T.C. Memo. 2017-87



                          UNITED STATES TAX COURT



          JEFFREY A. SPINNER AND ALYSE S. SPINNER, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 18506-15L.                          Filed May 24, 2017.



      Jeffrey A. Spinner and Alyse S. Spinner, pro sese.

      Luanne S. DiMauro, for respondent.



                            MEMORANDUM OPINION


      VASQUEZ, Judge: In this collection due process (CDP) case, petitioners

seek review pursuant to sections 6320(c) and 6330(d)(1) of a determination by

respondent to sustain the filing of a notice of Federal tax lien (NFTL).1


      1
          All section references are to the Internal Revenue Code in effect at all
                                                                        (continued...)
                                         -2-

[*2] Respondent has moved for summary judgment under Rule 121, contending

that there are no disputed issues of material fact and that his determination to

sustain this collection action was proper as a matter of law. We agree and will

grant the motion.

                                     Background

      The following facts are derived from the parties’ filings in this case.

Petitioners resided in New York at the time they filed their petition. The lien at

issue relates to petitioners’ Federal income tax liability for 2012.

      Petitioners timely filed a return for 2012. Respondent conducted an

examination of that return and issued a notice of deficiency based on that

examination. Petitioners subsequently filed a petition with this Court seeking

redetermination. The petition, however, was untimely, and we therefore dismissed

the case for lack of jurisdiction. Respondent assessed the additional tax and

interest due, as well as a section 6662 accuracy-related penalty.

      In an effort to collect this outstanding liability respondent filed an NFTL

and sent petitioners a Letter 3172, Notice of Federal Tax Lien Filing and Your




      1
       (...continued)
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                          -3-

[*3] Right to a Hearing under IRC 6320. Petitioners timely requested a CDP

hearing seeking an installment agreement and withdrawal of the NFTL.

      On May 5, 2015, the settlement officer assigned to the case wrote a letter to

petitioners scheduling a telephone conference for May 26, 2015. Petitioners failed

to call the settlement officer at the scheduled time. Consequently, the settlement

officer issued a “last chance” letter giving petitioners an additional 14 days to

submit any information they wished to be considered.

      Several days later, the settlement officer received a voicemail message from

Mr. Spinner stating he had only just received the first letter scheduling the May 26

telephone conference and that he would like another opportunity for a conference.

Consequently, the settlement officer issued a letter scheduling a second telephone

conference for June 23, 2015. The settlement officer also tried several times to

return Mr. Spinner’s telephone call, but he was unable to reach him. Petitioners

failed to call in for the second telephone conference.

      The settlement officer reviewed the administrative file (including a

collection information statement petitioners submitted in a prior CDP hearing) and

determined that petitioners could satisfy the liability in full “via equity in assets

and/or an installment agreement”. The settlement officer subsequently closed the

case and sent petitioners a notice of determination sustaining the NFTL filing.
                                            -4-

[*4] Petitioners timely sought review in this Court. Petitioners’ sole assignment

of error set forth in their petition is that they “were not provided with timely notice

of the scheduled hearing”. Respondent moved for summary judgment.

      Petitioners did not appear at calendar call. However, the case was recalled

later in the week, and Mr. Spinner made an appearance. He alleged that he had not

received a copy of respondent’s motion or any notices that the case had been set

for trial. Although we were skeptical of Mr. Spinner’s assertions, we allowed

petitioners an additional 30 days to file a written response to the motion.

Petitioners failed to file a response.

                                         Discussion

I.    Summary Judgment and Standard of Review

      The purpose of summary judgment is to expedite litigation and avoid

unnecessary and time-consuming trials. Fla. Peach Corp. v. Commissioner, 

, 681 (1988). The Court may grant summary judgment when there is no

genuine dispute as to any material fact and a decision may be rendered as a matter

of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 

, 520 (1992),

aff’d, 

(7th Cir. 1994). Where the moving party properly makes and

supports a motion for summary judgment, “an adverse party may not rest upon the

mere allegations or denials of such party’s pleading” but must set forth specific
                                         -5-

[*5] facts showing that there is a genuine dispute for trial. Rule 121(d).

