PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b),THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE. T.C. Summary Opinion 2014-72
UNITED STATES TAX COURT
DANNY ALLEN COKER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26933-12S L. Filed July 16, 2014.
Danny Allen Coker, pro se.
Horace Crump and Thomas Alan Friday, for respondent.
SUMMARY OPINION
LAUBER, 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 Pur-
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 (Rules). -2-
suant to section 7463(b), the decision to be entered is not reviewable by any other
court, and this opinion shall not be treated as precedent for any other case.
In this collection due process (CDP) case, petitioner seeks review pursuant
to section 6330(d)(1) of the determination by the Internal Revenue Service (IRS or
respondent) to uphold a notice of intent to levy. Respondent has moved for sum-
mary 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
Petitioner filed a Federal income tax return for 2010 late and failed to pay
the full amount of tax shown as due on the return. The IRS subsequently assessed
the tax against him. On May 28, 2012, in an effort to collect the assessed tax, the
IRS sent petitioner a Final Notice of Intent to Levy and Notice of Your Right to a
Hearing. Petitioner timely submitted Form 12153, Request for a Collection Due
Process or Equivalent Hearing. In his request, petitioner sought a collection
alternative in the form of an installment agreement.
On August 3, 2012, a settlement officer (SO) from the IRS Appeals Office
sent petitioner a letter informing him that his CDP hearing request had been
received. On August 7, 2012, the SO sent petitioner a letter scheduling a -3-
telephone CDP hearing for August 23, 2012. The SO informed petitioner that, in
order for her to consider a collection alternative, he needed to provide her with a
copy of a completed Form 433-A, Collection Information Statement for Wage
Earners and Self-Employed Individuals, with supporting financial information.
Petitioner provided no documentation and proposed no collection alter-
native before the scheduled CDP hearing. He failed to participate in that hearing
and did not request that it be rescheduled. The SO called petitioner and left a
voice message asking that he call her back to reschedule the hearing. The SO then
mailed petitioner a “last chance” letter requesting that he submit financial informa-
tion if he wished the IRS to consider a collection alternative. Petitioner submitted
no information and failed to contact the IRS regarding his case. Accordingly, on
October 15, 2012, the IRS issued petitioner a notice of determination sustaining
the proposed levy. Petitioner timely sought review in this Court.
In his petition, petitioner asserts that he “never received the letters request-
ing additional information.” The SO sent three letters regarding the scheduling of
the CDP conference to petitioner at a Blue Springs, Mississippi, address (Blue
Springs address), which is the address that petitioner provided on his CDP hearing
request. The SO also mailed the Notice of Determination to that address. The
Court has the Blue Springs address in its files as petitioner’s address. -4-
On March 27, 2014, respondent filed a motion for summary judgment. The
Court ordered petitioner to file a response to this motion by May 1, 2014. This
order advised petitioner that “under Tax Court Rule 121(d), judgment may be
entered against a party who fails to respond to a motion for summary judgment.”
Petitioner has responded neither to respondent’s motion nor to the Court’s order.
Discussion
A. Summary Judgment and Standard of Review
The purpose of summary judgment is to expedite litigation and avoid costly,
time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90
T.C. 678, 681 (1988). Under Rule 121(b), the Court may grant summary judgment
when there is no genuine dispute as to any material fact and a decision may be
rendered as a matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), aff’d, 17 F.3d 965 (7th Cir. 1994). Rule 121(d) provides that 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 rather must set forth specific facts, by affidavits or otherwise,
“showing that there is a genuine dispute for trial.”
Where (as here) there is no dispute concerning the underlying tax liability,
the Court reviews the IRS’ determination for abuse of discretion. Goza v. -5-
Commissioner, 114 T.C. 176, 182 (2000). An abuse of discretion exists when a
determination is arbitrary, capricious, or without sound basis in fact or law. See
Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir.
2006).
Because petitioner failed to respond to respondent’s motion for summary
judgment, the Court could enter a decision against him for that reason alone. See
Rule 121(d). We will nevertheless consider the motion on its merits. We
conclude that there are no material facts in dispute and that this case is appropriate
for summary adjudication.
B. Analysis
The only question is whether the IRS properly sustained a levy to collect
petitioner’s liability. We review the record to determine whether: (1) the Appeals
officer properly verified that the requirements of any applicable law or ad-
ministrative procedure have been met; (2) any issues petitioner raised have merit;
and (3) “any proposed collection action balances the need for the efficient
collection of taxes with the legitimate concern of the person that any collection
action be no more intrusive than necessary.” Sec. 6330(c)(3).
