Shannon v. Comm'r
This text of 2006 T.C. Summary Opinion 176 (Shannon v. Comm'r) is published on Counsel Stack Legal Research, covering United States Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
*80 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment (respondent's motion) 1 and was heard pursuant to the provisions of
Background
The record establishes and/or the parties do not dispute the following.
*81 Petitioner resided in Bellevue, Nebraska, at the time he filed the petition in this case.
Petitioner did not timely file a Federal income tax (tax) return (return) for his taxable year 1999. On or about April 25, 2002, respondent prepared a substitute for return for that year.
On September 5, 2002, respondent issued to petitioner a notice of deficiency with respect to his taxable year 1999 (1999 notice of deficiency), which he received. In that notice, respondent determined a deficiency in, and additions under
Petitioner*82 did not file a petition in the Court with respect to the 1999 notice of deficiency.
On February 24, 2003, respondent (1) assessed with respect to petitioner's taxable year 1999 the tax of $ 7,691 and additions to tax under
On February 24, 2003, respondent issued to petitioner a notice of balance due with respect to petitioner's unpaid 1999 notice of deficiency liability.
Around March 18, 2003, petitioner's return preparer sent respondent Form 1040, U.S. Individual Income Tax Return, for petitioner and his spouse Lauri Shannon (Ms. Shannon) *83 for their taxable year 1999 (1999 return) that petitioner and Ms. Shannon had signed. Respondent filed that return sometime shortly after respondent received it. In their 1999 return, petitioner and Ms. Shannon reported total tax of $ 29,069 and tax due of $ 24,014. When petitioner's return preparer sent respondent the 1999 return around March 18, 2003, petitioner and Ms. Shannon did not pay the tax shown due in that return.
On May 5, 2003, respondent assessed with respect to the taxable year 1999 of petitioner and Ms. Shannon (1) tax of $ 21,378 ($ 21,378 increase in 1999 tax), which was the difference between the total tax (i.e., $ 29,069) that petitioner and Ms. Shannon reported in their 1999 return and the amount of tax (i.e., $ 7,691) that respondent determined in the 1999 notice of deficiency and assessed on February 24, 2003, with respect to petitioner's taxable year 1999 and (2) additions to tax under
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*80 PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b), THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.
CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment (respondent's motion) 1 and was heard pursuant to the provisions of
Background
The record establishes and/or the parties do not dispute the following.
*81 Petitioner resided in Bellevue, Nebraska, at the time he filed the petition in this case.
Petitioner did not timely file a Federal income tax (tax) return (return) for his taxable year 1999. On or about April 25, 2002, respondent prepared a substitute for return for that year.
On September 5, 2002, respondent issued to petitioner a notice of deficiency with respect to his taxable year 1999 (1999 notice of deficiency), which he received. In that notice, respondent determined a deficiency in, and additions under
Petitioner*82 did not file a petition in the Court with respect to the 1999 notice of deficiency.
On February 24, 2003, respondent (1) assessed with respect to petitioner's taxable year 1999 the tax of $ 7,691 and additions to tax under
On February 24, 2003, respondent issued to petitioner a notice of balance due with respect to petitioner's unpaid 1999 notice of deficiency liability.
Around March 18, 2003, petitioner's return preparer sent respondent Form 1040, U.S. Individual Income Tax Return, for petitioner and his spouse Lauri Shannon (Ms. Shannon) *83 for their taxable year 1999 (1999 return) that petitioner and Ms. Shannon had signed. Respondent filed that return sometime shortly after respondent received it. In their 1999 return, petitioner and Ms. Shannon reported total tax of $ 29,069 and tax due of $ 24,014. When petitioner's return preparer sent respondent the 1999 return around March 18, 2003, petitioner and Ms. Shannon did not pay the tax shown due in that return.
