                    133 T.C. No. 16



                UNITED STATES TAX COURT



         KATHLEEN A. VINATIERI, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 15895-08L.            Filed December 21, 2009.



     R issued P a notice of intent to levy to collect
P’s unpaid Federal income taxes for 2002. P timely
requested a hearing under sec. 6330, I.R.C.

     P submitted to the settlement officer Form 433-A,
Collection Information Statement for Wage Earners and
Self-Employed Individuals, indicating she had monthly
income of $800 and expenses of $800, had $14 cash on
hand, and owned a 1996 Toyota Corolla four-door sedan
with 243,000 miles and a value of $300. If P’s wages
are levied on she will be unable to pay her reasonable
basic living expenses. If her car is levied on, she
will be unable to work.

     The settlement officer stated in her log that P
meets the criteria to have her account reported as
currently not collectible because of hardship in
accordance with the Internal Revenue Manual (IRM).
However, R’s Appeals Office issued a notice of
determination to proceed with levy, stating that P was
                         - 2 -

not entitled to collection alternatives because she had
not filed her 2005 and 2007 Federal income tax returns.
P timely petitioned for review of that determination
under sec. 6330(d), I.R.C. R filed a motion for
summary judgment. P, proceeding pro se, did not file a
cross-motion for summary judgment.

     Under regulations prescribed by the Secretary, the
Secretary must release a levy upon all, or part of, a
taxpayer’s property or rights to property if, inter
alia, the Secretary has determined that the levy is
creating an economic hardship due to the financial
condition of the taxpayer. Sec. 6343(a)(1)(D), I.R.C.
The regulations provide that a levy is creating an
economic hardship due to the financial condition of an
individual taxpayer and must be released “if
satisfaction of the levy in whole or in part will cause
an individual taxpayer to be unable to pay his or her
reasonable basic living expenses.” Sec.
301.6343-1(b)(4), Proced. & Admin. Regs.

     1. Held: Sec. 6343(a)(1)(D), I.R.C., and sec.
301.6343-1(b)(4), Proced. & Admin. Regs., require
release of a levy that creates an economic hardship
regardless of the taxpayer’s noncompliance with filing
required returns.

     2. Held, further, a levy on P’s wages or car
would cause P to be unable to pay her reasonable basic
living expenses, creating an economic hardship that
would require release of the levy pursuant to sec.
6343(a)(1)(D), I.R.C., and sec. 301.6343-1(b)(4),
Proced. & Admin. Regs.

     3. Held, further, R’s motion for summary judgment
is denied because R’s determination to proceed with the
levy was wrong as a matter of law and, therefore, was
an abuse of discretion.



Kathleen A. Vinatieri, pro se.

Martha J. Weber, for respondent.
                                   - 3 -

                                  OPINION


        DAWSON, Judge:    This matter is before the Court on

respondent’s motion for summary judgment filed pursuant to Rule

121.1       Petitioner timely filed a petition pursuant to section

6330(d) appealing respondent’s determination to proceed with

collection by levy of petitioner’s 2002 income tax liability.

The issue to be decided is whether respondent’s determination was

an abuse of discretion.

                                Background

        Petitioner resided in Tennessee when she filed the petition.

Her residence is an apartment that she rents for $600 per month.

        On September 13, 2007, respondent sent petitioner a Final

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

(levy notice).       The underlying tax liability was attributable to

unpaid self-assessed tax reported on her 2002 return.       Petitioner

timely requested a hearing on September 24, 2007, and the hearing

was conducted through correspondence and by telephone with the

settlement officer.

        Petitioner first learned of the collection activity when her

employer notified her about the proposed levy on her wages.          When

the settlement officer asked petitioner whether she wanted to



        1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code.
                               - 4 -

enter into an installment agreement, petitioner said “she has

nothing.”2   Petitioner told the settlement officer that she has

pulmonary fibrosis and is dying.   Because of her health she can

only find part-time employment.

     The settlement officer could not find a record that

petitioner had filed a return for 2005.    Petitioner explained to

the settlement officer that the payroll company responsible for

completing her 2005 Form W-2, Wage and Tax Statement, was no

longer in business.   She had attempted to get the tax information

from the Internal Revenue Service (IRS), but the IRS had no

information regarding her income for 2005.

