T.C. Memo. 2011-111
UNITED STATES TAX COURT
HEATHER LUDZACK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4300-10L. Filed May 25, 2011.
Heather Ludzack, pro se.
David L. Zoss, for respondent.
MEMORANDUM OPINION
SWIFT, Judge: In this collection case under section 6330
petitioner challenges respondent’s notice of intent to levy
relating to $2,623 in outstanding Federal employment taxes,
penalties, and interest petitioner owes in connection with her
restaurant and catering business. Respondent moves for summary
judgment under Rule 121.
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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.
Background
At the time the petition was filed, petitioner resided in
Wisconsin.1
During 2006 petitioner owned and operated as a sole
proprietorship a restaurant and catering business named Brick
House Café & Catering (Brick House) in Cable, Wisconsin. Brick
House was required to remit periodically to respondent employment
taxes withheld from employees’ wages. See secs. 3101, 3111.
On July 31, 2006, petitioner timely filed Brick House’s Form
941, Employer’s Quarterly Federal Tax Return, for the period
ending June 30, 2006, reporting Federal employment taxes due of
$1,890. Petitioner, however, remitted no payment in connection
with this filing.
On June 4, 2008, respondent sent petitioner a final notice
of intent to levy and an explanation of petitioner’s right to a
collection Appeals Office hearing under section 6330 relating to
1
Although petitioner did not respond to the Court’s Jan. 14,
2011, order to ratify her petition lacking an original signature,
the Court is satisfied that petitioner filed the petition herein.
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petitioner’s $1,890 unpaid Federal employment tax liability for
the period ending June 30, 2006.2
On June 16, 2008, petitioner filed with respondent a Form
12153, Request for a Collection Due Process or Equivalent
Hearing, relating to respondent’s proposed levy action. On the
Form 12153 petitioner indicated that she wished to propose an
offer-in-compromise as a collection alternative to respondent’s
proposed levy.
On December 12, 2008, respondent’s Appeals Officer (AO)
mailed petitioner a letter scheduling a collection due process
(CDP) hearing with petitioner for January 9, 2009. In this
letter respondent’s AO requested that petitioner submit proof of
Federal tax deposits for the period ending December 31, 2008, and
a copy of petitioner’s signed Federal employment tax return for
the period ending September 30, 2008.
On January 9, 2009, an Appeals Office hearing was held by
telephone conference between respondent’s AO and petitioner.
During this telephone conference petitioner and respondent’s AO
2
Apparently petitioner has unpaid Federal employment taxes
due for other periods, as well as unpaid Federal unemployment
taxes for 2 years. Petitioner lists on the petition herein as
properly in issue those other periods and years. However,
because the notice of determination that petitioner challenges
herein relates only to a proposed levy to collect petitioner’s
unpaid Federal employment taxes for the period ending June 30,
2006, those other periods and years are not properly before us.
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discussed, among other things, petitioner’s interest in proposing
an offer-in-compromise.
On January 12, 2009, respondent’s AO--following up on the
January 9, 2009, telephone conference call--sent petitioner a
Form 656, Offer in Compromise, and requested petitioner to
provide financial information. Petitioner never submitted a
completed Form 656, any less formal offer-in-compromise, or any
of the requested financial information.
On January 11, 2010, respondent’s AO made a determination
under section 6330 and mailed to petitioner a notice thereof
sustaining respondent’s proposed levy action. In this notice
respondent’s AO indicated that because petitioner failed to
submit an offer-in-compromise (and the requested financial
information needed for proper consideration of an offer-in-
compromise), respondent’s notice of intent to levy was justified.
On February 18, 2010, petitioner filed the petition herein
challenging respondent’s January 11, 2010, notice of
determination.
On December 3, 2010, respondent filed a motion for summary
judgment. On December 8, 2010, the Court issued an order
directing petitioner to file a response to respondent’s motion.
Petitioner failed to file any such response.
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On February 28, 2011, this case was called from the calendar
for the trial session at St. Paul, Minnesota. There was no
appearance by or on behalf of petitioner.3
Discussion
When no material fact remains at issue, we may grant summary
judgment as a matter of law. Rule 121(b); Fla. Country Clubs,
Inc. v. Commissioner, 122 T.C. 73, 75-76 (2004), affd. on other
grounds 404 F.3d 1291 (11th Cir. 2005). Petitioner has not
properly pursued any contest of her liability for the employment
tax liabilities for the period in issue.4 We review respondent’s
Appeals Office determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 181-182 (2000).
Taxpayers who wish to propose an offer-in-compromise are
required to submit a Form 656. See Godwin v. Commissioner, T.C.
Memo. 2003-289, affd. 132 Fed. Appx. 785 (11th Cir. 2005).
Although petitioner indicated her interest in proposing an offer-
3
During the calendar call on Feb. 28, 2011, respondent’s
counsel informed the Court that petitioner’s representative--who
has not entered an appearance in this case--had informed
respondent’s counsel that petitioner would not be responding to
respondent’s motion for summary judgment.
4
In her petition, petitioner challenges the penalties
associated with her unpaid Federal employment and unemployment
tax liability. Petitioner did not raise any argument pertaining
to penalties on her Form 12153 and, in failing to respond to
respondent’s motion for summary judgment and to appear at the
calendar call on Feb. 28, 2011, has failed to address
substantively the penalties issue before this Court.
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in-compromise, she never submitted to respondent’s AO a Form 656.
Because petitioner failed to submit to respondent’s AO any offer-
in-compromise, there was no abuse of discretion in respondent’s
AO’s failing to consider one. See Kendricks v. Commissioner, 124
T.C. 69, 79 (2005).
Respondent’s determination properly verified that all
requirements of applicable law and administrative procedure have
been met, that respondent’s AO considered the issues petitioner
raised in her CDP hearing, and that respondent’s AO balanced the
need for efficient collection of taxes with the legitimate
concern of petitioner that the collection action be no more
intrusive than necessary. See sec. 6330(c)(3).
Further, because petitioner failed to respond to
respondent’s motion for summary judgment and to attend (or have
someone appear on her behalf at) the calendar call, petitioner
has waived her right to contest respondent’s motion. See Rule
121(d); Aguirre v. Commissioner, 117 T.C. 324, 327 (2001).
We sustain respondent’s determination to reject petitioner’s
proposed collection alternative of an offer-in-compromise.
To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.