On May 5, 2003, respondent assessed with respect to the taxable year 1999 of petitioner and Ms. Shannon (1) tax of $ 21,378 ($ 21,378 increase in 1999 tax), which was the difference between the total tax (i.e., $ 29,069) that petitioner and Ms. Shannon reported in their 1999 return and the amount of tax (i.e., $ 7,691) that respondent determined in the 1999 notice of deficiency and assessed on February 24, 2003, with respect to petitioner's taxable year 1999 and (2) additions to tax under
On May 5, 2003, respondent issued to petitioner a notice of balance due with respect to petitioner's unpaid 1999 return liability.
On various dates from May 26 through December 22, 2003, respondent abated certain assessed amounts of petitioner's tax, additions to tax, and interest as provided by law with respect to petitioner's taxable year 1999. On various dates after respondent made the respective assessments on February 24, 2003, and May 5, 2003, with respect*85 to petitioner's taxable year 1999, respondent applied as credits to the unpaid total 1999 liability certain overpayments with respect to certain other taxable years of petitioner after petitioner's taxable year 1999.
On February 21, 2004, respondent issued to petitioner a final notice of intent to levy and notice of your right to a hearing with respect to petitioner's unpaid total 1999 liability.
On or about March 8, 2004, petitioner sent a letter (petitioner's March 8, 2004 letter) to respondent that respondent received on March 12, 2004. That letter stated in pertinent part:
Letter of Protest
* * * * * * *
2. I state that I want to APPEAL the IRS finding to
the Appeal Office.
3. See copy of your letter attached. 6
4. Tax years involved are 1999, 2000, 2001, 2002 and 2003.
5. I do not agree with your conclusion that we owe any
money to you. We did not owe when we filed our 1999 return.
You owe us a refund for 2000, 2001, 2002, and 2003.
Not to mention the $ 600.00 refund*86 that we never received.
Amount owed us is approximately $ 20,000.00!!!!! Plus
interest for four (4) years * * * [Reproduced literally.]
On or about September 15, 2004, an Appeals officer with respondent's Appeals Office (Appeals officer) sent petitioner a letter. That letter stated in pertinent part:
In review of your protest and/or request for a hearing, I
find that the outstanding liabilities are from your own late
filing of the 1999 return. The first liability was established
by the Service with some limited information after you defaulted
your right to petition the Tax Court. Thereafter, you submitted
a return for 1999 with a higher liability.
*87 Since the due date of the return was April 15, 2000, you were
assessed the failure to file penalty, the failure to pay penalty
and interest. As the Service took funds from other returns,
adjustments were made to the penalties and interest since some
of the payments from other returns were not known until after
the penalties and interest were assessed, but the effective date
of the refunds took effect earlier.
* * * The total assessed balance is currently $ 18,309.15 since
the Service took $ 2,236.51 levy funds on May 17, 2004.
I ask that you respond within the next 30 days to discuss the
case, or set a time and date to discuss the case * * *.
[Reproduced literally.]
On November 16, 2004, the Appeals officer held a telephonic hearing with petitioner's authorized representative. By letter dated November 16, 2004, the Appeals officer sent petitioner's authorized representative a copy of a transcript of the IRS's account with respect to petitioner's taxable year 1999.
On or about December 30, 2004, petitioner's authorized*88 representative sent the Appeals officer a letter (petitioner's December 30, 2004 letter). That letter stated in pertinent part:
We are asking for abatement of penalties for this case due to
reasonable cause, based upon consideration of the following
facts.
The main penalty that has been applied is the failure to file
penalty under
by the October 15, 2000 extended due date. However, the return
was not signed by the taxpayer. It is our understanding that the
IRS has had a longstanding policy of waiving this penalty if the
error is corrected. In this case the error was indeed corrected
when the taxpayer was notified of this oversight. Thus, we
request that this penalty be abated, as the taxpayer moved to
correct this error as quick as possible once it was discovered.
