PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b),THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE. T.C. Summary Opinion 2013-23
UNITED STATES TAX COURT
NORMA C. HENNESSEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19283-12S L. Filed March 20, 2013.
Norma C. Hennessey, pro se.
John M. Janusz, for respondent.
SUMMARY OPINION
RUWE, Judge: The petition in this case was filed pursuant to the provisions
of section 74631 of the Internal Revenue Code. Pursuant to section 7463(b), the
1 Unless otherwise indicated, all section 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-
decision to be entered is not reviewable by any other court, and this opinion shall
not be treated as precedent for any other case. This matter is before the Court on
respondent’s motion for summary judgment (motion) pursuant to Rule 121.
Respondent contends that no genuine dispute exists as to any material fact and that
the determination to maintain a notice of Federal tax lien filed under section 6323
should be sustained. Petitioner has not responded to the motion, despite two orders
from this Court instructing her to do so.2
Background
At the time the petition was filed, petitioner resided in New York.
On April 18, 2011, petitioner filed her 2008 and 2009 Federal income tax
returns. Petitioner failed to pay the full amounts of her tax liabilities, and on May
30, 2011, respondent assessed the tax shown on the returns as well as penalties and
interest.
Respondent filed a notice of Federal tax lien regarding petitioner’s unpaid tax
liabilities for the taxable years 2008 and 2009. Respondent sent petitioner a Letter
3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC
2 By order dated December 18, 2012, the Court directed petitioner to file a response on or before January 18, 2013. By order dated January 24, 2013, the Court granted petitioner’s motion for an extension of time to file a response to the motion and extended the time to February 14, 2013. No response was filed by petitioner. -3-
6320, dated June 29, 2011. Petitioner submitted a timely Form 12153, Request for
a Collection Due Process or Equivalent Hearing, in which she did not contest the
underlying tax liabilities but instead requested a collection alternative because she
could not pay the balance. On October 24, 2011, petitioner submitted a Form 656,
Offer in Compromise. The Centralized Offer in Compromise (COIC) unit reviewed
petitioner’s offer and informed the settlement officer from the Internal Revenue
Service (IRS) Appeals Office that the submitted financial information indicated
petitioner could fully pay her tax liabilities through an installment agreement. By
letter dated May 8, 2012, the settlement officer acknowledged receipt of petitioner’s
collection due process (CDP) hearing request and scheduled a telephone conference
call for May 24, 2012.
Petitioner did not call the settlement officer on May 24, 2012. By letter dated
May 24, 2012, the settlement officer informed petitioner that she had not called the
settlement officer for the scheduled CDP hearing. The letter further stated that
petitioner had 14 days to provide any additional information she would like the
settlement officer to consider in making her determination. Petitioner did not
contact the settlement officer or provide any additional information.
The IRS Appeals Office sent petitioner a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330, dated June 27, 2012, -4-
determining that all legal and procedural requirements in the filing of the notice of
Federal tax lien had been followed and that the notice of Federal tax lien was
appropriate. Petitioner timely filed a petition with this Court.
Discussion
Summary judgment is intended to expedite litigation and to avoid unnecessary
and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974).
Summary judgment may be granted where the pleadings and other materials show
that there is no genuine dispute as to any material fact and that a decision may be
rendered as a matter of law. Rule 121(a) and (b); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). The
burden is on the moving party to demonstrate that no genuine dispute as to any
material fact remains and that he is entitled to judgment as a matter of law. FPL
Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75 (2001). In all cases, the
evidence is viewed in the light most favorable to the nonmoving party. Bond v.
Commissioner, 100 T.C. 32, 36 (1993). However, the nonmoving party is required
“to go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); see also Rauenhorst v. Commissioner, 119 T.C. 157, 175 (2002); -5-
FPL Grp., Inc. & Subs. v. Commissioner, 115 T.C. 554, 559 (2000). Petitioner
failed to respond to the motion and has failed to demonstrate that there is a
genuine dispute for trial. Consequently, we conclude that there is no dispute
as to any material fact and that a decision may be rendered as a matter of
law.