Consequently, we cannot simply adopt as true facts that are alleged in a petition.

Neth v. Commissioner, T.C. Memo. 2010-95, slip op. at 3. Rather, opponents to a

motion for summary judgment must submit affidavits or other documents

demonstrating a genuine issue for trial.

not prescribe the standard of review that this Court

should apply in reviewing an administrative determination in a CDP case. The

general parameters for such review are marked out by our precedents. Where the

validity of the underlying tax liability is at issue, the Court reviews the

Commissioner’s determination de novo. Goza v. Commissioner, 

,

181-182 (2000). Where the underlying tax liability is not properly at issue, the

Court reviews the Commissioner’s determination for abuse of discretion.

Abuse of discretion exists when a determination is arbitrary, capricious, or

without sound basis in fact or law. See Murphy v. Commissioner, 

,

320 (2005), aff’d, 

(1st Cir. 2006).

      Section 6330(c)(2)(B) permits a taxpayer to challenge the existence or

amount of his underlying liability in a CDP proceeding only if he did not receive a

notice of deficiency or otherwise have a prior opportunity to contest that liability.

Petitioners received a notice of deficiency for 2012 and are therefore precluded
                                        -6-

[*6] from challenging their underlying liability in this proceeding. Accordingly,

we review the settlement officer’s actions for abuse of discretion.

      Because petitioners failed to respond to the motion for summary judgment,

the Court could enter a decision against them for that reason alone. See Rule

121(d). We will nevertheless consider the motion on its merits. We conclude that

there are no material facts in dispute and that this case is appropriate for summary

adjudication.

II.   Analysis

      In deciding whether the settlement officer abused his discretion in

sustaining the NFTL filing, we consider whether he: (1) properly verified that the

requirements of any applicable law or administrative procedure have been met;

(2) considered any relevant issues petitioners raised; and (3) determined whether

“any proposed collection action balances the need for the efficient collection of

taxes with the legitimate concern of * * * [petitioners] that any collection action

be no more intrusive than necessary.” See sec. 6330(c)(3).

      After reviewing the administrative record, we conclude that the settlement

officer verified that the requirements of applicable law and administrative

procedure were met. We also conclude that the settlement officer appropriately
                                         -7-

[*7] balanced the need for efficient collection with petitioners’ interests. The only

issue for us to decide is whether petitioners raised any issue that has merit.

      Petitioners’ only assignment of error in their petition is that the settlement

officer did not give them “timely notice of the scheduled hearing”. We find this

argument unpersuasive. The administrative record shows that the settlement

officer made numerous attempts to contact petitioners and apprise them of the

scheduled conference. The settlement officer attempted to contact Mr. Spinner by

telephone, but those calls went unanswered. Furthermore, the settlement officer

mailed several letters to petitioners notifying them of the scheduled conference.

While Mr. Spinner argued at the hearing that he did not timely receive the letter

scheduling the first conference, he did not deny receipt of the subsequent letter

scheduling the second conference.

      Once a taxpayer has been given a reasonable opportunity for a hearing but

fails to avail himself of it, the Commissioner may proceed to make a determination

based on the case file. See, e.g., Oropeza v. Commissioner, T.C. Memo. 2008-94,

slip op. at 13-14, aff’d, 402 F. App’x 221 (9th Cir. 2010); Taylor v.

Commissioner, T.C. Memo. 2004-25, slip op. at 6, aff’d, 130 F. App’x 934 (9th

Cir. 2005). On the record before us, we find that petitioners were given a

reasonable opportunity for a hearing but failed to avail themselves of it. Finding
                                       -8-

[*8] no abuse of discretion in any respect, we will grant summary judgment for

respondent and affirm the collection action.

      In reaching our holding, we have considered all arguments made, and to the

extent not mentioned, we consider them irrelevant, moot, or without merit.

      To reflect the foregoing,


                                               An appropriate order and decision

                                      will be entered.