                               T.C. Memo. 2012-236



                         UNITED STATES TAX COURT



                  IRVING L. STARKMAN, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 2805-11L.                          Filed August 14, 2012.



      Irving L. Starkman, pro se.

      Jonathan E. Behrens, for respondent.



                            MEMORANDUM OPINION


      RUWE, Judge: This matter is before the Court on respondent’s motion for

partial summary judgment (motion) pursuant to Rule 121.1 Respondent contends


      1
       Unless otherwise indicated, all Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to the Internal Revenue Code
                                                                         (continued...)
                                         -2-

[*2] that no genuine issue exists as to any material fact and that the determination to

collect petitioner’s 2002 income tax liability by levy and the determination to

maintain a notice of Federal tax lien (NFTL) filed under section 6323 should be

sustained.2 Petitioner has not responded to the motion, despite an order from this

Court instructing him to do so.3

                                     Background

      At the time the petition was filed, petitioner resided in Pennsylvania.

      Petitioner filed a Federal income tax return for 2002 but failed to pay the

$71,526 tax liability reported on the return. Petitioner entered into an installment

agreement with the Internal Revenue Service (IRS) and made payments totaling

$6,640 between March 21, 2009, and July 26, 2010. On July 26, 2010, petitioner



      1
      (...continued)
as amended.
      2
        The Court will recharacterize respondent’s motion for partial summary
judgment as a motion for summary judgment for the taxable year 2002. In our order
dated February 16, 2012, we granted respondent’s motion to dismiss on the ground
of mootness as to the taxable year 2008. Respondent has not yet released the NFTL
filed against petitioner because the same notice was filed with respect to petitioner’s
income tax liabilities for both the 2002 and 2008 tax years.
      3
       On December 9, 2011, the Court ordered petitioner to file a response on or
before December 30, 2011. No response was filed by petitioner. By order dated
January 11, 2012, the Court extended the time for filing petitioner’s response until
February 1, 2012. Petitioner did not file a response.
                                          -3-

[*3] defaulted on the installment agreement because he had not timely filed his

2009 Federal income tax return nor made estimated tax payments for the 2010 tax

year.

        Respondent sent petitioner a Letter 1058, Final Notice of Intent to Levy and

Notice of Your Right to a Hearing, dated September 29, 2010, advising him that

respondent intended to levy to collect the unpaid tax liability, interest, and penalty

and that petitioner could request a hearing with respondent’s Office of Appeals.

Respondent sent petitioner a Letter 3172, Notice of Federal Tax Lien Filing and

Your Right to a Hearing Under IRC 6320, dated October 12, 2010, advising

petitioner that a notice of Federal tax lien had been filed with respect to his unpaid

liability and that he could request a hearing with respondent’s Office of Appeals.

Petitioner submitted a timely Form 12153, Request for a Collection Due Process

or Equivalent Hearing, in which he did not contest the underlying liability but

instead requested to continue the installment agreement he had previously entered

into with the IRS. By letter dated December 13, 2010, respondent’s settlement

officer acknowledged receipt of petitioner’s collection due process (CDP) hearing

request. The letter stated that in order for the settlement officer to schedule an

Appeals hearing to consider his request for an installment agreement, petitioner

needed to provide by December 27, 2010, a signed copy of his 2009 Federal
                                          -4-

[*4] income tax return and proof that he was current with his 2010 estimated tax

payments.

      During the telephone conference on December 21, 2010, petitioner’s

representative, Morris Kurtzman, informed the settlement officer that petitioner’s

2009 Federal income tax return would not be completed by the deadline and that

petitioner lacked the funds necessary to make estimated tax payments for the 2010

tax year. Respondent issued petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330, dated December 30, 2010,

sustaining the filing of the NFTL and the proposed levy action.4 Petitioner timely

filed a petition with this Court. As of September 21, 2011, petitioner had fully paid

the assessed tax liability for 2002. However, petitioner still had an outstanding

balance due of $26,372.51 as of November 30, 2011, for unpaid accrued interest

and penalties for the 2002 tax year.

                                       Discussion

      Summary judgment is intended to expedite litigation and to avoid

unnecessary and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862

(1974). Summary judgment may be granted where the pleadings and other

      4
       After the notice of determination was issued, petitioner filed his 2009
Federal income tax return on January 21, 2011, reporting an unpaid tax liability of
$44,912.
                                         -5-

[*5] materials show that there is no genuine dispute as to any material fact and that

a decision may be rendered as a matter of law. Rule 121(b); see Schlosser v.

Commissioner, T.C. Memo. 2007-298, 2007 Tax Ct. Memo LEXIS 300, at *6,

aff’d, 287 Fed. Appx. 169 (3d Cir. 2008). The burden is on the moving party to

demonstrate that no genuine dispute as to any material fact remains and that he is

entitled to judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner,

116 T.C. 73, 74-75 (2001). In all cases, the evidence is viewed in the light most

favorable to the nonmoving party. Bond v. Commissioner, 100 T.C. 32, 36 (1993).

