notice was
requested.
Ms. Dellosso verified the collection period allowed by
statute to collect these taxes has been suspended by
the appropriate computer codes for the tax periods at
issue.
There was no pending bankruptcy at the time the notices
were issued.
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Ms. Dellosso had no prior involvement with you concern-
ing the applicable tax periods before this CDP case.
The CDP notice was sent by certified mail return re-
ceipt requested to your last known address.
Ms. Dellosso verified all laws and administrative
procedures were met through review of computer tran-
scripts and actions documented in the administrative
file.
Verification of “Validity of Assessment”
The assessment for your U.S. Individual Income Tax
return for the tax periods ended 12/31/95 and
12/31/1998 are valid. This assessments were made after
you failed to file a valid petition with the US Tax
Court. The deficiency notice was issued on June 10,
2002. Your subsequent attempt to petition the court is
sufficient proof that you received the Statutory
Notice.
2. Issues and/or Collection Alternatives Raised by the
Taxpayer
You raised the issue of the underlying tax liability,
which is precluded from this hearing. You did not
raise any additional issues or collection alternatives.
Collection Action Be No More Intrusive Than Necessary
IRC § 6330 requires that the Appeals Office consider
whether a proposed collection action balances the need
for efficient collection of taxes with the legitimate
concern that any collection action be no more intrusive
than necessary.
You did not offer a collection alternative that Appeals
could accept as an alternative to the Notice of Levy
that was issued to your employer. Therefore, our
determination is that the levy is sustained. This
balances the government’s need for the efficient col-
lection of tax with your concern that collection be no
more intrusive than necessary. [Reproduced literally.]
In the petition commencing the instant case, petitioner
alleged that he believes that he owes only “$1383 (plus penalties
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and interest] [sic] on * * * 1995 & 1998 taxes, less the $3449
* * * already paid and not the $82,874.19 the I.R.S. claims”.
Discussion
The Court may grant summary judgment where there is no
genuine issue of material fact and the decision may be rendered
as a matter of law. Rule 121(b); Sundstrand Corp. v. Commis-
sioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir.
1994). We conclude that there are no genuine issues of material
fact regarding the questions raised in respondent’s motion.
Petitioner received from respondent a notice of deficiency
with respect to his taxable years 1995 and 1998. Petitioner
submitted a document with respect to that notice that the Court
had filed as a petition and that commenced the case at docket No.
14560-02. However, petitioner failed to respond to the Court’s
September 16, 2002 Order in the case at docket No. 14560-02, in
which the Court directed petitioner to file a proper amended
petition and to pay a filing fee on or before November 15, 2002.
As a result, on March 4, 2003, the Court entered an order of
dismissal for lack of jurisdiction in that case. We conclude
that petitioner may not dispute the respective underlying tax
liabilities for his taxable years for 1995 and 1998.
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 Internal Revenue
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for abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610
(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).
Based upon our examination of the entire record before us,
we find that respondent did not abuse respondent’s discretion in
determining to proceed with the collection action as determined
in the notice of determination with respect to petitioner’s
taxable years 1995 and 1998.
We have considered all of the parties’ contentions and
arguments that are not discussed herein, and we find them to be
without merit and/or irrelevant.
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.