T.C. Summary Opinion 2008-9
UNITED STATES TAX COURT
JULIET HESS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14444-06S. Filed January 29, 2008.
Juliet Hess, pro se.
Frederic J. Fernandez, for respondent.
GERBER, 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. In this collection case respondent determined that he was
entitled to proceed with collection of an assessed tax liability,
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and petitioner, by filing a petition with this Court, contested
that determination. Petitioner’s only allegation of error
questioned the merits of the underlying tax liability.
Respondent, relying on section 6330(c)(2)(B),1 moved for summary
judgment on the ground that petitioner is precluded from
contesting the merits of the underlying tax liability because she
received a notice of deficiency and failed to contest
respondent’s determination.
Background
Petitioner, filed a 2002 Federal income tax return with an
address in Wisconsin, reported as her address. Respondent sent,
by certified mail, a statutory notice of deficiency to petitioner
at the above address determining an income tax deficiency for
2002. Petitioner failed to petition this Court within the
prescribed time, and respondent assessed the 2002 income tax
deficiency.
Respondent sent petitioner a Form Letter 1058, Final Notice-
-Notice of Intent to Levy and Notice of Your Right To a Hearing,
dated April 12, 2006. On April 19, 2006, respondent received
petitioner’s Form 12153, Request for a Collection Due Process
Hearing. After additional correspondence, petitioner and the
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the period under
consideration, and Rule references are to the Tax Court’s Rules
of Practice and Procedure, unless otherwise indicated.
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Appeals officer engaged in a discussion wherein petitioner sought
to contest the underlying tax liability. The Appeals officer
advised petitioner that she was not entitled to contest the
underlying tax liability because she had received a notice of
deficiency for 2002.
Subsequently, petitioner was provided with a letter
explaining her collection alternatives, and she thereafter
submitted an offer-in-compromise raising doubt as to the
underlying tax liability. Respondent mailed petitioner a Notice
of Determination Concerning Collection Action Under Section
6330, dated July 12, 2006, advising that he intended to proceed
with collection because petitioner was not entitled to contest
the underlying tax liability in the context of a collection due
process proceeding under section 6320 or 6330.2
Discussion
The only question we consider, in the context of this
collection case, is whether petitioner is entitled to challenge
the underlying tax liability. Respondent moved for summary
judgment, contending that as a matter of law petitioner is not
entitled to challenge the underlying 2002 tax liability.
Petitioner has challenged only the merits of the underlying tax
2
We note that respondent used the address shown on
petitioner’s 2002 return on all correspondence and notices sent
to petitioner.
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liability. Although she raised one collection alternative, an
offer-in-compromise, it was with respect to doubt as to
liability, i.e., questioning the underlying tax liability, and
not doubt as to collectibility.
Summary judgment is intended to expedite litigation and to
avoid unnecessary and expensive trials. Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be
granted with respect to a legal issue, if there is “no genuine
issue as to any material fact and * * * a decision may be
rendered as a matter of law.” Rule 121(a) and (b); Craig v.
Commissioner, 119 T.C. 252, 259-260 (2002); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
Cir. 1994). There is no disagreement as to any material fact,
and therefore this matter is ripe for summary judgment.
Section 6330(c)(2)(A) prescribes the issues that may be
raised by a taxpayer before the Appeals Office, including spousal
defenses to collection, challenges to the appropriateness of the
Commissioner’s intended collection action, and offers of
alternative means of collection. Section 6330(c)(2)(B) provides
that the Appeals hearing is not a forum for a taxpayer to contest
the existence or amount of the underlying tax unless the taxpayer
did not receive a notice of deficiency for the tax in question or
did not otherwise have an earlier opportunity to dispute the tax
liability.
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Respondent has adduced sufficient documentation showing that
the notice of deficiency for petitioner’s 2002 tax year was
mailed, by certified mail, to her correct address. Petitioner
has not argued or shown that she did not receive or was unaware
of the notice of deficiency. Under the circumstances, petitioner
is statutorily precluded from challenging the merits of her 2002
tax liability in the context of this collection proceeding.3
Respondent’s motion for summary judgment will be granted.
To reflect the foregoing,
An appropriate order and decision
will be entered.
3
The Court inquired about whether respondent and petitioner
were precluded from considering an offer in compromise or some
other remedial approach to resolve petitioner’s underlying 2002
tax liability outside of the sections 6320 and 6330 collection
proceeding. The Court was advised that no such prohibition
existed and that the parties were attempting to resolve this
matter.