Mr. Huntress responded with a letter dated June 13, 2008, in which he stated that he did not want a telephone conference and requested "a face to face hearing as prescribed by law". He disputed the right of the Office of Appeals to set preconditions for a face-to-face hearing, and he stated:

Furthermore, pertaining to your request that I file the delinquent tax returns from 2005 to 2007 and complete Form 433-A, I respectfully decline to comply with this request for two reasons: (1) you failed to state the relevant law that would require me to file and/or complete such returns and forms, and (2) this appears to be an ex parte request for private and personal information. Also, the U.S. Congress has no precondition to filing Form 1040 or provide an Offer in Compromise prior to 2009 Tax Ct. Memo LEXIS 159">*165 any CDP Hearing.

Mr. Huntress did not participate in his telephone CDP hearing scheduled for June 17, 2008. On June 30, 2008, the Office of Appeals issued its notice of determination sustaining the filing of the notice of Federal tax lien. On July 29, 2008, Mr. Huntress timely filed his petition, which he supplemented on October 14, 2008. At the time that he filed his petition, Mr. Huntress resided in Massachusetts.

On May 5, 2009, respondent moved for summary judgment, contending that no genuine issue of material fact remains for trial and that judgment in respondent's favor is warranted because the determination by the Office of Appeals did not constitute an abuse of discretion. On June 9, 2009, Mr. Huntress opposed the motion for summary judgment and argued that he was entitled to a face-to-face hearing, which he had been denied.

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, 90 T.C. 678">90 T.C. 678, 90 T.C. 678">681 (1988). Summary judgment may be granted where there is no genuine issue 2009 Tax Ct. Memo LEXIS 159">*166 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, 98 T.C. 518">98 T.C. 518, 98 T.C. 518">520 (1992), affd. 17 F.3d 965">17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753">90 T.C. 753, 90 T.C. 753">754 (1988). The party moving for summary judgment (here, respondent) 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. Huntress). Dahlstrom v. Commissioner, 85 T.C. 812">85 T.C. 812, 85 T.C. 812">821 (1985); Jacklin v. Commissioner, 79 T.C. 340">79 T.C. 340, 79 T.C. 340">344 (1982). However, Rule 121(d) provides,

When a motion for summary judgment is made and supported as provided in this Rule, an adverse party [such as Mr. Huntress] 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. * * *

In compliance with Rule 121(b), respondent made and supported a showing of the facts of the case; but Mr. Huntress's only response is his unsworn, 1-1/2-page opposition, without affidavits or other 2009 Tax Ct. Memo LEXIS 159">*167 evidence, that does not contradict respondent's particular assertions but only argues about Mr. Huntress's supposed right to a face-to-face hearing. Respondent's statement of facts is therefore uncontroverted and is accepted for purposes of ruling on the motion.

When a taxpayer fails to pay any Federal income tax liability after demand, section 6321 imposes a lien in favor of the United States on all the property of the delinquent taxpayer, and section 6323(f) authorizes the IRS to file notice of that lien. However, within five business days after filing a notice of tax lien, the IRS must provide written notice of that filing to the taxpayer. Sec. 6320(a). After receiving such a notice, the taxpayer may request an administrative hearing before the Office of Appeals. Sec. 6320(a)(3)(B), (b)(1). Administrative review is carried out by way of a hearing before the Office of Appeals pursuant to 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. Huntress has done.

For the agency-level CDP hearing before the Office of Appeals, the pertinent procedures 2009 Tax Ct. Memo LEXIS 159">*168 are set forth in section 6330(c):

First, the IRS's appeals officer must obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met. Sec. 6330(c)(1). ² Although such issues appeared on the laundry list attached to Mr. Huntress's request for a hearing, respondent's motion sets forth the IRS's compliance with these requirements, and Mr. Huntress made no challenge to it in his opposition, so no "verification" issues under section 6330(c)(1) are still at issue.

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). 2009 Tax Ct. Memo LEXIS 159">*169 Mr. Huntress's principal contention -- that he should have gotten a face-to-face hearing in order to present an OIC or installment agreement -- pertains to that second set of issues, which we will discuss below.

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 a prior opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). Mr. Huntress had that prior opportunity when the IRS sent him a notice of deficiency, and he had the option of filing a deficiency suit in this Court. Therefore, issues of the underlying liability for the tax are not at issue.

