Burton v. Comm'r

MEMORANDUM OPINION

CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment (respondent's motion). ¹ We shall grant respondent's motion. ²

*116              Background

The record establishes and/or the parties do not dispute the following.

Petitioner resided in Chicago, Illinois, at the time she filed the petition in this case.

On November 3, 1993, and February 3, 1993, respectively, respondent issued to petitioner notices of deficiency with respect to her taxable years 1988 and 1989, which she received. In the notice of deficiency (notice) relating to petitioner's taxable year 1988, respondent determined a deficiency in, and additions under sections 6651(a)(1) and 6653(a)(1)³ to, petitioner's Federal income tax (tax) for that year in the respective amounts of $ 2,368, $ 504, and $ 118. In the notice relating to petitioner's taxable year 1989, respondent determined a deficiency in petitioner's tax for that year of $ 3,217.

Petitioner did not file a petition*117 in the Court with respect to the notice relating to her taxable year 1988 or the notice relating to her taxable year 1989.

On February 6, 1995, respondent assessed petitioner's tax, as well as additions to tax and interest as provided by law, for her taxable year 1988. On February 6, 1995, respondent also assessed petitioner's tax, as well as interest as provided by law, for her taxable year 1989. (We shall refer to those assessed amounts, as well as interest as provided by law accrued after February 6, 1995, as petitioner's unpaid liabilities for 1988 and 1989.)

Respondent issued to petitioner the notices and demand for payment required by section 6303(a) with respect to petitioner's unpaid liabilities for 1988 and 1989.

On or about June 22, 2001, respondent filed a notice of Federal tax lien (tax lien filing) with the Recorder of Deeds, Cook County, Chicago, Illinois, with respect to, inter alia, petitioner's unpaid liabilities for 1988 and 1989. The tax lien filing listed petitioner's name and the address of her residence.

On June 28, 2001, respondent issued to petitioner a notice of Federal tax lien filing and your right to a hearing (notice of tax lien) with respect to, inter*118 alia, her unpaid liabilities for 1988 and 1989. On July 1, 2001, respondent issued to petitioner a final notice of intent to levy and notice of your right to a hearing (notice of intent to levy) with respect to, inter alia, those unpaid liabilities.

On or about July 25, 2001, in response to the notice of tax lien and the notice of intent to levy, petitioner filed Form 12153, Request for a Collection Due Process Hearing (Form 12153), and requested a hearing with respondent's Appeals Office (Appeals Office).

On February 12, 2002, a settlement officer with respondent's Appeals Office (settlement officer) held a telephonic Appeals Office hearing with petitioner with respect to the notice of tax lien and notice of intent to levy. During the telephonic Appeals Office hearing, the settlement officer relied on a transcript of petitioner's account with respect to each of her taxable years 1988 and 1989.

On May 2, 2002, the Appeals Office issued to petitioner a notice of determination concerning collection action(s) under section 6320 and/or 6330 (notice of determination). An attachment to the notice of determination stated in pertinent part:

ISSUES RAISED IN APPEAL

  *119 The underlying liability was challenged on the Form 12153. The

   taxpayer also stated she did not own the property located at the

   address listed on the Notice of Federal Tax Lien. * * *

   A telephone conference was held with the taxpayer on 2/12/2002.

   She stated she did not feel the figures reflected on the lien or

   notice were correct because she did not materially participate

   in the examination of the subject returns. In addition she

   stated she was unable to pay any amount due because she did not

   have steady income.

   The Settlement Officer provided details concerning the 1988 and

   1989 tax years in that she did provide the examiner with

   information that was used to adjust the calculation of tax,

   penalty and interest. The Statutory Notices of Deficiency were

   mailed to her and she did not respond.

           *   *   *   *   *   *   *

   The Services' policy with regard to filing a lien is to file the

   lien in the county of residence, using the last known address of

   record. The ownership of the subject property does not dictate*120 a

   lien filing. The assessments were made in accordance with

   established procedures for billing and demand per IRC 6321.

   Collection or payment alternatives were discussed with the

   taxpayer. Two potential alternatives are an installment

   agreement and an offer in compromise. These cannot be considered

   until the taxpayer is in full compliance with all filing

   requirements and submits detailed financial information. Neither

   compliance or financial information were provided to the

   Settlement Officer during this Appeal Process. The taxpayer was

   advised interest and penalty will continue to accrue until the

   subject liabilities are paid in full or settled in some other

   manner.

VERIFICATION OF LEGAL AND PROCEDURAL REQUIREMENTS

   Prior to the lien being filed, the tax assessments were made in

   accordance with established procedures. Notice and demand made

   and no payment remitted. A notification dated 4/7/2001 was sent

   to the taxpayers' address informing her of the potential for

   lien filing. No response or payment in full*121 resulted in the

   filing of a Federal Tax Lien.

   Sources of collection were identified prior to issuance of the

   Notice of Intent to Levy. The under-lying assessments were made

   in accordance with established procedures.

RECOMMENDATION

   ALL administrative procedures were followed by the Service

   Center prior to issuance of the Notice of Lien and the Notice of

   Intent to Levy. Both actions are sustained. The levy action is

   necessary in the interest of effective tax administration

   because the taxpayer has not fully cooperated with the Service

   Center or Appeals and has not filed tax returns for the years

   1997 thru 2001. [Reproduced literally.]

             Discussion

The Court may grant summary judgment where 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). We conclude that there are no genuine issues of material fact regarding the questions raised in respondent's motion.

Where, *122 as is the case here, the validity of the underlying tax liability is not properly placed at issue, the Court will review the determination of the Commissioner of Internal Revenue for abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

In her petition, petitioner alleges:

     I should not owe any taxes nor penalties & interest for

   neither of these three tax years. I do not know why I owe for

   1988. I participated in an audit face-to-face for 1989 and gave

   all documents requested to prove any claimed deductions. The IRS

   audit person concluded after about 1

Based upon our examination of the entire record before us, we find that respondent did not abuse respondent's discretion in determining to proceed with the collection actions as determined in the notice of determination with respect to petitioner's taxable years 1988 and 1989. ⁴

*123 We have considered all of petitioner's contentions, arguments, and requests that are not discussed herein, and we find them to be without merit and/or irrelevant.

On the record before us, we shall grant respondent's motion.

To reflect the foregoing and the concession of respondent,

An order granting respondent's motion and an appropriate decision will be entered.