T.C. Memo. 2008-4
UNITED STATES TAX COURT
YVONNE THOMAS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent*
Docket No. 11047-06L. Filed January 3, 2008.
Jeffrey D. Moffatt, for petitioner.
Elaine T. Fuller, for respondent.
SUPPLEMENTAL MEMORANDUM OPINION
SWIFT, Judge: This matter is before us at this time on
respondent’s motion for summary judgment as to petitioner’s claim
for interest abatement and for section 6673 penalties.
*
On Sept. 10, 2007, this Court filed its Memorandum
Opinion (T.C. Memo. 2007-269) in this case. This opinion
supplements our previous opinion.
- 2 -
On September 10, 2007, we issued an opinion herein, Thomas
v. Commissioner, T.C. Memo. 2007-269, granting respondent’s
motion in limine and holding that petitioner in this collection
case could not raise an issue as to the amount of petitioner’s
2002 underlying Federal income tax liability.
On November 9, 2007, respondent filed the instant motion for
summary judgment as to petitioner’s claim for interest abatement
and for section 6673 penalties. On December 12, 2007, petitioner
filed an objection to respondent’s motion for summary judgment.
Background facts relevant to the instant motion were
generally set forth in our prior opinion as follows.
A securities firm reported to respondent on Forms 1099-B,
Proceeds From Broker and Barter Exchange Transactions, that in
2002 petitioner was paid income of approximately $88,000 on the
sale of stock.
On her 2002 individual Federal income tax return filed with
respondent, petitioner reported only nominal income and no income
from the sale of stock.
Petitioner chose not to participate in respondent’s audit of
her 2002 individual Federal income tax return, and petitioner did
not submit information to respondent’s examining agent relating
to the reported income on the above Forms 1099-B.
Based on the $88,000 reported on the Forms 1099-B,
respondent recalculated petitioner’s 2002 income and determined a
$19,923 deficiency in petitioner’s 2002 Federal income taxes.
- 3 -
On February 22, 2005, respondent mailed to petitioner a
notice of deficiency reflecting the above $19,923 tax deficiency
and a $3,900 section 6662 accuracy-related penalty.
On February 26, 2005, respondent’s notice of deficiency was
delivered to and received by petitioner, but petitioner did not
file a petition with this Court to contest respondent’s
deficiency determination.
After assessment of the above deficiency, on October 29,
2005, respondent mailed to petitioner a notice of intent to levy,
and petitioner timely requested of respondent an Appeals Office
collection hearing.
In the Appeals Office hearing, petitioner sought to raise an
issue as to the correctness of respondent’s above tax deficiency
determination, and petitioner requested an abatement of interest
solely on the ground that respondent’s tax deficiency
determination was erroneous. Petitioner did not raise any
collection alternatives, and petitioner did not make or submit to
respondent an offer-in-compromise.
Because petitioner had received respondent’s February 22,
2005, notice of deficiency and because petitioner could have
petitioned the Tax Court with regard thereto, respondent’s
Appeals officer declined to consider petitioner’s 2002 Federal
income tax liability and concluded that the proposed levy should
be sustained. Also, respondent’s Appeals officer rejected
petitioner’s claim for interest abatement.
- 4 -
The primary issue remaining before us on the instant motion
is whether respondent, as a matter of law, committed an abuse of
discretion in declining to abate interest under section 6404(e).
That section provides, insofar as here relevant, for abatement of
interest where the interest is attributable to an unreasonable
delay by respondent’s representatives in performing managerial or
ministerial acts.
On June 11, 2007, respondent served interrogatories on
petitioner seeking to establish the factual basis for
petitioner’s claim to interest abatement. Petitioner’s responses
to the interrogatories establish that the only ground for
petitioner’s claim to interest abatement is the contention that
respondent’s underlying tax deficiency determination against
petitioner for 2002 was erroneous. Petitioner states: “As [the
case] relates to interest abatement, if the deficiency balance is
incorrect * * *, neither the principal nor the interest should
stand and both should be abated.” Petitioner makes no claim
which would entitle petitioner to interest abatement.
As we held in our prior opinion, because respondent’s
Appeals officer took into account and properly considered
applicable law and administrative procedures, because issues
raised by petitioner were considered and properly rejected, and
because respondent’s proposed levy action balanced the need for
efficient collection with the intrusiveness of a levy, see sec.
6330(c)(3), there occurred in this case no abuse of discretion.
- 5 -
Further, because the only basis alleged by petitioner for
interest abatement is the incorrectness of the underlying tax
deficiency determined by respondent, the correctness of which is
not properly before us, petitioner raises no viable issue as to
her entitlement to interest abatement.
We shall grant respondent’s motion for summary judgment as
to petitioner’s claim for interest abatement.
Also, in our discretion, we shall deny respondent’s motion
for a penalty under section 6673.
An appropriate order and
decision will be entered for
respondent.