T.C. Memo. 2009-17



                UNITED STATES TAX COURT



           TERENCE E. SHANLEY, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 3046-08L.             Filed January 28, 2009.


     P failed to pay his self-reported Federal income
tax liability for the year 2006, and R issued a notice
of intent to levy. P requested a hearing under I.R.C.
sec. 6330, indicating a desire for an installment
agreement. R’s Office of Appeals requested that P
provide financial information within 14 days. P asked
for an extension of time to submit the requested
financial information. R’s appeals officer denied that
request. P did not provide any of the information by
the time of the hearing. R’s appeals officer issued to
P a notice of determination in which he determined that
a levy was appropriate. P appealed that determination
to this Court. R moved for summary judgment, and P
opposed R’s motion but still did not provide the
information or explain his delay.

     Held: R’s Office of Appeals did not abuse its
discretion in denying P’s request for more time to
complete and submit financial information.
                               - 2 -


     Howard M. Koff, for petitioner.

     Frederick C. Mutter, for respondent.



                         MEMORANDUM OPINION


     GUSTAFSON, Judge:   This case is an appeal by petitioner

Terence E. Shanley, pursuant to section 6330(d)1 from the

determination by an appeals officer of the Internal Revenue

Service (IRS) to uphold a proposed levy to collect Mr. Shanley’s

unpaid Federal income tax liability for 2006.   The case is before

us on respondent’s motion for summary judgment under Rule 121.

For the reasons stated herein, we will grant respondent’s motion

for summary judgment, sustaining his determination to proceed

with the levy against Mr. Shanley.

                             Background

     The following facts are based on the documents in the record

of the IRS’s hearing held pursuant to section 6330(b) and (c).

Those documents are authenticated by the declaration of the IRS’s

settlement officer included with the IRS’s motion.   As is set out

further below, petitioner did not raise any genuine issue as to

these facts.




     1
      Unless otherwise noted, citations herein to sections refer
to the Internal Revenue Code (26 U.S.C.), and citations to Rules
refer to the Tax Court Rules of Practice & Procedure.
                                - 3 -

     For tax year 2006, Mr. Shanley timely filed a Form 1040,

U.S. Individual Income Tax Return, on which he reported that he

was liable for $24,498 in tax; but he did not pay that self-

reported liability.    On May 28, 2007, the IRS entered assessments

against Mr. Shanley for income tax, additions to tax for failure

to pay tax and failure to make estimated tax payments, and

statutory interest, and issued to him a notice of balance due

with respect to his unpaid 2006 liability.    Mr. Shanley did not

pay the amount due.

     As a result of Mr. Shanley’s failure to respond to the

notice of balance due, on September 8, 2007, the IRS issued to

Mr. Shanley a Final Notice of Intent to Levy and Notice of Your

Right to a Hearing.    Through his counsel, Mr. Shanley timely

requested a collection due process (CDP) hearing by submitting to

the IRS, on September 25, 2007, a Form 12153, Request for a

Collection Due Process or Equivalent Hearing.    Mr. Shanley’s Form

12153 stated that he disagreed with the proposed levy because

“[t]here are alternatives to levy/seizure (e.g., an I.A.

[installment agreement.])    Accordingly, enforced collection

should not proceed”.

     On November 29, 2007, IRS settlement officer Genene Hopkins

sent a letter to Mr. Shanley (with a copy to his counsel)

scheduling a telephone CDP hearing for January 8, 2008.    The
                                - 4 -

letter informed Mr. Shanley that he needed to provide, by

December 13, 2007--

     •    A completed Collection Information Statement (Form
          433-A for individuals and/or Form 433-B for businesses)
          plus 3 months applicable substantiation for all items
          listed on the form.

     •    Proof of estimated tax payments for the period(s)
          listed below: 12/2007

     •    Form 433-D Installment Agreement

(Underlining in original.)

     Mr. Shanley failed to provide the settlement officer with

any of the requested information by the stated deadline of

December 13, 2007.    Rather, on December 27--i.e., two weeks

beyond the December 13 deadline--Mr. Shanley’s counsel2 requested

by fax transmission a postponement of the January 8, 2008, CDP

hearing by stating that “[w]e need until February 8, 2008 in

order to prepare an accurate and complete 433-A.    Accordingly, we

respectfully request a postponement of the Collection Due Process

Hearing until February 15, 2008.”    On December 31, 2007, by a

return fax to counsel, the IRS denied the request for a

postponement and reaffirmed that “[t]he conference will be

conducted as scheduled on January 8, 2008.”



