T.C. Memo. 2003-113



                      UNITED STATES TAX COURT



                ELLA LOUISE WOOTEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7128-02L.                Filed April 21, 2003.


     Ella Louise Wooten, pro se.

     John F. Driscoll, for respondent.



                        MEMORANDUM OPINION


     BEGHE, Judge:   Respondent has moved pursuant to Rule 1211

for summary judgment that respondent may proceed to collect

petitioner’s outstanding liabilities for Federal income taxes and

interest for tax years 1995 through 1997.


     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.
                                - 2 -

     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 where there is no genuine issue of material fact and

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); Zaentz v.

Commissioner, 

, 754 (1988).    The moving party bears

the burden of proving there is no genuine issue of material fact;

factual inferences will be made most favorably to the party

opposing summary judgment.   Dahlstrom v. Commissioner, 

, 821 (1985); Jacklin v. Commissioner, 

, 344

(1982).   When, however, a motion for summary judgment is made and

properly supported, the party opposing summary judgment may not

rely on mere allegations or on denials of the movant's pleadings

but must set forth specific facts in dispute and show that there

is a genuine issue for trial.   Rule 121(d).

     As discussed below, we conclude that no material fact is in

dispute and that respondent is entitled to summary judgment as a

matter of law.   Accordingly, we shall grant respondent’s motion.

                             Background

     For each of her taxable years 1995, 1996, and 1997,

petitioner timely filed a Federal income tax return claiming

head-of-household filing status, dependency deductions under
                                - 3 -

section 151(c) for her two children, and the earned income credit

under section 32(a).    On each return petitioner claimed she was

entitled to a refund.

     In accordance with sections 6402(c) and (d), respondent

transferred the refund claimed by petitioner on her 1995 Federal

income tax return to the Mississippi Department of Human Services

and to the U.S. Department of Agriculture in partial satisfaction

of petitioner’s respective unpaid child support and food stamp

obligations.   In accordance with section 6402(c), respondent also

transferred the refunds claimed by petitioner on her 1996 and

1997 Federal income tax returns to the Mississippi Department of

Human Services in partial satisfaction of unpaid child support

obligations.

     Respondent thereafter examined petitioner's returns for the

3 years in issue and determined that she was not entitled to

head-of-household filing status or the dependency deductions,

that the earned income credit for 1995 and 1996 should be

disallowed, and that the earned income credit petitioner claimed

for 1997 should be reduced to reflect that she was not entitled

to treat the children as her dependents.   Respondent issued a

deficiency notice to those effects, petitioner timely petitioned

this Court for a redetermination, and respondent filed an answer.

Respondent and petitioner lodged pretrial memoranda with the

Court, and there was a trial on the merits in which petitioner
                               - 4 -

participated meaningfully, as confirmed by our examination of the

transcript of the trial proceedings.    This Court sustained the

deficiencies determined by respondent–-which exceeded the refunds

petitioner had claimed-–and entered decision for respondent.

Wooten v. Commissioner, T.C. Memo. 2000-54, appeal dismissed (5th

Cir. 2000).   In so doing, this Court did not adjudicate

petitioner's complaints that she had never agreed to the transfer

of her refunds to the Department of Human Services and the

Department of Agriculture, nor did the Court adjudicate her

dispute over the existence and amounts of her obligations to

those agencies.   This, the Court explained, was because it lacked

jurisdiction to restrain or review any credit or reduction by the

Commissioner under section 6402 (citing section 6512(b)(4) and

Savage v. Commissioner, 

(1999)).

     On or about April 5, 2000, respondent assessed the

deficiencies and related interest against petitioner in the

following amounts:

 Tax Year         1995         1996          1997          Totals

Deficiency     $3,759.00    $4,208.00     $1,919.00     $9,886.00
Interest        1,471.77     1,555.67        317.44      3,344.88
  Totals        5,230.77     5,763.67      2,236.44     13,230.88

     On or about April 15, 2001, respondent applied a $3,478

refund claimed by petitioner on her taxable year 2000 tax return

to the balance then due on her 1995 tax year account.
                                - 5 -

     On or about May 15, 2001, respondent prepared a notice of

Federal tax lien to assist in the collection of the cumulative

unpaid balance then accrued on petitioner’s 1995 through 1997 tax

liabilities.   On May 21, 2001, respondent sent petitioner an IRS

“Letter LT-11 - FINAL NOTICE:   NOTICE OF INTENT TO LEVY AND

NOTICE OF YOUR RIGHT TO A HEARING”.     On May 24, 2001, respondent

sent petitioner an IRS “Letter 3172(DO) - NOTICE OF FEDERAL TAX

LIEN FILING AND YOUR RIGHT TO A HEARING UNDER IRC 6320”.    On May

30, 2001, the notice of Federal tax lien prepared by respondent

on May 15, 2001, was filed with the Chancery Court Clerk, Hinds

County - District 1, Jackson, Mississippi.2

     On June 18, 2001, petitioner mailed respondent IRS “Form

12153 - Request for a Collection Due Process Hearing” in response

to both the May 21, 2001, IRS “Letter LT-11” and the May 24,

2001, IRS “Letter 3172(DO)” referred to above.    The Form 12153

was received by respondent on June 26, 2001.    In the Form 12153

petitioner alleged that respondent, without petitioner’s prior

consent, acted improperly in transferring overpayment credits in

her 1995 through 1997 tax accounts to the Department of Human


     2
      Respondent's lien notice in the amount of $12,830.88
appears to be incorrect in two respects: It contains a
typographical error in the statement of the 1996 deficiency and
accrued interest, which causes the lien amount set forth in the
notice to be $400 less than the total assessed liabilities
summarized in the table above, and it fails to give petitioner
credit for the application of her refund for the tax year 2000
against the balance due on her 1995 tax year account.
                               - 6 -

