The issue is whether R's determination upholding the notice of Federal tax lien (NFTL) issued to P, which was based upon P's income tax liability for 1999, was an abuse of discretion. P argues we do not have jurisdiction because the 1999 tax year was before the Court in an earlier case. See
131 T.C. 1">*2 GOEKE,
FINDINGS OF FACT
At the time the petition was filed, petitioner resided in Indiana.
Petitioner was involved in a prior case before this Court,
Subsequently, in an order dated May 9, 2007, the Court determined that it did not have jurisdiction in Freije I to address respondent's collection activity related to the NFTL which is the subject of the case at hand.
The relationship between Freije I and this case has confused petitioner primarily because he failed to accept the May 9, 2007, order. The resolution in Freije I did not address the Federal income tax liability which is the subject of the present case. The liability in Freije I arose from the disallowance of claimed estimated tax payments and the disallowance of certain itemized deductions. Certain of the disallowed deductions should not have been the basis for assessment before the issuance of a notice of deficiency. The liability in this case arose after 2008 U.S. Tax Ct. LEXIS 19">*22 the issuance of a notice of deficiency 131 T.C. 1">*3 dated March 11, 2002 (the notice of deficiency). In the notice of deficiency respondent disallowed certain costs reflected on Schedule C, Profit or Loss From Business, filed as part of petitioner's 1999 tax return, adjustments respondent had not previously made. No petition was filed in response to the notice of deficiency, and on February 3, 2003, respondent assessed the deficiency of $ 27,457 for 1999. The disputed notice of determination in Freije I was issued on November 26, 2001, and did not include the assessment on February 3, 2003.
The present case involves respondent's efforts to collect the balance of the assessment of February 3, 2003. On January 25, 2007, respondent filed an NFTL at the County Recorder's Office, Johnson County, Franklin, Indiana, with the taxpayers listed as petitioner and his spouse and reflecting the liability as an unpaid balance of $ 27,331.16 for 1999.
Petitioner timely requested a hearing upon receiving notice of the NFTL filing. The declaration of the settlement officer assigned to petitioner's case indicates that petitioner did not submit a proposed installment agreement, an offer-in-compromise, any claim for 2008 U.S. Tax Ct. LEXIS 19">*23 spousal defenses, nor any collection alternatives to the NFTL. The declaration further indicates that the settlement officer verified that the procedural requirements of assessment were met and that the required notification to petitioner was timely. Petitioner has not offered any argument or assertion that is inconsistent with these declarations. Petitioner's request for an administrative hearing demonstrates that petitioner simply maintained that on the basis of Freije I no collections could be made for 1999.
On July 12, 2007, respondent sent petitioner a notice of determination sustaining the NFTL filed on January 25, 2007. On July 30, 2007, petitioner timely petitioned this Court.
On September 26, 2007, petitioner filed a motion for summary judgment. Respondent filed a response to petitioner's motion for summary judgment on October 19, 2007, and simultaneously filed a motion for summary judgment. On November 16, 2007, petitioner filed his response to respondent's motion for summary judgment. On January 22, 2008, petitioner filed a motion to dismiss for lack of jurisdiction, as supplemented on February 20, 2008.
On February 11, 2008, this case was called for hearing on the parties' 2008 U.S. Tax Ct. LEXIS 19">*24 pending motions. Petitioner appeared and was 131 T.C. 1">*4 heard. At the conclusion, the Court took all pending motions under advisement for disposition.
OPINION
Despite these facts supporting our jurisdiction, petitioner maintains that we do not have jurisdiction because Freije I should have addressed all collection issues regarding 1999. Petitioner fails to recognize that Freije I involved respondent's efforts to collect via a levy, and the present case involves a lien action. Separate hearings are permitted for lien and levy collection actions.
Freije I did not address the second assessment for 1999, as the Court explained in its order of May 9, 2007. We recognized that it was not necessary or appropriate, for the Court lacked jurisdiction to address the subsequent assessment for 1999; that petitioner would be provided an opportunity for a new collection review hearing for the second assessment; and that Freije I related only to the first assessment.
In deficiency cases it has long been recognized that "the Tax Court's jurisdiction, once it attaches, extends to the entire subject of the correct tax for the particular year."
(2) Questions and answers. -- The questions and answers illustrate the provisions of this paragraph (d) as follows: Q-D1. Under what circumstances can a taxpayer receive more than one CDP hearing under section 6320 with respect to a tax period? A-D1. The taxpayer may receive more than one CDP hearing under section 6320 with respect to a tax period * * * where the same type of tax for the same period is involved, but where the amount of the unpaid tax has changed as a result of an additional assessment of tax (not including interest or penalties) for that period * * *
Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials.
This 2008 U.S. Tax Ct. LEXIS 19">*29 Court cannot consider the merits of the underlying tax liability associated with the second assessment for 1999 because this assessment was based upon the notice of deficiency, and there is no assertion that petitioner did not receive the notice of deficiency. To the contrary, respondent has produced a copy of the notice of deficiency and a copy of U.S. Postal Service Form 3877, Firm Mailing Book for Accountable Mail, which demonstrates that the notice of deficiency was mailed to petitioner at the mailing address shown on the petition and on the notice of determination. That address is petitioner's address of record in this case. Accordingly, under
Petitioner makes numerous other arguments about respondent's conduct and the actions of this Court. Petitioner also seeks sanctions against respondent. None of these arguments has merit because they are not relevant to the Court's analysis of the present controversy.
Accordingly, we are satisfied that no genuine issue of material fact exists requiring trial and thus summary judgment is appropriate, and that respondent's determination to sustain the lien filing was not an abuse of discretion. Thus, we will grant respondent's motion for summary judgment and deny petitioner's motion for summary judgment. Further, we find that this Court has jurisdiction as to the 1999 tax year. Accordingly, we will deny petitioner's motion to dismiss for lack of jurisdiction, as supplemented.
To reflect the foregoing,
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.↩