     2
      Mr. Shanley’s counsel who requested this postponement was
the same counsel who had filed the Form 12153 on Mr. Shanley’s
behalf in September 2007, requesting the CDP hearing, and who had
been sent the copy of the letter scheduling the January 8
hearing, and who later filed Mr. Shanley’s petition in this case.
                                 - 5 -

     On January 8, 2008, the CDP hearing was held by telephone.

At the CDP hearing, Mr. Shanley’s counsel indicated that he was

not prepared for the conference as he did not have the

information requested in the letter of November 29, 2007.

According to the uncontradicted Notice of Determination,

counsel’s only explanation during the CDP hearing for his delay

in providing the information was that Mr. Shanley had not

provided the information to his counsel.   Mr. Shanley’s counsel

further stated that he would petition the Tax Court in an attempt

to resolve the issues, and would obtain the necessary

documentation in the meantime.

     On January 15, 2008, the IRS’s Office of Appeals issued the

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, which sustained the proposed levy for

2006 income tax because Mr. Shanley neither provided the

requested financial information nor showed that he was in

compliance with estimated tax payment requirements for 2007.    The

attachment to the Notice of Determination stated (with bold type

in the original):

     Issue:

     In your request for a hearing you state there are
     alternatives to levy/seizure e.g. as an installment
     agreement. Accordingly enforced collection should not
     proceed.
                               - 6 -

     Response:

     The Settlement Officer called to conduct the conference on
     the scheduled date and time. However, your representative
     stated that he was not prepared for the conference/hearing
     as you had not provided the requested and necessary
     documentation.

     For any proposed alternative, a compliance check is required
     to ensure that all required returns have been filed and all
     estimated tax payments (if applicable) have been made.

     Since you are not in compliance with estimated tax payments,
     alternatives to enforced collection actions are precluded by
     regulations.

                 *   *     *   *       *   *   *

     We could not reach an agreement, extend any relief to you,
     or consider an alternative to the proposed levy. Since the
     requested documents were not received the Settlement Officer
     is unable to make a determination regarding the
     collectibility of your account.

     On February 4, 2008, Mr. Shanley timely petitioned this

Court to review the Notice of Determination issued on January 15,

2008.   The petition alleges that the Notice of Determination “is

erroneous and should be corrected to provide for alternative(s)

to enforced collection.”   The petition also alleges that Mr.

Shanley “was not afforded adequate and reasonable time to prepare

the 433-A, which would establish the bases for collection

alternatives.”   At the time Mr. Shanley petitioned this Court, he

resided in the State of New York.

     On November 21, 2008, the IRS moved for summary judgment

contending that there remains no genuine issue of material fact

for trial, and that judgment in respondent’s favor is warranted
                               - 7 -

because the determination by the Office of Appeals did not

constitute an abuse of discretion.     On November 24, 2008, the

Court ordered Mr. Shanley to file a response to the IRS’s motion.

On December 8, 2008, Mr. Shanley responded to the motion for

summary judgment by tersely stating:

     Concerning Respondent’s motion, the issues involved are
     inherently factual. Accordingly, Summary Judgment and the
     subject motion should be denied.

                            Discussion

I.   Applicable Legal Principles

     A.   Collection Review Procedure

     When a taxpayer fails to pay any Federal income tax

liability within 10 days of notice and demand, the IRS may

collect the unpaid tax by levy on the taxpayer’s property,

pursuant to section 6331.   However, before the IRS may proceed

with that levy, the taxpayer is entitled to administrative and

judicial review pursuant to section 6330.     Administrative review

is carried out by way of a hearing before the IRS’s Office of

Appeals (under section 6330(b) and (c)); and, if the taxpayer is

dissatisfied with the outcome there, he can appeal that

determination to the Tax Court (under section 6330(d)), as Mr.

Shanley has done.

     The pertinent procedures for the agency-level CDP hearing

are set forth in section 6330(c).    First, the appeals officer

must obtain verification from the Secretary that the requirements
                                - 8 -

of any applicable law or administrative procedure have been met.