Section 6321 provides that if any person liable to pay any tax neglects or
refuses to do so after demand, the amount shall be a lien in favor of the United
States upon all property and rights to property, whether real or personal, belonging
to such person. Section 6323 authorizes the Commissioner to file a notice of
Federal tax lien. Pursuant to section 6320(a) the Commissioner must provide the
taxpayer with notice of and an opportunity for an administrative review of the
propriety of the filing. See Katz v. Commissioner, 115 T.C. 329, 333 (2000). If a
taxpayer requests a CDP hearing, she may raise at that hearing any relevant issue
relating to the unpaid tax or the lien. Secs. 6330(c)(2), 6320(c). Relevant issues
include possible alternative means of collection. Sec. 6330(c)(2)(A)(iii).
If a taxpayer’s underlying liability is properly at issue, the Court reviews any
determination regarding the underlying liability de novo. Goza v. Commissioner,
114 T.C. 176, 181-182 (2000). A taxpayer is precluded from disputing a section
6330(c)(2) issue, including a challenge to the underlying liability, which was not -6-
properly raised in the CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107,
114 (2007). Petitioner did not raise her underlying tax liabilities in her request for a
CDP hearing. In her petition she made no specific allegations or arguments
regarding the correctness of the underlying tax liabilities, and she failed to file any
response to the motion. Consequently, petitioner’s underlying tax liabilities are not
properly before the Court.
The Court reviews administrative determinations by the Commissioner’s
Office of Appeals regarding nonliability issues for abuse of discretion. Hoyle v.
Commissioner, 131 T.C. 197, 200 (2008); Goza v. Commissioner, 114 T.C. at 182.
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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 2013-23
UNITED STATES TAX COURT
NORMA C. HENNESSEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19283-12S L. Filed March 20, 2013.
Norma C. Hennessey, pro se.
John M. Janusz, for respondent.
SUMMARY OPINION
RUWE, Judge: The petition in this case was filed pursuant to the provisions
of section 74631 of the Internal Revenue Code. Pursuant to section 7463(b), the
1 Unless otherwise indicated, all section 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-
decision to be entered is not reviewable by any other court, and this opinion shall
not be treated as precedent for any other case. This matter is before the Court on
respondent’s motion for summary judgment (motion) pursuant to Rule 121.
Respondent contends that no genuine dispute exists as to any material fact and that
the determination to maintain a notice of Federal tax lien filed under section 6323
should be sustained. Petitioner has not responded to the motion, despite two orders
from this Court instructing her to do so.2
Background
At the time the petition was filed, petitioner resided in New York.
On April 18, 2011, petitioner filed her 2008 and 2009 Federal income tax
returns. Petitioner failed to pay the full amounts of her tax liabilities, and on May
30, 2011, respondent assessed the tax shown on the returns as well as penalties and
interest.
Respondent filed a notice of Federal tax lien regarding petitioner’s unpaid tax
liabilities for the taxable years 2008 and 2009. Respondent sent petitioner a Letter
3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC
2 By order dated December 18, 2012, the Court directed petitioner to file a response on or before January 18, 2013. By order dated January 24, 2013, the Court granted petitioner’s motion for an extension of time to file a response to the motion and extended the time to February 14, 2013. No response was filed by petitioner. -3-
6320, dated June 29, 2011. Petitioner submitted a timely Form 12153, Request for
a Collection Due Process or Equivalent Hearing, in which she did not contest the
underlying tax liabilities but instead requested a collection alternative because she
could not pay the balance. On October 24, 2011, petitioner submitted a Form 656,
Offer in Compromise. The Centralized Offer in Compromise (COIC) unit reviewed
petitioner’s offer and informed the settlement officer from the Internal Revenue
Service (IRS) Appeals Office that the submitted financial information indicated
petitioner could fully pay her tax liabilities through an installment agreement. By
letter dated May 8, 2012, the settlement officer acknowledged receipt of petitioner’s
collection due process (CDP) hearing request and scheduled a telephone conference
call for May 24, 2012.
Petitioner did not call the settlement officer on May 24, 2012. By letter dated
May 24, 2012, the settlement officer informed petitioner that she had not called the
settlement officer for the scheduled CDP hearing. The letter further stated that
petitioner had 14 days to provide any additional information she would like the
settlement officer to consider in making her determination. Petitioner did not
contact the settlement officer or provide any additional information.
The IRS Appeals Office sent petitioner a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330, dated June 27, 2012, -4-
determining that all legal and procedural requirements in the filing of the notice of
Federal tax lien had been followed and that the notice of Federal tax lien was
appropriate. Petitioner timely filed a petition with this Court.