It is clear from our review of the record that the SO conducted a thorough
review of transcripts of petitioner’s account and verified that the requirements of -6-
applicable law and administrative procedure were followed. The SO properly
balanced the need for efficient collection of taxes with petitioner’s legitimate
concern that collection action be no more intrusive than necessary. Petitioner did
not raise a valid challenge to the appropriateness of respondent’s intended col-
lection action. These issues are now deemed conceded. See Rule 331(b)(4).
Petitioner’s request for a CDP hearing included a statement that he intended
to propose an installment agreement. Section 6159 authorizes the IRS to enter
into a written agreement allowing a taxpayer to pay a tax liability in installments if
it concludes that the “agreement will facilitate full or partial collection of such
liability.” The decision to accept or reject installment agreements lies within the
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PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b),THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE. T.C. Summary Opinion 2014-72
UNITED STATES TAX COURT
DANNY ALLEN COKER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26933-12S L. Filed July 16, 2014.
Danny Allen Coker, pro se.
Horace Crump and Thomas Alan Friday, for respondent.
SUMMARY OPINION
LAUBER, 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 Pur-
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 (Rules). -2-
suant to section 7463(b), the decision to be entered is not reviewable by any other
court, and this opinion shall not be treated as precedent for any other case.
In this collection due process (CDP) case, petitioner seeks review pursuant
to section 6330(d)(1) of the determination by the Internal Revenue Service (IRS or
respondent) to uphold a notice of intent to levy. Respondent has moved for sum-
mary 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
Petitioner filed a Federal income tax return for 2010 late and failed to pay
the full amount of tax shown as due on the return. The IRS subsequently assessed
the tax against him. On May 28, 2012, in an effort to collect the assessed tax, the
IRS sent petitioner a Final Notice of Intent to Levy and Notice of Your Right to a
Hearing. Petitioner timely submitted Form 12153, Request for a Collection Due
Process or Equivalent Hearing. In his request, petitioner sought a collection
alternative in the form of an installment agreement.
On August 3, 2012, a settlement officer (SO) from the IRS Appeals Office
sent petitioner a letter informing him that his CDP hearing request had been
received. On August 7, 2012, the SO sent petitioner a letter scheduling a -3-
telephone CDP hearing for August 23, 2012. The SO informed petitioner that, in
order for her to consider a collection alternative, he needed to provide her with a
copy of a completed Form 433-A, Collection Information Statement for Wage
Earners and Self-Employed Individuals, with supporting financial information.
Petitioner provided no documentation and proposed no collection alter-
native before the scheduled CDP hearing. He failed to participate in that hearing
and did not request that it be rescheduled. The SO called petitioner and left a
voice message asking that he call her back to reschedule the hearing. The SO then
mailed petitioner a “last chance” letter requesting that he submit financial informa-
tion if he wished the IRS to consider a collection alternative. Petitioner submitted
no information and failed to contact the IRS regarding his case. Accordingly, on
October 15, 2012, the IRS issued petitioner a notice of determination sustaining
the proposed levy. Petitioner timely sought review in this Court.
In his petition, petitioner asserts that he “never received the letters request-
ing additional information.” The SO sent three letters regarding the scheduling of
the CDP conference to petitioner at a Blue Springs, Mississippi, address (Blue
Springs address), which is the address that petitioner provided on his CDP hearing
request. The SO also mailed the Notice of Determination to that address. The
Court has the Blue Springs address in its files as petitioner’s address. -4-
On March 27, 2014, respondent filed a motion for summary judgment. The
Court ordered petitioner to file a response to this motion by May 1, 2014. This
order advised petitioner that “under Tax Court Rule 121(d), judgment may be
entered against a party who fails to respond to a motion for summary judgment.”
Petitioner has responded neither to respondent’s motion nor to the Court’s order.
Discussion
A. Summary Judgment and Standard of Review
The purpose of summary judgment is to expedite litigation and avoid costly,
time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90
T.C. 678, 681 (1988). Under Rule 121(b), the Court may grant summary judgment
when there is no genuine dispute as to any material fact and a decision may be
rendered as a matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), aff’d, 17 F.3d 965 (7th Cir. 1994). Rule 121(d) provides that 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 rather must set forth specific facts, by affidavits or otherwise,
“showing that there is a genuine dispute for trial.”
Where (as here) there is no dispute concerning the underlying tax liability,
the Court reviews the IRS’ determination for abuse of discretion. Goza v. -5-
Commissioner, 114 T.C. 176, 182 (2000). An abuse of discretion exists when a
determination is arbitrary, capricious, or without sound basis in fact or law. See
Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir.