Sec. 6330(c)(1).3   Second, the taxpayer may “raise at the hearing

any relevant issue relating to the unpaid tax or the proposed

levy,” including challenges to the appropriateness of the

collection action and offers of collection alternatives.    Sec.

6330(c)(2)(A).   Additionally, the taxpayer may contest the

existence and amount of the underlying tax liability, but only if

he did not receive a notice of deficiency or otherwise have an

opportunity to dispute the tax liability.4   Sec. 6330(c)(2)(B).

     In this case, Mr. Shanley’s contentions pertain to the

second of those sets of issues--i.e., “relevant issue[s] relating

to * * * the proposed levy” under section 6330(c)(2)(A).

     B.   Abuse of Discretion

     In a CDP case in which the underlying liability is not at

issue, as is the case here, we review the determination of the


     3
      In the case of a levy to collect a self-reported income tax
liability, the basic requirements (see sec. 6331(a), (d)) for
which the appeals officer obtains verification are: the IRS’s
timely assessment of the liability (secs. 6201(a)(1), 6501(a));
the giving to the taxpayer of notice and demand for payment of
the liability (sec. 6303); and the giving to the taxpayer of
notice of intention to levy and of the taxpayer’s right to a
hearing (secs. 6330(a), 6331(d)). In the instant case, a review
of Mr. Shanley’s IRS transcript in the hearing record shows that
the above requirements were met. Mr. Shanley does not dispute
that the requirements of any applicable law or administrative
procedure were met in compliance with section 6330(c)(1).
     4
      Mr. Shanley does not contest the underlying, self-reported
liability. Therefore, the underlying liability is not at issue.
See Goza v. Commissioner, 

(2000).
                                - 9 -

Office of Appeals for an abuse of discretion.    That is, we decide

whether the determination was arbitrary, capricious, or without

sound basis in fact or law.   See Murphy v. Commissioner, 

, 320 (2005), affd. 

(1st Cir. 2006); Sego v.

Commissioner, 

, 610 (2000); Goza v. Commissioner, 

(2000).

     C.   Summary Judgment Standard

     Where the pertinent facts are not in dispute, a party may

move for summary judgment to expedite the litigation and avoid an

unnecessary (and potentially expensive) trial.    Fla. Peach Corp.

v. Commissioner, 

, 681 (1988).   Summary judgment may

be granted where there is no genuine issue as to any material

fact and a decision may be rendered as a matter of law.

Rule 121(a) and (b); see Sundstrand Corp. v. Commissioner, 

, 520 (1992), affd. 

(7th Cir. 1994), cert.

denied, 

(1994); Zaentz v. Commissioner, 

,

754 (1988).   The party moving for summary judgment (here, the

IRS) bears the burden of showing that there is no genuine issue

as to any material fact, and factual inferences will be drawn in

the manner most favorable to the party opposing summary judgment

(here, Mr. Shanley).    Dahlstrom v. Commissioner, 

, 821

(1985); Jacklin v. Commissioner, 

, 344 (1982).

Rule 121(d) provides:

     When a motion for summary judgment is made and
     supported as provided in this Rule, an adverse party
                               - 10 -

     may not rest upon the mere allegations or denials of
     such party’s pleading, but such party’s response, by
     affidavits or as otherwise provided in this Rule, must
     set forth specific facts showing that there is a
     genuine issue for trial. * * *

Mr. Shanley’s response to the IRS’s motion did not “set forth

specific facts showing that there is a genuine issue for trial.”

Instead, his response simply stated, in its entirety: “Concerning

Respondent’s motion, the issues involved are inherently factual.

Accordingly, Summary Judgment and the subject motion should be

denied.”    Such bare allegations will not suffice to avoid summary

judgment.    Rauenhorst v. Commissioner, 

, 176 (2002)

(citing Greene v. United States, 

, 1171

(S.D.N.Y. 1992), affd. 

(2d Cir. 1994)); King v.

Commissioner, 

, 1217 (1986); Moore v. Commissioner,

T.C. Memo. 2001-305; Ridgewell’s, Inc. v. United States, 228 Ct.

Cl. 393, 

, 1101 (1981).

