GUNDERSON v. COMMISSIONER

MEMORANDUM OPINION

VASQUEZ, Judge: This case is before the Court on respondent's motion under Rule 120, ¹ which, pursuant to Rule 120(b), the Court shall treat as respondent's motion for summary judgment under Rule 121.

The sole issue is whether respondent's determination to proceed with collection as to petitioner's 1993 taxable year was an abuse of discretion.

Background

At the time the petition was filed, petitioner resided in Arlington, Texas.

On January 9, 1997, respondent sent petitioner a notice of deficiency in his income tax for 1993. In response to this notice, petitioner filed a timely petition with*29 this Court. On July 7, 1997, respondent made a master file assessment for the amount of the 1993 deficiency. ² After realizing that a Tax Court petition had been timely filed, respondent abated the master file assessment on June 22, 1998.

On March 3, 1998, the Court entered a stipulated decision that petitioner's deficiency for 1993 was $ 5,954. Petitioner and respondent both signed this decision document. On May 21, 1998, respondent made a nonmaster file assessment of $ 5,954 to reflect the stipulated decision. ³

*30 On February 2, 1999, respondent sent petitioner a Notice of Intent to Levy and Notice of your Right to a Hearing under sections 6331 and 6330. On March 4, 1999, petitioner filed a Request for a Collection Due Process Hearing. After respondent conducted a hearing by telephone, respondent issued a notice of determination. In the notice, respondent stated:

   Your challenge to the appropriateness of the collection action

   was that you felt the I.R.S. notice issued June 22, 1998,

   which showed the abatement for the premature master file

   assessment showing nothing due on that account, relieved you

   also of the non-master file assessment made in accordance with

   the Tax Court's determination reflected in the decision document

   signed by you and Judge Mary Ann Cohen and entered March 3,

   1998. The notice reflects only internal accounting changes.

   I.R.S. does not have authority to change the Tax Court

   determination, and that was not the purpose of the notice.

On October 8, 1999, petitioner filed a petition for Lien/Levy Action under Code Section 6320(c) or 6330(d). In response to a Court order, petitioner filed an*31 Amended Petition for Lien or Levy Action under Code Section 6320(c) or 6330(d) on November 29, 1999. ⁴

Discussion

Respondent moved for summary judgment on the issue of whether respondent's determination to proceed with collection as to petitioner's 1993 taxable year was an abuse of discretion. Respondent argues that petitioner disputes only the underlying liability of $ 5,954 and that the validity of the liability is not properly before us.

Rule 121(a) provides that either party may move for summary judgment upon all or any part of the legal issues in controversy. Full or partial summary judgment may be granted only if it is demonstrated that no genuine*32 issue exists as to any material fact and a decision may be rendered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).

We conclude that there is no genuine issue as to any material facts regarding whether respondent's determination was an abuse of discretion.

Section 6331(a) provides that, if any person liable to pay any tax neglects or refuses to do so within 10 days after notice and demand, the Secretary can collect such tax by levy upon property belonging to such person. Pursuant to section 6331(d), the Secretary is required to give the taxpayer notice of his intent to levy and within that notice must describe the administrative review available to the taxpayer, before proceeding with the levy. See also sec. 6330(a).

Section 6330(b) describes the administrative review process, providing that a taxpayer can request an Appeals hearing with regard to a levy notice. At the Appeals hearing, the taxpayer may raise certain matters set forth in section 6330(c)(2), which provides, in pertinent part:

     SEC. 6330(c). Matters Considered At Hearing. *33 -- In the case

   of any hearing conducted under this section --

            *   *   *   *   *   *   *

     (2) Issues at hearing. --

        (A) In general. -- The person may raise at the hearing

     any relevant issue relating to the unpaid tax or proposed

     levy, including --

          (i) appropriate spousal defenses;

          (ii) challenges to the appropriateness of

        collection actions; and

          (iii) offers of collection alternatives, which

        may include the posting of a bond, the substitution of

        other assets, an installment agreement, or an offer-

        in-compromise.

        (B) Underlying liability. -- The person may also raise

     at the hearing challenges to the existence or amount of the

     underlying tax liability for any tax period if the person

     did not receive any statutory notice of deficiency for such

     tax liability or did not otherwise*34 have an opportunity to

     dispute such tax liability.

Pursuant to section 6330(d)(1), within 30 days of the issuance of the notice of determination, the taxpayer may appeal that determination to this Court if we have jurisdiction over the underlying tax liability. Van Es v. Commissioner, 115 T.C. 324, 328 (2000).

Although section 6330 does not prescribe the standard of review that the Court is to apply in reviewing the Commissioner's administrative determinations, we have stated that, where the validity of the underlying tax liability is properly at issue, the Court will review the matter on a de novo basis. Where the validity of the underlying tax liability is not properly at issue, however, the Court will review the Commissioner's administrative determination for abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181 (2000).

We review respondent's determination to proceed with the levy action on an abuse of discretion basis because the validity of the underlying tax liability is not properly at issue. At the hearing and in his petition, petitioner raised several arguments*35 regarding the conduct of his audit and the amount of the liability. Petitioner could not dispute the existence or the amount of the underlying tax liability at the hearing because petitioner received a notice of deficiency and did have the opportunity to dispute such liability which resulted in the stipulated decision. ⁵ See sec. 6330(c)(2)(B).

In addition, petitioner did not assert in the petition any spousal defenses, any challenges to the appropriateness of the collection actions, or any offers of collection alternatives. See sec. 6330(c)(2)(A). There is no basis in the record for the Court to conclude that respondent abused*36 his discretion with respect to any of these matters.

In reaching all of our holdings herein, we have considered all arguments made by the parties, and, to the extent not herein discussed, we find them to be irrelevant or without merit.

To reflect the foregoing,

An appropriate order and decision will be entered granting respondent's motion for summary judgment.