T.C. Memo. 2003-108



                      UNITED STATES TAX COURT



                 STEPHEN G. ELEK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14180-01L.               Filed April 17, 2003.


     Stephen G. Elek, pro se.

     Diane L. Worland, for respondent.



                        MEMORANDUM OPINION


     GALE, Judge:   This case is before us on respondent’s motion

for summary judgment on the question of whether he may proceed

with collection with respect to certain unpaid taxes of

petitioner for the taxable years 1995, 1996, and 1997.    For

reasons set forth below, we shall grant respondent’s motion.
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     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.     Fla. Peach Corp. v.

Commissioner, 

, 681 (1988).     Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.”   Rule 121(a) and (b);1 Sundstrand

Corp. v. Commissioner, 

, 520 (1992), affd. 

(7th Cir. 1994).   The moving party bears the burden of proving

that there is no genuine issue of material fact, and factual

inferences are drawn in a manner most favorable to the party

opposing summary judgment.   Dahlstrom v. Commissioner, 

, 821 (1985); Jacklin v. Commissioner, 

, 344

(1982).

                             Background2

     At the time of filing of the petition in the instant case,

petitioner resided in South Bend, Indiana.




     1
       Unless otherwise noted, 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.
     2
       The facts hereinafter are established in the record and/or
undisputed.
                                - 3 -

     On February 18, 1997, respondent sent petitioner a notice of

deficiency determining an income tax deficiency plus additions to

tax under sections 6651 and 6654 for 1994 and 1995.   Petitioner

returned the notice to respondent with the words “Acceptance

Refused For Cause Without Dishonor” handwritten thereon and did

not petition this Court with respect to the notice. Respondent

assessed the unpaid tax, additions to tax, and interest for 1995

on July 14, 1997, and sent petitioner a Statutory Notice of

Balance Due on the same date.

     On August 27, 1999, respondent sent petitioner a notice of

deficiency, determining income tax deficiencies and additions to

tax under sections 6651(a)(1) and (2), and 6654 for 1996 and

1997.   Petitioner returned the notice to respondent with the

words “Acceptance Refused for Cause Without Dishonor” handwritten

thereon and did not petition this Court with respect to the

notice.   Respondent assessed the unpaid tax, additions to tax,

and interest for 1996 and 1997 on February 7, 2000, and sent

petitioner a Statutory Notice of Balance Due on the same date.

     On November 20, 2000, respondent sent petitioner a Letter

1058, Final Notice - Notice of Intent to Levy and Notice of Your

Right to a Hearing, with respect to petitioner’s tax liabilities

for 1995, 1996, and 1997.   On December 18, 2000, petitioner

submitted to respondent a Form 12153, Request for a Collection

Due Process Hearing, covering the years in the Letter 1058.     On
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the Form 12153, petitioner alleged that the proposed levy was

invalid for the following reasons:

     Included with the Notice of Intent to Levy there was no
     Assessment certificate--which means that no certifying
     officer is willing to accept responsibility (or
     liability) for the alleged liability. This fact denies
     me my opportunity for a meaningful hearing. Unless or
     until an assessment officer executes an assessment
     certificate in compliance with 26 CFR 301.6203-1, I am
     being deprived of PROCEDURAL due process.

     On July 25, 2001, an Appeals officer of respondent sent

petitioner a letter scheduling a face-to-face meeting for August

16, 2001.   Enclosed with the letter were Forms 4340, Certificates

of Assessments, Payments, and Other Specified Matters, covering

the assessments of petitioner’s liabilities for 1995, 1996, and

1997, which the letter stated were provided in response to

petitioner’s request.   On August 13, 2001, petitioner sent

respondent a letter requesting that the hearing be conducted

through written correspondence.   On August 20, 2001, the Appeals

officer sent petitioner a letter indicating that she would

conduct the hearing through correspondence as petitioner had

requested, and requesting that petitioner submit any additional

materials or issues that he wished to be considered.    No response

was received to the Appeals officer’s letter.

