T.C. Summary Opinion 2009-199
UNITED STATES TAX COURT
AISTE K. GUDEN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 29911-08S. Filed December 29, 2009.
Aiste K. Guden, pro se.
Mark S. Schwarz, 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 other court, and
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986 as amended, and all 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.
Respondent notified petitioner of the intent to file notices
of Federal tax lien and to proceed by levy with collection of
petitioner’s 2004 and 2005 income tax liabilities. Petitioner
sought administrative review and subsequently petitioned this
Court for relief from respondent’s determination to proceed with
collection. After this case had been calendared for trial at the
October 26, 2009, Las Vegas, Nevada, trial session of this Court
respondent filed a motion for summary judgment, which was
calendared for a hearing at the trial session. Petitioner did
not respond to respondent’s motion or appear at the scheduled
hearing. The question we consider is whether there was an abuse
of discretion in respondent’s determination to proceed with
collection activity.
Background
Respondent sent petitioner, for her 2004 and 2005 tax years,
a notice of intent to levy and a notice of Federal tax lien on
February 25 and April 4, 2008, respectively. Petitioner sought a
hearing with respect to both notices, and a single hearing was
scheduled for both. Respondent issued one determination
approving the filing of the notices and decision to proceed with
collection and petitioner timely petitioned this Court to
commence this collection proceeding (collection case).
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For 2004 and 2005 petitioner filed Federal income tax
returns reflecting a self-assessed and unpaid tax liability for
each year. Respondent audited both returns and on August 11,
2008, issued notices of deficiency in income tax from which
petitioner filed one single petition to commence a deficiency
proceeding in this Court, which has been designated docket No.
29843-08S (deficiency case).2 The collection and deficiency cases
were placed on this Court’s October 26, 2009, trial session at
Las Vegas, Nevada. Petitioner failed to appear at the trial
session, and respondent filed a motion to dismiss for lack of
prosecution in the deficiency case. Subsequently, on November
12, 2009, the Court granted respondent’s motion in the deficiency
case and entered an order of dismissal and decision with respect
to the income tax deficiencies for 2004 and 2005.
In seeking an administrative hearing regarding collection,
petitioner explained that her reason was that she “disputes the
underlying liability * * * [and that she] cannot afford to pay
the liability and wishes it to be shown as currently not
collectible.” Petitioner was contacted by the Appeals Office
during May and June 2008 regarding her request for a hearing. On
July 1, 2008, the settlement officer sent petitioner a letter
2
As explained later, petitioner filed for bankruptcy during
July 2008. It is noted that the issuance of the notices of
deficiency was not affected by the bankruptcy proceeding.
Petitioner’s time to file a petition, however, was suspended by
sec. 6213(f) and 11 U.S.C. sec. 362(a)(8) (2006).
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setting July 31, 2008, for a face-to-face hearing and requested
that petitioner complete and submit a Form 433-A, Collection
Information Statement for Wage Earners and Self-Employed
Individuals, to assist in the hearing process. On July 1, 2008,
petitioner filed for chapter 13 bankruptcy protection in the
U.S. District Court for the District of Nevada, and the
administrative collection process and the hearing were suspended
during the pendency of the bankruptcy proceeding. Petitioner’s
bankruptcy case was dismissed on September 22, 2008, no discharge
was issued, and petitioner’s 2004 and 2005 self-assessed tax
liabilities remained outstanding and unsatisfied.
On September 26, 2008, respondent proposed an October 29,
2008, hearing date. Petitioner’s representative advised
respondent on October 28, 2008, that he no longer represented her
and that he would advise petitioner of the hearing date.
Petitioner did not appear for the October 29, 2008, hearing. On
October 29, 2008, petitioner was sent notification of a new
hearing date, November 13, 2008, but petitioner did not appear
for that scheduled hearing. The settlement officer issued a
Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 on November 26, 2008, from which
petitioner sought review by this Court.
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Discussion
Summary judgment may be granted when there is no genuine
issue of material fact and a decision may be rendered as a matter
of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C.
518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The opposing
party cannot rest upon mere allegations or denials in his
pleadings. Rule 121(d). The moving party bears the burden of
proving that there is no genuine issue of material fact, and
factual inferences will be read in a manner most favorable to the
party opposing summary judgment. Dahlstrom v. Commissioner, 85
T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344
(1982). There is no dispute about the facts in this case, and it
is ripe for resolution, as a matter of law, by means of summary
judgment.
Petitioner filed returns for 2004 and 2005 and reported
income tax due but did not pay it. Following an audit
examination respondent issued notices of deficiency for the same
tax years, and petitioner petitioned this Court with respect to
those determinations. Petitioner had the opportunity to question
the underlying merits of respondent’s deficiency determinations
but failed to come forward, and a decision was entered in the
deficiency case with respect to the income tax as determined in
respondent’s notices of deficiency.
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The summary judgment motion we consider concerns
respondent’s collection activity for the self-assessed tax
liabilities. Regarding the self-assessed and unpaid tax
liabilities for 2004 and 2005, petitioner raised the underlying
merits of those assessments and explained that she could not pay
the tax liabilities (apparently, she was seeking collection
alternatives). Petitioner was afforded two separate
opportunities for a face-to-face meeting regarding respondent’s
proposed collection activity. She did not attend either
scheduled meeting, nor did she submit the requested Form 433-A so
that the settlement officer could consider collection
alternatives. Petitioner’s failure to come forward and/or to
raise the question of the underlying merits of her self-assessed
tax liabilities is of her own doing and is not an abuse of
discretion on respondent’s part. See Giamelli v. Commissioner,
129 T.C. 107 (2007). Accordingly, and because petitioner had
opportunities to question the merits of the underlying
liabilities and did not, we consider respondent’s actions under
an abuse of discretion standard. See sec. 6330(c)(2)(B); Goza
v. Commissioner, 114 T.C. 176 (2000).
In general, petitioner’s failure to come forward and to
present her position results in no abuse of discretion by
respondent in sustaining the decision to approve the action of
filing the notices of lien and to go forward with collection
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activity by levy. Respondent also offered petitioner the
opportunity to present financial information so that collection
alternatives could be considered. Petitioner failed to submit
any information. It appears, from the affidavit supplied by
respondent and the determination letter, that the settlement
officer considered the verification requirements. The settlement
officer also considered the issues petitioner raised and whether
the proposed collection action balanced the need for efficient
collection with any legitimate concerns of petitioner.
Under these circumstances, respondent’s motion for summary
judgment will be granted, and the determination approving the
filing of lien notices and to proceed with collection was not an
abuse of discretion. To reflect the foregoing,
An appropriate order and
decision will be entered.