                        T.C. Memo. 2007-27



                     UNITED STATES TAX COURT



                 A-Z OPTICS, INC., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18932-05L.             Filed February 6, 2007.



     Kenneth D. Perkins, for petitioner.

     Russell F. Kurdys, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   Pursuant to section 6330, petitioner seeks

review of a proposed levy.1   Respondent has moved for summary




     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.
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judgment pursuant to Rule 121.    For the reasons discussed herein,

we shall grant respondent’s motion.

                              Background

     Petitioner is a corporation with principal place of business

in Masontown, Pennsylvania.    On April 29, 2002, David P. Alan

(Alan), in his capacity as petitioner’s CEO, executed Form 870,

Waiver of Restrictions on Assessment and Collection of Deficiency

in Tax and Acceptance of Overassessment, agreeing to the

immediate assessment and collection of a $1,212 deficiency in

petitioner’s corporate income tax for the period ending June 30,

1998.    A handwritten note at the top of the Form 870 states:

“PARTIAL AGREED ISSUES”.    On May 27, 2002, respondent assessed

the $1,212 tax and accrued interest thereon.

        Subsequently, on August 12, 2003, respondent mailed

petitioner a notice of deficiency, determining that for this same

period ending June 30, 1998, petitioner had a deficiency in

corporate income tax of $3,188 and was liable for an $880

accuracy-related penalty pursuant to section 6662(a).    The notice

of deficiency was predicated in large part on the disallowance of

a claimed net operating loss carryforward from petitioner’s prior

tax year.    On September 20, 2003, on petitioner’s behalf, Alan

executed Form 4089-B, Notice of Deficiency - Waiver, consenting

to the immediate assessment and collection of this $3,188
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deficiency and $880 penalty.   Petitioner did not petition this

Court to redetermine the deficiency or penalty.

     Petitioner paid only a portion of the agreed-upon tax and

penalty.   On July 28, 2004, respondent sent petitioner a Final

Notice of Intent to Levy (the levy notice) for collection of

petitioner’s unpaid 1998 balance.   On August 23, 2004, Alan

submitted on petitioner’s behalf Form 12153, Request for a

Collection Due Process Hearing.   Notwithstanding that Alan had

previously executed Form 870 agreeing to the immediate assessment

of the $1,212 tax that was in fact assessed on May 27, 2002, on

the Form 12153 Alan complained that he had never been given an

explanation for the May 27, 2002, assessment.

     The settlement officer sent petitioner materials explaining

the basis for the disputed assessment; she directed petitioner to

submit certain information if petitioner wished her to consider a

collection alternative; and she scheduled a telephone conference

for May 24, 2005.   By letter dated May 11, 2005, Alan requested

that the telephone conference be rescheduled, stating that he

wished to present “new evidence” in a face-to-face conference.

Petitioner’s case was reassigned to an Appeals officer.    By

letter dated June 23, 2005, the Appeals officer advised that

petitioner was not entitled to dispute the underlying liability,

having previously agreed to it; she offered to schedule a face-

to-face hearing to consider payment options.    By letter dated
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July 13, 2005, Alan again contested petitioner’s underlying tax

liability.    He stated that he had recently discovered documentary

evidence that would substantiate certain claimed business

expenses that respondent had previously disallowed.    Alan asked

to be allowed to show this new evidence.

       By letter dated July 20, 2005, the Appeals officer

reiterated that she could not consider petitioner’s underlying

tax liability; she stated that if petitioner did not present a

collection alternative plan by August 5, 2005, she would issue a

determination letter on the basis of information available to

her.    In a letter dated July 25, 2005, Alan stated that he

believed petitioner was entitled to audit reconsideration on the

basis of his newly discovered evidence, but that all his tax

records relating to the appeal had been taken in an IRS raid of

his home on July 21, 2005.    He requested a face-to-face hearing

and audit reconsideration, but only after his tax records were

returned by the IRS.    Petitioner never proposed any collection

alternative to the proposed levy and never submitted requested

financial information necessary for Appeals Office consideration

of a collection alternative.