2006).
Because petitioner failed to respond to respondent’s motion for summary
judgment, the Court could enter a decision against him for that reason alone. See
Rule 121(d). We will nevertheless consider the motion on its merits. We
conclude that there are no material facts in dispute and that this case is appropriate
for summary adjudication.
B. Analysis
The only question is whether the IRS properly sustained a levy to collect
petitioner’s liability. We review the record to determine whether: (1) the Appeals
officer properly verified that the requirements of any applicable law or ad-
ministrative procedure have been met; (2) any issues petitioner raised have merit;
and (3) “any proposed collection action balances the need for the efficient
collection of taxes with the legitimate concern of the person that any collection
action be no more intrusive than necessary.” Sec. 6330(c)(3).
It is clear from our review of the record that the SO conducted a thorough
review of transcripts of petitioner’s account and verified that the requirements of -6-
applicable law and administrative procedure were followed. The SO properly
balanced the need for efficient collection of taxes with petitioner’s legitimate
concern that collection action be no more intrusive than necessary. Petitioner did
not raise a valid challenge to the appropriateness of respondent’s intended col-
lection action. These issues are now deemed conceded. See Rule 331(b)(4).
Petitioner’s request for a CDP hearing included a statement that he intended
to propose an installment agreement. Section 6159 authorizes the IRS to enter
into a written agreement allowing a taxpayer to pay a tax liability in installments if
it concludes that the “agreement will facilitate full or partial collection of such
liability.” The decision to accept or reject installment agreements lies within the
Commissioner’s discretion. See Thompson v. Commissioner, 140 T.C. 173, 179
(2013) (citing Kuretski v. Commissioner, T.C. Memo. 2012-262, at *9, aff’d, __
F.3d __ (D.C. Cir. June 20, 2014)). As a threshold matter, it is not an abuse of
discretion for the SO to decline to consider an installment agreement where the
taxpayer does not place a specific proposal on the table. See McLaine v.
Commissioner, 138 T.C. 228, 243 (2012); Kendricks v. Commissioner, 124 T.C.
69, 79 (2005). Stated otherwise, it is the obligation of the taxpayer, not of the
reviewing officer, to start negotiations regarding a collection alternative by
making a specific proposal. Petitioner never made such a proposal. -7-
Further, petitioner neglected to furnish Form 433-A and the underlying
financial information requested by the SO. As a prerequisite for consideration of
an installment agreement, it is incumbent on the taxpayer to provide requested
financial information that will enable the IRS to make an informed evaluation of
his ability to pay. See, e.g., secs. 6159, 7122; Kindred v. Commissioner, 454 F.3d
688, 697 (7th Cir. 2006); Olsen v. United States, 414 F.3d 144, 151 (1st Cir.
2005); Murphy v. Commissioner, 125 T.C. at 315. We have held that no abuse of
discretion occurs when an SO is unable to consider collection alternatives because
of a taxpayer’s failure to provide financial information. See, e.g., Lance v.
Commissioner, T.C. Memo. 2009-129; Schwersensky v. Commissioner, T.C.
Memo. 2006-178. We likewise find no abuse of discretion here.
Petitioner argues that he failed to provide the requested financial informa-
tion because he “never received the letters requesting additional information.”
The SO sent three separate letters to petitioner regarding the scheduling of the
CDP conference and left, at a minimum, one voice message for him. These letters
were addressed to petitioner at the Blue Springs address, which is the same ad-
dress to which the SO mailed the Notice of Determination. It is clear that peti-
tioner received the Notice of Determination because he attached a copy of it to his
petition. He has provided no explanation--besides the general allegation in his -8-
pleading--as to why he received that notice but none of the letters mailed to the
same address shortly before. Contrary to our Rules, petitioner has “rest[ed] upon
the mere allegations” of his pleading. See Rule 121(d). As we were presented
with no contrary evidence, we find no genuine dispute as to any material fact on
this point.
In any event, petitioner does not explain why he failed to return the SO’s
phone call. Regardless of whether petitioner received the letters (which we
believe that he did), he was instructed to call the SO back by phone. Because
petitioner failed to respond to the IRS motion for summary judgment, we are left
without any specific facts showing that there is a genuine issue for trial on that, or
any other, point. See Rule 121(d). We therefore find that petitioner was aware of
his responsibility to provide financial information to the SO but neglected to do
so. Finding no abuse of discretion in any respect, we will grant summary
judgment for respondent and affirm the proposed collection action. To reflect the
foregoing,
An appropriate order and decision
will be entered.