T.C. Summary Opinion 2009-141
UNITED STATES TAX COURT
KENNETH O. AND ALTHEA C. GARCIA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 30831-08S. Filed September 9, 2009.
Kenneth O. Garcia and Althea C. Garcia, pro sese.
Adam C. Silva, for respondent.
LARO, 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 other court, and
1
Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
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this opinion shall not be treated as precedent for any other
case.
Petitioners petitioned the Court under section 6330(d) to
review the determination of the Internal Revenue Service Office
of Appeals (Appeals) sustaining a proposed levy related to their
2004 Federal income tax. The petition alleges primarily that the
proposed levy is improper because Appeals refused to consider any
offer-in-compromise by petitioners. This case is currently
before the Court on respondent’s motion to decide by summary
judgment that he is entitled to proceed with collection of
petitioners’ 2004 Federal income tax liability. We agree with
the substance of that motion, and we shall grant it.
Background
Petitioners failed to file a Federal income tax return for
2004. On September 12, 2007, respondent sent to petitioners a
notice of deficiency for 2004. The notice of deficiency
determined a $16,081 deficiency in petitioners’ Federal income
tax, a $4,604 addition to tax under section 6651(a)(1), and a
$3,216.20 accuracy-related penalty under section 6662(a).
Petitioners received the notice of deficiency but did not
petition the Court with respect to it. Respondent subsequently
assessed the deficiency, addition to tax, and accuracy-related
penalty, plus applicable interest.
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On or about April 14, 2008, respondent notified petitioners
that respondent was proposing a levy to collect their unpaid
Federal income tax liability for 2004 and that they could request
a hearing with Appeals as to the matter. Petitioners requested
the hearing, stating that they desired to enter into an offer in
compromise for 2004. Appeals subsequently advised petitioners on
August 27, 2008, that it would consider an offer in compromise
only if: (1) Petitioners filed their 2006 and 2007 Federal
income tax returns so as to be in compliance with their tax
return filing requirements, and (2) petitioners completed and
timely submitted a Form 433-A, Collection Information Statement
for Wage Earners and Self-Employed Individuals, with appropriate
attachments to a named officer of Appeals at her Fresno,
California, address listed on the advice. Included with the
advice was a copy of Form 433-A.
On October 8, 2008, Appeals notified petitioners that it had
set a telephone conference with them for November 5, 2008, and
reminded petitioners that the named officer of Appeals still
needed to receive the Form 433-A and other previously requested
items to consider any request by them for an offer in compromise.
Included with that notification was another copy of Form 433-A.
On the scheduled date, Appeals conducted the telephone hearing
with petitioner Kenneth Garcia (Mr. Garcia). During the hearing,
Mr. Garcia informed Appeals that his accountant was supposed to
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have rescheduled the hearing for a later date. Appeals noted it
had not received from petitioner either a power of attorney as to
the matter or the requested Form 433-A with attachments. Mr.
Garcia asked Appeals for more time to submit the Form 433-A with
attachments. Appeals responded that it had twice previously
requested that document from petitioners.
On November 21, 2008, Appeals issued each petitioner a
notice of determination sustaining the proposed levy. The
determination stated in part that petitioners had filed the
requested tax returns but had failed to submit the requested Form
433-A with attachments to the designated Appeals officer at the
listed address. The determination also stated that petitioners
disagreed with their underlying tax liability as shown in
respondent’s books but were not allowed to dispute that liability
at the hearing because they had had a prior opportunity to do so.
When petitioners petitioned the Court in commencement of
this case, they resided in California.
Discussion
Summary judgment may be granted with respect to any part of
the legal issues in controversy if the records before the Court
“show that there is no genuine issue as to any material fact and
that 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).
Respondent bears the burden of proving there is no genuine issue
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of material fact, and all facts are interpreted in the light most
favorable to petitioners. See Craig v. Commissioner, supra at
260. However, petitioners must do more than merely allege or
deny facts; they must set forth “specific facts showing that
there is a genuine issue for trial.” See Rule 121(d); Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). Under this standard,
petitioners have failed to raise any genuine issue of material
fact, and summary judgment is appropriate.
Section 6330 provides for notice and opportunity for a
hearing before the Commissioner may levy upon the property of any
person. The person may raise at the hearing any relevant issue
relating to the unpaid tax or proposed levy, including challenges
to the appropriateness of the collection action and offers of
collection alternatives. The person may challenge the existence
or amount of the underlying tax liability for the year only if
the person did not receive a notice of deficiency or did not
otherwise have an opportunity to dispute the liability. See sec.
6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 609 (2000).
Once Appeals issues a notice of determination, the person may
seek judicial review in this Court. See sec. 6330(d)(1). Unless
the validity of the underlying tax liability is properly at
issue, we review the determination for abuse of discretion. See
Sego v. Commissioner, supra at 609-610.
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Petitioners indicated in their response to respondent’s
motion that their underlying tax liability is less than that now
sought by respondent. The validity of their underlying tax
liability, however, is not properly at issue because petitioners
previously received a notice of deficiency for 2004 and had an
opportunity to dispute their tax liability for 2004 at that time.
The mere fact that petitioners’ accountant may not have filed
with the Court a petition in dispute of the notice of deficiency,
as petitioners claim they wanted him to do, is not sufficient for
them to prevail on this issue.
Nor do we believe that Appeals abused its discretion when it
declined to consider any offer in compromise from petitioners.
Petitioners failed to provide the Form 433-A with attachments to
the designated officer of Appeals at the listed address although
Appeals twice asked them to do so. See Olsen v. United States,
414 F.3d 144 (1st Cir. 2005); Huntress v. Commissioner, T.C.
Memo. 2009-161; McCall v. Commissioner, T.C. Memo. 2009-75.
Petitioners assert in their response to respondent’s motion that
they did timely provide Appeals with the requested form. To that
end, petitioners note, their response includes a completed Form
433-F, Collection Information Statement, and a U.S. Postal
Service receipt showing that they mailed a letter to the Internal
Revenue Service on September 5, 2008. The letter, however, was
mailed not to the named Appeals officer at her listed address in
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Fresno, California, but to an Internal Revenue Service Center at
a post office box in Holtsville, New York. Moreover, even if we
were to presume favorably to petitioners that the letter actually
was the Form 433-F included with the response, that form: (1) Is
different than the Form 433-A, a copy of which was provided to
petitioners by Appeals on two occasions, and (2) lacked any of
the referenced attachments.
We sustain the determinations of Appeals that the proposed
levy is appropriate. In so doing, we have considered all of
petitioners’ contentions and have concluded that those
contentions not discussed herein are without merit. To reflect
the foregoing,
An appropriate order and
decision will be entered for
respondent.