Services in partial satisfaction of outstanding child support

obligations, and that respondent also acted improperly in

transferring an overpayment credit in her 1995 tax account to the

Department of Agriculture.

     During respondent’s consideration of the Form 12153

described above, respondent’s Appeals officer obtained an IRS

“TXMODA - Transcript of Account” in regard to each of

petitioner’s 1995, 1996, and 1997 tax years.    From those

transcripts the Appeals officer verified that all applicable laws

and administrative procedures were satisfied.    In no document

relevant to this case and at no hearing relevant to this case did

petitioner, with the exception of the disputed issue described

above, allege either that respondent failed to meet all

applicable law and administrative procedures or that respondent’s

Appeals officer failed to verify that respondent satisfied all

applicable laws and administrative procedures as required by

section 6330(c)(1).   Nor did petitioner raise any spousal

defenses, any challenges to the appropriateness of collection

actions, or any offers of collection alternatives to respondent’s

Appeals officer.

     Respondent held a hearing in regard to the Form 12153 filed

by petitioner.   After that hearing, respondent sent petitioner an

IRS Form 3193 - NOTICE OF DETERMINATION CONCERNING COLLECTION

ACTION(S) UNDER SECTION 6320 and/or 6330, dated March 21, 2002,
                               - 7 -

sustaining the filing of the notice of Federal tax lien and the

determination to levy   thereunder.

     On March 27, 2002, petitioner timely mailed this Court a

letter that, on April 8, 2002, the Court filed as her imperfect

petition for lien or levy action under Code Section 6320(c) or

6330(d) initiating the present action under section 6330(d).

     In the amended petition to perfect her case, which the Court

filed on May 9, 2002, petitioner again alleged that, in the

absence of a judicial determination or petitioner’s express

consent, respondent acted improperly in transferring overpayment

credits in her 1995 through 1997 tax accounts to the Department

of Human Services and the Department of Agriculture.

     At the times of filing her petition and amended petition,

petitioner was a resident of Jackson, Mississippi.

     In her written objections to respondent’s motion, petitioner

amplifies her allegations by casting aspersions on the continued

existence of the chancery courts in Mississippi and of their

power to grant divorces and of the validity or existence of her

divorce under Mississippi law, as well as the existence and

amounts of her child support and food stamp obligations.

Petitioner's objections do not dispute any of the allegations in

the affidavit of respondent's Appeals officer in support of

respondent's motion.
                               - 8 -

                             Discussion

     In her petition and amended petition in this case and in her

objections to respondent's motion, petitioner attempts to

challenge the existence or amounts of her underlying tax

liabilities for the years in issue by bringing up again and

elaborating on allegations and arguments she made in the prior

case in this Court that upheld the deficiencies determined by

respondent.   Wooten v. Commissioner, T.C. Memo. 2000-54, appeal

dismissed (5th Cir. 2000).

     In an effort to give this pro se petitioner the benefit of

the doubt, we broadly interpret petitioner's Form 12153 request

for a hearing, her petition to this Court, and her objections to

respondent's motion as embodying both (1) an effort to dispute

the deficiencies determined by respondent and upheld by this

Court in Wooten v. 

, and (2) objections to

respondent's actions pursuant to section 6402 in paying the

refunds claimed on her returns to the Mississippi Department of

Human Services and the U.S. Department of Agriculture.

Issue 1:   Petitioner's Tax Liabilities

     Petitioner's tax liabilities cannot be put in issue in this

case because they were decided in the prior case in this Court

that redetermined petitioner's tax liabilities for the years in

issue.   Section 6330(c)(4) provides in relevant part:
                               - 9 -

          CERTAIN ISSUES PRECLUDED.–-An issue may not be
     raised at the hearing if--

          (A) the issue was raised and considered at
     a previous hearing under section 6320 or in any other
     previous administrative or judicial proceeding; and

          (B) the person seeking to raise the issue
     participated meaningfully in such hearing or
     proceeding.

     As we observed in Magana v. Commissioner, 

, 492

(2002):
          Section 6330(c)(4) expressly provides that
     taxpayers, at collection hearings before respondent's
     Appeals Office, may not raise issues that were
     previously raised by taxpayers and considered in any
     other administrative or judicial proceeding in which
     the taxpayers meaningfully participated. See secs.
     301.6320-1(e)(1), 301.6330-1(e)(1), Proced. & Admin.
     Regs. * * *

     We take judicial notice of the opinion and record in Wooten

v. 

