                         T.C. Memo. 2007-142



                       UNITED STATES TAX COURT



                  ORLUN K. JONES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10990-06L.              Filed June 5, 2007.



     Donald W. MacPherson, for petitioner.

     Rachael J. Zepeda, for respondent.



                         MEMORANDUM OPINION


     THORNTON, Judge:    This case is before the Court on

respondent’s motion for summary judgment.1     We shall grant

respondent’s motion.



     1
       Unless otherwise indicated, 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

       The record reveals or the parties do not dispute the

following:

        Petitioner failed to file Federal income tax returns for

1985, 1986, 1987, 1988, 1989, 1990, 1991, and 1992.        By three

separate notices of deficiency dated December 8, 1995, respondent

determined these deficiencies in and additions to petitioner’s

tax:

                                            Additions to Tax
                                             Sec.         Sec.
           Year      Deficiency           6651(a)(1)      6654
           1985         $37,138             $9,285       $2,128
           1986          95,433             23,858        4,619
           1987         105,703             26,426        5,708
           1988          71,986             17,997        4,601
           1989         516,660            129,165       34,941
           1990         717,686            179,422       47,254
           1991       1,023,198            255,800       58,855
           1992       1,307,844            326,961       57,040

Petitioner received the notices of deficiency but did not

petition the Tax Court with respect thereto.

       On November 2, 2004, respondent mailed petitioner a Notice

of Intent to Levy and Notice of Your Right to a Hearing for

taxable years 1985 through 1992.     This notice indicated that

petitioner’s unpaid liability, including interest, totaled $14.8

million.    In response to this notice, on November 23, 2004,

petitioner submitted a Form 12153, Request for a Collection Due

Process Hearing, challenging the proposed levy on grounds of

doubt as to liability and doubt as to collectibility.        On January
                              - 3 -

24, 2005, respondent mailed to petitioner a Notice of Federal Tax

Lien Filing and Your Right to a Hearing Under IRC 6320 for

taxable years 1985 through 1992.   In response to this notice, on

February 8, 2005, petitioner submitted a Form 12153, Request for

a Collection Due Process Hearing, challenging the filing of the

Federal tax lien on the ground that “the tax assessment numbers

are grossly overstated”.

     On November 1, 2005, a telephonic hearing was held between

petitioner’s representative and respondent’s Appeals officer.

Petitioner submitted no offer-in-compromise or other collection

alternative during the hearing.

     By two separate notices of determination dated May 11, 2006,

respondent sustained the proposed levy action and the filing of

the notice of Federal tax lien.2   On June 12, 2006, while

residing in California, petitioner filed a timely petition for

review of respondent’s determinations.




     2
       The notices of determination indicate that in telephone
calls on Feb. 23 and 27, 2006, petitioner’s representative was
asked what petitioner would like to do with respect to collection
alternatives but “No meaningful response was received.” The
notices of determination indicate that the Appeals officer
nevertheless considered collection alternatives but concluded
that they were inappropriate because petitioner’s Form 433A,
Collection Information Statement for Individuals, was incomplete
and contained “numerous unexplained and seemingly contradictory
statements”.
                                - 4 -

                             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

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).

     Because petitioner received statutory notices of deficiency

with respect to the taxable years at issue but failed to petition

this Court to redetermine the deficiencies, he is not entitled to

challenge his underlying tax liability in this collection

proceeding.    See sec. 6330(c)(2)(B); Sego v. Commissioner, 114
                               - 5 -

T.C. 604, 610 (2000).   Accordingly, we review the Appeals

officer’s determinations for abuse of discretion.    See id.

     Petitioner contends that on February 8, 2005 (the same date

he submitted a Form 12153 requesting a hearing with respect to

the Federal tax lien filing), he requested audit reconsideration.

Petitioner contends that he repeatedly requested that the Appeals

officer’s determination should await the results of the requested

audit reconsideration, so that petitioner could determine what

collection alternative, if any, might be appropriate.    Petitioner

contends that the Appeals officer abused his discretion by

issuing his determinations before the request for audit

reconsideration had been acted upon.3

     We disagree.   Pursuant to the applicable regulations, the

Appeals Office shall “attempt to conduct a * * * [section 6330

hearing] and issue a Notice of Determination as expeditiously as

possible under the circumstances.”     Sec. 301.6330-1(e)(3), Q&A-

E9, Proced. & Admin. Regs.; see Murphy v. Commissioner, 125 T.C.

301, 322 (2005) (“‘there is neither a requirement nor reason that

the Appeals officer wait a certain amount of time before

rendering his determination as to a proposed levy’” (quoting

Clawson v. Commissioner, T.C. Memo. 2004-106)), affd. 469 F.3d 27



     3
       Petitioner contends that on Feb. 15, 2007, he received
notification from the IRS of audit reconsideration and has since
submitted information and returns to the audit reconsideration
agent.
                               - 6 -

(1st Cir. 2006).   The Appeals officer did not abuse his

discretion by declining to delay his determinations to await the

uncertain outcome of petitioner’s eleventh-hour request for audit

reconsideration and the uncertain outcome of any audit

reconsideration that might be granted.

     Petitioner contends that notwithstanding section

6330(c)(2)(B), which precluded him from challenging his

underlying liability in the collection hearing, he should have

been permitted to make an offer-in-compromise on the basis of

doubt as to liability, pursuant to sections 6330(c)(2)(A)(iii)

and 7122.   The short answer is petitioner never made any offer-

in-compromise.   Accordingly, the Appeals officer did not abuse

his discretion in failing to consider any offer-in-compromise.

See Kindred v. Commissioner, 454 F.3d 688, 696 (7th Cir. 2006)

(characterizing as “frivolous” an argument that the taxpayers

should have been allowed to submit an offer-in-compromise in a

collection hearing, where the taxpayers never actually made an

offer-in-compromise); Kendricks v. Commissioner, 124 T.C. 69, 79

(2005).

     On the basis of our review of the record, we conclude that

there is no genuine dispute as to a material fact.   Petitioner

has failed to make a valid challenge to the appropriateness of

respondent’s intended collection action or offer alternative

means of collection.   In the absence of a valid issue for review,
                                 - 7 -

we conclude that respondent is entitled to judgment as a matter

of law and sustain respondent’s determinations sustaining the

proposed levy and the filing of the notice of Federal tax lien.

     To reflect the foregoing,


                                             An appropriate order

                                         and decision will be entered.
