                   T.C. Summary Opinion 2005-16



                      UNITED STATES TAX COURT



         JAMES L. GEARY AND CAROL O. GEARY, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11327-04S.            Filed February 16, 2005.


     James L. Geary and Carol O. Geary, pro sese.

     Dennis R. Onnen and Robin Ferguson, for respondent.



     ARMEN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1    The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority.



     1
        All subsequent section references are to the Internal
Revenue Code, as amended. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 2 -

     This matter is before the Court on respondent’s Motion For

Summary Judgment, filed pursuant to Rule 121, as supplemented.

Respondent contends that there is no dispute as to any material

fact with respect to this levy action and that respondent’s

determination to proceed with collection of petitioners’

outstanding tax liability for the taxable year 2000 should be

sustained as a matter of law.

     As explained in detail below, we shall grant respondent’s

motion, as supplemented.

Background

     Petitioners resided in Bonner Springs, Kansas, at the time

that the petition was filed with the Court.

     Petitioners timely filed their Form 1040, U.S. Individual

Income Tax Return, for 2000.    On their return, petitioners listed

their address as 112 Lake Forest, Bonner Springs, Kansas 66012

(the Lake Forest address).2

     Based on information provided by a third-party payor

indicating that petitioners might not have reported all of their

income on their 2000 return, respondent commenced an examination

of that return.   On April 1, 2002, respondent sent petitioners a



     2
        Petitioners attached to their return a Schedule C, Profit
or Loss From Business, that also reflected the Lake Forest
address as the business address of petitioner James L. Geary. In
addition, petitioners attached to their return three Forms W-2,
Wage and Tax Statement, each of which showed the Lake Forest
address as petitioner Carol O. Geary’s address.
                                - 3 -

30-day letter proposing a deficiency in their income tax.

Respondent mailed the 30-day letter to petitioners at the Lake

Forest address.    Petitioners received the 30-day letter.

     On April 17, 2002, petitioners filed with respondent a

protest to the 30-day letter indicating their disagreement with

the proposed deficiency.    In their protest, petitioners listed

their address as the Lake Forest address.

     By notice of deficiency dated August 5, 2002, respondent

determined a deficiency in petitioners’ income tax for 2000 in

the amount of $4,201.    Respondent sent the notice of deficiency

to petitioners by certified mail addressed to them at the Lake

Forest address.3

     The deficiency in income tax was based on respondent’s

determination that petitioners failed to report on their 2000

return all of the income received by them during that year.

     Petitioners did not file a petition for redetermination with

this Court in respect of the notice of deficiency.    See sec.

6213(a).   Accordingly, on December 30, 2002, respondent assessed

the deficiency, together with interest as provided by law, and

sent petitioners a notice and demand for payment.    Petitioners

did not pay the amount owing.


     3
        The notice of deficiency was placed in the mail on Aug.
3, 2002, two days before the typewritten date appearing on the
notice. Nevertheless, the notice correctly informed petitioners
that the last day to file a petition for redetermination with
this Court was Monday, Nov. 4, 2002.
                                - 4 -

     On April 17, 2003, respondent sent to petitioners a Final

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

(final notice).    Respondent sent the final notice to petitioners

at the Lake Forest address.

     On May 5, 2003, petitioners filed with respondent a Form

12153, Request for a Collection Due Process Hearing.    On the Form

12153, petitioners listed the Lake Forest address as their

address.

     The only issue raised by petitioners in the Form 12153 was a

challenge to the existence or amount of the underlying liability.

     During the course of the administrative phase of this case,

respondent’s Appeals Office in Kansas City, Missouri,

corresponded with petitioners at the Lake Forest address.    The

Appeals Office also conducted a face-to-face hearing attended by

petitioner James L. Geary.    The only issue raised by petitioners

before the Appeals Office was a challenge to the existence or

amount of the underlying liability.

     On June 3, 2004, respondent’s Appeals Office sent to

petitioners a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of

determination).    The Appeals Office sent the notice of

determination to petitioners at the Lake Forest address.

     In the notice of determination, the Appeals Office sustained

the levy action.
                               - 5 -

     The attachment to the notice of determination states, in

part, that petitioners “disputed receiving the income asserted in

a prior Notice of Deficiency”, but that they “did not deny

receiving the August 05, 2002 Notice of Deficiency.”