Further, please note that the taxpayer suffered a relapse of his
hydrocephalus during 1999 and spent most of the last four months
of 1999 hospitalized during which time he underwent multiple
brain surgeries and had a shunt placed in his*89 brain to reduce
fluid pressure. This condition rendered the taxpayer very much
like an Alzheimer's patient, unable to remember or care for
himself and very much at the mercy of the former CPA's direction
in this matter.
The other penalty charged in this case is the failure to pay
penalty under
abatement of the penalty, the taxpayer, prior to the tax year in
question, had a good record of timely filing and paying his tax
liabilities, and the underpayment in this case was not due to
bad faith. In addition, the taxpayer exercised prudence by
engaging a CPA to advise him on his personal and business tax
matters. The taxpayer relied on the advice of his former CPA,
who gave assurance that application of subsequent taxable years'
tax overpayments to the taxpayer's 1999 underpayment would
result in elimination of his tax liability for 1999. While this
advice was clearly erroneous, the taxpayer had no way of knowing
this fact and was in no condition to challenge this advice. Had
the taxpayer been*90 correctly advised by his CPA, he would have
taken the correct action, and request that this be considered in
your review of the application of the failure to pay penalty.
We are also asking for reduction of interest and/or abatement in
this case based upon consideration of the following facts.
The majority of the payments made in this case were by way of
payroll deductions from the taxpayer and were not applied to the
tax in some cases until some sixteen months after the government
received the money. For example, monies deducted from the
taxpayers' January 2000 paychecks were not applied to the taxes
due until Apr 15, 2001 when the taxes for 2000 were due.
Applying 1/12 of the refund due for tax year 2000 evenly
throughout 2000 as payments against the taxes due would
significantly reduce the interest charge in this case and more
fairly represent the actual amount that should be owed.
In addition interest in this case is eligible for abatement
because the delayed payments were not due solely to the actions
of the taxpayer, but were caused*91 by erroneous advice from a
former CPA. [Reproduced literally.]
On March 8, 2005, the Appeals officer held another tele phonic hearing with petitioner's authorized representative with respect to the issues that that representative had raised in petitioner's December 30, 2004 letter.
On or about March 21, 2005, petitioner's authorized representative sent the Appeals officer another letter (petitioner's March 21, 2005 letter). That letter stated in pertinent part:
We are writing on behalf of * * * [petitioner] regarding the
outstanding 1999 balance * * *.
We previously corresponded with you on this issue in a letter
dated December 30, 2004 in which we laid out specific points for
abatement of the penalties. We also submitted additional
information on the medical problems suffered by the taxpayer on
January 29, 2005 as requested. We are requesting a written
response to each of these points, since they have summarily been
rejected.
We are also asking for written response to our calculation of
the amounts due, based on the calculations we submitted along
with the aforementioned*92 correspondence of December 30, 2004.
Further, we would like a written determination of the amount due
for 1999.
The taxpayer is not proposing an offer in compromise at this
time, and therefore is not submitting Form 433-A.
On or about March 25, 2005, in response to petitioner's March 21, 2005 letter, the Appeals officer sent petitioner's authorized representative a letter. That letter stated in pertinent part:
In response to your latest correspondence and fax, I am writing
this letter.
You did submit arguments about the penalties for 1999 and
submitted evidence of the taxpayer's medical condition since
1999. There have been other arguments about the computations of
the balance due. I reviewed the file and find insufficient
evidence overcomes the penalties. The computations of the
balances due have been found to be correct. I found one
exception in that a levy was taken during the period of
collection due process and have ordered that refunded. The
current transcript shows this has been done recently.
There is no evidence that the taxpayer*93 timely filed a return for
1999, with or with a signature. The first return or copy of a
return is the one signed May 31, 2001. The recorded extension
date expired on August 15, 2000. The Service set up a substitute
for a return in May of 2002. The Service started sending reports
of the 1999 liability in May of 2002. Where there was no
agreement, a Statutory Notice of deficiency was issued September
5, 2002. The tax, penalty and interest were assessed on February
24, 2002 when the taxpayer didn't petition the Tax Court. The
taxpayer had his opportunity to argue the tax, failure to file
penalty, failure to pay penalty and failure to pay estimated tax
penalty in Tax Court.
