                           T.C. Memo. 2009-3



                        UNITED STATES TAX COURT



                   A. J. JONES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19290-07L.              Filed January 5, 2009.



     Frederick J. O’Laughlin, for petitioner.

     G. Chad Barton, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     MORRISON, Judge:    This “collection due process” (“CDP”) case

is before the Court on respondent’s amended motion for summary

judgment to uphold his Appeals officer’s determination to sustain

a notice of intent to levy (the “levy”) on petitioner’s assets

for her 2002 income tax liability.
                                - 2 -

     Petitioner alleged in her petition that respondent had erred

by sustaining the levy and, specifically, by sustaining the levy

after allegedly finding that it was more intrusive than

necessary.    Respondent moved for summary judgment on the grounds

that his Appeals officer had properly based his determination on

petitioner’s repeated failures to file tax returns, provide

requested information, and propose collection alternatives; and

that the Appeals officer actually determined that the levy was

not more intrusive than necessary but simply made a misstatement

in his notice of determination.

     Petitioner did not respond to the motion with specific facts

showing that there is a genuine issue for trial.   (The record

before the Court did enable us to consider her claim that the

Appeals officer determined the levy to be more intrusive than

necessary.)   Instead, she conceded that she is statutorily

prohibited from challenging her underlying tax liability but

argued that we should review respondent’s determination of that

tax liability.   We find that petitioner has conceded this

argument by failing to properly raise it in her petition.     We

also find, in any case, that the argument is a circuitous, still

prohibited, challenge to her underlying tax liability, and that

petitioner has failed to set forth specific facts showing a

genuine issue for trial with respect to the liability.    Upon

examination of the notice of determination, we find that the
                                - 3 -

Appeals officer did not determine that the levy was more

intrusive than necessary but simply made a misstatement.

Finally, we refuse to further consider petitioner’s argument that

respondent erred by sustaining the levy because it is too broad

to give respondent and the Court notice of any particular issue

for decision.

     Therefore, we will grant respondent’s motion.

                          FINDINGS OF FACT

     Petitioner failed to timely file an income tax return for

2002.    Respondent prepared on her behalf, with respect to her

2002 income tax, a “substitute for return.”1   Respondent issued,

and petitioner apparently received, a notice of deficiency for

her 2002 income tax in or around October 2005.2   Petitioner


     1
      Respondent has previously represented to this court that a
“substitute for return” means a return or partial return which
respondent prepares for a taxpayer who does not file a return.
Swanson v. Commissioner, 121 T.C. 111, 112 n.1 (2003); Spurlock
v. Commissioner, 118 T.C. 155, 156 n.2 (2002).
     2
      Respondent’s Jan. 18, 2007 computer transcript of
petitioner’s tax account indicates that he issued her a notice of
deficiency on or around Oct. 4, 2005: it lists transaction code
494, which means that a notice of deficiency (informally known as
a “90-day letter”) was issued, for that date. See 2
Administration, Internal Revenue Manual (CCH), pt.
5.18.1.10.2.1.2, at 18,273-69 through 18,273-70 (Jan. 25, 2008);
IRS Document 6209, ADP and IDRS Information, 8-27 (2003).
Petitioner’s concession in her response to respondent’s motion
that she “cannot dispute her underlying tax liability by statute”
implies her recognition that sec. 6330(c)(2)(B) did not permit
her to raise the issue at the CDP hearing because she received a
statutory notice of deficiency for the tax liability or otherwise
had an opportunity to dispute the liability. While petitioner’s
                                                   (continued...)
                                 - 4 -

failed to file a Tax Court petition to challenge the notice of

deficiency (and did not otherwise dispute the notice of

deficiency).    Respondent then assessed the deficiency.

