T.C. Memo. 2015-106
UNITED STATES TAX COURT
SIVATHARAN NATKUNANATHAN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10332-14L. Filed June 9, 2015.
Sivatharan Natkunanathan, pro se.
Robert H. Berman, for respondent.
MEMORANDUM OPINION
LAUBER, Judge: In this collection due process (CDP) case petitioner seeks
review pursuant to section 6330(d)(1)1 of the determination by the Internal Reve-
1
All statutory references are to the Internal Revenue Code in effect at all
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure.
-2-
[*2] nue Service (IRS or respondent) to uphold a notice of intent to levy.
Respondent has moved for summary judgment under Rule 121, contending that
there are no disputed issues of material fact and that his action in sustaining the
proposed levy was proper as a matter of law. We agree and accordingly will grant
the motion.
Background
The following facts are based on the parties’ pleadings and motion papers,
including attached exhibits and affidavits. See Rule 121(b). For facts relating to
the general background of this case, we take judicial notice of the docket entries in
Natkunanathan v. Commissioner, T.C. Memo. 2010-15, aff’d, 479 Fed. Appx. 775
(9th Cir. 2012), and of petitioner’s subsequent (and frivolous) filings in the U.S.
Supreme Court.2
Petitioner filed his 2003 Federal income tax return late and subsequently
sought to amend it on at least three separate occasions. Following an examination
2
A court may take judicial notice of appropriate adjudicative facts at any
stage in a proceeding whether or not the parties request it. See Fed. R. Evid.
201(a), (c); Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th
Cir. 2006) (stating that the court “may take judicial notice of court filings and
other matters of public record”); United States v. Harris, 331 F.2d 600, 601 (6th
Cir. 1964) (explaining that a court may take judicial notice sua sponte). In
general, a court may take notice of facts that are capable of accurate and ready
determination by resort to sources whose accuracy cannot be reasonably
questioned. Fed. R. Evid. 201(b).
-3-
[*3] of his original return, the IRS determined a tax deficiency and additions to tax
and sent a notice of deficiency by certified mail to petitioner’s last known address.
Petitioner timely petitioned this Court; the case was tried; and we issued an
opinion, Natkunanathan, T.C. Memo. 2010-15, finding for 2003 a deficiency and
an addition to tax. Petitioner appealed to the U.S. Court of Appeals for the Ninth
Circuit, which affirmed our decision. Natkunanathan v. Commissioner, 479 Fed.
Appx. 775. Petitioner filed several motions in the Supreme Court seeking
permission to file a petition for writ of certiorari out of time; these motions were
denied. He has attempted to file numerous other documents with the Supreme
Court; it has refused to accept those filings.
When taking his appeal to the Court of Appeals, petitioner did not post a
bond to stay assessment and collection. See sec. 7485(a); Rule 192. Respondent
accordingly assessed petitioner’s tax liability for 2003 and proceeded to collect it.
On June 17, 2013, two months after the Supreme Court denied petitioner’s second
motion, the IRS sent him a Final Notice of Intent to Levy and Notice of Your
Right to a Hearing. Petitioner timely submitted Form 12153, Request for a Col-
lection Due Process or Equivalent Hearing. He there stated, as his reason for re-
questing a CDP hearing: “The Federal income tax deficiency is currently on ap-
peal in the United States Supreme Court.” On the Form 12153 petitioner did not
-4-
[*4] check any of the boxes for requesting a collection alternative or innocent
spouse relief.
On December 16, 2013, a settlement officer (SO) from the IRS Office of
Appeals sent petitioner a letter scheduling a correspondence hearing and re-
questing financial information. Petitioner did not provide any of the requested
financial information or suggest a collection alternative. After he failed to parti-
cipate in the CDP hearing, the SO sent him a “last chance” letter, to which he
responded by sending the SO “summary copies of Supreme Court proceedings,”
but no financial information. The SO thereupon closed the case and, on April 14,
2014, the IRS sent petitioner a Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 sustaining the levy. While residing in
California, petitioner timely petitioned this Court for review.
Discussion
I. Summary Judgment and Standard of Review
The purpose of summary judgment is to expedite litigation and avoid unne-
cessary and time-consuming trials. Fla. Peach Corp. v. Commissioner, 90 T.C.
678, 681 (1988). The Court may grant summary judgment when there is no genu-
ine dispute as to any 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),
-5-
[*5] aff’d, 17 F.3d 965 (7th Cir. 1994). Where the moving party properly makes
and supports a motion for summary judgment, “an adverse party may not rest upon
the mere allegations or denials of such party’s pleading,” but must set forth
specific facts, by affidavit or otherwise, showing that there is a genuine dispute for
trial. Rule 121(d).
Where (as here) the taxpayer cannot dispute his underlying tax liability,3 the
Court reviews the IRS’ determination for abuse of discretion. Goza v. Commis-
sioner, 114 T.C. 176, 181-182 (2000). Abuse of discretion exists when a deter-
mination is arbitrary, capricious, or without sound basis in fact or law. See Mur-
phy v. Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 21 (1st Cir.
2006). We accordingly review the SO’s actions with respect to 2003 for abuse of
discretion only.