After the assessment from the statutory notice, the taxpayer
submitted his return with a larger liability. The account was
adjusted to larger amounts on May 5, 2003. It appears the
Service received the return earlier, approximately February of
2003, but the return didn't have an original signature. Later
this was rectified and the return was posted so the account
could be*94 posted.
There is no long standing policy for the Service to waive the
failure to file penalty when the taxpayer doesn't submit a
timely return. There is no evidence it was ever timely filed,
signed or unsigned.
Regarding the failure to pay penalty, it is the taxpayer's
responsibility to ensure the tax liability it paid on time. He
cannot delegate that responsibility to a CPA or others. The
return submitted in 2003 showed a larger liability than the
Service set up earlier. While you and the taxpayer contend the
return was filed in 2000 and the return has a copy of a
signature in May of 2001, there were no payments towards the
liability except for some withholding that is questionable.
I saw no evidence of reasonable cause to abate the
penalty. The taxpayer cannot rely on the CPA or others to
pay his liability and we saw no evidence that his medical
condition prevented him from making payments. He was able to
operate one or more corporations and earn an income from 1999 to
the present.
We also find that the joint liability*95 is also the responsibility
of the spouse, who was involved in the home and business with
him. The failure to pay is also her responsibility.
You also requested a written response to your calculation of the
amounts due based on your submitted computations in a December
30, 2004 letter. I recall sending you transcripts and
explanation of the transcripts on November 16, 2004 and wonder
what else there can be to submit. The computations per the
transcripts were found to be correct and I didn't think there
was a need for further explanations.
After I found there were no likely abatements of penalties, I
asked that you submit any alternatives to the levy action to me
with financial statements. I cannot consider any alternatives to
the levy action without financial statements. Without viable
alternatives, I have to sustain the levy action. [Reproduced
literally.]
On April 26, 2005, respondent's Appeals Office issued to petitioner a notice of determination concerning collection action(s) under section 6320 and/or 6330 (notice of determination). That notice stated*96 in pertinent part:
Summary of Determination
You sent the Service a Letter of Protest subsequent to a CP504
letter, Urgent letter, and subsequent to a notice of intent to
levy, LT 11. The Service Center considered this a request for a
hearing regarding the notice of intent to levy and considered it
timely.
You disagreed with the underlying liability and stated that the
Service owed you money.
We tried to hold a hearing with you and held a telephone and
correspondence hearing with your new representatives. We wrote
to you and explained the reasons for the balances due for 1999.
You didn't raise any issues or alternatives regarding the levy
action. You didn't submit financial information to determine
your ability to pay.
Without further information from you, we are sustaining the levy
action. [Reproduced literally.]
An attachment to the notice of determination stated in pertinent part:
SUMMARY OF THE ISSUES
The taxpayer sent the Service Center a letter of protest on 03-
08-2004, arguing that the balances were*97 in error. This was
shortly after an Urgent notice and a notice of intent to levy,
so the Service Center determined this was a timely request for a
collection due process hearing.
The taxpayer argued that the balances were in error. The
taxpayer stated that refunds and changes were misapplied.
A hearing was offered to the taxpayer and two representatives. A
telephone and correspondence hearings were held with the
representatives. The balance of the account was explained to
them. I found nothing unusual in the postings of the 1999
liability and the payments by refunds from later years. The
taxpayer and representatives raised no discussions regarding
alternatives the levy action.
The underlying liability is correct as posted to the account.
RECOMMENDATION
The levy action is sustained without other information to
determine a lesser intrusive method of collection.
BRIEF BACKGROUND
The 1999 liability was first set up by Substitute for return and
a statutory notice of deficiency. After the notice was
defaulted, the taxpayer*98 submitted a return with an increased
liability. The self-corrected increases to the account were
assessed. Later, there was a carry back from later years to
further correct the liability to a lower amount. Refunds were
taken from later years to make additional payments.