Respondent sent petitioner an IRS Notice CP 90, Final Notice,

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

for her unpaid 2002 income tax on August 21, 2006.    Petitioner

duly requested a CDP hearing to contest the levy.     She explained

in this request that “Taxpayer disagrees with the final notice of

intent to levy because a levy would cause a great hardship to

Taxpayer.     Taxpayer does not have the ability to pay the entire

tax liability owned [owed] because both taxpayers [sic] are

disabled.”3

     Respondent’s Appeals officer conducted the CDP hearing

through a series of communications with petitioner which

included, but were not limited to, a “face-to-face” (in-person)

meeting with her counsel.    On October 23, 2006, respondent sent

petitioner and her counsel copies of a letter which acknowledged



     2
      (...continued)
receipt of the notice of deficiency would explain this most
simply, our analysis would not differ materially if there were a
different reason for her being statutorily unable to dispute her
underlying tax liability. (All section references are to the
Internal Revenue Code and all Rule references are to the Tax
Court Rules of Practice and Procedure, unless otherwise
indicated.)
     3
      Nothing before the Court explains or substantiates
petitioner’s allegation that she and (as we infer that she
alleges) her husband are disabled.
                                   - 5 -

petitioner’s request for a CDP hearing, explained that he had not

received her 2000, 2001, 2002, and 2003 tax returns, and asked

her to submit them by October 31, 2006.       On December 6, 2006,

respondent sent them copies of a letter which scheduled a

conference call as part of petitioner’s CDP hearing, explained

the factors he would have to consider in the hearing, and

requested that she provide a completed Collection Information

Statement (a form statement of her finances), income tax returns

for 2000, 2001, 2003 and 2005,4 and any other federal tax returns

required to be filed, since he would need the foregoing materials

to consider alternatives to the levy.       On December 20, 2006,

petitioner’s counsel requested a “face-to-face” (in-person)

meeting.       On May 1, 2007, respondent sent petitioner and her

counsel copies of a letter which scheduled a conference call for

June 5, 2007, requested her Collection Information Statement and

2003, 2004, 2005, and 2006 tax returns, and stated in underlined

text:       “Your POA [“power of attorney,” i.e., counsel] requested a

face-to-face conference to discuss the potential levy action.

Unless you become compliant and can present a serious plan of

action to pay, I do not believe a face-to-face meeting would be




        4
      The record before the Court does not indicate whether
petitioner filed her 2000 or 2001 return. The attachment to the
notice of determination upon the CDP hearing and petitioner’s
response to respondent’s motion for summary judgment state that
she did not file her 2002 return.
                                - 6 -

productive.    CDP should not be used as a forum to delay

collection.”

     During the June 5, 2007 call, petitioner’s counsel said that

petitioner, in the Appeals officer’s account, was “basically

destitute and would provide proof thereof,” requested that a

face-to-face meeting be scheduled for June 20, 2007, and said

that petitioner would provide all delinquent tax returns and an

updated financial statement.    At the June 20, 2007 face-to-face

meeting, petitioner’s counsel explained to the Appeals officer

that since petitioner was not cooperative in providing the

requested information he was not able to further assist her, and

he requested that the Appeals officer issue his notice of

determination.

     The notice of determination, dated July 25, 2007, stated

under the heading “Summary and Determination” that:

           Appeals has determined the Automated Call
     Site/Customer Service Office (ACS) has met all legal
     and administrative requirements with respect to the
     issuance of the final notice of intent to levy, CP 90
     Notice.
          Your power of attorney (POA) requested and was
     granted a face-to-face collection due process (CDP)
     hearing on June 20, 2007. The CDP hearing was held
     with your POA. He indicates that you did not provide
     any documentation and there was no collection
     alternative proposed.
          Additionally, transcripts confirm that you are not
     current with filing requirements. * * *
          It is Appeals determination to sustain the
     proposed levy action. The case will be remitted back
     to the originating office to resume collection.
                                 - 7 -

The Appeals Office explained how it applied relevant fact and law

to arrive at the determination in an attachment to the notice of

determination.5    The attachment ended:   “It is Appeals

determination the issuance of a notice of levy would not balance

the Government’s need to efficiently collect these tax

liabilities and is deemed more intrusive than necessary.        The

accounts will be sent back to the originating ACS office to

resume collection.”    (Emphasis added.)

