                        T.C. Memo. 2008-139



                      UNITED STATES TAX COURT



               STUART J. HOFFENBERG, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12103-06L.                Filed May 21, 2008.



     Stuart J. Hoffenberg, pro se.

     John R. Bampfield, for respondent.



                        MEMORANDUM OPINION


     GALE, Judge:   This case is before the Court on respondent’s

motion for summary judgment on the issue of whether respondent

may proceed by levy to collect unpaid income taxes with respect

to petitioner’s 2000 and 2001 taxable years.    Petitioner was

afforded an opportunity to respond and did so.
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     As discussed more fully below, we conclude that there are no

genuine issues of material fact in this case, and respondent is

entitled to judgment as a matter of law.

                            Background1

     At the time the petition was filed, petitioner resided in

Tennessee.

     Respondent received Forms 1040, U.S. Individual Income Tax

Return, for taxable years 2000 and 2001 from petitioner on

October 1, 2001, and January 29, 2003, respectively, which

reported that petitioner had no tax liability for these years.

Respondent did not accept these returns for filing, instead

imposing frivolous return penalties and preparing substitutes for

return for both years.   On January 16, 2004, respondent sent

petitioner notices of deficiency with respect to 2000 and 2001,

determining deficiencies as well as additions to tax under

section 6651(a)(1)2 for failure to file and section 6654(a) for

failure to pay estimated tax.   Petitioner admits receiving both

notices of deficiency.

     Petitioner did not petition this Court with respect to the

notices.   Consequently, respondent assessed the deficiencies on


     1
       The following findings are established in the record
and/or are undisputed.
     2
       Unless otherwise noted, all section references are to the
Internal Revenue Code of 1986, as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 3 -

May 24, 2004.    In addition to the additions to tax under sections

6651(a)(1) and 6654(a) covered by the notices, respondent also

assessed additions to tax under section 6651(a)(2), for failure

to pay, for 2000 and 2001.

     Also on May 24, 2004, respondent sent petitioner a notice CP

22E, Examination Adjustment Notice, with respect to both years,

which petitioner admits receiving.

     On February 28, 2005, respondent sent petitioner a Final

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

Hearing with respect to the unpaid income tax liabilities for

2000 and 2001.   Petitioner timely submitted a request for a

hearing.   Subsequently, petitioner advised the Appeals officer

conducting his hearing that he did not wish to proceed with a

telephone conference, that he had raised all issues of concern in

an April 10, 2006, letter to respondent, and that this letter

contained all information he wanted considered.

     On May 31, 2006, respondent’s Appeals Office issued

petitioner a Notice of Determination Concerning Collections

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

determination) sustaining the proposed levy.

     Petitioner timely petitioned the Court in response to the

notice of determination.   On November 30, 2006, respondent filed

a motion for summary judgment, and a hearing was held thereon.

Finding that respondent’s levy covered section 6651(a)(2)
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additions that had been assessed notwithstanding their omission

from the notices, the Court concluded that the section 6651(a)(2)

assessments were unfounded and denied respondent’s motion on that

basis.

       Thereafter, respondent abated the section 6651(a)(2)

assessments for 2000 and 2001, as well as interest thereon.     On

December 17, 2007, respondent filed the pending motion for

summary judgment, to which petitioner filed a timely response.

                             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 where there is no genuine issue of material fact and a

decision may be rendered as a matter of law.    Rule 121(a) and

(b).    The moving party bears the burden of proving that there is

no genuine issue of material fact, and factual inferences are

viewed in a light most favorable to the nonmoving party.      Craig

v. Commissioner, 119 T.C. 252, 260 (2002); Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,

79 T.C. 340, 344 (1982).    The party opposing summary judgment

must set forth specific facts which show that a genuine question

of material fact exists and may not rely merely on allegations or

denials in the pleadings.    Grant Creek Water Works, Ltd. v.
                               - 5 -

Commissioner, 91 T.C. 322, 325 (1988); Casanova Co. v.

Commissioner, 87 T.C. 214, 217 (1986).

     Section 6331(a) authorizes the Secretary to levy upon

property and property rights of a taxpayer liable for taxes who

fails to pay those taxes within 10 days after notice and demand

for payment is made.   Section 6330(a) requires the Secretary to

send a written notice to the taxpayer of the amount of the unpaid

tax and of the taxpayer's right to a section 6330 hearing at

least 30 days before any levy is begun.