     The settlement officer told petitioner that she might be

able to have her account placed in currently not collectible

status.   The settlement officer asked petitioner to submit a Form

433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals, and a diagnosis regarding her current

health condition.

     Petitioner sent a completed Form 433-A, indicating she had

monthly income of $800 and expenses of $800, had $14 cash on

hand, and owned a 1996 Toyota Corolla four-door sedan with

243,000 miles and a value of $300.     The Form 433-A reported that



     2
      Petitioner explained to the settlement officer that she had
previously agreed to pay in installments and that she was told
she would be sent envelopes for each payment, but she never
received the envelopes or monthly bills.
                              - 5 -

petitioner did not own any other assets.   Verification received

by the settlement officer was consistent with the information

petitioner provided in the Form 433-A.   Petitioner was unable to

obtain a written diagnosis of her medical condition from her

physician because her physician would provide a diagnosis only in

a claim for worker’s compensation.

     The settlement officer’s log entry dated May 15, 2008,

states:

     TP [petitioner] meets the criteria to have account
     placed in CNC [currently not collectible] status per
     IRM 5.16.[1.]2.9 Hardship. The balance due is less
     than 10K and the TP has stated she has a terminal
     illness. CIS verification is not required. The TP has
     stated she has nothing and is not able to full pay or
     make payments. However, the TP is not in compliance.
     The TP has not filed a 2005 return and there is no
     record of the 2007 tax return being filed. The TP
     stated she does not have income information for 2005
     and company that did payroll is no longer in business.
     TP stated she contacted IRS and they advised her they
     have no income information. There is no information
     per IRTRL. S/O [the settlement officer] contacted TP
     regarding filing of the 2007 return. The TP stated the
     return was filed late. The S/O requested the TP fax a
     copy of the return with the W-2. TP to fax information
     by 5-19-08. S/O asked TP if she obtained health
     diagnosis and the TP stated the doctor would only give
     her something if she is applying for diability. S/O
     requested income information for 2005 per IRPTRE.

     The settlement officer’s log entry dated May 20, 2008,

states:

          TP did not provide a copy of 2007 return and there
     is no record that the return has been filed per IDRS
     research. The TP was employed in 2007 and is currently
     employed. The 2005 return has not been filed. Since
     the TP is not in compliance, collection alternative
     cannot be considered. S/O will issue determination
                              - 6 -

     letter. If the 2005 income information is received,
     the S/O will forward it to the TP.

     Respondent issued petitioner a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330

(notice of determination) dated June 2, 2008, sustaining the

proposed levy action and stating that, because petitioner was not

in compliance with filing the required tax returns, a collection

alternative could not be considered.   The notice of determination

was reviewed and signed by the Appeals team manager.   The

attachment to the notice of determination stated:

     The settlement officer inquired about a collection
     alternative and you stated you could not make payments.
     You stated you had pulmonary fibrosis and can only work
     part-time hours due to your heath condition. The
     Settlement officer [who] advised you of the collection
     alternative however explained a collection alternative
     could not be considered because you were not in
     compliance with filing required tax returns. * * *

     The attachment explained the balancing of efficient tax

collection with concern regarding intrusiveness as follows:

          Appeals has verified, or received verification,
     that applicable laws and administrative procedures have
     been met; has considered the issues raised; and has
     balanced the proposed collection with the legitimate
     concern that such action be no more intrusive than
     necessary by IRC Section 6330(c)(3).

          Collection alternatives include full payment,
     installment agreement, offer in compromise and
     currently-not-collectible. However, since unfiled tax
     returns exist, the only alternative at present is to
     take enforced action by levying your assets. It is
     Appeals decision that the proposed levy action is
     appropriate. The proposed levy action balances the
     need for the efficient collection of the taxes with the
                               - 7 -

     legitimate concern that any collection action be no
     more intrusive than necessary.

Neither the notice of determination nor the attachment reflect

any consideration of the fact that the levy would create an

economic hardship as stated by the settlement officer in her

daily log and supported by the Form 433-A petitioner submitted.

