T.C. Summary Opinion 2007-177
UNITED STATES TAX COURT
SHLOMO LIMOR, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7610-06S. Filed October 22, 2007.
Shlomo Limor, pro se.
Linette B. Angelastro, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code of 1986, as amended, and all
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Rule references are to the Tax Court Rules of Practice and
Procedure.
This case is before the Court on respondent’s motion for
summary judgment filed pursuant to Rule 121. The motion arises
in the context of a petition filed in response to a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 that respondent sent to petitioner. At the time the
petition was filed, petitioner resided in Tarzana, California.
Background
The parties agreed to a stipulation of facts, and petitioner
provided testimony at an evidentiary hearing. The parties do not
disagree on any of the material facts in this case.
Respondent examined petitioner’s 2002 Federal income tax
return and proposed changes. Respondent sent a statutory notice
of deficiency to petitioner for 2002 on September 3, 2004.
Petitioner agrees that he received a “letter” in 2004 disallowing
dependency exemptions for two children. Petitioner stated that
he responded to the notice of deficiency by writing a letter that
he sent to “Someplace in Washington, DC”, but “It was a couple of
days late.” Petitioner agrees that he filed an untimely petition
that was dismissed by the Court.1
1
Court records show that Shlomo Limor, in docket No. 24434-
04, filed a petition on Dec. 20, 2004, that respondent moved to
dismiss for lack of jurisdiction due to an untimely petition, and
that the motion was granted on Apr. 1, 2005.
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Respondent sent petitioner Letter 1058, Notice of Intent to
Levy and Notice of Your Right to a Hearing, for 2002. Petitioner
timely requested a hearing. The only issue raised in his request
for a hearing was the underlying tax liability. During a
telephone hearing, the Appeals officer informed petitioner that
he was not allowed to raise his underlying tax liability because
he had received a statutory notice of deficiency. Petitioner
raised no other issue. The only issue raised by the petition in
this case is petitioner’s underlying tax liability.
Discussion
Respondent reasons that since the only issue that petitioner
has raised questions the underlying tax liability, respondent is
entitled to a ruling in his favor as a matter of law. The Court
agrees with respondent.
Standard for Granting Summary Judgment
The standard for granting a motion for summary judgment
under Rule 121 is that
A decision shall * * * be rendered if the pleadings,
answers to interrogatories, depositions, admissions,
and any other acceptable materials, together with the
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(b).2]
2
Rule 121 is derived from Fed. R. Civ. P. 56. Therefore,
authorities interpreting the latter will be considered by the
Court in applying our Rule. Espinoza v. Commissioner, 78 T.C.
412, 415-416 (1982).
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The moving party has the burden of “showing” the absence of
a genuine issue as to any material fact. See Espinoza v.
Commissioner, 78 T.C. 412, 416 (1982) (and cases cited therein).
The evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor. Adickes v.
S.H. Kress & Co., 398 U.S. 144, 158-159 (1970). There is,
however, no issue for trial unless there is sufficient evidence
favoring the nonmoving party for the finder of fact to find in
favor of the nonmoving party. First Natl. Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 288-289 (1968). The nonmovant’s
evidence must be more than merely colorable. Dombrowski v.
Eastland, 387 U.S. 82, 84 (1967) (per curiam). If the
nonmovant’s evidence is not significantly probative, summary
judgment may be granted. First Natl. Bank of Ariz. v. Cities
Serv. Co., supra at 290. Rule 121(d) provides that when a
properly supported motion for summary judgment is made, the
adverse party “must set forth specific facts showing that there
is a genuine issue for trial.”
Procedure Under Section 6330
Section 6330 entitles a taxpayer to notice of his right to
request a hearing with the IRS Office of Appeals after notice of
the Commissioner’s intent to levy on his property and rights to
property in furtherance of the collection of unpaid Federal
taxes. The taxpayer requesting the hearing may raise any
relevant issue with regard to the Commissioner’s intended
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collection activity, including spousal defenses, challenges to
the appropriateness of the Commissioner’s intended collection
action, and alternative means of collection. Secs. 6320(b) and
(c); 6330(c); see Sego v. Commissioner, 114 T.C. 604, 609 (2000);
Goza v. Commissioner, 114 T.C. 176, 180 (2000).
The taxpayer may raise challenges “to the existence or
amount of the underlying tax liability”, however, only if he “did
not receive any statutory notice of deficiency for such tax
liability or did not otherwise have an opportunity to dispute
such tax liability.” Sec. 6330(c)(2)(B).
Where the validity of the tax liability is not properly part
of the appeal, the taxpayer may challenge the determination of
the Appeals officer for abuse of discretion. Sego v.
Commissioner, supra at 609-610; Goza v. Commissioner, supra at
181-182.
Here, petitioner received a statutory notice of deficiency
for 2002. Although he filed his petition with the Court beyond
the statutory period, he has not alleged or proven that the
notice was not received in time for him to have filed timely.
See Kuykendall v. Commissioner, 129 T.C. ___ (2007); sec.
301.6330-1(e)(3), Q&A-E2, Proced. & Admin. Regs. As a matter of
law, petitioner is precluded from raising a challenge “to the
existence or amount of the underlying tax liability”. See sec.
6330(c)(2)(B).
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Because petitioner raised no issue other than his underlying
tax liability, which is precluded here by law, there is no
material issue of fact for trial. Respondent’s motion for
summary judgment will be granted.
An appropriate order and
decision will be entered
granting respondent’s motion
for summary judgment.