Petitioner responded to the motion for summary judgment, but his response
alleges no dispute as to any material fact. In the light of respondent’s motion, his
3
Section 6330(c)(2)(B) permits a taxpayer to challenge the existence or
amount of his underlying liability in a CDP proceeding only if he did not receive a
notice of deficiency or otherwise have a prior opportunity to contest that liability.
Petitioner received a notice of deficiency for 2003 and contested that liability in
this Court. See Natkunanathan, T.C. Memo. 2010-15. His underlying tax liability
for 2003 was therefore not at issue in his CDP hearing.
-6-
[*6] supporting affidavits, and petitioner’s response thereto, we conclude that no
material facts are in dispute and that this case may be adjudicated summarily.
II. Analysis
In deciding whether the SO abused her discretion in sustaining the levy, we
consider whether she: (1) properly verified that the requirements of any applicable
law or administrative procedure have been met; (2) considered any relevant issues
petitioner raised; and (3) determined whether “any proposed collection action bal-
ances the need for the efficient collection of taxes with the legitimate concern of
* * * [petitioner] that any collection action be no more intrusive than necessary.”
See sec. 6330(c)(3).
It is clear from our review of the record that the SO analyzed the transcript
of petitioner’s account and properly verified that the requirements of applicable
law and administrative procedure were followed. Petitioner proposed no col-
lection alternative, and the SO in sustaining the levy properly balanced “the need
for the efficient collection of taxes with the legitimate concern of * * * [petitioner]
that any collection action be no more intrusive than necessary.” See id. The only
question is whether petitioner at his CDP hearing raised any issue that has merit.
The answer to that question is clearly “No.” As his only basis for requesting
a CDP hearing, petitioner stated that his 2003 tax liability was “on appeal in the
-7-
[*7] United States Supreme Court.” That statement was false. Petitioner did not
file a timely petition for certiorari, and the Supreme Court denied his motions for
leave to petition out of time.
When a taxpayer timely petitions this Court in response to a notice of defi-
ciency, the IRS generally may not proceed to assess or collect the tax “until the
decision of the Tax Court has become final.” Sec. 6213(a). Where (as here) a
decision of our Court has been affirmed on appeal, the decision becomes final
“[u]pon the expiration of the time allowed for filing a petition for certiorari.” Sec.
7481(a)(2)(A). The Ninth Circuit issued its mandate on September 6, 2012; as of
December 16, 2013, when petitioner’s CDP hearing was scheduled, the period for
seeking certiorari had expired at least nine months previously. See 28 U.S.C. sec.
2101(c) (2012). Our decision in petitioner’s 2003 case was thus “final,” and there
was no basis for petitioner’s assertion that the IRS was statutorily barred from
seeking to collect the tax.
Even if our decision had not been “final,” the IRS would still have been free
to collect petitioner’s tax liability because he had failed to post an appeal bond.
Section 7485 provides that, “[n]otwithstanding any provision of law imposing
restrictions on the assessment and collection of deficiencies, * * * [appellate]
review under section 7483 shall not operate as a stay of assessment or collection
-8-
[*8] of any portion of * * * the deficiency determined by the Tax Court” unless
the taxpayer files a timely notice of appeal and, as relevant here, also posts a bond
as provided in section 7485(a)(1). Petitioner did not post such a bond. If no bond
is posted, the IRS may properly assess taxes and initiate collection during the pen-
dency of the appeal. Burke v. Commissioner, 124 T.C. 189, 191 n.4 (2005); Byers
v. Commissioner, T.C. Memo. 2012-27, aff’d, 740 F.3d 668 (D.C. Cir. 2014);
Schroeder v. Commissioner, T.C. Memo. 2005-48. For this reason as well, the SO
correctly rejected petitioner’s contention that his supposed pursuit of further ap-
pellate review prevented the IRS from levying to collect his 2003 tax liability. See
Kovacevich v. Commissioner, T.C. Memo. 2009-160, slip op. at 6 n.4; see also
Dawn v. Richmond, 861 F.2d 268 (9th Cir. 1988) (unpublished table decision)
(holding that the Commissioner’s assessment and collection activities did not vio-
late taxpayers’ statutory or constitutional rights where they did not post a bond).
Once a taxpayer has been given a reasonable opportunity for a hearing but
fails to avail himself of it, the Commissioner may make a determination based on
the case file. See, e.g., Oropeza v. Commissioner, T.C. Memo. 2008-94, aff’d, 402
Fed. Appx. 221 (9th Cir. 2010); Taylor v. Commissioner, T.C. Memo. 2004-25,
aff’d, 130 Fed. Appx. 934 (9th Cir. 2005); sec. 301.6330-1(d)(2), Q&A-D7,
Proced. & Admin. Regs. The SO tried to schedule a CDP hearing with petitioner
-9-
[*9] and, when he failed to respond, gave him a final opportunity to contest the
levy by sending him a “last chance” letter. On the record before us, we find that
petitioner was given a reasonable opportunity to seek a collection alternative if he
desired one; he completely failed to take advantage of that opportunity. Finding
no abuse of discretion in any respect, we will grant summary judgment for respon-
dent and affirm the proposed collection action.
To reflect the foregoing,
An appropriate order and decision
will be entered.