T.C. Memo. 2008-205
UNITED STATES TAX COURT
VALDY OLENDER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 1082-06L, 21969-06L. Filed August 28, 2008.
Valdy Olender, pro se.
Lauren B. Epstein, for respondent.
MEMORANDUM OPINION
SWIFT, Judge: These consolidated matters are before us
under Rule 121 on respondent’s motion for summary judgment.
Unless otherwise indicated, all section references are to the
Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
- 2 -
Respondent moves for summary judgment as to petitioner’s
challenges to respondent’s lien filing and proposed levy relating
to petitioner and his wife’s outstanding Federal income tax
liability for 1999 in the approximate total amount of $20,700.
Petitioner objects to respondent’s motion for summary judgment
and contends that respondent failed to assess petitioner and his
wife’s 1999 Federal income tax liability within the assessment
period of limitations set out in section 6501. Petitioner also
challenges generally the amount of his and his wife’s 1999
Federal income tax liability as determined by respondent. For
the reasons stated, we will grant respondent’s motion for summary
judgment.
Background
The facts set forth below are established in the pleadings,
moving papers, responses thereto, and attachments.
In 1999 petitioner and his wife received wages in the
approximate total amount of $72,500.
On April 15, 2000, petitioner and his wife filed with
respondent a 1999 joint Federal income tax return reporting zero
in wages and zero for their taxable income, which respondent
treated as a valid return for filing purposes.
On November 21, 2001, and after an audit of petitioner and
his wife’s 1999 Federal income tax return, respondent did not
charge petitioner and his wife with the above $72,500 in wage
- 3 -
income, but respondent did determine a deficiency in petitioner
and his wife’s 1999 Federal income tax of $518. Respondent
timely mailed to petitioner and his wife and they received a
notice of deficiency (first notice of deficiency) for this
additional $518. Neither petitioner nor his wife filed a
petition in this Court with regard to the first notice of
deficiency, and on May 6, 2002, respondent assessed against
petitioner and his wife the $518.
On May 29, 2003, respondent mailed to petitioner and his
wife a second notice of deficiency, which they received. In the
second notice of deficiency respondent charged petitioner and his
wife with the $72,500 in wage income which petitioner and his
wife had omitted from their 1999 joint Federal income tax return
(and which respondent had not included in the first notice of
deficiency), resulting in an additional $11,169 deficiency in
petitioner and his wife’s Federal income taxes for 1999. Neither
petitioner nor his wife filed a petition in this Court with
regard to the second notice of deficiency, and on October 22,
2003, respondent assessed against petitioner and his wife the
$11,169.
On June 7, 2005, respondent timely mailed to petitioner and
his wife a notice of Federal tax lien relating to the October 22,
2003, assessment. On July 5, 2005, petitioner requested an
Appeals Office collection hearing relating thereto. In
- 4 -
connection with this hearing, petitioner did not provide
respondent with the financial information which respondent
requested. Petitioner did challenge the assessment as untimely.
On December 16, 2005, respondent’s Appeals Office mailed to
petitioner and his wife a notice of determination sustaining
respondent’s lien filing against them. On January 13, 2006,
petitioner filed with this Court his petition challenging
respondent’s determination sustaining respondent’s lien filing.
On February 10, 2006, respondent timely mailed to petitioner
and his wife a final notice of intent to levy relating to the
October 22, 2003, assessment. On March 7, 2006, petitioner
requested an Appeals Office hearing relating to respondent’s
proposed levy. In connection with this hearing, petitioner
submitted to respondent’s Appeals Office limited financial
information. On September 28, 2006, respondent’s Appeals Office
mailed to petitioner and his wife a notice of determination
sustaining respondent’s proposed levy.
On October 30, 2006, petitioner filed with this Court his
petition challenging respondent’s Appeals Office’s determination
sustaining respondent’s levy.
Discussion
Petitioner contends that respondent’s October 22, 2003,
assessment of petitioner’s 1999 Federal income tax liability was
not made within the assessment period of limitations prescribed
- 5 -
by section 6501. A taxpayer’s contention, however, that an
assessment period of limitations lapsed before the Commissioner
made an assessment against the taxpayer constitutes a challenge
to the underlying tax liability. In a collection case under
section 6320 or section 6330, a taxpayer is not permitted to
challenge his underlying Federal income tax liability if he or
she had a prior opportunity to do so. Hoffman v. Commissioner,
119 T.C. 140, 145 (2002); Hoffenberg v. Commissioner, T.C. Memo.
2008-139 n.4; see also Boyd v. Commissioner, 117 T.C. 127, 130
(2001); MacElvain v. Commissioner, T.C. Memo. 2000-320.