     On November 21, 2001, respondent issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination) with respect to the unpaid

liabilities for 1995, 1996, and 1997.   The notice of
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determination determined that all applicable laws and

administrative procedures had been met.   As to petitioner’s

allegation that he had not received an “assessment certificate”,

the notice of determination noted that copies of the certified

transcripts had been mailed to petitioner on July 25, 2001.     The

notice of determination concluded that the proposed levy properly

balanced efficient collection with any concerns regarding the

intrusiveness of the action and that respondent could proceed

with collection.

     On December 21, 2001, petitioner filed a petition in the

instant case.   Therein, petitioner renews his claim that there

was no assessment certificate included with the Notice of Intent

to Levy and that the absence of such a certificate has deprived

him of a meaningful hearing.   Respondent has conceded in his

answer that no certificate of assessment was included with the

Notice of Intent to Levy.

                            Discussion

     Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand, the Secretary may collect such tax by levy on

the person’s property.   Section 6331(d) provides that at least 30

days before enforcing collection by levy on the person’s

property, the Secretary must provide the person with a final

notice of intent to levy, including notice of the administrative
                                - 6 -

Appeals available to the person.

     Section 6330 generally provides that the Secretary cannot

proceed with collection by levy on any property of any person

until the person has been given notice and the opportunity for an

administrative review of the matter (in the form of an Appeals

Office hearing) and, if dissatisfied, with judicial review of the

administrative determination.    Davis v. Commissioner, 

, 37 (2000); Goza v. Commissioner, 

, 179 (2000).

Where the underlying tax liability is not at issue, the Court

will review the Appeals officer’s determination for abuse of

discretion.    Sego v. Commissioner, 

, 610 (2000).

     In the instant case, it is undisputed that petitioner

received notices of deficiency with respect to the underlying tax

liabilities for 1995, 1996, and 1997 for which collection is

sought.    Therefore, we need only decide whether the Appeals

officer abused her discretion in determining that collection may

proceed.

     The only issue raised by petitioner in his request for a

hearing and in the petition is his allegation that the Notice of

Intent to Levy sent to him by respondent did not include an

assessment certificate in compliance with section 301.6203-1,

Proced. & Admin. Regs.    Petitioner alleges that this failure by

respondent has denied him an opportunity for a meaningful

hearing.    In his response to respondent’s motion for summary
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judgment, petitioner renews this claim, arguing that it

constitutes a genuine issue of material fact.   Respondent admits

that no assessment certificate was included with the Notice of

Intent to Levy; accordingly, no issue of fact arises.    Respondent

further points out, however, that copies of Forms 4340 covering

1995, 1996, and 1997 were mailed to petitioner on July 25, 2001.

     Petitioner’s argument that the failure to provide assessment

certificates with the Notice of Intent to Levy invalidates the

levy or otherwise deprives him of rights to which he is entitled

has no merit.   There is no requirement that a certificate of

assessment be provided with a levy notification.   Sections 6330

and 6331, which establish requirements for information to be

included with a notice of levy, make no mention of an assessment

certificate or other proof of assessment as an item of

information to be so included.    Respondent treated petitioner’s

reference in his hearing request to his rights under section

301.6203-1, Proced. & Admin. Regs., as constituting a request for

a copy of the record of assessment for the liabilities sought to

be collected.   Respondent provided Forms 4340 in response thereto

on July 25, 2001.   Thus, there is no showing of any violation of

petitioner’s rights under section 6203.   Further, petitioner was

offered a hearing through either a face-to-face meeting or by

means of correspondence and did not avail himself of either

opportunity.
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     As no material fact is disputed and the only argument raised

by petitioner in this proceeding is unavailing, respondent is

entitled to judgment as a matter of law, and we so hold.    We

shall therefore grant respondent’s motion for summary judgment.

To reflect the foregoing,

                                           An appropriate order and

                                      decision will be entered.