Since the return was filed later and insufficient withholding
was set up, the account includes the failure to pay penalty, the
failure to file penalty, an estimated tax penalty and interest.
As amendments and payments were applied, corrections were made
to the account.
In review of a current transcript, Appeals finds the Service
levied and took $ 2,236.512 on 05-17-2004, after the taxpayer had
timely requested an appeal. This amount shouldn't have been
levied. The late posting of the request for appeals allowed
the Service to enforce a levy action without a suspension during
the CDP suspension period. The CDP unit in Covington, KY was
advised to return the levied funds and it was refunded during
the hearing period.
DISCUSSION AND ANALYSIS
APPLICABLE LAW AND ADMINISTRATIVE*99 PROCEDURES
In review of the file and transcripts, it appears that all
manual and legal procedures have been properly followed. This
Appeals Officer has not dealt with this taxpayer in the past
regarding this liability. I did have involvement in the
taxpayer's corporation in the past, but not regarding the
current type of individual taxes or years. The taxpayer signed a
waiver of my involvement.
I found one error on May 17, 2004, when the Service took levy
funds during the CDP hearing period of collection suspension.
The CDP unit was advised to return the funds. The cause for the
premature levy action was the late input of the suspension code
on the account. The request for a hearing was timely received on
March 12, 2004 but the suspension code TC 520 cc 77 was not
input until cycle 200429, approximately August. Appeals believes
the CDP unit didn't recognize the CDP request until June of 2004
because the taxpayer didn't use form 12253. When they allowed
the CDP hearing, the*100 CDP unit should ensure premature levy was
returned to the taxpayer.
Under
unless he has been previously given the right to appeal or
petition the Tax Court regarding the matter. In this situation,
the taxpayer defaulted the statutory notice of deficiency and
later amended his own return to report more income and
liability. He doesn't appear to argue those actions of his own,
although indicating he disagrees with his own pre-parer's
computations of an additional liability. The remains of the
account are postings of payments from a carry back or from later
year refunds. There appear to be no errors in the postings of
those changes and payments.
RELEVANT ISSUES PRESENTED BY THE TAXPAYER
I believe I have addressed all relevant issues presented by the
taxpayer. The taxpayer and representative haven't presented
further arguments that are on point to the case. They didn't
present an alternative or lesser intrusive method of payment to
the levy action
The representative submitted*101 numerous copies of medical receipts
showing the taxpayer/husband encountered various medical
problems in 1999 through 2003. I didn't find the information
would show a reasonable cause to reduce any penalties assessed
on the 1999 liability. In addition, the taxpayer had prior
opportunities to either petition the Tax Court or file an appeal
regarding the penalties and interest in prior years. They should
not be allowed to argue those underlying liabilities in this CDP
hearing.
BALANCING EFFICIENT COLLECTION AND INTRUSIVENESS
Under the circumstances of the case, the levy action balances an
efficient method of collection when considering the legitimate
concerns of the taxpayer that it be no more intrusive than
necessary.
The levy action is sustained. [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.
A taxpayer may raise challenges to the existence or the amount of the taxpayer's underlying tax liability if the taxpayer did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the tax liability,
We turn first to the tax that respondent assessed with respect to petitioner's taxable year 1999. With respect to the tax of $ 7,691 determined in the 1999 notice of deficiency that respondent assessed on February 24, 2003, petitioner received that notice, but he did not file a petition with respect to it. On the instant record, we find that petitioner may not challenge the existence or the amount of the tax of $ 7,691 determined in the 1999 notice of deficiency that respondent assessed on February 24, 2003.
With respect to the $ 21,378 increase in 1999 tax that respondent assessed on May 5, 2003, and that is attributable to the 1999 return, petitioner did not receive a notice of deficiency and did not otherwise have an opportunity to dispute that tax. We shall review on a de novo basis respondent's determinations with respect to such increase in 1999 tax.
