T.C. Summary Opinion 2003-149



                        UNITED STATES TAX COURT



         JANIE M. DIXON AND JOSEPH DIXON, JR., Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 3356-03S.            Filed October 10, 2003.


        Michael S. McNair, for petitioners.

     Alan Friday, for respondent.


     WHERRY, Judge:     This case is before the Court on

respondent’s motion for partial summary judgment under Rule 121.1

The petition was filed pursuant to the provisions of section

7463.     The decision to be entered is not reviewable by any other

court, and this opinion should not be cited as authority.       The

instant proceeding arises from a petition for judicial review


     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, and Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

filed in response to:    (1) Separate Notices of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330

sent to petitioner Janie M. Dixon (Ms. Dixon) and to petitioner

Joseph Dixon, Jr. (Mr. Dixon); and (2) a Notice of Determination

Concerning Your Request for Relief from Joint and Several

Liability Under Section 6015 sent to Ms. Dixon.    Respondent moves

for partial summary judgment with respect to collection issues

other than Ms. Dixon’s request for spousal relief.    The section

6015 claim will be dealt with separately at a later date.

                             Background

     On January 7, 2000, respondent issued to petitioners a

notice of deficiency for the taxable year 1997.    The notice

reflected a deficiency of $13,230 and an accuracy-related penalty

under section 6662 of $2,646.    The notice was sent by U.S.

certified mail to petitioners at 1628 Gilda Circle, Mobile,

Alabama 36618-1842281.    Petitioners did not file a petition with

the Tax Court in response to the notice of deficiency, and

respondent assessed the deficiency, penalty, and $2,921.22

interest on May 29, 2000.

     On December 29, 2000, respondent filed a Notice of Federal

Tax Lien with the Judge of Probate, Mobile County, Alabama,

listing petitioners’ income tax liabilities for 1997.    The unpaid

balance was shown as $18,797.22.    Thereafter, on January 4, 2001,

respondent sent to petitioners a Notice of Federal Tax Lien
                               - 3 -

Filing and Your Right to a Hearing Under IRC 6320 regarding the

just-described lien.   Petitioners returned to respondent a Form

12153, Request for a Collection Due Process Hearing, signed by

both petitioners and dated January 30, 2001.   Petitioners on the

Form 12153 supplied the following explanation of their

disagreement with the lien:   “The wrong SS# was filed in 1997.

Joseph did not make[,] work, or receive any money from any

employer.   We contacted the IRS several time [sic] to try & get

this corrected.   We even contacted the employer once we found out

about this.   Nothing was resolved.”

     Additionally, the record contains a handwritten statement

dated February 3, 2001, signed by Ms. Dixon, and apparently

provided to respondent.   Therein, Ms. Dixon further details

circumstances surrounding an allegedly mistaken Form W-2, Wage

and Tax Statement, and asserts:   “When I filed my taxes for the

year 1997 I knew absolutely nothing about any taxes or wages in

my husband [sic] name. * * * I donot [sic] think that I should be

held accountable for some thing [sic] I had no knowledge about.”

     After a telephone conference conducted on October 17, 2002,

respondent on January 27, 2003, issued the above-mentioned

Notices of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 and Notice of Determination Concerning

Your Request for Relief from Joint and Several Liability Under

Section 6015.   These notices sustained the filing of the notice
                                 - 4 -

of Federal tax lien and denied relief to Ms. Dixon under section

6015(b), (c), or (f).

     Petitioners’ petition challenging these notices was filed

with the Tax Court on March 3, 2003, and reflected an address for

Ms. Dixon at 1628 Gilda Circle, Mobile, Alabama 36618, and for

Mr. Dixon at 559 Sweeney Lane, Mobile, Alabama 36617.    The

petition contains two counts.    Count one states:

          Petitioners disagree with the determination
     concerning requests for relief from joint and several
     liability under Section 6015, dated January 27, 2003,
     on grounds that the taxpayer was unaware of any
     unreported income as her husband and her father-in-law
     handled all of the details of the income in question.

Count two reads:

          Petitioners disagree with the determination
     concerning collection actions under Sections 6320
     and/or 6330 in that there was no unreported non-
     employee compensation as set forth in the determination
     as this was not money earned by either of the
     Petitioners.

     Respondent then filed the subject motion for partial summary

judgment on September 5, 2003.    Respondent asks for summary

judgment with respect to the propriety of the Notices of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 in that “petitioners’ receipt of the statutory notice

of deficiency precludes challenging the underlying tax liability

for the taxable year 1997, the only error assigned in the

petition as to the collection due process issue.”    Petitioners

were ordered to file any response to respondent’s motion on or
                                - 5 -

before September 24, 2003.   No such response was received by the

Court.

                             Discussion

     Rule 121(a) allows a party to move “for a summary

adjudication in the moving party’s favor upon all or any part of

the legal issues in controversy.”   Rule 121(b) directs that a

decision on such a motion shall be rendered “if the pleadings,

answers to interrogatories, depositions, admissions, and any

other acceptable materials, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that a decision may be rendered as a matter of law.”