When the Office of Appeals issues its determination, the taxpayer may "appeal such determination to the Tax Court", pursuant to section 6330(d)(1), as Mr. Huntress has done. In such an appeal (where the underlying liability is not at issue), we review the determination of the Office of Appeals for 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, 125 T.C. 301">125 T.C. 301, 125 T.C. 301">320 (2005), affd. 469 F.3d 27">469 F.3d 27 (1st Cir. 2006); Sego v. Commissioner, 114 T.C. 604">114 T.C. 604, 114 T.C. 604">610 (2000); 2009 Tax Ct. Memo LEXIS 159">*170 Goza v. Commissioner, 114 T.C. 176">114 T.C. 176 (2000).

Section 6320(b)(1) provides that a "hearing shall be held" by the Office of Appeals. Contrary to Mr. Huntress's argument, the statute does not describe the nature of that hearing. As we have previously observed,

Hearings at the Appeals level have historically been conducted in an informal setting. * * * When Congress enacted section 6330 * * *, Congress was fully aware of the existing nature and function of Appeals. Nothing in section 6330 or the legislative history suggests that Congress intended to alter the nature of the Appeals hearing * * *.

A face-to-face CDP conference concerning a collection alternative, such as an installment agreement or an offer to compromise liability, will not be granted unless other taxpayers would be eligible for the alternative in similar circumstances. For example, because the IRS does not consider offers to compromise from taxpayers who have not filed required returns or have not made certain required deposits of tax, as set forth in Form 656, "Offer in 2009 Tax Ct. Memo LEXIS 159">*171 Compromise," no face-to-face conference will be granted to a taxpayer who wishes to make an offer to compromise but has not fulfilled those obligations. * * *

Sec. 301.6320-1(d)(2), Q&A-D8, Proced. & Admin. Regs. (26 C.F.R.) (emphasis added).

This addresses Mr. Huntress's principal contention (i.e., that he was supposedly entitled to a face-to-face hearing), but his contention essentially puts the cart before the horse. Where a taxpayer proposes a collection alternative such as an OIC, the hearing (whether face-to-face or telephonic) is a means for the Office of Appeals to consider the OIC. Where denial of a face-to-face hearing would impede adequate consideration of an OIC, then that denial might itself be an abuse of discretion. However, the ultimate question is whether the Office of Appeals abused its discretion by not agreeing to an OIC. We find that it did not.

Mr. Huntress made three fatal omissions that doomed his hopes for an OIC: He (1) never made a concrete proposal of specific terms for an OIC, (2) never provided the financial information to substantiate the proposal, and (3) never showed his compliance with filing requirements (in particular, his returns for 2005 through 2007, 2009 Tax Ct. Memo LEXIS 159">*172 which he instead refused to file). Any one of these failures justified the Office of Appeals's determination not to allow an OIC:

First, it was not an abuse of discretion for the Office of Appeals to reject collection alternatives when none were proposed by Mr. Huntress. See Cavazos v. Commissioner, T.C. Memo. 2008-257 (citing Kendricks v. Commissioner, 124 T.C. 69">124 T.C. 69, 124 T.C. 69">79 (2005)); see also Nelson v. Commissioner, T.C. Memo. 2009-108 (Appeals did not abuse its discretion in sustaining a lien when a taxpayer requested an OIC generally but had not prepared one).

Second, it was not an abuse of discretion for the Office of Appeals to reject collection alternatives and sustain the proposed collection action on the basis of the failure of Mr. Huntress to submit requested financial information. See Prater v. Commissioner, 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 Office of Appeals simply followed the requirements of section 301.6320-1(e)(1), Proced. & Admin. Regs., and Rev. Proc. 2003-71, 2003-2 C.B. 517.

Third, it was not an abuse of discretion for the Office of Appeals to consider Mr. Huntress ineligible for an 2009 Tax Ct. Memo LEXIS 159">*173 OIC on the ground that he had a history of noncompliance with the tax laws and was not in compliance with current tax obligations. See Giamelli v. Commissioner, 129 T.C. 107">129 T.C. 107, 129 T.C. 107">111-112 (2007). In doing so, the Office of Appeals followed the requirements of the regulations. See sec. 301.6320-1(d)(2), Q&A-D8, Proced. & Admin. Regs. ("the IRS does not consider offers to compromise from taxpayers who have not filed required returns or have not made certain required deposits of tax"); see also Internal Revenue Manual, pt. 5.8.3.4.1 (Sept. 1, 2005), 5.19.1.6.2(3) (June 27, 2005).

On these undisputed facts, we cannot hold that the decision of the Office of Appeals to sustain the filing of the Federal tax lien was arbitrary, capricious, or without sound basis in fact or law. As a result, 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 as a matter of law.

To reflect the foregoing,

An appropriate order and decision will be entered.