                       T.C. Memo. 2005-295



                     UNITED STATES TAX COURT



                 GLORIA POMERANTZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5218-05L.              Filed December 22, 2005.



     Richard E. Preston and Suyeun Jacqueline Pyun, for

petitioner.

     Jeffrey Gold, for respondent.



                       MEMORANDUM OPINION


     ARMEN, Special Trial Judge:     This collection review case is

before the Court on respondent’s Motion For Summary Judgment.1

As explained in detail below, we shall grant respondent’s motion.


     1
        All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 2 -

                            Background

     Gloria Pomerantz (petitioner) is an attorney.     Petitioner

timely filed Forms 1040, U.S. Individual Income Tax Return, for

1995 and 1996. Respondent subsequently initiated an examination

of petitioner’s returns for those years.

     On November 3, 2003, petitioner executed and submitted to

respondent a Form 2848, Power of Attorney and Declaration of

Representative, appointing Allan Serchay (Mr. Serchay),

identified as a certified public accountant, to act as her

representative with regard to Federal income tax matters for 1995

through 1998.   Paragraph 5 of the Form 2848 states:

     Acts authorized. The representatives are authorized to
     receive and inspect confidential tax information and to
     perform any and all acts that I (we) can perform with
     respect to the tax matters described on line 3, for example,
     the authority to sign any agreements, consents, or other
     documents. The authority does not include the power to
     receive refund checks (see line 6 below), the power to
     substitute another representative, the authority to execute
     a request for a tax return, or a consent to disclose tax
     information unless specifically added below, or the power to
     sign certain returns.

The remainder of paragraph 5 of the Form 2848, which allows a

taxpayer to list specific additions or deletions to the acts that

the representative is authorized to perform, is blank.

     On January 30, 2004, Mr. Serchay executed, on petitioner’s

behalf, a Form 4549, Income Tax Examination Changes, consenting

to the immediate assessment and collection of increased taxes,

interest, and fraud penalties for petitioner’s taxable years 1995
                               - 3 -

and 1996.   Pursuant to that consent, respondent assessed the

following amounts on March 8, 2004:

                              1995           1996
        additional tax     $55,639.00     $8,373.00
        fraud penalty       41,729.25      6,279.75
        interest            78,418.20      9,578.91

     On that same date, respondent sent petitioner a notice of

balance due (i.e., a notice and demand for payment).

     In the interim, on February 24, 2004, petitioner submitted

to respondent an offer-in-compromise on the basis of doubt as to

collectibility with regard to her tax liabilities for 1995 and

1996.   Petitioner offered to pay $10,000 to respondent within 90

days of her offer.   Respondent rejected petitioner’s offer-in-

compromise after concluding that she had sufficient equity in her

residence to pay the taxes in dispute.

     At some point during the summer of 2004, petitioner executed

a new Form 2848 appointing Alvin Brown (Mr. Brown) to serve as

her representative with regard to her income tax liabilities for

1995 and 1996.

     On August 17, 2004, respondent filed a Notice of Federal Tax

Lien at the County Courthouse in Broward County, Florida, with

regard to petitioner’s unpaid liabilities for 1995 and 1996.     On

August 24, 2004, respondent mailed to petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320 for 1995 and 1996 (the lien notice).   In response to the
                                 - 4 -

lien notice, Mr. Brown submitted to respondent a timely request

for an administrative hearing.

     On November 5, 2004, petitioner submitted to respondent Form

433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals, and Form 433-B, Collection Information

Statement for Business.

     On December 8, 2004, Settlement Officer Elsie Stewart of

respondent’s Appeals Office in Plantation, Florida, held a

telephonic conference with Mr. Brown and petitioner regarding

petitioner’s case.   Mr. Brown asserted that the assessments for

1995 and 1996 should be abated because they were:   (1) Incorrect;

(2) entered without issuance of a statutory notice of deficiency;

and (3) entered after the expiration of the normal 3-year period

of limitations.

     On February 18, 2005, respondent’s Appeals Office mailed to

petitioner a Notice Of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330, sustaining the filing

of the notice of Federal tax lien against petitioner.

     On March 17, 2005, petitioner timely filed with the Court a

petition challenging respondent’s notice of determination.2

Petitioner alleged in the petition that respondent erred in

determining that she could not challenge the existence or amount




     2
        At the time that the petition was filed, petitioner
resided in Ft. Lauderdale, Fla.
                               - 5 -

of her outstanding liabilities for 1995 and 1996 during the

collection review process.

     After filing an answer to the petition, respondent filed a

Motion For Summary Judgment.   Petitioner filed an opposition to

respondent’s motion.   This matter was called for hearing at the

Court’s November 9, 2005 motions session held in Washington, D.C.

