T.C. Memo. 2007-241
UNITED STATES TAX COURT
BOBBY J. PRATER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22188-06L. Filed August 22, 2007.
Paul R. Tom, for petitioner.
Elizabeth Downs, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: This matter is before the Court on
respondent’s motion for summary judgment, filed under Rule 121.1
1
All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code in effect for the years at issue.
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Background
This is an appeal from respondent’s determination upholding
the proposed use of a levy to collect petitioner’s unpaid Federal
income tax liabilities for 1999, 2000, 2003, and 2004.
Petitioner resided in Hominy, Oklahoma, when the petition was
filed.
Petitioner filed income tax returns for 1999, 2000, 2003,
and 2004. Petitioner did not pay all of his reported tax
liabilities. Respondent assessed the tax owed. On May 1, 2006,
respondent sent petitioner a Final Notice of Intent to Levy and
Notice of Your Right to Hearing for the years at issue.
Petitioner timely submitted a Form 12153, Request for a
Collection Due Process Hearing. In his request, petitioner
asserted that a levy would cause him “irreparable harm” and
requested payment of his tax liabilities through an installment
agreement.
On August 16, 2006, Settlement Officer Norman E. Chapman
(Officer Chapman) sent petitioner a letter acknowledging
petitioner’s request for a section 6330 hearing and scheduled a
telephone conference on September 18, 2006, to discuss collection
alternatives. Before the conference, Officer Chapman requested
that petitioner produce a Form 433-A, Collection Information
Statement for Wage Earners and Self-Employed Individuals, and
proof of estimated tax payments for 2005 and the first and second
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quarters of 2006. Officer Chapman informed petitioner that he
could not consider collection alternatives without petitioner’s
financial information. Petitioner failed to submit any of the
requested information to Officer Chapman.
On September 18, 2006, Officer Chapman held petitioner’s
section 6330 hearing by telephone with petitioner’s
representative. Officer Chapman explained that he could not
consider an installment agreement without petitioner’s financial
information. Petitioner’s representative responded that he did
not have the requested information. On September 25, 2006,
respondent issued petitioner a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330 sustaining
respondent’s proposed collection action.
On October 31, 2006, the petition was filed. Petitioner
alleges that although he was unable to obtain all of the
requested information before the September 18, 2006, telephone
conference, he now possesses the necessary financial information.
Petitioner thus requests that the Court remand his case to the
Appeals Office to consider an installment agreement.
On May 10, 2007, we issued petitioner a notice setting his
case for trial during the Court’s October 15, 2007, Oklahoma
City, Oklahoma, trial session. On May 10, 2007, respondent filed
a motion for summary judgment. On May 11, 2007, we ordered
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petitioner to respond to respondent’s motion for summary judgment
by June 4, 2007. Petitioner failed to respond.
Discussion
I. Summary Judgment
Summary judgment is a procedure designed to expedite
litigation and avoid unnecessary, time-consuming, and expensive
trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681
(1988). Summary judgment may be granted with respect to all or
any part of the legal issues presented “if the pleadings, answers
to interrogatories, depositions, admissions, and any other
acceptable materials, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that a
decision may be rendered as a matter of law.” Rule 121(a) and
(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992),
affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90
T.C. 753, 754 (1988). The moving party bears the burden of
establishing that there is no genuine issue of material fact, and
factual inferences will be drawn in a manner most favorable to
the party opposing summary judgment. Dahlstrom v. Commissioner,
85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340,
344 (1982). The nonmoving party, however, cannot rest upon the
allegations or denials in his pleadings but must “set forth
specific facts showing that there is a genuine issue for trial.”
Rule 121(d); Dahlstrom v. Commissioner, supra at 820-821.
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II. Section 6330
Section 6330(a) provides that no levy may be made on any
property or right to property of any person unless the Secretary
has notified such person in writing of the right to a hearing
before the levy is made. If the person makes a request for a
hearing, a hearing shall be held before an impartial officer or
employee of the Internal Revenue Service Office of Appeals. Sec.
6330(b)(1), (3). At the hearing, a taxpayer may raise any
relevant issue, including appropriate spousal defenses,
challenges to the appropriateness of the collection action, and
collection alternatives. Sec. 6330(c)(2)(A). A taxpayer may
contest the existence or amount of the underlying tax liability
at the hearing if the taxpayer did not receive a notice of
deficiency for the tax liability in question or did not otherwise
have an earlier opportunity to dispute the tax liability. Sec.
6330(c)(2)(B); see also Sego v Commissioner, 114 T.C. 604, 609
(2000).
Following a hearing, the Appeals Office must make a
determination whether the proposed levy action may proceed. The
Appeals Office is required to take into consideration: (1)
Verification presented by the Secretary that the requirements of
applicable law and administrative procedures have been met, (2)
relevant issues raised by the taxpayer, and (3) whether the
proposed levy action appropriately balances the need for
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efficient collection of taxes with a taxpayer’s concerns
regarding the intrusiveness of the proposed levy action. Sec.
6330(c)(3).
Section 6330(d)(1) grants this Court jurisdiction to review
the determination made by the Appeals Office in connection with
the section 6330 hearing. Where the underlying tax liability is
not in dispute, the Court will review the determination of the
Appeals Office for abuse of discretion. Lunsford v.
Commissioner, 117 T.C. 183, 185 (2001); Sego v. Commissioner,
supra at 610; Goza v. Commissioner, 114 T.C. 176, 182 (2000). An
abuse of discretion occurs if the Appeals Office exercises its
discretion “arbitrarily, capriciously, or without sound basis in
fact or law.” Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
Petitioner does not dispute his underlying tax liabilities
for any of the relevant years. Accordingly, we shall review
respondent’s determination for abuse of discretion.
In his petition, petitioner alleges that he now has the
financial information requested by Officer Chapman and that the
Court should remand his case to the Appeals Office for
consideration of payment through an installment agreement.
Respondent asserts that the Appeals officer did not abuse his
discretion by rejecting an installment agreement because
petitioner did not provide the requested financial information at
the section 6330 hearing.
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As we previously stated, Officer Chapman requested that
petitioner submit a Collection Information Statement and proof of
estimated tax payments for 2005 and the first and second quarters
of 2006 before the section 6330 hearing. Officer Chapman warned
petitioner that he could not consider an installment agreement
without the requested financial information from petitioner.
Because petitioner failed to submit the requested financial
information,2 Officer Chapman could not consider petitioner’s
request to pay his tax liability through an installment
agreement. Accordingly, respondent did not abuse his discretion
in rejecting an installment agreement and sustaining the proposed
collection action. See Chandler v. Commissioner, T.C. Memo.
2005-99; Roman v. Commissioner, T.C. Memo. 2004-20.
We conclude that there is no genuine issue of material fact
requiring a trial in this case, and we hold that respondent is
entitled to the entry of a decision sustaining the proposed levy
as a matter of law.
An appropriate order and
decision will be entered.
2
Nothing in the record indicates that petitioner or
petitioner’s representative requested additional time to submit
the requested financial information.