     Petitioner timely filed a petition with the Court for review

of respondent’s determination.    The petition stated that she

resided in Oklahoma, which means that this case would generally

be appealable to the Court of Appeals for the Tenth Circuit.          See

sec. 7482(b)(1).

                               OPINION

     We are asked to decide whether summary judgment is

appropriate.   Summary judgment is intended to expedite litigation

and avoid unnecessary and expensive trials.     See, e.g., FPL

Group, Inc. v. Commissioner, 116 T.C. 73, 74 (2001).        A motion

for summary judgment will be granted if the pleadings, answers to

interrogatories, depositions, admissions, and other acceptable

materials, together with the affidavits, if any, show that there


     5
      The notice of determination was issued by an IRS Appeals
team manager but reflected the factual and legal determinations
the Appeals officer had set forth in IRS Form 5402-c, Appeals
Transmittal and Case Memo - CDP (7/2006) for the manager’s
review.
                                - 8 -

is no genuine issue as to any material fact and that a decision

may be rendered as a matter of law.     See Rule 121(b); Elec. Arts,

Inc. v. Commissioner, 118 T.C. 226, 238 (2002).

     The moving party has the burden of proving that no genuine

issue of material fact exists and that it is entitled to judgment

as a matter of law.    See, e.g., Rauenhorst v. Commissioner, 119

T.C. 157, 162 (2002).    “In conducting our analysis, we view all

of the facts in the light most favorable to the non-movant and

draw all reasonable inferences from the record in favor of the

non-moving party.”    Young v. Dillon Cos., 468 F.3d 1243, 1249

(10th Cir. 2006).    Since petitioner did not present any facts,

other than a copy of the notice of determination (whose content

is not in dispute) and acknowledgment of certain facts respondent

had presented in his motion, we rely on respondent’s version of

the facts.6   We do not find that any material inferences can be

drawn from them in either party’s favor.

     Respondent moved for summary judgment on the grounds that

his Appeals officer correctly sustained the notice of intent to

levy.    He argued that the determination was correct because

petitioner had repeatedly failed to file tax returns (see, e.g.,



     6
      We reject petitioner’s unexplained and unsubstantiated
allegations that she and, apparently, her husband are “disabled”
and that she was “destitute” as too vague to inform our
consideration of this case. (We note that she repeatedly failed
to provide the Appeals officer the financial statement that would
have reflected any lack of income or assets.)
                               - 9 -

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

requested information (see, e.g., Prater v. Commissioner, T.C.

Memo. 2007-241; Roman v. Commissioner, T.C. Memo. 2004-20), or

propose a collection alternative (see, e.g., Chandler v.

Commissioner, T.C. Memo. 2005-99).     He argued that the Appeals

officer did not find the levy to be more intrusive than

necessary, as petitioner had alleged in her petition, but merely

made what respondent alleged was a misstatement to this effect.

     Rule 331(b)(4) provides that a petition in a lien or levy

action such as this case must contain “[c]lear and concise

assignments of each and every error which the petitioner alleges

to have been committed in the notice of determination”, and that

“any issue not raised in the assignments of error shall be deemed

to be conceded.”7   Petitioner’s assignment of error is as

follows:   “Petitioner assigns error in the Determination that (A)

levy is appropriate; and (B) to send the account back to ACS

collection when the Appeals office found that the collection levy

was more intrusive than necessary.”



