                   T.C. Summary Opinion 2007-177



                      UNITED STATES TAX COURT



                    SHLOMO LIMOR, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7610-06S.             Filed October 22, 2007.



     Shlomo Limor, pro se.

     Linette B. Angelastro, for respondent.


     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

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

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

and this opinion shall not be treated as precedent for any other

case.   Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code of 1986, as amended, and all
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Rule references are to the Tax Court Rules of Practice and

Procedure.

     This case is before the Court on respondent’s motion for

summary judgment filed pursuant to Rule 121.    The motion arises

in the context of a petition filed in response to a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 that respondent sent to petitioner.   At the time the

petition was filed, petitioner resided in Tarzana, California.

                            Background

     The parties agreed to a stipulation of facts, and petitioner

provided testimony at an evidentiary hearing.   The parties do not

disagree on any of the material facts in this case.

     Respondent examined petitioner’s 2002 Federal income tax

return and proposed changes.   Respondent sent a statutory notice

of deficiency to petitioner for 2002 on September 3, 2004.

Petitioner agrees that he received a “letter” in 2004 disallowing

dependency exemptions for two children.   Petitioner stated that

he responded to the notice of deficiency by writing a letter that

he sent to “Someplace in Washington, DC”, but “It was a couple of

days late.”   Petitioner agrees that he filed an untimely petition

that was dismissed by the Court.1



     1
      Court records show that Shlomo Limor, in docket No. 24434-
04, filed a petition on Dec. 20, 2004, that respondent moved to
dismiss for lack of jurisdiction due to an untimely petition, and
that the motion was granted on Apr. 1, 2005.
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     Respondent sent petitioner Letter 1058, Notice of Intent to

Levy and Notice of Your Right to a Hearing, for 2002.   Petitioner

timely requested a hearing.    The only issue raised in his request

for a hearing was the underlying tax liability.   During a

telephone hearing, the Appeals officer informed petitioner that

he was not allowed to raise his underlying tax liability because

he had received a statutory notice of deficiency.   Petitioner

raised no other issue.    The only issue raised by the petition in

this case is petitioner’s underlying tax liability.

                              Discussion

     Respondent reasons that since the only issue that petitioner

has raised questions the underlying tax liability, respondent is

entitled to a ruling in his favor as a matter of law.   The Court

agrees with respondent.

Standard for Granting Summary Judgment

     The standard for granting a motion for summary judgment

under Rule 121 is that

     A decision shall * * * be rendered 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).2]




     2
      Rule 121 is derived from Fed. R. Civ. P. 56. Therefore,
authorities interpreting the latter will be considered by the
Court in applying our Rule. Espinoza v. Commissioner, 78 T.C.
412, 415-416 (1982).
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     The moving party has the burden of “showing” the absence of

a genuine issue as to any material fact.    See Espinoza v.

Commissioner, 78 T.C. 412, 416 (1982) (and cases cited therein).

     The evidence of the nonmovant is to be believed, and all

justifiable inferences are to be drawn in his favor.       Adickes v.

S.H. Kress & Co., 398 U.S. 144, 158-159 (1970).    There is,

however, no issue for trial unless there is sufficient evidence

favoring the nonmoving party for the finder of fact to find in

favor of the nonmoving party.     First Natl. Bank of Ariz. v.

Cities Serv. Co., 391 U.S. 253, 288-289 (1968).    The nonmovant’s

evidence must be more than merely colorable.     Dombrowski v.

Eastland, 387 U.S. 82, 84 (1967) (per curiam).    If the

nonmovant’s evidence is not significantly probative, summary

judgment may be granted.   First Natl. Bank of Ariz. v. Cities

Serv. Co., supra at 290.   Rule 121(d) provides that when a

properly supported motion for summary judgment is made, the

adverse party “must set forth specific facts showing that there

is a genuine issue for trial.”

Procedure Under Section 6330

     Section 6330 entitles a taxpayer to notice of his right to

request a hearing with the IRS Office of Appeals after notice of

the Commissioner’s intent to levy on his property and rights to

property in furtherance of the collection of unpaid Federal

taxes.   The taxpayer requesting the hearing may raise any

relevant issue with regard to the Commissioner’s intended
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collection activity, including spousal defenses, challenges to

the appropriateness of the Commissioner’s intended collection

action, and alternative means of collection.   Secs. 6320(b) and

(c); 6330(c); see Sego v. Commissioner, 114 T.C. 604, 609 (2000);

Goza v. Commissioner, 114 T.C. 176, 180 (2000).

     The taxpayer may raise challenges “to the existence or

amount of the underlying tax liability”, however, only if he “did

not receive any statutory notice of deficiency for such tax

liability or did not otherwise have an opportunity to dispute

such tax liability.”   Sec. 6330(c)(2)(B).

     Where the validity of the tax liability is not properly part

of the appeal, the taxpayer may challenge the determination of

the Appeals officer for abuse of discretion.   Sego v.

Commissioner, supra at 609-610; Goza v. Commissioner, supra at

181-182.

     Here, petitioner received a statutory notice of deficiency

for 2002.   Although he filed his petition with the Court beyond

the statutory period, he has not alleged or proven that the

notice was not received in time for him to have filed timely.

See Kuykendall v. Commissioner, 129 T.C. ___ (2007); sec.

301.6330-1(e)(3), Q&A-E2, Proced. & Admin. Regs.   As a matter of

law, petitioner is precluded from raising a challenge “to the

existence or amount of the underlying tax liability”.    See sec.

6330(c)(2)(B).
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     Because petitioner raised no issue other than his underlying

tax liability, which is precluded here by law, there is no

material issue of fact for trial.   Respondent’s motion for

summary judgment will be granted.



                                           An appropriate order and

                                      decision will be entered

                                      granting respondent’s motion

                                      for summary judgment.
