T.C. Summary Opinion 2009-141



                       UNITED STATES TAX COURT



         KENNETH O. AND ALTHEA C. GARCIA, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 30831-08S.               Filed September 9, 2009.



     Kenneth O. Garcia and Althea C. Garcia, pro sese.

     Adam C. Silva, for respondent.



     LARO, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1 Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
      Section references are to the applicable versions of the
Internal Revenue Code. Rule references are to the Tax Court
Rules of Practice and Procedure.
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this opinion shall not be treated as precedent for any other

case.

     Petitioners petitioned the Court under section 6330(d) to

review the determination of the Internal Revenue Service Office

of Appeals (Appeals) sustaining a proposed levy related to their

2004 Federal income tax.   The petition alleges primarily that the

proposed levy is improper because Appeals refused to consider any

offer-in-compromise by petitioners.      This case is currently

before the Court on respondent’s motion to decide by summary

judgment that he is entitled to proceed with collection of

petitioners’ 2004 Federal income tax liability.      We agree with

the substance of that motion, and we shall grant it.

                            Background

     Petitioners failed to file a Federal income tax return for

2004.   On September 12, 2007, respondent sent to petitioners a

notice of deficiency for 2004.    The notice of deficiency

determined a $16,081 deficiency in petitioners’ Federal income

tax, a $4,604 addition to tax under section 6651(a)(1), and a

$3,216.20 accuracy-related penalty under section 6662(a).

Petitioners received the notice of deficiency but did not

petition the Court with respect to it.      Respondent subsequently

assessed the deficiency, addition to tax, and accuracy-related

penalty, plus applicable interest.
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     On or about April 14, 2008, respondent notified petitioners

that respondent was proposing a levy to collect their unpaid

Federal income tax liability for 2004 and that they could request

a hearing with Appeals as to the matter.    Petitioners requested

the hearing, stating that they desired to enter into an offer in

compromise for 2004.   Appeals subsequently advised petitioners on

August 27, 2008, that it would consider an offer in compromise

only if:   (1) Petitioners filed their 2006 and 2007 Federal

income tax returns so as to be in compliance with their tax

return filing requirements, and (2) petitioners completed and

timely submitted a Form 433-A, Collection Information Statement

for Wage Earners and Self-Employed Individuals, with appropriate

attachments to a named officer of Appeals at her Fresno,

California, address listed on the advice.   Included with the

advice was a copy of Form 433-A.

     On October 8, 2008, Appeals notified petitioners that it had

set a telephone conference with them for November 5, 2008, and

reminded petitioners that the named officer of Appeals still

needed to receive the Form 433-A and other previously requested

items to consider any request by them for an offer in compromise.

Included with that notification was another copy of Form 433-A.

On the scheduled date, Appeals conducted the telephone hearing

with petitioner Kenneth Garcia (Mr. Garcia).   During the hearing,

Mr. Garcia informed Appeals that his accountant was supposed to
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have rescheduled the hearing for a later date.   Appeals noted it

had not received from petitioner either a power of attorney as to

the matter or the requested Form 433-A with attachments.    Mr.

Garcia asked Appeals for more time to submit the Form 433-A with

attachments.   Appeals responded that it had twice previously

requested that document from petitioners.

     On November 21, 2008, Appeals issued each petitioner a

notice of determination sustaining the proposed levy.   The

determination stated in part that petitioners had filed the

requested tax returns but had failed to submit the requested Form

433-A with attachments to the designated Appeals officer at the

listed address.   The determination also stated that petitioners

disagreed with their underlying tax liability as shown in

respondent’s books but were not allowed to dispute that liability

at the hearing because they had had a prior opportunity to do so.

     When petitioners petitioned the Court in commencement of

this case, they resided in California.

                            Discussion

     Summary judgment may be granted with respect to any part of

the legal issues in controversy if the records before the Court

“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); Craig v. Commissioner, 

, 259-260 (2002).

Respondent bears the burden of proving there is no genuine issue
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of material fact, and all facts are interpreted in the light most

favorable to petitioners.    See Craig v. Commissioner, supra at

260.    However, petitioners must do more than merely allege or

deny facts; they must set forth “specific facts showing that

there is a genuine issue for trial.”     See Rule 121(d); Celotex

Corp. v. Catrett, 

, 324 (1986).     Under this standard,

petitioners have failed to raise any genuine issue of material

fact, and summary judgment is appropriate.

       Section 6330 provides for notice and opportunity for a

hearing before the Commissioner may levy upon the property of any

person.    The person may raise at the hearing any relevant issue

relating to the unpaid tax or proposed levy, including challenges

to the appropriateness of the collection action and offers of

collection alternatives.    The person may challenge the existence

or amount of the underlying tax liability for the year only if

the person did not receive a notice of deficiency or did not

otherwise have an opportunity to dispute the liability.     See sec.

6330(c)(2)(B); Sego v. Commissioner, 

, 609 (2000).

Once Appeals issues a notice of determination, the person may

seek judicial review in this Court.     See sec. 6330(d)(1).   Unless

the validity of the underlying tax liability is properly at

issue, we review the determination for abuse of discretion.     See

Sego v. Commissioner, supra at 609-610.
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     Petitioners indicated in their response to respondent’s

motion that their underlying tax liability is less than that now

sought by respondent.   The validity of their underlying tax

liability, however, is not properly at issue because petitioners

previously received a notice of deficiency for 2004 and had an

opportunity to dispute their tax liability for 2004 at that time.

The mere fact that petitioners’ accountant may not have filed

with the Court a petition in dispute of the notice of deficiency,

as petitioners claim they wanted him to do, is not sufficient for

them to prevail on this issue.

     Nor do we believe that Appeals abused its discretion when it

declined to consider any offer in compromise from petitioners.

Petitioners failed to provide the Form 433-A with attachments to

the designated officer of Appeals at the listed address although

Appeals twice asked them to do so.       See Olsen v. United States,

(1st Cir. 2005); Huntress v. Commissioner, T.C.

Memo. 2009-161; McCall v. Commissioner, T.C. Memo. 2009-75.

Petitioners assert in their response to respondent’s motion that

they did timely provide Appeals with the requested form.      To that

end, petitioners note, their response includes a completed Form

433-F, Collection Information Statement, and a U.S. Postal

Service receipt showing that they mailed a letter to the Internal

Revenue Service on September 5, 2008.      The letter, however, was

mailed not to the named Appeals officer at her listed address in
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Fresno, California, but to an Internal Revenue Service Center at

a post office box in Holtsville, New York.     Moreover, even if we

were to presume favorably to petitioners that the letter actually

was the Form 433-F included with the response, that form:     (1) Is

different than the Form 433-A, a copy of which was provided to

petitioners by Appeals on two occasions, and (2) lacked any of

the referenced attachments.

     We sustain the determinations of Appeals that the proposed

levy is appropriate.   In so doing, we have considered all of

petitioners’ contentions and have concluded that those

contentions not discussed herein are without merit.     To reflect

the foregoing,


                                            An appropriate order and

                                       decision will be entered for

                                       respondent.