T.C. Summary Opinion 2009-51
UNITED STATES TAX COURT
JOHN HERBERT SCHOPPE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5966-07S. Filed April 13, 2009.
John Herbert Schoppe, pro se.
Inga C. Plucinski, 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.1 Pursuant to section
7463(b), the decision to be entered is not reviewable by any
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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other court, and this opinion shall not be treated as precedent
for any other case.
Respondent filed a motion for summary judgment with respect
to petitioner’s appeal of respondent’s section 6330 determination
to proceed to collect petitioner’s outstanding 2001 income tax
liability by means of levy. Petitioner objected to respondent’s
motion, and a hearing was held in Salt Lake City, Utah, on
February 9, 2009. For the reasons expressed in this opinion,
respondent’s motion will be granted.
Background
Petitioner resided in Utah at the time his petition was
filed. Petitioner did not file a Federal income tax return for
tax year 2001, and he had an established pattern of failing to
file returns. Petitioner contends that he did not file because
he had personal family difficulties and/or because he did not
have the financial ability to pay the tax. Petitioner also
contends that he has few or no assets.
During March 2004 respondent sent petitioner a statutory
notice determining an income tax deficiency based on third-party
reporting of income paid to petitioner. Petitioner received the
notice of deficiency and chose not to file a petition with this
Court. Accordingly, respondent assessed the income tax
deficiency against petitioner.
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On May 11, 2005, respondent notified petitioner of the
intent to collect petitioner’s outstanding 2001 income tax
liability by means of levy and of petitioner’s right to appeal.
Petitioner sought and was granted a hearing. During the hearing
respondent’s representative met the requirements of section 6330,
and petitioner asked for the collection alternative of an offer-
in-compromise. Respondent’s representative explained to
petitioner that an offer-in-compromise could not be processed
until petitioner filed delinquent returns for the intervening tax
periods, including 2001. Petitioner indicated that he could not
file because of a lack of time and money to prepare the
delinquent returns.
On February 7, 2007, respondent notified petitioner that the
determination to proceed with collection was sustained. On March
5, 2007, petitioner’s petition was filed. After the pleadings
were completed, respondent, on September 5, 2008, filed a motion
for summary judgment. Petitioner’s opposition to the motion was
filed October 9, 2008.
At this Court’s February 9, 2009, hearing on respondent’s
motion for summary judgment, petitioner produced a proposed
return for his 2001 tax year, which by petitioner’s computation
would not have resulted in any tax liability for the 2001 tax
year. At the time of the hearing petitioner still had delinquent
unfiled returns for other tax periods.
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Discussion
Summary judgment is intended to expedite litigation and
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). This controversy may be resolved by summary judgment
as there is no genuine issue as to a material fact.2
Petitioner may not question the underlying tax liability
because he had and did not take advantage of the opportunity to
do so upon his receipt of the notice of deficiency for 2001.
Accordingly, we review the determination to proceed with
collection on an abuse of discretion standard. Goza v.
Commissioner, 114 T.C. 176 (2000).
In accord with section 6330(c)(3), the Appeals officer
verified that the requirements of applicable law and
administrative procedure had been met and took into consideration
issues raised by petitioner and whether the collection action
balanced the need for the efficient collection of tax with the
2
There is no dispute concerning the question of the burden
or proof or production. See sec. 7491.
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concern that the collection action not be any more intrusive than
necessary. We find nothing in the record or pleadings of this
case that would show that respondent’s determination to proceed
with collection was an abuse of discretion.
Accordingly, respondent’s motion for summary judgment will
be granted and to reflect the foregoing,
An appropriate order and
decision will be entered.