     The question whether the IRS abused its discretion can be

said to be “inherently factual” (as Mr. Shanley characterizes

it), but only in the sense that every lawsuit is “inherently

factual”, since every case requires the application of law to the

actual facts of the particular case.    In many cases the facts are

subject to dispute, and such cases should proceed to trial.    But

when one party has moved for summary judgment (thereby asserting

that there are no material facts in dispute), Rule 121 requires

that the adverse party opposing summary judgment must demonstrate
                              - 11 -

a genuine issue of fact that requires a trial.    Mr. Shanley’s

opposition, however, leaves entirely unchallenged the factual

basis for the IRS’s motion.   He does not successfully raise a

“genuine issue” merely by declaring the case to be “inherently

factual”.

      Consequently, we review respondent’s motion and supporting

affidavits and exhibits to decide whether, on the basis of the

undisputed facts shown therein, there is any “genuine issue” on

the question whether the IRS abused its discretion in determining

to proceed with a levy to collect Mr. Shanley’s 2006 tax

liability.

II.   The IRS’s Entitlement to Summary Judgment

      The IRS determined to proceed with its levy against

Mr. Shanley, and did not entertain an installment agreement or

other collection alternatives, because Mr. Shanley failed to

fulfill two prerequisites for consideration of such alternatives:

He failed to submit financial information sufficient to enable

the IRS to evaluate his collection potential; and he failed to

show that he was in compliance with his obligation to make

estimated tax payments for the subsequent year (2007).    It is

ordinarily not an abuse of discretion for an appeals officer to

reject collection alternatives and sustain the proposed

collection action on the basis of the taxpayer’s failure to

submit requested financial information.   Prater v. Commissioner,
                              - 12 -

T.C. Memo. 2007-241; Chandler v. Commissioner, T.C. Memo. 2005-

99; Roman v. Commissioner, T.C. Memo. 2004-20.   In doing so, the

appeals officer simply follows the requirements of section

301.6330-1(e)(1), Proced. & Admin. Regs. (26 C.F.R.), and

Rev. Proc. 2003-71, 2003-2 C.B. 517.

     However, the issue Mr. Shanley raises is whether the Office

of Appeals abused its discretion by not allowing Mr. Shanley more

time to complete and submit the requested financial information.

Where an appeals officer unreasonably “failed to consider”

evidence at a section 6330 hearing, that failure is an abuse of

discretion, see Robinette v. Commissioner, 

, 107

(2004), revd. 

(8th Cir. 2006); and an appeals

officer’s unreasonable denial of a request for more time to

submit that evidence would likewise be an abuse of discretion.

However, on the facts of this case, we find that the appeals

officer’s decision was reasonable and that therefore there was no

abuse of discretion in denying Mr. Shanley’s request for more

time to submit the requested information.

     The settlement officer, by letter of November 29, 2007, to

Mr. Shanley and his counsel, clearly informed him that he needed

to provide, by December 13, 2007, (i) a completed Form 433-A or

Form 433-B, plus three months of substantiation; (ii) proof of

estimated tax payments for 2007; and (iii) a Form 433-D,

Installment Agreement.   This letter gave Mr. Shanley 14 days from
                                - 13 -

the date of the letter to submit the required information, but he

failed to meet that due date.    If a 14-day deadline to submit

requested information might seem short in some contexts, it was

not unreasonably short in this context,5 for several reasons:

     First, the appeals officer’s approach was not inconsistent

with the IRS’s guidelines.    “There is no requirement that the

Commissioner wait a certain amount of time before making a

determination as to a proposed levy.”    Gazi v. Commissioner, T.C.

Memo. 2007-342, 

, 479 (2007).    “Appeals will,

however, attempt to conduct a * * * [section 6330] hearing and

issue a Notice of Determination as expeditiously as possible

under the circumstances.”    Sec. 301.6330-1(e)(3), Q&A-E9, Proced.