Upon receipt of respondent’s first and second notices of
deficiency petitioner had the opportunity to challenge his wife’s
joint 1999 Federal income tax liability. Petitioner did not file
a petition in this Court within the 90-day period prescribed by
section 6213(a). Petitioner is now barred in this case from
challenging his and his wife’s joint Federal income tax liability
for 1999 and from raising any issue as to the timeliness of
respondent’s assessment.
Generally under section 6501 the Commissioner has 3 years
from the time a taxpayer files a Federal income tax return to
assess a deficiency. Petitioners’ joint 1999 Federal income tax
return--which respondent treated as a valid return--was filed
April 15, 2000, and the 3-year period for assessment would have
expired on April 15, 2003.
- 6 -
Section 6503(a)(1), however, provides that the running of
the 3-year assessment period of limitations under section 6501
will “be suspended for the period during which the Secretary is
prohibited from making the assessment * * * and for 60 days
thereafter”, and section 6213(a) provides that after the
Commissioner mails a notice of deficiency to a taxpayer, no
assessment of the tax deficiency shall be made during the 90-day
period during which the taxpayer may file a petition in this
Court.
Accordingly, under section 6213(a) respondent was barred
from making any assessment for each of the 90-day periods
immediately following respondent’s mailing to petitioner of the
first and the second notices of deficiency, dated November 21,
2001, and May 29, 2003, respectively. Thus under section 6503
the running of the 3-year assessment period of limitations was
suspended for 180 days plus an additional 120 days. Respondent’s
two notices of deficiency resulted in a total 300-day extension
in the assessment period of limitations running against
respondent and in favor of petitioner and his wife relating to
their 1999 Federal income taxes.
This 300-day extension established a lapse date for the
assessment period of limitations that is applicable to this case
- 7 -
1
of February 9, 2004. Respondent’s October 22, 2003, assessment
falls well within this extended period of limitations.
Petitioner raises several other vague grounds for
challenging respondent’s Appeals Office’s determination
sustaining respondent’s lien filing and proposed levy.
Petitioner contends that he did not receive fair Appeals Office
hearings and that he was denied an installment plan for payment
of his Federal income taxes.2
Summary judgment is proper where there remains no genuine
issue of material fact and where the moving party is entitled to
judgment as a matter of law. Beery v. Commissioner, 122 T.C.
184, 187 (2004). In a collection action where the taxpayer’s tax
liability is not at issue, we review the appropriateness of the
Commissioner’s determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 609-610 (2000); Goza v. Commissioner,
114 T.C. 176, 182 (2000).
In connection with petitioner’s first Appeals Office
hearing, petitioner failed to submit financial information and
1
Apr. 15, 2000, plus 3 years plus 300 days fell on Feb. 9,
2004.
2
We note that where a taxpayer raises a reasonable dispute
regarding an item of income which a third-party payor reported to
the Commissioner on an information return and where the taxpayer
fully cooperates with the Commissioner, the burden of production
as to the income shifts to the Commissioner. Sec. 6201(d).
Petitioner, however, has not raised any such dispute and would be
precluded from doing so under sec. 6330(c)(2)(B), and sec.
6201(d) presents no barrier to our granting summary judgment.
- 8 -
failed to request collection alternatives. In connection with
petitioner’s first and second Appeals Office hearings, petitioner
has not alleged any specific facts showing there is a genuine
issue as to whether respondent’s Appeals Office abused its
discretion in sustaining respondent’s lien filing and proposed
levy action. See Rule 121(d); Celotex Corp. v. Catrett, 477 U.S.
317, 322-323 (1986).
On the record before us and as a matter of law we conclude
that respondent’s Appeals Office’s determination sustaining
respondent’s lien filing and proposed levy was not an abuse of
discretion.
For the reasons stated, we shall grant respondent’s motion
for summary judgment.
An appropriate order and
decisions will be entered.