     If a section 6330 hearing is requested, the hearing is to be

conducted by the Commissioner’s Office of Appeals, and at the

hearing the Appeals officer or employee conducting it must verify

that the requirements of any applicable law or administrative

procedure have been met.   Sec. 6330(b)(1), (c)(1).   The taxpayer

may raise at the hearing “any relevant issue” relating to the

unpaid tax or the proposed levy.   Sec. 6330(c)(2)(A).   The

taxpayer may also raise challenges to the existence or amount of

the underlying tax liability if the taxpayer did not receive any

statutory notice of deficiency with respect thereto or did not

otherwise have an opportunity to dispute the liability.    Sec.

6330(c)(2)(B).

     At the conclusion of the hearing, the Appeals officer must

determine whether and how to proceed with collection and shall

take into account (i) the verification that the requirements of
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any applicable law or administrative procedure have been met,

(ii) the relevant issues raised by the taxpayer, (iii) challenges

to the underlying tax liability by the taxpayer, where permitted,

and (iv) whether any proposed collection action balances the need

for the efficient collection of taxes with the legitimate concern

of the taxpayer that the collection action be no more intrusive

than necessary.   Sec. 6330(c)(3).

     We have jurisdiction to review the Appeals officer's

determination where we have jurisdiction over the type of tax

involved in the case.   Sec. 6330(d)(1)(A); see Iannone v.

Commissioner, 122 T.C. 287, 290 (2004).3

     Respondent contends that he is entitled to summary judgment

because the only issues petitioner raised in connection with his

hearing were challenges to the underlying tax liabilities for

2000 and 2001 and an argument that he did not receive notice and

demand for payment as required by section 6303(a) with respect to

any of the assessments in either year.     With respect to the

underlying tax liabilities, respondent contends that petitioner

was precluded from challenging them because he received notices

of deficiency covering them.   With respect to the issue

petitioner raised pertaining to notice and demand, respondent


     3
       Sec. 6330(d)(1) has been amended to give this Court
jurisdiction over all collection matters, effective for
determinations made 60 days after Aug. 17, 2006. The
determination in this case was issued on May 31, 2006.
                               - 7 -

contends that a notice CP 22E mailed to petitioner on or about

May 24, 2004, which petitioner admits receiving, satisfied

section 6303(a).

     Petitioner contends in his response to the pending motion

that the levy may not proceed because the determination under

review in this Court was a determination to proceed with a levy

for definite amounts in each year, and respondent has now

conceded that portions of each amount were erroneously assessed.

In petitioner’s view, the entire levy must now fail.

Alternatively, petitioner argues that he should be permitted to

challenge the underlying tax liabilities for 2000 and 2001

because the liabilities were modified after the issuance of the

notice of levy; that is, when respondent conceded, in connection

with the proceedings in this case, that the assessments for the

section 6651(a)(2) additions for 2000 and 2001 were erroneous and

abated them.   In petitioner’s view, the underlying liability for

each year is a single, unitary whole consisting of the deficiency

and the additions; and since respondent has made an adjustment to

that single underlying liability, petitioner should be permitted

to challenge it as well.

     We disagree on both counts.   The “underlying tax liability”

for purposes of section 6330(c)(2)(B) may consist of any number

of discrete assessments for a given tax period–-for example, an

assessment under section 6201(a) based on amounts reported as due
                               - 8 -

on a return but unpaid, an assessment that occurs after a

taxpayer is issued a notice of deficiency pursuant to section

6213(a) and fails to petition the Tax Court within the prescribed

period, or an assessment made pursuant to the so-called math

error procedures of section 6213(b)(1).    See Freije v.

Commissioner, 125 T.C. 14, 32-37 (2005); Montgomery v.

Commissioner, 122 T.C. 1, 7-8 (2004).     The validity of each such

discrete assessment turns upon whether there was compliance with

statutorily prescribed procedures, and, more to the point, a

taxpayer’s ability to challenge any given component assessment of

the underlying tax liability in a section 6330 proceeding depends

upon whether he received a notice of deficiency or otherwise had

a previous opportunity to dispute it.   If so, the taxpayer is

precluded from challenging that component of the underlying

liability.   Sec. 6330(c)(2)(B).   The Commissioner’s concession of

one of the assessments making up the underlying tax liability for

a tax period generally has no impact on whether the other

component assessments are valid or subject to challenge.    See

also Kelby v. Commissioner, 130 T.C. ___ (2008); Sapp v.