     The moving party bears the burden of demonstrating that no

genuine issue of material fact exists and that he or she is

entitled to judgment as a matter of law.     Sundstrand Corp. v.

Commissioner, 

, 520 (1992), affd. 

(7th

Cir. 1994).   Facts are viewed in the light most favorable to the

nonmoving party.   

a motion for summary

judgment has been properly made and supported by the moving

party, the opposing party may not rest upon mere allegations or

denials contained in that party’s pleadings but must by

affidavits or otherwise set forth specific facts showing that

there is a genuine issue for trial.     Rule 121(d).   The Court has

considered the pleadings and other materials in the record and

concludes that there is no genuine justiciable issue of material
                                - 6 -

fact regarding the collection matters, other than Ms. Dixon’s

request for spousal relief, in this case.

I.   Collection Actions--General Rules

      Section 6321 imposes a lien in favor of the United States

upon all property and rights to property of a taxpayer where

there exists a failure to pay any tax liability after demand for

payment.   The lien generally arises at the time assessment is

made.   Sec. 6322.   Section 6323, however, provides that such lien

shall not be valid against any purchaser, holder of a security

interest, mechanic’s lienor, or judgment lien creditor until the

Secretary files a notice of lien with the appropriate public

officials.

      Section 6320 then sets forth procedures applicable to afford

protections for taxpayers in lien situations.   Section 6320(a)(1)

establishes the requirement that the Secretary notify in writing

the person described in section 6321 of the filing of a notice of

lien under section 6323.   This notice required by section 6320

must be sent not more than 5 business days after the notice of

tax lien is filed and must advise the taxpayer of the opportunity

for administrative review of the matter in the form of a hearing

before the Internal Revenue Service Office of Appeals.   Sec.

6320(a)(2) and (3).   Section 6320(b) and (c) grants a taxpayer,

who so requests, the right to a fair hearing before an impartial
                              - 7 -

Appeals officer, generally to be conducted in accordance with the

procedures described in section 6330(c), (d), and (e).

     Section 6330(c) addresses the matters to be considered at

the hearing:

          SEC. 6330(c). Matters Considered at Hearing.--In
     the case of any hearing conducted under this section--

               (1) Requirement of investigation.--The
          appeals officer shall at the hearing obtain
          verification from the Secretary that the
          requirements of any applicable law or
          administrative procedure have been met.

               (2) Issues at hearing.--

                    (A) In general.--The person may raise at
               the hearing any relevant issue relating to
               the unpaid tax or the 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 have an opportunity to dispute such
               tax liability.

     Once the Appeals officer has issued a determination

regarding the disputed collection action, section 6330(d) allows
                               - 8 -

the taxpayer to seek judicial review in the Tax Court or a U.S.

District Court.   In considering whether taxpayers are entitled to

any relief from the Commissioner’s determination, this Court has

established the following standard of review:

      where the validity of the underlying tax liability is
      properly at issue, the Court will review the matter on
      a de novo basis. However, where the validity of the
      underlying tax liability is not properly at issue, the
      Court will review the Commissioner’s administrative
      determination for abuse of discretion. [Sego v.
      Commissioner, 

, 610 (2000).]

II.   Analysis

      As to the case at bar, the sole contention advanced by

petitioners in their pleadings with respect to the Notices of

Determination Concerning Collection Action(s) pertains to their

underlying liability for the 1997 year.   Specifically, the

question of whether petitioners received unreported income would

affect the amount of taxes owed for 1997.   Petitioners, however,

were previously issued a statutory notice of deficiency for 1997

but failed to institute a case in this Court.   They have at no

time alleged that they did not receive the deficiency notice, and

respondent’s records do not show that the notice was returned as

unclaimed or undeliverable.   Accordingly, section 6330(c)(2)(B)

precludes petitioners from disputing the unreported income issue

and their corresponding liability in the instant proceeding.

      With respect to matters subject to review in collection

proceedings for abuse of discretion, the spousal claim advanced
                                 - 9 -

by Ms. Dixon, set forth separately in petitioners’ pleadings,

will as indicated above be dealt with separately at a later date.

Otherwise, petitioners have not raised any challenges to the

appropriateness of the collection action or any collection

alternatives.   As this Court has noted in earlier cases, Rule

331(b)(4) states that a petition for review of a collection

action shall contain clear and concise assignments of each and

every error alleged to have been committed in the notice of

determination and that any issue not raised in the assignments of

error shall be deemed conceded.    See Goza v. Commissioner, 

, 183 (2000); see also Lunsford v. Commissioner, 

, 185-186 (2001).

     The Court will grant respondent’s motion for partial summary

judgment.   Accordingly, except to the extent of any relief from

joint and several liability afforded to Ms. Dixon through future

proceedings, the decision ultimately entered in this case will

reflect that respondent may proceed with collection of

petitioners’ tax liabilities.

     To reflect the foregoing,


                                              An appropriate order

                                         granting respondent’s motion

                                         for partial summary judgment

                                         will be issued.