Counsel for both parties appeared at the hearing and offered

argument in respect of respondent’s motion.   Following the

hearing, petitioner filed a supplement to her opposition.

                             Discussion

     Summary judgment is intended to expedite litigation and

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

Commissioner, 90 T.C. 678, 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(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).    The moving party

bears 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.   See

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

Commissioner, 79 T.C. 340, 344 (1982).
                               - 6 -

     The record reflects that there is no genuine issue as to any

material fact and that respondent is entitled to judgment as a

matter of law.

Federal Tax Lien

     Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person liable for taxes

when a demand for the payment of the person’s taxes has been made

and the person fails to pay those taxes.     Such a lien arises when

an assessment is made.   Sec. 6322.    However, section 6323(a)

requires the Secretary to file a notice of Federal tax lien if

the lien is to be valid against any purchaser, holder of a

security interest, mechanic’s lienor, or judgment lien creditor.

Behling v. Commissioner, 118 T.C. 572, 575 (2002).

     Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice of the

filing of a notice of lien under section 6323.     Section 6320 also

provides that the person may request administrative review of the

matter in the form of an Appeals Office hearing.     Section 6320(c)

provides that the Appeals Office hearing generally shall be

conducted consistent with the procedures set forth in section

6330(c), (d), and (e).

     Section 6330(c)(1) imposes on the Appeals Office an

obligation to verify that the requirements of any applicable law

or administrative procedure have been met.     Section 6330(c)(2)(A)

provides that the person may raise at the hearing any relevant
                                 - 7 -

issue relating to the unpaid tax, including appropriate spousal

defenses, challenges to the appropriateness of collection

actions, and offers of collection alternatives.   Section

6330(c)(2)(B) provides that the person may also raise at the

hearing challenges to the existence or amount of the underlying

tax liability if the person did not receive a statutory notice of

deficiency for such tax liability or did not otherwise have an

opportunity to dispute such tax liability.

     Section 6330(d) provides for judicial review of the

administrative determination in the Tax Court or a Federal

District Court, as may be appropriate.

     Petitioner asserts that the Appeals Office erred in denying

her an opportunity to challenge her underlying liabilities for

1995 and 1996 because (1) she did not receive a notice of

deficiency for those years, and (2) she was never given a full

and fair opportunity to contest her liability for additions to

tax for fraud for those years.    We disagree.

     As previously discussed, section 6330(c)(2)(B) provides that

the person may raise at the hearing challenges to the existence

or amount of the underlying tax liability if the person did not

receive a statutory notice of deficiency for such tax liability

or did not otherwise have an opportunity to dispute such tax

liability.   The record in this case reflects that, although

petitioner did not receive a statutory notice of deficiency for

1995 and 1996, she did in fact have a prior opportunity to
                              - 8 -

dispute her liability for those years.    In particular, Mr.

Serchay, petitioner’s duly appointed representative, executed

Form 4549 consenting to the immediate assessment and collection

of the income taxes, fraud penalties, and interest that

respondent assessed and is attempting to collect from petitioner.

It is well settled that “for purposes of section 6330(c)(2)(B), a

taxpayer who has signed a Form 4549-CG waiving * * * [her] right

to challenge the proposed assessments should be deemed to have

had an opportunity to dispute * * * [her] tax liabilities and is

thereby precluded from challenging those tax liabilities.”

Zapara v. Commissioner, 124 T.C. 223, 228 (2005); see Aguirre v.

Commissioner, 117 T.C. 324, 327 (2001).    Under the circumstances,

petitioner is deemed to have had a prior opportunity to dispute

her liabilities for 1995 and 1996 within the meaning of section

6320(c)(2)(B), and, therefore, she is not entitled to challenge

the existence or amount of her liabilities for those years during

the collection review process.3




     3
        To the extent that petitioner seeks to raise the
affirmative defense of the normal 3-year period of limitations
under sec. 6501(a), we observe that sec. 6501(c) provides an
exception to the period of limitations; i.e., in the case of
fraud, additional tax may be assessed at any time. Regardless,
the pleading of the statute of limitations by petitioner
constitutes a challenge to the underlying tax liability, which
challenge is barred because she is deemed to have had an
opportunity to dispute such tax liability. Hoffman v.
Commissioner, 119 T.C. 140, 145 (2002); Golden v. Commissioner,
T.C. Memo. 2005-170.
                                 - 9 -

                            Conclusion

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the

transcript of account.   Moreover, petitioner has failed to make a

valid challenge to the appropriateness of respondent’s intended

collection action or offer alternative means of collection.

These issues are now deemed conceded.       Rule 331(b)(4).   Under the

circumstances, we conclude that respondent is entitled to

judgment as a matter of law sustaining the notice of

determination.

     To reflect the foregoing,



                                         An Order granting respondent’s

                                 Motion For Summary Judgment and

                                 Decision will be entered.
