T.C. Memo. 2009-16



                      UNITED STATES TAX COURT



                WARREN LEE BRANDT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 787-07L.               Filed January 26, 2009.



     Warren Lee Brandt, pro se.

     Kristin M. Timmons, for respondent.



                        MEMORANDUM OPINION


     SWIFT, Judge:   This matter is before us on respondent’s

motion for summary judgment under Rule 121.     Petitioner does not

dispute any of the material facts relied upon in respondent’s

motion for summary judgment.   Unless otherwise indicated, all

section references are to the Internal Revenue Code, and all Rule

references are to the Tax Court Rules of Practice and Procedure.
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       In this collection case under section 6320 petitioner

challenges respondent’s notice of Federal tax lien filing

relating to $70,434 in outstanding Federal employment taxes

petitioner owes in connection with his law practice.


                             Background

       At the time the petition was filed, petitioner resided in

Wisconsin.    Petitioner is a lawyer and practices law in the

community in which he resides.

       During the periods in issue petitioner employed a legal

assistant to aid him in carrying out day-to-day activities of his

law practice.    Petitioner’s law practice periodically withheld

and remitted to respondent employment taxes withheld from

employee wages.    Petitioner generally relied on his legal

assistant to prepare and timely file Federal employment tax

returns and to remit to respondent the employment taxes that were

due in connection with wages paid to employees.

       For 1998, for the last quarter of 2000, and for 2001, 2002,

and 2003, however, petitioner’s legal assistant prepared but did

not file with respondent the Federal employment tax returns that

were due.

       For the above periods petitioner’s legal assistant also did

not remit to respondent any of the employment taxes that were

due.    Rather, petitioner’s legal assistant embezzled from

petitioner the employment taxes owed to respondent.
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     In September 2004 petitioner discovered his legal

assistant’s failure to file the above Federal employment tax

returns and her embezzlement.   Petitioner thereafter filed with

respondent the Federal employment tax returns, but petitioner did

not remit to respondent the employment taxes reported due

thereon.

     On March 29, 2006, respondent mailed to petitioner a notice

of Federal tax lien filing with respect to the total $70,434 in

employment taxes, interest, and penalties that were due for the

above periods.

     On May 5, 2006, petitioner timely filed with respondent a

Form 12153, Request for a Collection Due Process Hearing.     At

that time petitioner had not filed his 2004 or 2005 individual

Federal income tax return.

     On July 11, 2006, respondent and petitioner participated in

a collection due process (CDP) hearing.   During the CDP hearing

petitioner stated that he was willing to assign to respondent his

rights to an $88,500 Wisconsin State court civil judgment that

petitioner had obtained against his former legal assistant.

Petitioner also stated that he was willing to assign to

respondent all rights to restitution that he someday might

receive as a result of an anticipated criminal prosecution of his

legal assistant for embezzlement.   Petitioner acknowledged to

respondent’s Appeals officer that the resolution of any
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criminal prosecution against his legal assistant would take

time, and petitioner therefore also offered to enter into an

offer-in-compromise with respondent.

     The Appeals officer granted petitioner an extension until

August 8, 2006, to submit to respondent a financial information

statement and a formal offer-in-compromise and to file with

respondent his 2004 and 2005 individual Federal income tax

returns.

     Petitioner, however, did not submit to respondent a

financial statement, a formal offer-in-compromise, or his 2004

and 2005 individual Federal income tax returns by the August 8,

2006, deadline, and on December 4, 2006, respondent issued a

notice of determination sustaining the notice of Federal tax lien

filed against petitioner.

     On January 9, 2007, petitioner filed his petition herein.

                               Discussion

     When no material fact remains at issue, we may grant summary

judgment as a matter of law.    Rule 121(b); Fla. Country Clubs,

Inc. v. Commissioner, 

, 75-76 (2004), affd. on other

grounds 

(11th Cir. 2005).

     At no point herein has petitioner contested his liability

for the employment tax liabilities for the periods in issue.    We

review respondent’s Appeals Office determination for abuse of
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discretion.   See Sego v. Commissioner, 

, 610 (2000);

Goza v. Commissioner, 

, 181-182 (2000).

     Although petitioner’s argument is not completely clear,

petitioner appears to be arguing that respondent’s Appeals Office

should have treated as an offer-in-compromise petitioner’s offer

to assign to respondent the $88,500 civil judgment and any

judgment for restitution that might be awarded against his former

legal assistant.

     In light of petitioner’s failure to file with respondent

his 2004 and 2005 Federal income tax returns and petitioner’s

failure to submit to respondent a financial statement and a

formal offer-in-compromise, respondent clearly did not abuse

his discretion in establishing a deadline for petitioner to

submit a proper offer-in-compromise and in not treating as

an eligible offer-in-compromise petitioner’s willingness to

assign to respondent civil judgments petitioner had been

awarded or that he might be awarded.   See Kendricks v.

Commissioner, 

, 79 (2005); Cavazos v. Commissioner,

T.C. Memo. 2008-257; see also Prater v. Commissioner, T.C. Memo.

2007-241; Roman v. Commissioner, T.C. Memo. 2004-20; Rodriguez v.

Commissioner, T.C. Memo. 2003-153; Londono v. Commissioner, T.C.

Memo. 2003-99; McCorkle v. Commissioner, T.C. Memo. 2003-34;

Internal Revenue Manual, pt. 5.8.3.4.1(1)(A) (Sept. 1, 2005).
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     For the reasons stated, we shall grant summary judgment in

favor of respondent.

     We have considered petitioner’s other arguments and find

them unpersuasive.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered

                                         for respondent.