                  T.C. Memo. 2009-161



                UNITED STATES TAX COURT



            GARY E. HUNTRESS, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 18574-08L.            Filed July 1, 2009.



     R issued to P a notice of filing of Federal tax
lien, and P timely requested a hearing under I.R.C.
sec. 6320. In that request P asked for a face-to-face
hearing and indicated that he desired an offer-in-
compromise or an installment agreement, but P never
made a concrete proposal of either. P did not submit
his financial information as requested and was not
current in his filing obligations. As a result, R
refused to hold a face-to-face conference as P had
requested. P did not participate in his telephone
collection due process conference, and R issued to P a
final notice of determination that R would sustain the
filing of the Federal tax lien. P appealed that
determination to this Court, arguing that he was
entitled to a face-to-face hearing whether or not he
had submitted his financial information or fulfilled
his filing obligations. R moved for summary judgment,
and P opposed R’s motion.
                                 - 2 -

          Held: R’s Office of Appeals did not abuse its
     discretion in sustaining the filing of a Federal tax
     lien when (1) P generally requested a collection
     alternative, but made no concrete proposals, (2) P
     failed to supply his financial information as
     requested, and (3) P was not current with his filing
     and/or payment obligations.



     Gary E. Huntress, pro se.

     Erika B. Cormier, for respondent.



                         MEMORANDUM OPINION


     GUSTAFSON, Judge:   This case is an appeal by petitioner Gary

E. Huntress, pursuant to section 6330(d),1 asking this Court to

review the notice of determination issued by the Internal Revenue

Service (IRS) sustaining the filing of a notice of Federal tax

lien to collect Mr. Huntress’s unpaid Federal income tax for tax

years 2000 and 2001.   The case is currently before the Court on

respondent’s motion for summary judgment filed May 5, 2009.

Mr. Huntress filed an opposition to respondent’s motion on

June 9, 2009.   The principal issue for decision is whether the

IRS’s Office of Appeals abused its discretion by denying

Mr. Huntress a face-to-face hearing.     For the reasons explained

below, we will grant respondent’s motion.



     1
      Except as otherwise noted, all section references are to
the Internal Revenue Code (26 U.S.C.), and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                 - 3 -

                             Background

     The following facts are based on the documents in the record

of the IRS’s hearing held pursuant to section 6330(b) and (c).

Those documents are authenticated by the declaration of the IRS’s

settlement officer included with respondent’s motion.    As is

discussed below, Mr. Huntress did not raise any genuine issue as

to these facts.

     Mr. Huntress filed no tax returns for the years 2000 and

2001, the two years at issue.    In June 2005 the IRS sent him a

statutory notice of deficiency for those years (and for the non-

suit years 2002 and 2003).   He received the notice and wrote a

responsive letter to the IRS disputing it, but he did not file a

deficiency suit in this Court.    The IRS therefore assessed the

deficiencies in November 2005.

     In April 2006 the IRS sent Mr. Huntress a notice of its

intent to levy against him to collect his unpaid tax income tax

liabilities for 2000 and 2001.    (This is not the collection

notice at issue in this suit.)    That notice advised him of his

right to request a collection due process (CDP) hearing before

the Office of Appeals.   He requested the hearing but did not

attend it, and in December 2006 the IRS issued a notice of

determination sustaining the proposed levy.    Mr. Huntress did not

file in this Court a petition for review of that determination.
                                - 4 -

     On February 14, 2008, the IRS sent Mr. Huntress a notice of

Federal tax lien, advising him that it had filed a notice of lien

against him with respect to his unpaid tax liabilities for 2000

and 2001 and advising him of his right to request a CDP hearing

before the Office of Appeals.   He timely filed a Form 12153,

Request for a Collection Due Process or Equivalent Hearing, to

which was attached a document entitled “Attachment letter to CDPH

Request form (form no. 12153)”.   The attachment is a laundry list

of potential defects in IRS procedure and arguments and requests

that a taxpayer might make in the CDP context.      Mr. Huntress

placed an “X” in the blank by each item, even though some of them

are manifestly incorrect with respect to him (e.g., “I did not

receive a statutory Notice of Deficiency”) or do not apply to him

(e.g., a dispute about “the $500 frivolous [return] penalty” of

section 6702, which was not assessed against him).

