T.C. Memo. 2007-194
UNITED STATES TAX COURT
RAGNHILD ANNE WESTBY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15093-06L. Filed July 19, 2007.
Ragnhild Anne Westby, pro se.
John C. Schmittdiel, for respondent.
MEMORANDUM OPINION
SWIFT, Judge: In this collection case respondent has moved
for summary judgment on the grounds that no timely raised issue
of fact remains, that petitioner should not be allowed now to
raise a new issue of fact, and that respondent should be entitled
to judgment as a matter of law.
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Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
Background
Respondent determined against petitioner tax deficiencies
for 1988 and 1989 in the respective amounts of $59,032 and
$72,150. The tax deficiencies related to petitioner’s income and
expenses from her solo law practice.
In 1996, as a resident of Minnesota, petitioner timely filed
a petition in this Court disputing the above tax deficiencies
that respondent had determined in petitioner’s Federal income
taxes for 1988 and 1989. Westby v. Commissioner, T.C. Memo.
2004-179.
On December 7, 2004, after a trial and opinion, a decision
was entered in the above Tax Court case reflecting major downward
adjustments in the tax deficiencies determined against petitioner
by respondent; namely, the Court redetermined tax deficiencies in
petitioner’s Federal income taxes for 1988 and 1989 of $4,250
and $2,635, respectively.
On April 8, 2005, respondent assessed the above-redetermined
and adjusted Federal income tax deficiencies against petitioner.
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On December 15, 2005, respondent mailed to petitioner a
notice of tax lien filing relating to the above assessed tax
deficiencies.
On February 6, 2006, respondent mailed to petitioner a
notice of intent to levy on petitioner’s property to collect the
above-assessed tax deficiencies.
On March 8, 2006, petitioner filed late a request for an
Appeals Office hearing regarding respondent’s December 15, 2005,
notice of tax lien filing, and on March 8, 2006, petitioner
timely filed a request for an Appeals Office hearing regarding
respondent’s notice of intent to levy.
Pursuant to petitioner’s request for an Appeals Office
collection hearing with regard to both the notice of tax lien
filing and the notice of intent to levy, respondent offered to
conduct with petitioner a consolidated collection hearing via
either a face-to-face meeting or a telephone call.
Petitioner, however, did not respond to the invitation for a
face-to-face meeting or for a telephone call, and respondent’s
Appeals officer concluded the collection hearing. Based on his
review of the administrative file, respondent’s Appeals officer
reached his conclusion regarding the notice of tax lien filing
and the notice of intent to levy.
With regard to the notice of tax lien filing, respondent’s
Appeals officer treated his review of the administrative file and
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of petitioner’s hearing request as an equivalent hearing. With
regard to the notice of intent to levy, respondent’s Appeals
officer treated the hearing as a section 6330 collection hearing.
On July 6, 2006, respondent’s Appeals Office mailed to
petitioner an adverse decision letter relating to the notice of
tax lien filing and an adverse notice of determination relating
to the notice of intent to levy.
During the above Appeals Office collection hearing
petitioner raised a number of issues, primarily a challenge to
the underlying tax deficiencies that had been redetermined by
this Court. Petitioner complained about the statutory interest
that had accrued during the long period of time from the filing
in August 1992 of petitioner’s 1988 and 1989 Federal income tax
returns to the entry in 2004 of the above Tax Court decision, and
petitioner made a vague claim to her entitlement to a credit for
payments made by her former husband on his Federal income taxes
for 1988 and 1989.
In her petition herein, petitioner challenges only the
correctness of the underlying Federal income tax deficiencies
redetermined by this Court relating to petitioner’s Federal
income tax liabilities for 1988 and 1989. In her petition,
petitioner made no claim for interest abatement.
Petitioner’s petition states only as follows with regard to
the basis for her objection to respondent’s proposed collection
activity:
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The determination of the deficiency is premised upon an
Order which has yet to be issued by the United States Tax
Court and to the best of Petitioner’s knowledge, rests with
the computation unit. The Respondent’s proposed
computations exceed the scope of the Court’s Order regarding
Petitioner’s liability, if any. Moreover, the proceeding to
make a determination as levy either wages or to lien real
property is already pending, as to the initial determination
for the same tax years. Finally, the computation and Order
will impact other tax liabilities which are the subject of
other pending tax liens.
Not until March 8, 2007, in the Court hearing that was held
herein, did petitioner in this case raise any specific issue as
to her entitlement to interest abatement under section 6404(e).
Respondent moves for summary judgment on all issues.
Discussion
Summary judgment may be appropriate where there remains no
genuine issue of fact and where the moving party is entitled to
judgment as a matter of law. Beery v. Commissioner, 122 T.C.
184, 187 (2004). Further, a party may not avoid summary judgment
by mere allegations of fact. Rather, by affidavit and documents,
the opposing party has a duty to “set forth specific facts
showing that there is a genuine issue for trial.” Rule 121(d);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Under section 6330(c)(2)(B) and (c)(4), petitioner in this
collection case is precluded from challenging the underlying tax
deficiencies redetermined by the Court relating to petitioner’s
Federal income taxes for 1988 and 1989. Having already
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challenged those tax deficiencies in a prior Tax Court case,
petitioner cannot now do so in this proceeding. See Sego v.
Commissioner, 114 T.C. 604, 610 (2000).
Because petitioner did not file her request for an Appeals
Office hearing regarding respondent’s December 15, 2005, notice
of tax lien filing until March 8, 2006, and because respondent
properly conducted not a section 6330 collection hearing, but
rather an equivalent hearing and issued to petitioner an adverse
decision letter, no appeal to this Court lies with regard
thereto. Rule 330; Kennedy v. Commissioner, 116 T.C. 255, 261-62
(2001); sec. 301.6320-1(i)(1), Q&A-I5, Proced. & Admin. Regs.
Petitioner’s failure in her petition to raise specifically
interest abatement and her failure to claim a credit against her
Federal income taxes for payments made to respondent by
petitioner’s former husband constitute petitioner’s abandonment
or concession thereof. Rule 331(b)(4); Lunsford v. Commissioner,
117 T.C. 183, 185-86 (2001).
Further, and alternatively, with regard to any claim for
interest abatement, petitioner is silent as to what action of
respondent would support interest abatement (i.e., petitioner has
failed to allege any error or delay that occurred in this case as
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a result of respondent’s performance of a ministerial act
relating to petitioner). See sec. 6404(e)(1)(A).1
Rule 331(b)(4) applies. Therein, it is provided that any
issue not raised in a taxpayer’s petition is to be deemed
conceded. Because petitioner did not raise interest abatement in
her petition, petitioner may not now do so. See Poindexter v.
Commissioner, 122 T.C. 280, 285-286 (2004), affd. 132 Fed.
Appx. 919 (2d Cir. 2005).2
The record herein fully supports respondent’s summary
judgment motion against petitioner, and respondent’s motion will
be granted.
An appropriate order and
decision will be entered.
1
In 1996, sec. 6404(e) was amended to permit abatement of
interest with respect to “unreasonable” error or delay caused by
ministerial and “managerial” acts of respondent’s employees.
Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 301(a), 110
Stat. 1457 (1996). This amendment is applicable only for tax
years beginning after July 30, 1996.
2
By discussing briefly interest abatement, we in no way
intend to treat petitioner as having made a formal claim for
interest abatement under sec. 6404.