       By Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330 (the notice), dated September 7,

2005, the Appeals Office sustained the proposed levy.    An

attachment to the notice explained that the Appeals Office was
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unable to consider petitioner’s challenge to its underlying tax

liability in this collection proceeding.    The notice verified

that all procedural and legal requirements had been met and that

the proposed levy was no more intrusive than necessary under the

circumstances.   The notice stated that no face-to-face meeting

could be granted since petitioner had no collection alternative

to present.

     In its petition, petitioner sets forth the following reasons

why it believes it is entitled to relief:

     a) Incorrect Determination of Net Income/Net Operating
     Loss resulting in assessment, and

     b) Incorrect Application of Procedures set forth in IRC
     Sections 6320 and 6330; and

     c) New Documentation (now in hands of Internal Revenue
     Service) supporting correct determination of Net
     Income/Net Operating Loss; and

     d) Incorrect Application of Net Operating Loss for
     Carryforward/Carryback. [Reproduced literally.]

                            Discussion

     Summary judgment is intended to expedite litigation and

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

Commissioner, 90 T.C. 678, 681 (1988).     Summary judgment may be

granted where there is no genuine issue of any material fact and

a decision may be rendered as a matter of law.    Rule 121(a) and

(b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.

Commissioner, 90 T.C. 753, 754 (1988).     The moving party bears
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the burden of proving that there is no genuine issue of material

fact, and factual inferences will be read in a manner most

favorable to the party opposing summary judgment.    Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,

79 T.C. 340, 344 (1982).    When a motion for summary judgment is

made and properly supported, the adverse party may not rest upon

mere allegations or denials of the pleadings, but must set forth

specific facts showing that there is a genuine issue for trial.

Rule 121(d).

     Insofar as petitioner seeks to have this Court redetermine a

deficiency, we lack jurisdiction over petitioner’s claim.    The

jurisdiction of this Court depends on the timely filing of a

petition.   Rule 13(c).   The notice of deficiency was mailed to

petitioner on August 12, 2003.    Petitioner did not file his

petition within the 90-day period prescribed by section 6213(a).

     Similarly, because petitioner signed Form 870 consenting to

the immediate assessment of the original $1,212 deficiency and

received a notice of deficiency with respect to an additional

deficiency and penalty, petitioner may not challenge the

existence or amount of its underlying liability as part of its

challenge to respondent’s proposed collection action.    See sec.

6330(c)(2)(B); Aguirre v. Commissioner, 117 T.C. 324, 327 (2001);

Sego v. Commissioner, 114 T.C. 604, 610-611 (2000); Goza v.

Commissioner, 114 T.C. 176, 182-183 (2000).
                               - 7 -

     In its petition, petitioner broadly assigns as error,

“Incorrect Application of Procedures set forth in IRC Sections

6320 and 6330”.   Petitioner has not, however, complied with Rule

331, which requires the petition to contain, among other things,

clear statements of the facts on which the petitioner bases the

assignment of error.   Similarly, in its response to respondent’s

motion for summary judgment, petitioner has not set forth

specific facts, as required by Rule 121(d), showing that there is

a genuine issue for trial with respect to this generalized

allegation that respondent committed procedural error.

Petitioner’s failure to allege facts in support of this

assignment of error justifies summary judgment.   See Poindexter

v. Commissioner, 122 T.C. 280, 285-286 (2004).

     Moreover, in the administrative proceeding, petitioner did

not ask for a collection alternative or raise any procedural

issues in its Form 12153 or otherwise bring any such issues to

the attention of the Appeals Office, other than attempting,

improperly, to contest its underlying tax liability.   Such issues

generally are not properly raised for the first time before this

Court.   Magana v. Commissioner, 118 T.C. 488, 493 (2002).    In any

event, we see no error in the Appeals Office determination.

     In conclusion, we are satisfied that there is no genuine

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

as a matter of law.
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To reflect the foregoing,


                                    An appropriate order and

                            decision will be entered for

                            respondent.