     On this attachment Mr. Huntress requested “collection

alternatives including Offer in Compromise (OIC) [and] payment

schedule” and requested that his hearing before the Office of

Appeals be a face-to-face hearing.      In a letter of April 11,

2008, he repeated his request for a face-to-face hearing.

     In a letter of April 25, 2008, the Office of Appeals

explained the hearing process, and explained that the IRS could

not consider an offer-in-compromise (OIC) or installment

agreement “unless a taxpayer has filed all tax returns for which
                                - 5 -

he/she is liable”.    The letter requested that Mr. Huntress

provide:    financial information about himself on Form 433-A,

Collection Information Statement for Wage Earners and Self-

Employed Individuals; copies of his returns for 2004, 2005, 2006,

and 2007; and proof of estimated tax payments or a wage statement

for 2008.

     The Office of Appeals received no response from Mr. Huntress

to its letter of April 25, 2008.    On May 20, 2008, it sent him

another letter, which scheduled a telephone conference (not a

face-to-face conference) for June 17, 2008, repeated the requests

of the April 25 letter (for Form 433-A, returns for 2005, 2006,

and 2007, and proof of estimated tax), and stated as follows:

     Please be advised that Appeals does not provide a face-
     to-face conference if the [sic] you are not eligible
     for the collection alternative you are seeking. You
     were provided an opportunity in a letter sent out on
     April 25, 2008 to provide information to demonstrate
     that you were eligible for a collection alternative.
     We have received no response to that request and there-
     fore we are not allowing you a face-to-face hearing.

     Mr. Huntress responded with a letter dated June 13, 2008, in

which he stated that he did not want a telephone conference and

requested “a face to face hearing as prescribed by law”.    He

disputed the right of the Office of Appeals to set preconditions

for a face-to-face hearing, and he stated:

     Furthermore, pertaining to your request that I file the
     delinquent tax returns from 2005 to 2007 and complete
     Form 433-A, I respectfully decline to comply with this
     request for two reasons: (1) you failed to state the
     relevant law that would require me to file and/or
                               - 6 -

     complete such returns and forms, and (2) this appears
     to be an ex parte request for private and personal
     information. Also, the U.S. Congress has no
     precondition to filing Form 1040 or provide an Offer in
     Compromise prior to any CDP Hearing.

     Mr. Huntress did not participate in his telephone CDP

hearing scheduled for June 17, 2008.     On June 30, 2008, the

Office of Appeals issued its notice of determination sustaining

the filing of the notice of Federal tax lien.     On July 29, 2008,

Mr. Huntress timely filed his petition, which he supplemented on

October 14, 2008.   At the time that he filed his petition,

Mr. Huntress resided in Massachusetts.

     On May 5, 2009, respondent moved for summary judgment,

contending that no genuine issue of material fact remains for

trial and that judgment in respondent’s favor is warranted

because the determination by the Office of Appeals did not

constitute an abuse of discretion.     On June 9, 2009, Mr. Huntress

opposed the motion for summary judgment and argued that he was

entitled to a face-to-face hearing, which he had been denied.

                            Discussion

I.   Applicable Legal Principles

     A.   Summary Judgment Standards

     Where the pertinent facts are not in dispute, a party may

move for summary judgment to expedite the litigation and avoid an

unnecessary (and potentially expensive) trial.     Fla. Peach Corp.

v. Commissioner, 90 T.C. 678, 681 (1988).     Summary judgment may
                              - 7 -

be granted where there is no genuine issue as to 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 party moving for

summary judgment (here, respondent) bears the burden of showing

that there is no genuine issue as to any material fact, and

factual inferences will be drawn in the manner most favorable to

the party opposing summary judgment (here, Mr. Huntress).

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

Commissioner, 79 T.C. 340, 344 (1982).   However, Rule 121(d)

provides,

     When a motion for summary judgment is made and
     supported as provided in this Rule, an adverse party
     [such as Mr. Huntress] may not rest upon the mere
     allegations or denials of such party’s pleading, but
     such party’s response, by affidavits or as otherwise
     provided in this Rule, must set forth specific facts
     showing that there is a genuine issue for trial. * * *

In compliance with Rule 121(b), respondent made and supported a

showing of the facts of the case; but Mr. Huntress’s only

response is his unsworn, 1-1/2-page opposition, without

affidavits or other evidence, that does not contradict

respondent’s particular assertions but only argues about

Mr. Huntress’s supposed right to a face-to-face hearing.