& Admin. Regs.6

     Second, neither Mr. Shanley nor his counsel made any

response to the IRS until after the deadline had passed.     A

partial but timely response, or a request for the extension of

time made before December 13, 2007, might have constituted some

sort of attempted compliance with the deadline and might prompt



     5
      We consider the   appeals officer’s deadline in context.
See, e.g., Morlino v.   Commissioner, T.C. Memo. 2005-203,
90 TCM (CCH) 168, 171   (2005); Roman v. Commissioner, T.C. Memo.
2004-20, 87 TCM (CCH)   835, 837 (2004).
     6
      See also Internal Revenue Manual (IRM) pt. 8.22.2.2.6.1(3)
(Dec. 1, 2006); Internal Revenue Manual Abr. & Ann. (IRM-AA) pt.
8.7.2.3.4(6)(A) (Jan. 1, 2006) (“Good case management practices
dictate * * * [that] we allow a taxpayer * * * no more than 14
days” to provide the requested financial information).
                              - 14 -

more sympathy for his argument.   But Mr. Shanley’s counsel waited

until two weeks after the deadline to request an extension and

provided no responsive information at all.

     Third, neither Mr. Shanley’s request for more time faxed to

the Office of Appeals, nor his opposition to the IRS’s motion for

summary judgment here, provided any reason for his alleged need

for more time.   There might be reasons related to the season

(such as holidays, or counsel’s obligations in a filing season),

or reasons related to the information-gathering process (such as

difficulty in getting information from third parties), or reasons

personal to the taxpayer (such as sickness) that could make this

a closer question; but none of those reasons has been alleged

here.   Rather, the reason that Mr. Shanley’s counsel said he

needed more time was simply that his client had not yet provided

him the information.   The appeals officer was therefore not

presented with any substantial reason to grant an extension.

     Fourth, Mr. Shanley actually had much more than two weeks to

assemble the information by December 13, 2007.   He had requested

his CDP hearing on September 25, 2007--almost three months before

this December 13 deadline.   In that CDP request, Mr. Shanley

indicated that an installment agreement was his preferred

collection alternative.   His counsel should have known that

Mr. Shanley would need to provide financial information and be
                              - 15 -

current with filing and payment requirements before an

installment agreement could be considered.

      Fifth, Mr. Shanley actually did have a de facto extension of

time.   His hearing was scheduled for January 8, 2008, and he

could have submitted the information at that time.    If the

appeals officer had refused to consider information submitted

after the December 13 deadline but in time for the January 8

hearing, then a more serious challenge to the appeals officer’s

exercise of discretion could have been made here.    But such a

challenge is unlikely ever to arise, since it is the policy of

the Office of Appeals to consider financial information submitted

past the deadline, and up to the time of the issuance of the

Notice of Determination.   IRM pt. 8.22.2.2.4.11(1)(C) (Oct. 30,

2007); see also IRM-AA pt. 8.7.2.3.4(10) (Jan. 1, 2006).    Thus,

Mr. Shanley had until January 15, 2008–-more than six weeks after

the initial request for the information–-to submit the

documentation to Appeals for consideration.   But he did not do

so.

      Sixth, subsequent events indicate that an extension of the

deadline would not have resulted in Mr. Shanley’s submitting the

information.   The passage of 10 additional months has not yielded

the information.   The IRS has still not been given the requested

information, despite the standing pretrial order issued in this
                              - 16 -

case on August 8, 2008.7   And when the IRS moved for summary

judgment, and the Court ordered petitioner to respond, that could

have been an occasion for Mr. Shanley to oppose the motion by

showing that the information could indeed have been available to

the appeals officer if Mr. Shanley had been given the additional

time he requested.   But he did not do so.

     On these facts, we cannot hold that the denial of the

extension by the Office of Appeals was arbitrary, capricious, or

without sound basis in fact or law.    Since the 14-day deadline is

supported by the IRS’s regulations and internal policy, and since

Mr. Shanley disregarded multiple subsequent opportunities to

submit the information, we conclude that the Office of Appeals

did not abuse its discretion and we hold that respondent is

entitled to the entry of a decision sustaining the determination

and proposed levy as a matter of law.

     To reflect the foregoing,


                                           An appropriate order and

                                       decision will be entered.



     7
      The standing pretrial order urges the exchange of
information between the parties: “All documentary and written
evidence shall be marked and stipulated in accordance with
Rule 91(b), unless the evidence is to be used solely to impeach
the credibility of a witness. * * * Any documents or materials
which a party expects to utilize in the event of trial (except
solely for impeachment), but which are not stipulated, shall be
identified in writing and exchanged by the parties at least 14
days before the first day of the trial session.”