     On June 30, 2004, petitioners filed with the Court a

petition for levy action under section 6330(d).   In the petition,

petitioners listed their address as the Lake Forest address.

Petitioners attached to the petition as an exhibit a copy of the

notice of determination and the aforementioned attachment.

     The only issue raised by petitioners in the petition is a

challenge to the existence or amount of the underlying tax

liability.

     As previously indicated, respondent filed a Motion For

Summary Judgment.   In the motion, respondent asserts, in part, as

follows:

     * * * As noted by [the Appeals officer] in the
     attachment to the Notice of Determination, petitioners
     did not deny receiving the August 5, 2002 notice of
     deficiency, which was sent to the address where they
     still reside. * * * Thus, petitioners may not raise the
     underlying liability for 2000 as an issue in this case.

     In objecting to the granting of respondent’s motion,

petitioners continued to challenge only the existence or amount

of the underlying tax liability.

Discussion

     The Court may grant summary judgment when there is no

genuine issue of material fact and a decision may be rendered as
                               - 6 -

a matter of law.   Rule 121(b); Sundstrand Corp. v. Commissioner,

98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).    We

conclude that there is no genuine issue of material fact and that

respondent is entitled to judgment as a matter of law.

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the taxpayer has been given

notice and the opportunity for an administrative review of the

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

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)(2)(A) 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 tax in question or did

not otherwise have an earlier opportunity to dispute the tax

liability.   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
                              - 7 -

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

     As previously mentioned and as applicable herein, section

6330(c)(2)(B) bars a taxpayer from challenging the existence or

amount of the taxpayer’s underlying tax liability in a collection

review proceeding if the taxpayer received a notice of deficiency

and disregarded the opportunity to file a petition for

redetermination with this Court.   See Nestor v. Commissioner, 118

T.C. 162, 165-166 (2002).

     In their petition, petitioners challenge the existence or

amount of the underlying tax liability for 2000.   Respondent

contends that petitioners are barred under section 6330(c)(2)(B)

from mounting such a challenge in the context of this collection

review proceeding because petitioners received the August 5, 2002

notice of deficiency for the tax in question.   Respondent deduces

the factual predicate for this contention from the following: (1)

At all relevant times, petitioners have used as their mailing

address the Lake Forest address; (2) the August 5, 2002 notice of

deficiency was sent by certified mail to petitioners at the Lake

Forest address; (3) the notice of deficiency was not returned to

respondent by the U.S. Postal Service undelivered; (4)

respondent’s Appeals officer successfully corresponded with

petitioners using the Lake Forest address; and (5) petitioners

have never denied receiving the August 5, 2002 notice of

deficiency.
                                - 8 -

     Based on the record in this case, and with due regard to

Rule 121(d), see Koenig v. Commissioner, T.C. Memo. 2003-40, we

conclude that petitioners received the August 5, 2002 notice of

deficiency.

     In addition to the aforementioned five factors relied on by

respondent, we observe that at the hearing on respondent’s

motion, counsel for respondent produced a complete copy of the

August 5, 2002 notice of deficiency and represented that it had

been obtained from petitioners during discussions by the parties

preceding the hearing on respondent’s motion.   Moreover, in an

Order issued prior to the hearing, the Court directed petitioners

to state whether or not they received the notice of deficiency.

In the Order, the Court went on to advise petitioners that in the

absence of their denial, the Court would proceed on the basis

that they actually received the notice of deficiency within a few

days after its date of mailing.   Petitioners never denied

receipt; rather, they continued to challenge the existence or

amount of the underlying liability.

     In view of the foregoing, we hold that petitioners are

barred, as a matter of law, from challenging the existence or

amount of the underlying tax liability for 2000 in the present

collection review proceeding.   Sec. 6330(c)(2)(B).

     Finally, petitioners have failed to offer an alternative

means of collection (such as an installment payment agreement or
                                 - 9 -

an offer-in-compromise); petitioners have also failed to raise

properly any other justiciable issue.    See sec. 6330(c)(2)(A).

Such matters are now deemed conceded.    See Rule 331(b)(4) (“Any

issue not raised in the assignments of error shall be deemed to

be conceded.”).

Conclusion

     In view of the foregoing, we conclude that there is no

genuine issue of material fact that would necessitate a trial in

this case and that respondent is entitled to judgment as a matter

of law.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,



                                      An appropriate order and

                                 decision will be entered.