Discussion
Summary judgment is intended to expedite litigation and to avoid unnecessary
and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862 (1974).
Summary judgment may be granted where the pleadings and other materials show
that there is no genuine dispute as to any material fact and that a decision may be
rendered as a matter of law. Rule 121(a) and (b); Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). The
burden is on the moving party to demonstrate that no genuine dispute as to any
material fact remains and that he is entitled to judgment as a matter of law. FPL
Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75 (2001). In all cases, the
evidence is viewed in the light most favorable to the nonmoving party. Bond v.
Commissioner, 100 T.C. 32, 36 (1993). However, the nonmoving party is required
“to go beyond the pleadings and by her own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986); see also Rauenhorst v. Commissioner, 119 T.C. 157, 175 (2002); -5-
FPL Grp., Inc. & Subs. v. Commissioner, 115 T.C. 554, 559 (2000). Petitioner
failed to respond to the motion and has failed to demonstrate that there is a
genuine dispute for trial. Consequently, we conclude that there is no dispute
as to any material fact and that a decision may be rendered as a matter of
law.
Section 6321 provides that if any person liable to pay any tax neglects or
refuses to do so after demand, the amount shall be a lien in favor of the United
States upon all property and rights to property, whether real or personal, belonging
to such person. Section 6323 authorizes the Commissioner to file a notice of
Federal tax lien. Pursuant to section 6320(a) the Commissioner must provide the
taxpayer with notice of and an opportunity for an administrative review of the
propriety of the filing. See Katz v. Commissioner, 115 T.C. 329, 333 (2000). If a
taxpayer requests a CDP hearing, she may raise at that hearing any relevant issue
relating to the unpaid tax or the lien. Secs. 6330(c)(2), 6320(c). Relevant issues
include possible alternative means of collection. Sec. 6330(c)(2)(A)(iii).
If a taxpayer’s underlying liability is properly at issue, the Court reviews any
determination regarding the underlying liability de novo. Goza v. Commissioner,
114 T.C. 176, 181-182 (2000). A taxpayer is precluded from disputing a section
6330(c)(2) issue, including a challenge to the underlying liability, which was not -6-
properly raised in the CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107,
114 (2007). Petitioner did not raise her underlying tax liabilities in her request for a
CDP hearing. In her petition she made no specific allegations or arguments
regarding the correctness of the underlying tax liabilities, and she failed to file any
response to the motion. Consequently, petitioner’s underlying tax liabilities are not
properly before the Court.
The Court reviews administrative determinations by the Commissioner’s
Office of Appeals regarding nonliability issues for abuse of discretion. Hoyle v.
Commissioner, 131 T.C. 197, 200 (2008); Goza v. Commissioner, 114 T.C. at 182.
The determination of the Office of Appeals must take into consideration: (1) the
verification that the requirements of applicable law and administrative procedure
have been met; (2) issues raised by the taxpayer; and (3) whether any proposed
collection action balances the need for the efficient collection of taxes with the
legitimate concern of the person that any collection be no more intrusive than
necessary. Secs. 6320(c), 6330(c)(3); see also Lunsford v. Commissioner, 117 T.C.
183, 184 (2001). The settlement officer properly based her determination on the
factors required by section 6330(c)(3).
In the petition, petitioner argues that her current financial information was not
used in the settlement officer’s determination that she had the ability to fully pay her -7-
tax liabilities through an installment agreement. The record demonstrates that the
settlement officer’s determination was made on the basis of the financial information
that petitioner provided to the COIC unit. Petitioner failed to participate in the CDP
hearing and did not provide any financial information to the settlement officer. See
sec. 301.6320-1(f)(2), A-F3, Proced. & Admin. Regs. Petitioner also failed to
respond to the motion as ordered by the Court. By failing to respond to the
assertions in the motion, petitioner waived her right to contest them. See Rule
121(d); Lunsford v. Commissioner, 117 T.C. at 187; Akonji v. Commissioner, T.C.
Memo. 2012-56, 2012 Tax Ct. Memo LEXIS 49, at *6. Consequently, the
settlement officer did not abuse her discretion in denying petitioner’s request for a
collection alternative. As a result, respondent’s determination is sustained.
To reflect the foregoing,
An appropriate order will be
issued granting respondent’s motion,
and decision will be entered for
respondent.