However, the nonmoving party is required “to go beyond the pleadings and by * * *

[his] own affidavits, or by the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing that there is a genuine issue

for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also Rauenhorst

v. Commissioner, 119 T.C. 157, 175 (2002); FPL Grp., Inc. & Subs. v.

Commissioner, 115 T.C. 554, 559 (2000). Petitioner failed to respond to

respondent’s motion and has failed to indicate that there is a genuine
                                          -6-

[*6] dispute for trial.5 Consequently, we conclude that there is no dispute as to any

material fact and that a decision may be rendered as a matter of law.

      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, then

the Secretary is authorized to collect such tax by levy upon the person’s property.

Section 6331(d) provides that, at least 30 days before enforcing collection by way of

a 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 6321 provides that, if any person liable to pay any tax neglects or

refuses to do so after demand, the amount shall be a lien in favor of the United

States upon all property and rights to property, whether real or personal, belonging

to such person. Section 6323 authorizes the Commissioner to file an NFTL.

Pursuant to section 6320(a) the Commissioner must provide the taxpayer with notice

of and an opportunity for an administrative review of the propriety of the NFTL

filing. See Katz v. Commissioner, 115 T.C. 329, 333 (2000).


      5
        By failing to respond to the assertions in the motion, petitioner has waived
his right to contest them. See Rule 121(d); Lunsford v. Commissioner, 117 T.C.
183, 187 (2001); Akonji v. Commissioner, T.C. Memo. 2012-56, 2012 Tax Ct.
Memo LEXIS 49, at *6.
                                          -7-

[*7] If a taxpayer requests a CDP hearing in response to an NFTL or a notice of

intent to levy, he may raise at that hearing any relevant issue relating to the unpaid

tax, proposed levy, or lien. Sec. 6330(c)(2). Relevant issues include possible

alternative means of collection such as an installment agreement. Sec.

6330(c)(2)(A)(iii).

       If a taxpayer’s underlying liability is properly at issue, the Court reviews any

determination regarding the underlying liability de novo. Goza v. Commissioner,

114 T.C. 176, 181-182 (2000). Petitioner has the burden of proof regarding his

underlying liability. See Rule 142(a). A taxpayer is precluded from disputing the

underlying liability if it was not properly raised in the CDP hearing. See Giamelli v.

Commissioner, 129 T.C. 107, 114 (2007). Petitioner did not raise his underlying tax

liability in his request for a CDP hearing. In his petition he made no specific

allegations or arguments regarding the correctness of the underlying tax liability, and

he failed to file any response to respondent’s motion for summary judgment.

Consequently, petitioner’s underlying tax liability is not properly before the Court.

      The Court reviews administrative determinations by the Commissioner’s

Office of Appeals regarding nonliability issues for abuse of discretion. Hoyle v.

Commissioner, 131 T.C. 197, 200 (2008); Goza v. Commissioner, 114 T.C. at 182.
                                          -8-

[*8] The determination of the Office of Appeals must take into consideration: (1) the

verification that the requirements of applicable law and administrative procedure

have been met; (2) issues raised by the taxpayer; and (3) whether any proposed

collection action balances the need for the efficient collection of taxes with the

legitimate concern of the person that any collection be no more intrusive than

necessary. Sec. 6330(c)(3); see Lunsford v. Commissioner, 117 T.C. 183, 184

(2001). We note that the settlement officer properly based her determination on the

factors required by section 6330(c)(3).

      In the petition, petitioner requests that the Federal tax lien and proposed levy

be withdrawn and that respondent enter into an installment agreement with him.

Respondent contends that the settlement officer did not abuse her discretion by

denying petitioner’s requests for an installment agreement because petitioner had not

filed his 2009 Federal income tax return and had not made estimated tax payments

for the 2010 tax year.

      At the time of the Appeals hearing, petitioner had not timely filed his 2009

Federal income tax return. Additionally, at the Appeals hearing petitioner’s

representative informed the settlement officer that petitioner lacked the funds

necessary to make estimated tax payments for the 2010 tax year. We have held that

it is not an abuse of discretion for the settlement officer to deny a taxpayer’s
                                          -9-

[*9] request for an installment agreement when the taxpayer is “not compliant with

his current tax obligations as of the date of the Appeals Office hearing”. Pavlica v.

Commissioner, T.C. Memo. 2007-163, 2007 Tax Ct. Memo LEXIS 163, at *4; see

Hartmann v. Commissioner, 351 Fed. Appx. 624, 625 (3d Cir. 2009); see also

Internal Revenue Manual pt. 5.14.1.4.1(19) (Sept. 26, 2008) (“Compliance with

filing, paying estimated taxes, and federal tax deposits must be current from the date

the installment agreement begins.”). Therefore, we find that the settlement officer

did not abuse her discretion in denying petitioner’s requests for an installment

agreement.

      We hold that the determination to proceed with collection was not an abuse of

the settlement officer’s discretion, and the proposed collection action is sustained.

      To reflect the foregoing,


                                                      An appropriate order will be

                                                issued granting respondent’s motion

                                                and decision will be entered for

                                                respondent.