Respondent’s statement of facts is therefore uncontroverted and

is accepted for purposes of ruling on the motion.
                                 - 8 -

     B.      Collection Review Procedure

     When a taxpayer fails to pay any Federal income tax

liability after demand, section 6321 imposes a lien in favor of

the United States on all the property of the delinquent taxpayer,

and section 6323(f) authorizes the IRS to file notice of that

lien.     However, within five business days after filing a notice

of tax lien, the IRS must provide written notice of that filing

to the taxpayer.     Sec. 6320(a).   After receiving such a notice,

the taxpayer may request an administrative hearing before the

Office of Appeals.     Sec. 6320(a)(3)(B), (b)(1).   Administrative

review is carried out by way of a hearing before the Office of

Appeals pursuant to section 6330(b) and (c); and, if the taxpayer

is dissatisfied with the outcome there, he can appeal that

determination to the Tax Court under section 6330(d), as

Mr. Huntress has done.

     For the agency-level CDP hearing before the Office of

Appeals, the pertinent procedures are set forth in section

6330(c):

     First, the IRS’s appeals officer must obtain verification

from the Secretary that the requirements of any applicable law or

administrative procedure have been met.     Sec. 6330(c)(1).2


     2
      In the case of the lien filed against Mr. Huntress, the
basic requirements, see sec. 6320, for which the appeals officer
was to obtain verification are: the issuance of a notice of
deficiency, sec. 6212; a timely assessment of the liability,
                                                   (continued...)
                              - 9 -

Although such issues appeared on the laundry list attached to

Mr. Huntress’s request for a hearing, respondent’s motion sets

forth the IRS’s compliance with these requirements, and

Mr. Huntress made no challenge to it in his opposition, so no

“verification” issues under section 6330(c)(1) are still at

issue.

     Second, the taxpayer may “raise at the hearing any relevant

issue relating to the unpaid tax or the proposed levy,” including

challenges to the appropriateness of the collection action and

offers of collection alternatives.    Sec. 6330(c)(2)(A).

Mr. Huntress’s principal contention--that he should have gotten a

face-to-face hearing in order to present an OIC or installment

agreement--pertains to that second set of issues, which we will

discuss below.

     Additionally, the taxpayer may contest the existence and

amount of the underlying tax liability, but only if he did not

receive a notice of deficiency or otherwise have a prior

opportunity to dispute the tax liability.    Sec. 6330(c)(2)(B).

Mr. Huntress had that prior opportunity when the IRS sent him a

notice of deficiency, and he had the option of filing a




     2
      (...continued)
secs. 6201(a)(1), 6501(a); notice and demand for payment of the
liability, sec. 6303; and notice of the filing of the lien and of
the taxpayer’s right to a CDP hearing, secs. 6320(a) and (b).
                              - 10 -

deficiency suit in this Court.   Therefore, issues of the

underlying liability for the tax are not at issue.

      When the Office of Appeals issues its determination, the

taxpayer may “appeal such determination to the Tax Court”,

pursuant to section 6330(d)(1), as Mr. Huntress has done.     In

such an appeal (where the underlying liability is not at issue),

we review the determination of the Office of Appeals for abuse of

discretion.   That is, we decide whether the determination was

arbitrary, capricious, or without sound basis in fact or law.

See Murphy v. Commissioner, 125 T.C. 301, 320 (2005), affd. 469

F.3d 27 (1st Cir. 2006); Sego v. Commissioner, 114 T.C. 604, 610

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

II.   Respondent’s Entitlement to Summary Judgment

      Section 6320(b)(1) provides that a “hearing shall be held”

by the Office of Appeals.   Contrary to Mr. Huntress’s argument,

the statute does not describe the nature of that hearing.     As we

have previously observed,

      Hearings at the Appeals level have historically been
      conducted in an informal setting. * * * When Congress
      enacted section 6330 * * *, Congress was fully aware of
      the existing nature and function of Appeals. Nothing
      in section 6330 or the legislative history suggests
      that Congress intended to alter the nature of the
      Appeals hearing * * *.

