                          T.C. Memo. 2004-218



                      UNITED STATES TAX COURT



         JOSEPH A. AND CAROL DELVECCHIO, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6893-03L.             Filed September 27, 2004.



     Joseph A. DelVecchio and Carol DelVecchio, pro sese.

     Leonard T. Provenzale, for respondent.


                          MEMORANDUM OPINION


     LARO, Judge:   Petitioners, while residing in Stuart,

Florida, petitioned the Court under section 6330(d) to review

respondent’s determination as to his proposed levy upon

petitioners’ property.1    Respondent proposed the levy to collect



     1
       Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code. Rule
references are to the Tax Court Rules of Practice and Procedure.
                                  -2-

Federal income taxes from petitioner Joseph A. DelVecchio of

approximately $189,137.62 for 1987 and $177,448.78 for 1988, and

from petitioner Carol DelVecchio of approximately $129,600.27 for

1987 and $110,905.53 for 1988.2    The case is before the Court on

respondent’s motion for summary judgment under Rule 121.

Petitioners filed a response.

     We shall grant respondent’s motion for summary judgment.

                             Background

     Petitioners filed Federal income tax returns for 1987 and

1988.    Upon audit, all parties signed Form 872, Consent to Extend

the Time to Assess Tax, allowing respondent until December 31,

1992, to assess “The amount of any Federal Income tax due on any

returns made by or for the above taxpayer(s)” for 1987 and 1988.

A notice of deficiency was issued for those years on January 20,

1994, and trial was held in this Court on April 21, 1999, in

Miami, Florida.   An opinion was issued, holding for respondent.

See DelVecchio v. Commissioner, T.C. Memo. 2001-130.3    Decision

was entered for respondent on August 9, 2001, and assessment was

made on November 13, 2001.   The decision was affirmed by the

Court of Appeals for the Eleventh Circuit on May 29, 2002.


     2
       We say “approximately” as these amounts were computed
before the present proceeding and have since increased on account
of interest.
     3
       In part, the Court decided that petitioners are liable for
certain deficiencies and that Joseph DelVecchio is liable for
additions to tax for fraud.
                                  -3-

     On May 29, 2002, respondent mailed to petitioners a Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing (final notice).   On June 28, 2002, petitioners elected to

exercise their right under section 6330 to a hearing with

respondent’s Office of Appeals.    Petitioners attached to the form

an explanation of their disagreement with the proposed levy,

stating:

          Taxpayers Joseph DelVecchio and Carol DelVecchio
     do challenge the IRS Final Notice of Intent to Levy
     based on the fact that the federal statutes cited in
     the Notice as authorizing the actions in the Notice do
     not grant the legal authority for the IRS to Levy any
     assets of the two taxpayers named in each of the two
     Notices.

     Additionally, petitioner Carol DelVecchio claimed relief

from joint liability under section 6015 as to the liability

underlying both the lien and levy.

     Both petitioners elected correspondence hearings.    On

October 1, 2002, respondent faxed Carol DelVecchio’s certified

transcripts of assessments to her attorney.   On November 5, 2002,

respondent sent a letter to Joseph DelVecchio outlining

respondent’s position and attaching Joseph DelVecchio’s certified

transcripts of assessments.

     Extensive correspondence was exchanged between respondent

and both petitioners, culminating in a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330

for 1987 and 1988 mailed on April 16, 2003.   This notice
                                 -4-

sustained the proposed levy, found the assessment legally

supported and timely made, and denied Carol DelVecchio’s request

for relief from joint liability.

     The petition followed.

                              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 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(a) and (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 are

drawn 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).4    In responding


     4
       Petitioners urge respondent’s motion for summary judgment
must be denied because the parties have not entered into any
stipulations. The Court disagrees. Rule 121 does not require
stipulations as a prerequisite to the granting of a motion for
                                                   (continued...)
                                  -5-

to a motion for summary judgment, the nonmoving party must do

more than merely allege or deny facts.    It must “set forth [in

its response] specific facts showing that there is a genuine

issue for trial.    If the * * * [nonmoving] party does not so

respond, then a decision, if appropriate, may be entered against

such party.”    Rule 121(d); accord Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986).

     Summary judgment may also be granted if evidence submitted

by the nonmoving party is merely colorable or not significantly

probative.     Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986).   Petitioners have failed to raise any genuine issue of

material fact, and summary judgment is appropriate.

