                         T.C. Memo. 2002-114



                       UNITED STATES TAX COURT



                   KELLY V. KAECKELL, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6607-01L.              Filed May 7, 2002.


     Kelly V. Kaeckell, pro se.

     Karen L. Baker and Charles M. Berlau, for respondent.



                          MEMORANDUM OPINION


     ARMEN, Special Trial Judge:    This matter is before the Court

on respondent’s Motion for Summary Judgment, filed pursuant to

Rule 121.1    Respondent contends that there is no dispute as to

any material fact with respect to this levy action, and that


     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 -

respondent’s determination to proceed with collection of

petitioner’s outstanding tax liabilities for the taxable years

1990 through 1996 should be sustained as a matter of law.

     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); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).    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).

     As explained in detail below, there is no genuine issue as

to any material fact and a decision may be rendered as a matter

of law.   Accordingly, we shall grant respondent’s Motion for

Summary Judgment.
                                - 3 -

Background

     Petitioner failed to file Federal income tax returns for the

taxable years 1990 through 1996.    The record shows that

respondent prepared substitutes for return for petitioner’s

taxable years 1990 through 1996.

     On September 21, 1999, respondent issued a notice of

deficiency to petitioner determining deficiencies in and

additions to his Federal income taxes for 1990 through 1996, as

follows:


                                Additions to tax
     Year    Deficiency   Sec. 6651(a)(1) Sec. 6654(a)

     1990     $8,855          $2,213.75        $579.77
     1991      1,166             291.50          66.63
     1992        559             139.75          24.36
     1993      1,800             450.00          75.43
     1994      9,154           2,288.50         475.00
     1995     11,814           2,953.50         640.60
     1996        544             136.00          28.96


The deficiencies were based principally on respondent’s

determination that petitioner failed to report various amounts of

nonemployee compensation as reported to respondent by third-party

payors on Forms 1099.

     Petitioner has admitted that he received the September 21,

1999, notice of deficiency.    However, petitioner did not file a

petition for redetermination with the Court challenging the

notice of deficiency.
                                - 4 -

       On July 15, 2000, respondent mailed to petitioner a Final

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

Hearing pertaining to petitioner’s outstanding tax liabilities

for the years 1990 through 1996.    On August 12, 2000, petitioner

filed with respondent a Form 12153, Request for a Collection Due

Process Hearing, that included allegations challenging the

proposed levy action on the ground that petitioner was not

informed of the statutory provisions imposing a tax liability on

him.

       On December 8, 2000, Appeals Officer Shauna Wright wrote a

letter to petitioner informing him of the nature of the Appeals

Office review process and providing him with transcripts of

account for the years 1990 through 1996.    The transcripts of

account identified petitioner by name and Social Security number,

identified the type of tax and additions to tax assessed,

specified the taxable years in question, and listed the amounts

and dates that the assessments were entered.

       On April 4, 2001, Appeals Officer Wright conducted an

Appeals Office hearing in this matter that petitioner attended.

Prior to the hearing, Appeals Officer Wright reviewed TXMODA

transcripts of account dated October 26, 2000, regarding

petitioner’s accounts for the taxable years 1990 through 1996.2

       2
        A TXMODA transcript contains current account information
obtained from respondent’s master file. “TXMODA” is the command
                                                   (continued...)
                                 - 5 -

The transcripts indicated that respondent made assessments

against petitioner on February 14, 2000, for the taxes and

additions to tax set forth in the notice of deficiency dated

September 21, 1999, and for statutory interest.     In addition, the

transcripts of account indicated that on February 14, 2000,

respondent issued to petitioner notices and demand for payment of

the assessed amounts.

         On May 9, 2001, respondent issued to petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330.     The notice states that the Appeals Office

determined that it was appropriate to proceed with the collection

of petitioner’s outstanding tax liabilities by levy.     On May 17,

2001, petitioner filed with the Court an imperfect petition for

lien or levy action seeking review of respondent’s notice of

determination.3    On June 19, 2001, petitioner filed an amended

petition alleging that the Appeals officer failed to obtain

verification from the Secretary that the requirements of any

applicable law or administrative procedure were met as required

under section 6330(c)(1).


     2
      (...continued)
code that is entered into respondent’s integrated data retrieval
system (IDRS) to obtain the transcript. IDRS is essentially the
interface between respondent’s employees and respondent’s various
computer systems.
     3
        At the time that the petition was filed, petitioner
resided in Mission, Kansas.
                               - 6 -

     After filing an answer to the amended petition, respondent

filed a Motion for Summary Judgment asserting that there is no

dispute as to a material fact and that respondent is entitled to

judgment as a matter of law.   In particular, respondent contends

that the Appeals officer’s review of the TXMODA transcripts of

account dated October 26, 2000, satisfied the verification

requirement imposed under section 6330(c)(1).