Davis v. Commissioner, 115 T.C. 35, 41 (2000).     The regulations

implementing the CDP process provide as follows:

      A face-to-face CDP conference concerning a collection
      alternative, such as an installment agreement or an
                              - 11 -

     offer to compromise liability, will not be granted
     unless other taxpayers would be eligible for the
     alternative in similar circumstances. For example,
     because the IRS does not consider offers to compromise
     from taxpayers who have not filed required returns or
     have not made certain required deposits of tax, as set
     forth in Form 656, “Offer in Compromise,” no
     face-to-face conference will be granted to a taxpayer
     who wishes to make an offer to compromise but has not
     fulfilled those obligations. * * *

Sec. 301.6320-1(d)(2), Q&A-D8, Proced. & Admin. Regs. (26 C.F.R.)

(emphasis added).

     This addresses Mr. Huntress’s principal contention (i.e.,

that he was supposedly entitled to a face-to-face hearing), but

his contention essentially puts the cart before the horse.     Where

a taxpayer proposes a collection alternative such as an OIC, the

hearing (whether face-to-face or telephonic) is a means for the

Office of Appeals to consider the OIC.   Where denial of a face-

to-face hearing would impede adequate consideration of an OIC,

then that denial might itself be an abuse of discretion.

However, the ultimate question is whether the Office of Appeals

abused its discretion by not agreeing to an OIC.   We find that it

did not.

     Mr. Huntress made three fatal omissions that doomed his

hopes for an OIC:   He (1) never made a concrete proposal of

specific terms for an OIC, (2) never provided the financial

information to substantiate the proposal, and (3) never showed

his compliance with filing requirements (in particular, his

returns for 2005 through 2007, which he instead refused to file).
                                - 12 -

Any one of these failures justified the Office of Appeals’s

determination not to allow an OIC:

     First, it was not an abuse of discretion for the Office of

Appeals to reject collection alternatives when none were proposed

by Mr. Huntress.    See Cavazos v. Commissioner, T.C. Memo. 2008-

257 (citing Kendricks v. Commissioner, 124 T.C. 69, 79 (2005));

see also Nelson v. Commissioner, T.C. Memo. 2009-108 (Appeals did

not abuse its discretion in sustaining a lien when a taxpayer

requested an OIC generally but had not prepared one).

     Second, it was not an abuse of discretion for the Office of

Appeals to reject collection alternatives and sustain the

proposed collection action on the basis of the failure of

Mr. Huntress to submit requested financial information.     See

Prater v. Commissioner, T.C. Memo. 2007-241; Chandler v.

Commissioner, T.C. Memo. 2005-99; Roman v. Commissioner, T.C.

Memo. 2004-20.     In doing so, the Office of Appeals simply

followed the requirements of section 301.6320-1(e)(1), Proced. &

Admin. Regs., and Rev. Proc. 2003-71, 2003-2 C.B. 517.

     Third, it was not an abuse of discretion for the Office of

Appeals to consider Mr. Huntress ineligible for an OIC on the

ground that he had a history of noncompliance with the tax laws

and was not in compliance with current tax obligations.     See

Giamelli v. Commissioner, 129 T.C. 107, 111-112 (2007).        In doing

so, the Office of Appeals followed the requirements of the
                                - 13 -

regulations.    See sec. 301.6320-1(d)(2), Q&A-D8, Proced. & Admin.

Regs. (“the IRS does not consider offers to compromise from

taxpayers who have not filed required returns or have not made

certain required deposits of tax”); see also Internal Revenue

Manual, pt. 5.8.3.4.1 (Sept. 1, 2005), 5.19.1.6.2(3) (June 27,

2005).

                              Conclusion

       On these undisputed facts, we cannot hold that the decision

of the Office of Appeals to sustain the filing of the Federal tax

lien was arbitrary, capricious, or without sound basis in fact or

law.     As a result, we conclude that the Office of Appeals did not

abuse its discretion, and we hold that respondent is entitled to

the entry of a decision sustaining the determination as a matter

of law.

       To reflect the foregoing,


                                            An appropriate order and

                                      decision will be entered.