     Section 6331(a) provides that if a person who is liable to

pay any tax refuses to pay such tax within 10 days after notice

and demand for payment, the Secretary may collect such tax by

levy on the person’s property.    Section 6330 provides that the

Commissioner cannot proceed with collection by levy until the

person has been given notice and the opportunity for

administrative review and, if dissatisfied, with judicial review

of the administrative determination.     Davis v. Commissioner, 115

T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179

(2000).   The Court reviews nonliability administrative



     4
      (...continued)
summary judgment.
                                 -6-

determinations for abuse of discretion.     Sego v. Commissioner,

114 T.C. 604, 610 (2000).   The Court reviews determinations of

underlying tax liability de novo.      Hoffman v. Commissioner,

119 T.C. 140, 144-145 (2002).

     Petitioners concede in their response that the sole issue

for the Court to decide is whether there was an irregularity in

the assessment shown in the transcripts.     Where, as here, the

issue is whether a valid assessment was made, non-master-file

transcripts which identify the taxpayers, the character of the

liability assessed, the taxable period, and the amount of the

assessment establish the validity of an assessment, absent a

showing of irregularity.    See, e.g., Nestor v. Commissioner,

118 T.C. 162 (2002).

     Section 6330(d) and the rule of res judicata act as an

absolute bar to our consideration of collateral issues which have

already been, or should have been, argued before this Court in

DelVecchio v. Commissioner, T.C. Memo. 2001-130.     Following the

mandate of section 6330, we will not consider any of petitioners’

arguments which do not, at least on some arguable basis, address

whether there might have been an irregularity in assessment

within the narrow and precise meaning of section 6330.

     Petitioners put forth two arguments to support their

conclusion that the assessment was “irregular” and improper.

First, they argue that Form 872 is a “written agreement” and
                                -7-

therefore precluded respondent from assessing taxes once the

agreement set forth therein lapsed.    Petitioners contend that

assessment of the liability found in DelVecchio v. Commissioner,

supra, was improper in that it was made after the period agreed

upon in the Form 872.   Second, petitioners argue that respondent

made a nonjeopardy assessment in this case within the prohibited

90-day window following the notice of deficiency.     Petitioners

conclude that this alleged improper prior assessment invalidates

all subsequent assessments.5

A.   Form 872 Does Not Preclude Assessment

     Petitioners argue that respondent is precluded from making

any assessments because all parties signed Form 872 and thereby

extended to December 31, 1992, the time to assess any Federal

income tax due for 1987 and 1988.     Petitioners urge that Form 872

constitutes a written agreement with the Commissioner and that

respondent was bound to assess all taxes (including any fraud

penalty) before December 31, 1992.    We disagree.

     Form 872 is a unilateral waiver by the taxpayer of the

3-year period of limitations of section 6501(a).     See, e.g.,

Stange v. United States, 282 U.S. 270, 276 (1931); Schulman v.

Commissioner, 93 T.C. 623, 639 (1989).     Petitioners confuse the



     5
       Petitioners put forward other arguments, trying to assert
wrongdoing by respondent such as alteration of official
documents. We have considered all other arguments and have found
those not discussed to be meritless.
                                  -8-

general 3-year period of limitations specified in section 6501(a)

with the longer period of limitations in section 6501(c)(1)

(fraud).   In the liability case, petitioner Joseph DelVecchio was

held to have filed fraudulent returns for both years.      Thus, the

indefinite period of limitations for fraud provided for in

section 6501(c)(1) applies to both petitioners.     See Vannaman v.

Commissioner, 54 T.C. 1011, 1018 (1970).

     Form 872 does not affect the operation of section

6501(c)(1); it operates solely to extend the period of

limitations with respect to the general 3-year period of

limitations in section 6501(a).    Once this Court found there was

fraud (with the attending indefinite period of limitations), Form

872 became inapplicable and assessment could be made at any time.

B.   Any Prior Assessment Errors Were Harmless

     Petitioners allege that respondent made his first assessment

on April 7, 1994, while the 90-day period for filing a petition

in response to the notice of deficiency was still open.

Petitioners argue that this procedural gaffe invalidates the

assessment of November 13, 2001.    We disagree.

     Even assuming arguendo that petitioners are correct on the

facts, no relief is available since a correct assessment was made

within the appropriate period of limitations.      We therefore hold

any errors in assessments to be de minimis harmless error.     Had

this issue been presented in the initial proceeding and had
                                  -9-

respondent attempted to assess or collect a tax before this

Court’s decision became final, the remedy available to

petitioners would have been an injunction against collection or

refund of any tax so collected.    See sec. 6213(a).    A premature

assessment, if any occurred, would not taint this proposed levy,

which seeks to collect an assessment that was timely and validly

made.

C.   Conclusion

     We hold that:   (1) The assessments were valid, see Kuglin v.

Commissioner, T.C. Memo. 2002-51; see also Duffield v.

Commissioner, T.C. Memo. 2002-53, (2) the Appeals officer

satisfied the verification requirement of section 6330(c)(1), see

Yacksyzn v. Commissioner, T.C. Memo. 2002-99, and (3) petitioners

have not demonstrated in this proceeding any irregularity in the

assessment procedure which would raise a question about the

validity of the assessment.   See Mann v. Commissioner, T.C. Memo.

2002-48.

     To reflect the foregoing,

                                             An appropriate order and

                                        decision will be entered for

                                        respondent.
