T.C. Summary Opinion 2012-101



                         UNITED STATES TAX COURT



             MARVIN MORRIS BARTOSOVSKY, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 4587-12S L.                         Filed October 17, 2012.



      Marvin Morris Bartosovsky, pro se.

      Kimberly L. Clark, for respondent.



                              SUMMARY OPINION


      GERBER, 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,


      1
       Unless otherwise indicated, all section references are to the Internal Revenue
Code in effect for the year in issue, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
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and this opinion shall not be treated as precedent for any other case. This matter is

before the Court on respondent’s motion for summary judgment under Rule 121.

Respondent contends that no genuine issue exists as to any material fact and that the

determination to collect petitioner’s 2008 income tax liability by levy should be

sustained. Petitioner has not responded to the motion, despite an order from this

Court instructing him to do so.

                                     Background

      At the time the petition was filed, petitioner resided in Idaho. After petitioner

filed his 2008 joint Federal income tax return, respondent on November 1, 2010,

mailed to petitioner a statutory notice of deficiency which he received. In that

notice respondent had determined that petitioner had a $7,198 income tax deficiency

and a $1,440 accuracy-related penalty for 2008. Petitioner failed to file a petition

with this Court, and respondent assessed the income tax deficiency and penalty

against petitioner.

      Although petitioner did not petition this Court, he did send certain

documentation to respondent concerning the 2008 income tax deficiency. On the

basis of the new information, respondent conducted an audit reconsideration

proceeding and concluded that the income tax deficiency should be reduced to

$6,336 by abating $862 and that the $1,440 penalty should also be abated.
                                            -3-

       On September 5, 2011, respondent sent a Letter 1058, Final Notice--Notice

of Intent to Levy and Notice of Your Right to a Hearing, to petitioner. On

September 20, 2011, respondent received a Form 12153, Request for a Collection

Due Process or Equivalent Hearing, from petitioner. In that request petitioner

alleged that the income attributed to him for 2008 was actually the income of his

mother and his sister. Also in his Form 12153, petitioner requested a collection due

process (CDP) hearing; however, he requested a hearing in regard to a notice of

Federal tax lien as opposed to a notice of proposed levy. In response, respondent’s

service center contacted petitioner and advised him that his request for a hearing

with respect to a notice of lien was premature and explained that respondent was

contemplating a levy and not a lien filing. However, the service center employee

advised petitioner that respondent would consider his hearing request regarding a

notice of intent to levy as timely filed.

       On October 14, 2011, and on November 2, 2011, respondent sent petitioner

letters advising him that he would be contacted for the scheduling of a hearing. By

a letter dated November 23, 2011, respondent informed petitioner that a telephone

conference was scheduled for January 12, 2012, to discuss respondent’s intent to

take collection action. The conference took place as scheduled, and petitioner

attempted to challenge the underlying 2008 assessed tax liability. The settlement
                                         -4-

officer explained to petitioner that pursuant to section 6330(c)(2)(B) he could not

challenge the underlying 2008 tax liability because he had had a prior opportunity to

do so. Petitioner responded that he wished to proceed to court to resolve his

concerns. Respondent’s determination to proceed with collection by levy was

sustained in a letter dated January 20, 2012, from which petitioner timely petitioned

this Court.

                                     Discussion

      Summary judgment is intended to expedite litigation and to avoid unnecessary

and expensive trials. Shiosaki v. Commissioner, 

, 862 (1974).

Summary judgment may be granted where the pleadings and other materials show

that there is no genuine dispute as to any material fact and that a decision may be

rendered as a matter of law. Rule 121(b); see Schlosser v. Commissioner, T.C.

Memo. 2007-298, 2007 Tax Ct. Memo LEXIS 300, at *6, aff’d, 287 Fed. Appx.

169 (3d Cir. 2008). The burden is on the moving party to demonstrate that no

genuine dispute as to any material fact remains and that he is entitled to judgment as

a matter of law. FPL Grp., Inc. & Subs. v. Commissioner, 

, 74-75

(2001). In deciding whether to grant summary judgment, the evidence is viewed in

the light most favorable to the nonmoving party. Bond v. Commissioner, 

, 36 (1993). However, the nonmoving party is required “to go beyond the
                                          -5-

pleadings and by * * * [his] own affidavits, or by the ‘depositions, answers to

interrogatories, and admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’” Celotex Corp. v. Catrett, 

, 324 (1986);

see also Rauenhorst v. Commissioner, 

, 175 (2002); FPL Grp., Inc. &

Subs. v. Commissioner, 

, 559 (2000). Petitioner failed to respond to

respondent’s motion and has failed to indicate that there is a genuine dispute for

trial.2 Consequently, we conclude that there is no dispute as to any material fact and

that a decision may be rendered as a matter of law.

      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 for payment, then

the Secretary is authorized to collect such tax by levy upon the person’s property.

Section 6331(d) provides that, at least 30 days before enforcing collection by way of

a levy on the person’s property, the Secretary is obliged to provide the person with a

final notice of intent to levy, including notice of the administrative appeals available

to the person.




      2
        By failing to respond to the assertions in the motion, petitioner has waived
his right to contest them. See Rule 121(d); Lunsford v. Commissioner, 

, 187 (2001); Akonji v. Commissioner, T.C. Memo. 2012-56, 2012 Tax Ct.
Memo LEXIS 49, at *6.
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       If a taxpayer requests a CDP hearing in response to a notice of Federal tax

lien or a notice of intent to levy, he may raise at that hearing any relevant issue

relating to the unpaid tax, proposed levy, or lien. Sec. 6330(c)(2). Relevant issues

include possible alternative means of collection such as an installment agreement.

Sec. 6330(c)(2)(A)(iii).

       In his petition, petitioner assigned error to respondent’s determination and

sought review of his “adjusted gross income”. In addition, petitioner provided the

amounts of income tax that he believed should have been due for 2008. In effect,

petitioner’s only challenge was to his underlying 2008 income tax liability.

However, petitioner is not entitled to question that liability because he had already

had the opportunity to do so within the meaning of section 6330(c)(2)(B). See also

sec. 301.6330-1(e)(3), Q&A-E2, Proced. & Admin. Regs.

      The Court reviews administrative determinations by the Commissioner’s

Office of Appeals regarding nonliability issues for abuse of discretion. Hoyle v.

Commissioner, 

, 200 (2008); Goza v. Commissioner, 

,

182 (2000). The determination of the Office of Appeals must take into

consideration: (1) the verification that the requirements of applicable law and

administrative procedure have been met; (2) issues raised by the taxpayer; and (3)

whether any proposed collection action balances the need for the efficient
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collection of taxes with the legitimate concern of the person that any collection be no

more intrusive than necessary. Sec. 6330(c)(3); see Lunsford v. Commissioner, 

, 184 (2001). Petitioner has offered no alternatives to collection and has not

questioned whether respondent’s settlement officer followed prescribed procedures

or whether he gave petitioner the opportunity to pursue this matter. Respondent’s

motion for summary judgment and the declaration filed by the settlement officer

contain clear and convincing evidence that the settlement officer properly based the

determination on the factors required by section 6330(c)(3).

      We accordingly hold that the determination to proceed with collection was not

an abuse of the settlement officer’s discretion, and the proposed collection action is

sustained.

      To reflect the foregoing,


                                                      An appropriate order and

                                                decision will be entered.