We turn next to the respective additions to tax under
*106 With respect to the increases in the 1999 additions to tax under
With respect to the increase in the 1999 addition to tax under
With respect to the increase in the 1999 addition to tax under
We address now whether petitioner has carried his burden of establishing that he is not liable for the increase in the 1999 addition to tax under
Consequently, according to petitioner, his failure to file timely a return for his taxable year 1999 was due to reasonable cause and not to willful neglect. Even if petitioner timely sent to respondent an unsigned return for his taxable year 1999, which respondent disputes, any such action by petitioner*109 would not establish that his failure to file timely a return for his taxable year 1999 was due to reasonable cause and not to willful neglect. See
We address next whether petitioner has carried his burden of establishing that he is not liable for the increase in the 1999 addition to tax under
Petitioner demonstrated prudence by engaging a CPA to advise him
on his personal and business tax matters. The Petitioner relied
on the advice of his former CPA, who gave assurance that
application of subsequent taxable years' tax overpayments to the
Petitioner's 1999 underpayment would result in elimination of
his tax liability for 1999. While this advice was clearly
erroneous, the Petitioner had no way of knowing this fact and
was in no condition to challenge this advice. Had petitioner
been correctly advised by this former CPA, Petitioner would have
taken the correct action, request that this be considered in
determining the appropriateness of the application of the
failure to pay penalty. [Reproduced literally.]
Assuming arguendo that a certified public accountant advised petitioner that he did not have to pay the tax shown due in the 1999 return when that return was sent to respondent around March 18, 2003, we reject any argument by petitioner that any reliance by him on such advice establishes that*111 his failure to pay timely the tax shown in that return was due to reasonable cause and not to willful neglect. The last date prescribed for the timely payment of tax for petitioner's taxable year 1999 was April 15, 2000. Secs. 6072(a), 6151(a). The standard for reasonable cause under
We address next petitioner's position that he is*112 not liable for the increase in the 1999 addition to tax under
the IRS should allow credit for taxes paid [by withholding] when
the Petitioner makes a payment [by withholding] not some 15
months later. Petitioner will demonstrate monies were in the
hands of the government and unavailable to Petitioner far before
they are being credited to the Petitioners account allowing the
IRS to assess penalties * * * upon funds that it holds.
As we understand it, it is petitioner's position that any tax withheld from wages that he received during taxable years after his taxable year 1999 should be applied to his unpaid total 1999 liability at the time such tax was withheld. We reject any such position. Any tax withheld from an individual's wages is deemed paid by the individual on the 15th day of the fourth month following the close of the taxable year with*113 respect to which such tax is allowable as a credit under
On the instant record, we find that petitioner has failed to show that he is not liable for the increase in the 1999 addition to tax under
We consider now petitioner's claim in the petition for abatement of interest with respect to his taxable year 1999. We construe that claim as a request to review respondent's failure to abate interest under
Petitioner alleged in the petition:
The majority of the payments made in this case were by way of
payroll deductions from the Petitioner and were not applied to
the tax in some cases until some sixteen months after the
government received the money. For example, monies deducted from
the Petitioner's January 2000 paycheck were not applied to the
taxes due until Apr 15, 2001 when the taxes for 2000 were due.
significantly reduce the interest charge in this case and more
*115 fairly represent the actual amount that should be owed.
* * * In addition interest in this case is eligible for
abatement because the delayed payments were not due solely to
the actions of the Petitioner, but were caused by bad advice
from a former CPA. [Reproduced literally.]
