MEMORANDUM OPINION
THORNTON, Judge: Pursuant to
Background
Petitioner is a corporation with principal place of business in Masontown, Pennsylvania. On April 29, 2002, David P. Alan (Alan), in his capacity as petitioner's CEO, executed Form 870, Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment, agreeing to the immediate assessment and collection of a $ 1,212 deficiency in petitioner's corporate income tax for the period ending June 30, 1998. A handwritten note2007 Tax Ct. Memo LEXIS 24">*25 at the top of the Form 870 states: "PARTIAL AGREED ISSUES". On May 27, 2002, respondent assessed the $ 1,212 tax and accrued interest thereon.
Subsequently, on August 12, 2003, respondent mailed petitioner a notice of deficiency, determining that for this same period ending June 30, 1998, petitioner had a deficiency in corporate income tax of $ 3,188 and was liable for an $ 880 accuracy-related penalty pursuant to
Petitioner paid only a portion of the agreed-upon tax and penalty. On July 28, 2004, respondent sent petitioner a Final Notice of Intent to Levy (the levy notice) for collection of petitioner's unpaid 1998 balance. On August 23, 2004, Alan submitted on petitioner's behalf Form 12153, Request for a Collection Due Process Hearing. 2007 Tax Ct. Memo LEXIS 24">*26 Notwithstanding that Alan had previously executed Form 870 agreeing to the immediate assessment of the $ 1,212 tax that was in fact assessed on May 27, 2002, on the Form 12153 Alan complained that he had never been given an explanation for the May 27, 2002, assessment.
The settlement officer sent petitioner materials explaining the basis for the disputed assessment; she directed petitioner to submit certain information if petitioner wished her to consider a collection alternative; and she scheduled a telephone conference for May 24, 2005. By letter dated May 11, 2005, Alan requested that the telephone conference be rescheduled, stating that he wished to present "new evidence" in a face-to-face conference. Petitioner's case was reassigned to an Appeals officer. By letter dated June 23, 2005, the Appeals officer advised that petitioner was not entitled to dispute the underlying liability, having previously agreed to it; she offered to schedule a face-to-face hearing to consider payment options. By letter dated July 13, 2005, Alan again contested petitioner's underlying tax liability. He stated that he had recently discovered documentary evidence that would substantiate certain claimed2007 Tax Ct. Memo LEXIS 24">*27 business expenses that respondent had previously disallowed. Alan asked to be allowed to show this new evidence.
By letter dated July 20, 2005, the Appeals officer reiterated that she could not consider petitioner's underlying tax liability; she stated that if petitioner did not present a collection alternative plan by August 5, 2005, she would issue a determination letter on the basis of information available to her. In a letter dated July 25, 2005, Alan stated that he believed petitioner was entitled to audit reconsideration on the basis of his newly discovered evidence, but that all his tax records relating to the appeal had been taken in an IRS raid of his home on July 21, 2005. He requested a face-to-face hearing and audit reconsideration, but only after his tax records were returned by the IRS. Petitioner never proposed any collection alternative to the proposed levy and never submitted requested financial information necessary for Appeals Office consideration of a collection alternative.
By Notice of Determination Concerning Collection Action(s) Under
In its petition, petitioner sets forth the following reasons why it believes it is entitled to relief: a) Incorrect Determination of Net Income/Net Operating Loss resulting in assessment, and b) Incorrect Application of Procedures set forth in c) New Documentation (now in hands of Internal Revenue Service) supporting correct determination of Net Income/Net Operating Loss; and d) Incorrect Application of Net Operating Loss for Carryforward/Carryback. [Reproduced literally.]
Discussion
Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials.
Insofar as petitioner seeks to have this Court redetermine a deficiency, we lack jurisdiction over petitioner's claim. The jurisdiction of this Court depends on the timely filing of a petition.
Similarly, because petitioner signed Form 870 consenting to the immediate assessment of the original $ 1,212 deficiency and received a notice of deficiency with respect to an additional deficiency and penalty, petitioner may not challenge the existence or amount of its underlying liability as part of its challenge to respondent's proposed collection action. See
In its petition, petitioner broadly assigns as error, "Incorrect Application of Procedures set forth in
Moreover, in the administrative proceeding, petitioner did not ask for a collection alternative or raise any procedural issues in its Form 12153 or otherwise bring any such issues to the attention of the Appeals Office, other than attempting, improperly, to contest its underlying tax liability. Such issues generally are not properly raised for the first time before this
In conclusion, we are satisfied that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law.
To reflect the forregoing
An appropriate order and decision will be entered for respondent.
1. Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code, as amended.↩
