T.C. Summary Opinion 2008-150
UNITED STATES TAX COURT
TRACY MICHELLE KEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26677-07S. Filed November 25, 2008.
Tracy Michelle Kee, pro se.
Chris J. Sheldon, for respondent.
GERBER, Judge: This case was heard pursuant to the
provisions of section 74631 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
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
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case. Respondent moved for summary judgment, and petitioner was
given an opportunity to respond but failed to do so. This case
arose under the provisions of section 6330, and the sole question
is whether there was an abuse of discretion when respondent
decided to proceed with collection.
Background
Petitioner had a self-assessed outstanding and unpaid 1998
tax liability which respondent proposed to collect by means of a
levy. Respondent notified petitioner of her right to a hearing,
and petitioner submitted a timely request for a hearing. In her
request petitioner sought a hearing to pursue an offer-in-
compromise because of various physical and financial hardships.
No detail of the hardships or specific offer to compromise was
contained in her request. Petitioner did not challenge the
underlying tax liability.
Petitioner was offered a face-to-face or telephone hearing
which was scheduled to occur on June 19, 2007. Petitioner,
however, failed to participate on June 19. Petitioner was
offered a second opportunity by July 26, 2007. Petitioner did
not respond to the second opportunity for a hearing and had no
other contact with respondent’s Appeals officer assigned to her
case.
After respondent moved for summary judgment, the Court
ordered petitioner to respond, but she failed to do so. The
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Court gave petitioner an additional opportunity to present her
position in this matter by issuing a September 8, 2008, order to
appear at the September 22, 2008, trial session in Phoenix,
Arizona, and to show cause why respondent’s motion for summary
judgment should not be granted. Petitioner failed to appear
and/or present any reasons why respondent should not be granted
summary judgment.
Discussion
Summary judgment is appropriate where there is no genuine
issue of material fact. Rule 121(b); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
Cir. 1994). In this case, respondent set forth material
allegations in his answer establishing that petitioner was not
entitled to question the underlying tax liability and that there
was no abuse of discretion in deciding to proceed with collection
by means of levy. After the time for filing a reply had expired,
respondent moved, under Rule 37(c), that the undenied allegations
in the answer be deemed admitted. The Court issued a notice to
petitioner to file a reply or otherwise object, but petitioner
failed to file a reply or make any response to respondent’s
motion or the Court’s order. Accordingly, respondent’s motion
was granted and the allegations in respondent’s answer were
deemed admitted. See Rule 37(c).
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In the motion for summary judgment, respondent alleged that
all of the steps required of the settlement officer under section
6330 provisions had been met. Because petitioner is precluded
from contesting the underlying liability, we review respondent’s
decision to proceed with collection under an abuse of discretion
standard. See Goza v. Commissioner, 114 T.C. 176, 182 (2000).
In her request for a hearing before respondent’s settlement
officer, petitioner set forth the following reason why respondent
could consider an offer-in-compromise: “Due to medical illness--
Medical Leave--Medical Bills--Child care--No income due to my
illness”. That is the only information that petitioner provided
to respondent, and consequently, it is the only information
available to the Court. Respondent and this Court have given
petitioner ample opportunities to provide more specific
information and/or reasons why respondent should not be allowed
to proceed with collection or why she may be entitled to relief
by means of an offer-in-compromise. Petitioner’s failure to come
forward, along with the fact that she is deemed to have admitted
respondent’s allegations in the answer, leave this Court with no
choice other than to grant respondent’s motion for summary
judgment.
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To reflect the foregoing,
An appropriate order and decision
will be entered for respondent.