We turn first to petitioner's contention that respondent abused respondent's discretion in failing to abate interest on petitioner's unpaid total 1999 liability because respondent did not apply tax withheld from wages that petitioner received during taxable years after his taxable year 1999 to his unpaid total 1999 liability at the time such tax was withheld. We reject that contention. As discussed above, any tax withheld from an individual's wages is deemed paid by the individual on the 15th day of the fourth month following the close of the taxable year with respect to which such tax is allowable as a credit under
We turn next to petitioner's contention that respondent abused respondent's discretion in failing to abate interest on petitioner's unpaid total 1999 liability because he received "bad advice" from a certified public accountant.*116 We reject that contention. Any advice that petitioner received from a certified public accountant is not a basis under
Based upon our examination of the entire record before us, we sustain respondent's determination in the notice of determination to proceed with the collection action with respect to petitioner's taxable year 1999.
We have considered all of the contentions and arguments of the parties that are not discussed herein, and we find them to be without merit, irrelevant, and/or moot.
On the record before us, we shall grant respondent's motion.
To reflect the foregoing,
An order granting respondent's motion and decision for respondent will be entered.
Footnotes
1. Although the Court ordered petitioner to file a response to respondent's motion, petitioner failed to do so.↩
2. All section references are to the Internal Revenue Code in effect at all relevant times. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
3. With respect to the addition to tax under
sec. 6651(a)(2)↩ , respondent determined in the 1999 notice of deficiency that if petitioner "did not pay the balance of the tax owed within the time prescribed by law, a penalty of 0.5% of the tax due is added for each month the tax remains unpaid (not to exceed a total of 25% of the unpaid amount".4. See supra note 3.↩
5. This case involves only petitioner, and not Ms. Shannon. For convenience, we shall sometimes refer only to petitioner, and not to petitioner and Ms. Shannon.↩
6. Petitioner attached to his March 8, 2004 letter Form CP 504, "Urgent!! We intend to levy on certain assets. Please respond NOW." (Form CP 504). The Internal Revenue Service (IRS) had issued Form CP 504 to him with respect to petitioner's unpaid total 1999 liability.↩
7. The party opposing summary judgment must set forth specific facts that show a genuine issue of material fact exists and may not rely merely on allegations or denials in the pleadings.
Grant Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988) ;Casanova Co. v. Commissioner, 87 T.C. 214, 217↩ (1986) . As indicated supra note 1, petitioner did not file a response to respondent's motion. Petitioner relies merely on allegations in the petition.8. Petitioner did not claim in the petition that any items of income, deduction, or credit reported, or any computations made, in the 1999 return were incorrect.↩
9. Petitioner does not dispute respondent's determination that respondent may proceed to collect any unpaid addition to tax under
sec. 6654 for his taxable year 1999 determined in the 1999 notice of deficiency that respondent assessed on Feb. 24, 2003. With respect to the respective additions to tax undersec. 6651(a)(1) and(2) that respondent assessed for petitioner's taxable year 1999, petitioner alleges in the petition that he seeks "abatement" of those additions to tax. We construe that allegation as a request to review (1) whether petitioner is liable for the respective additions to tax undersec. 6651(a)(1) and(2)↩ that respondent assessed for his taxable year 1999 and (2) whether, if the Court were to find that he is so liable, respondent may proceed to collect such additions to tax.10. See
Estate of Hartsell v. Commissioner, T.C. Memo. 2004-211↩ .11. In petitioner's December 30, 2004 letter, petitioner requested that respondent abate interest with respect to his taxable year 1999. Respondent's Appeals Office did not abate such interest. We have jurisdiction to review respondent's determination not to abate interest with respect to petitioner's taxable year 1999.
Sec. 6404(h) ;Katz v. Commissioner, 115 T.C. 329, 340-341↩ (2000) .12.
Sec. 6404(e) was amended by TaxpayerBill of Rights↩ 2, Pub. L. 104-168, sec. 301, 110 Stat. 1452, 1457 (1996), to permit the Secretary to abate interest with respect to an "unreasonable" error or delay resulting from "managerial" as well as ministerial acts. The foregoing amendment applies to interest accruing with respect to deficiencies or payments for taxable years beginning after July 30, 1996, and is applicable in the instant case.
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