, that the claims petitioner wishes to make

in this case were raised by her in that prior case and that she

participated meaningfully in that case.

     Section 6330(c)(4) in effect codifies the legal doctrines of

res judicata and collateral estoppel in their application to

collection proceedings.   Even in the absence of section

6330(c)(4), this situation would be governed by the legal

doctrine of res judicata, which means “a matter adjudged”; under

this doctrine, a final judgment rendered by a court of competent

jurisdiction on the merits is conclusive as to the rights of the

same parties, and, as to them, constitutes an absolute bar to a

subsequent action involving the same claim, demand, or cause of
                               - 10 -

action.    See Black's Law Dictionary 1312 (7th ed. 1999) (citing

Restatement (Second) of Judgments, secs. 17, 24 (1982)); Wright,

Law of Federal Courts, sec. 100A at 722-723 (5th ed. 1994).    In

application to the case before us, this means that the party (Ms.

Wooten) who lost the prior case (Wooten v. 

)

is precluded in this later collection case from making the same

claim the Court rejected in the prior case.

     Finally, insofar as petitioner seeks to put her tax

liabilities in issue, she is also precluded from doing so by

section 6330(c)(2)(B), which provides:

          Underlying liability.-–The person may also raise
     at the hearing challenges to the existence or amount of
     the underlying tax liability for any tax period if the
     person did not receive any statutory notice of
     deficiency for such tax liability or did not otherwise
     have an opportunity to dispute such tax liability.

Of course, petitioner did receive a statutory notice of

deficiency for the liabilities in issue, and she had an

opportunity, which she took advantage of by filing a petition and

participating meaningfully in the Tax Court proceeding, to

dispute the liabilities.

Issue 2:    Payments to Other Agencies

     Pursuant to section 6402(c) and (d), the Commissioner is

legally required to transfer any existing Federal income tax

overpayments of a taxpayer to satisfy any obligations of the

taxpayer identified in that section, viz, amounts of past-due

support owed by that person of which the Secretary has been
                                - 11 -

notified by a State in accordance with section 464 of the Social

Security Act and amounts owed to Federal agencies.     Under section

6402(f):

     No court of the United States shall have jurisdiction
     to hear any action * * * brought to restrain or review
     a reduction authorized by subsection (c) [or] (d)
     * * *. No such reduction shall be subject to review by
     the Secretary in an administrative proceeding. No
     action brought against the United States to recover the
     amount of any such reduction shall be considered to be
     a suit for refund of tax. This subsection does not
     preclude any legal, equitable, or administrative action
     against the Federal agency or State to which the amount
     of such reduction was paid * * *.

     Petitioner's arguments that respondent's payments to the

Department of Human Services and the Department of Agriculture

were improper cannot be adjudicated in this case.     Section

6402(f) forbids her to sue the Commissioner in any Court to

recover the payments.     The Tax Court has no jurisdiction to

entertain any such suit.     Section 6402(f) makes it clear that if

petitioner has any claim to recover the payments, petitioner is

required to make her claims directly against the recipient

agencies.3

Issue 3:     Respondent's Administrative Determinations

     Where, as in this case, the taxpayer's underlying tax

liabilities are not in issue, we review the Commissioner's


     3
      In making this observation, we do not   wish to mislead
petitioner into thinking we are holding she   has valid claims
against the agencies, even if the statutory   time periods for
making any such claims against the agencies   have not already
expired.
                              - 12 -

determination for abuse of discretion.   Sego v. Commissioner, 

, 610 (2000); Goza v. Commissioner, 

, 181

(2000).   With exception of the issues identified and disposed of

above by the application of sections 6330(c)(4), 6330(c)(2)(B),

and 6402(f), petitioner has raised no other issue in this case.

     Respondent's Appeals officer verified that respondent met

all applicable laws and administrative procedures, thereby

satisfying the requirements of section 6330(c)(1).   Petitioner

has not challenged that determination except for the above-

mentioned claims we have already disposed of.

     All the other requirements of section 6330(c)(3)(B) were

satisfied because petitioner did not raise any issue described in

section 6330(c)(2)(A)(i) (spousal defenses) or (ii) (challenges

to the appropriateness of collection actions).

     The requirements of section 6330(c)(3)(C) are satisfied in

this case inasmuch as petitioner failed to offer any specific

collection alternatives, as described in section

6330(c)(2)(A)(iii).   Respondent's Appeals officer determined that

the disputed actions of respondent properly balanced the need for

the efficient collection of taxes with the legitimate concern

that any collection be no more intrusive than necessary.

Petitioner has failed to assert specifically that the Appeals

officer's balancing determination was erroneous or to allege any

specific facts in support of any assertion to that effect.    We
                               - 13 -

conclude as a matter of law that respondent did not abuse his

discretion in determining to sustain the notice of lien and to

proceed with collection of the tax liabilities and interest

assessed against petitioner.

     There are no genuine issues of material fact.   Summary

judgment is appropriate, see Rule 121(b), and we shall therefore

grant respondent's motion for summary judgment.

                                    An appropriate order and

                               decision will be entered.