Commissioner, T.C. Memo. 2006-104.

     Here, petitioner admits receiving notices of deficiency that

covered the deficiencies and the section 6651(a)(1) and 6654

additions that were assessed for 2000 and 2001.    Respondent’s

Appeals officer confirmed that petitioner received them.
                               - 9 -

Petitioner failed to file petitions with respect to the notices.

Consequently, petitioner may not challenge in this proceeding the

underlying tax liabilities comprising the foregoing assessments.4

Sec. 6330(c)(2)(B); Goza v. Commissioner, 114 T.C. 176, 183

(2000).   This conclusion is unaffected by respondent’s concession

that a portion of the underlying tax liability in each year was

attributable to an invalid assessment and may not be collected.

     Because the underlying liabilities are not at issue, the

determination to proceed with the levy is reviewed for abuse of

discretion.   Goza v. Commissioner, supra at 182; see also Sego v.

Commissioner, 114 T.C. 604, 610 (2000).


     4
       Petitioner’s challenge to the underlying tax liability for
2000 included both a claim that the amount of the deficiency was
incorrect and a claim that the assessments for 2000 had been made
beyond the expiration of the period of limitations on
assessments. A claim that the period of limitations expired
before assessment is a challenge to the underlying tax liability
within the meaning of sec. 6330(c)(2)(B). See Boyd v.
Commissioner, 117 T.C. 127, 130 (2001); see also Hoffman v.
Commissioner, 119 T.C. 140, 145 (2002); MacElvain v.
Commissioner, T.C. Memo. 2000-320. Whether construed as a claim
that the assessment period expired before the mailing of the
deficiency notice (which would be precluded by sec.
6330(c)(2)(B)) or as a claim that the period expired during the
interim between the lapse of the suspension of the period of
limitations under sec. 6503(a)(1) and the making of the
assessments, cf. Golden v. Commissioner, T.C. Memo. 2005-170,
n.1, petitioner’s position is meritless. Even if it were assumed
that the Form 1040 for 2000 received by respondent from
petitioner on Oct. 1, 2001, was a valid return (notwithstanding
respondent’s determination to the contrary), the period of
limitation on assessment remained open when the assessments at
issue for 2000 were made on May 24, 2004. See sec. 6501(a); see
also sec. 6501(c)(3). Therefore, the Appeals officer’s rejection
of the statute of limitations claim was proper.
                              - 10 -

     The remaining issue petitioner raised in connection with his

hearing was that he did not receive notice and demand for payment

(as required by section 6303(a)) with respect to any of the

assessments for 2000 and 2001.   Section 6303 provides that the

Secretary shall within 60 days after the making of an assessment

of a tax pursuant to section 6203 give notice and demand for

payment to the person liable for the tax.    A notice of balance

due constitutes a notice and demand for payment under section

6303(a).   Craig v. Commissioner, 119 T.C. at 262-263.    There is

no genuine issue of material fact as to whether respondent’s

Appeals officer abused his discretion in rejecting petitioner’s

claim on this point.   Petitioner admits receiving a notice CP 22E

with respect to 2000 and 2001.   Such notice meets the

requirements of section 6303(a).   See, e.g., Hughes v. United

States, 953 F.2d 531, 536 (9th Cir. 1992); Schaper v.

Commissioner, T.C. Memo. 2002-203.     In light of petitioner’s

admission, which the Appeals officer confirmed in his review of

petitioner’s transcripts of account, we are satisfied that the

Appeals officer obtained sufficient verification that the

requirements of section 6303 had been met.

     Finally, as recorded in the notice of determination, the

Appeals officer verified that the requirements of applicable law

and administrative procedure had been met and took into account

whether any proposed collection action balanced the need for the
                               - 11 -

efficient collection of taxes with the legitimate concern of

petitioner that the collection action be no more intrusive than

necessary.   See sec. 6330(c)(3).    Petitioner has identified no

specific infirmity in the foregoing not heretofore addressed.

Conclusion

     We conclude that no genuine issues of material of fact

remain in this case and hold that respondent is entitled to

judgment as a matter of law that he may proceed with the proposed

levy to collect petitioner’s income tax liabilities for 2000 and

2001 (except to the extent attributable to additions to tax under

section 6651(a)(2)).   Accordingly, we shall grant respondent’s

motion for summary judgment.

     To reflect the foregoing,



                                         An appropriate order and

                                    decision will be entered.