     Petitioner filed an Objection to respondent’s motion.

Thereafter, pursuant to notice, respondent’s motion was called

for hearing at the Court's motions session in Washington, D.C.

Discussion

     Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy on the person’s property.   Section

6331(d) provides that at least 30 days before enforcing

collection by levy on the person's property, the Secretary is

obliged to provide the person with a final notice of intent to

levy, including notice of the administrative appeals available to

the person.

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the person has been given

notice and the opportunity for an administrative review of the

matter (in the form of an Appeals Office hearing) and, if
                               - 7 -

dissatisfied, with judicial review of the administrative

determination.   See Davis v. Commissioner, 115 T.C. 35, 37

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

     Section 6330(c) prescribes the matters that a person may

raise at an Appeals Office hearing.    In sum, section 6330(c)

provides that a person may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner's

intended collection action, and possible alternative means of

collection.   Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing only if the person did not receive a

notice of deficiency for the taxes in question or did not

otherwise have an earlier opportunity to dispute the tax

liability.4   See Sego v. Commissioner, 114 T.C. 604, 609 (2000);

Goza v. Commissioner, supra.   Section 6330(d) provides for

judicial review of the administrative determination in the Tax

Court or a Federal District Court, as may be appropriate.

     Petitioner argues that the Appeals officer failed to obtain

verification from the Secretary that the requirements of all

applicable laws and administrative procedures were met as

required by section 6330(c)(1).   We reject petitioner’s argument


     4
        As previously stated, petitioner has admitted that he
received the notice of deficiency dated Sept. 21, 1999.
However, petitioner did not file a petition for redetermination
with the Court challenging the notice of deficiency.
                                 - 8 -

because the record establishes that the Appeals officer obtained

and reviewed transcripts of account for petitioner’s taxable

years 1990 through 1996.

     Federal tax assessments are formally recorded on a record of

assessment.    Sec. 6203.   “The summary record, through supporting

records, shall provide identification of the taxpayer, the

character of the liability assessed, the taxable period, if

applicable, and the amount of the assessment.”    Sec. 301.6203-1,

Proced. & Admin. Regs.

     Section 6330(c)(1) does not require the Commissioner to rely

on a particular document to satisfy the verification requirement

imposed therein.    Weishan v. Commissioner, T.C. Memo. 2002-88;

Lindsey v. Commissioner, T.C. Memo. 2002-87; Tolotti v.

Commissioner, T.C. Memo. 2002-86; Duffield v. Commissioner, T.C.

Memo. 2002-53; Kuglin v. Commissioner, T.C. Memo. 2002-51.     In

this regard, we observe that the transcripts of account on which

the Appeals officer relied, as well as the transcripts of account

that she furnished to petitioner before the hearing, contained

all the information prescribed in section 301.6203-1, Proced. &

Admin. Regs.    See Weishan v. Commissioner, supra; Lindsey v.

Commissioner, supra; Tolotti v. Commissioner, supra; Duffield v.

Commissioner, supra; Kuglin v. Commissioner, supra.

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the
                               - 9 -

validity of the assessments or the information contained in the

transcripts of account.   See Davis v. Commissioner, 115 T.C. 35,

40-41 (2000); Mann v. Commissioner, T.C. Memo. 2002-48.

Accordingly, we hold that the Appeals officer satisfied the

verification requirement of section 6330(c)(1).    Cf. Nicklaus v.

Commissioner, 117 T.C. 117, 120-121 (2001).

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.    Rule 331(b)(4).   In the

absence of a justiciable issue for review, we conclude that

respondent is entitled to judgment as a matter of law sustaining

the notice of determination dated May 9, 2001.

     Finally, we mention section 6673(a)(1), which authorizes the

Tax Court to require a taxpayer to pay to the United States a

penalty not in excess of $25,000 whenever it appears that

proceedings have been instituted or maintained by the taxpayer

primarily for delay or that the taxpayer's position in such

proceeding is frivolous or groundless.    The Court has indicated

its willingness to impose such penalties in collection review

cases.   Pierson v. Commissioner, 115 T.C. 576 (2000).     Although

we will not impose a penalty on petitioner pursuant to section

6673(a)(1) in the present case, we admonish petitioner that the

Court shall consider imposing such a penalty should he return to
                             - 10 -

the Court in the future and advance similar arguments.

     To reflect the foregoing,



                                      An order and decision will

                                 be entered granting respondent’s

                                 motion for summary judgment.