     7
      We have in other cases considered issues that the parties
belatedly raised (or even did not raise at all), but do not do so
routinely. See, e.g., Miller v. Commissioner, 114 T.C. 184, 192
(2000); Knapp v. Commissioner, 90 T.C. 430, 439 (1988), affd. 867
F.2d 749 (2d Cir. 1989); Clough v. Commissioner, T.C. Memo. 2007-
106 (relying on the Appeals officer’s “obvious” failure to verify
that the requirements of applicable law and administrative
procedures had been met, rather than the taxpayer’s entirely
meritless arguments, to find that he had abused his discretion in
sustaining a levy).
                             - 10 -

     In Poindexter v. Commissioner, 122 T.C. 280, 285 (2004),

affd. 132 Fed. Appx. 919 (2d Cir. 2005), we held in the context

of the Rule 331(b)(5) requirement for “[c]lear and concise

lettered statements of the facts on which the petitioner bases

each assignment of error” that Rule 331 requires the petition in

a lien or levy case to be sufficiently specific to enable

respondent to mount a defense (if he has one) and to tell the

Court what specifically it must decide.   More generally, Rule

31(a) provides that “[t]he purpose of the pleadings is to give

the parties and the Court fair notice of the matters in

controversy and the basis for their respective positions.”     Since

petitioner’s statement that she “assigns error in the

[d]etermination that[ ]levy is appropriate” is so vague that it

does not give respondent or the Court notice of any specific

issue, we consider it not to be a valid assignment of any error.

Petitioner is therefore deemed to have conceded all issues other

than her allegation that the Appeals officer determined that the

levy was "more intrusive than necessary.”   These foreclosed

issues include petitioner’s argument in her response to

respondent’s motion for summary judgment that respondent abused

his discretion by not confirming his previous computation of her

tax liability in connection with the CDP hearing or confirming
                              - 11 -

that she was required to file the returns the Appeals officer

requested.8

     Petitioner did not set forth additional facts to support her

allegation that the levy was “more intrusive than necessary” in

her response to respondent’s motion for summary judgment.

However, we need only the record already before the Court to

consider this allegation.   Upon examining the notice of

determination, including its explanatory attachment, we find that

the Appeals officer did not find the levy to be more intrusive

than necessary (in which event the levy might have been improper

under section 6330(c)(3)(C)) but, as respondent contends, merely

made a misstatement.   The notice and attachment state, and



     8
      Since we find that the argument is essentially a
statutorily prohibited challenge to petitioner’s underlying tax
liability, we need not consider whether to except it from the
general requirement that all issues be raised in the pleadings.
See Baltic v. Commissioner, 129 T.C. 178 (2007) (an offer-in-
compromise based upon “doubt as to liability” is a challenge to
“underlying tax liability” within the meaning of sec.
6330(c)(2)(B), as is a request that the IRS conduct an “audit
reconsideration” to reconsider its changes to a taxpayer’s
liability (see IRS Publication 3598, What You Should Know About
the Audit Reconsideration Process (2007)), so respondent does not
abuse his discretion in refusing to delay collection pending such
an offer or audit reconsideration if the challenge is barred).
Even if we could consider the argument, we expect that it would
fail because petitioner’s incoherent, evasive language does not
allege, much less set forth specific facts to show, that
respondent’s previous tax computation was incorrect or that she
was not required to file the returns the Appeals officer
requested. Moreover, since nothing before the Court suggests
that respondent erred (other than the statement in the notice of
determination, which petitioner duly raised), we need not
consider raising any issue on our own in this case.
                              - 12 -

petitioner does not dispute, that she did not challenge her tax

liability, propose any collection alternatives, or provide any

documentation (including her 2002, 2003, 2004, 2005 and 2006 tax

returns).   Since each step of the Appeals officer’s analysis in

the notice and attachment is consistent with a proper

determination to sustain the levy, and nothing before the Court

suggests that he failed to consider any relevant fact or erred in

any consideration, to infer that he found the levy to be improper

would be unreasonable.

     Since we find that petitioner could not prevail, we will

grant respondent’s motion.

     To reflect the foregoing,


                                      An order and decision will be

                                 entered for respondent.