     Petitioner timely filed a petition in this Court challenging

respondent’s determination.   Respondent filed the motion for

summary judgment, and the Court ordered petitioner to file a

response.3   Petitioner filed a response to respondent’s motion

for summary judgment but did not file a cross-motion for summary

judgment.4   In her response petitioner describes her situation as

follows:




     3
      In the order we observed that our preliminary review of the
record indicated that the proposed levy action involved a
hardship situation and that petitioner needed the assistance of
an attorney. We urged petitioner to contact the legal aid
society or the local bar association pro bono services and
provided their addresses and phone numbers.
     4
      After petitioner filed her response to respondent’s motion
for summary judgment, respondent filed a motion to continue the
case wherein respondent stated that petitioner was in the process
of submitting a collection alternative to the IRS and that, if
the alternative is accepted by the IRS, a trial in this case
would not be necessary. The Court granted respondent’s motion
and directed the parties to file a status report on or before
July 27, 2009. In a status report filed on July 17, 2009,
respondent reported that respondent has not received any
communication from petitioner and requested the Court to grant
respondent’s motion for summary judgment.
                          - 8 -

To Whom It May Concern,

     I don’t know what you want to know cause I don’t
understand all the legal stuff you sent me. I can’t
afford a lawyer. And the closest legal aid is in
Knoxville 30 miles away. My poor car will not go that
far. So I will start at the beginning of my story and
see if you can help me.

      I was in an unhealthy relationship for many years.
During a great deal of that time my husband was doing
alcohol and drugs. I had 2 children plus his 3 to take
care of. I had been doing janitorial work at a strip
mall * * *. It was the only place that I could work
that I could take my [then] 3 year old daughter with
me. I could not support my family and pay day care.
* * * My husband took care of bills and such cause he
demanded that I turn over my money. We even got a
divorce during that time cause I was not obeying him.
* * *

     Now I am not looking for sympathy just
understanding. Do you know how hard it is to be a
single parent? * * * I have a high school education
and nothing else.

     It was nearly five years before I was notified of
a problem by the I.R.S. Danny [petitioner’s former
spouse] was suppose to be doing taxes. He even made me
sign a form that because he made more money he could
claim my kids on his taxes cause we were no longer
legally married.

     I got all the W-2’s from the I.R.S. except 2005
that they still have not sent me. That is why they are
not done. I did all those taxes and forfeited the
refunds. I do not remember what that total came to.
But it was enough to pay I would say most of back
taxes. The 2007 taxes were late and I don’t know why
they didn’t arrive. I sent a second copy in as soon as
my son gave me my copy. He had my copy for college
financial aid and he lost them for a bit of time.

     I am not a rich person. I work in a job so I can
be home with my daughter. I left my husband in July
after he threatened to beat my daughter with a baseball
bat. Beating me is one thing but I could not have him
beating my girl. So I am a single parent again. Right
                              - 9 -

     now we have not had much work in nearly a year. I have
     rent of 600 a mo. Utilities of 150 and get food stamps
     or I wouldn’t eat. I make about 700-800 [per] month.
     There are no better jobs in our town. My daughter is
     only 11 so its not like I can leave her alone at night
     or on weekends. D.H.S. says it’s not even legal. She
     is too young. There is no child care and I have no
     family here. I have pulmonary fibrosis that makes me
     sick all the time and the diagnosis says I have about
     10 yrs to live. Right now I can work thank God.

          I did my taxes this year [for 2008] and you are
     getting a little over $4,700. I’m not asking for much
     just a break. You can have my tax returns [refunds ?]
     I don’t care. Well I do that is a tremendous loss but
     oh well. I don’t have any money to send you on a
     monthly basis. Can we stop all the penalties. They
     are killing me. I will never be able to pay it off.
     * * * I let a relationship screw me up. I am truly
     sorry for that and am begging for a lifeline here. You
     can come to my home and see for yourself. I don’t have
     fancy t.v.’s or even cable except for internet. I
     can’t afford a phone. My clothes have holes in them.
     I even cut my own hair. If I could pay this off faster
     I would just to stop the nightmares it gives me.

                           Discussion

A.   Summary Judgment

     Summary judgment is used to expedite litigation and avoid

unnecessary and expensive trials.   The Court will render a

decision on a motion for summary judgment if the pleadings,

answers to interrogatories, depositions, admissions, and 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(b).

Because the effect of granting a motion for summary judgment is

to decide the case against a party without allowing that party an
                               - 10 -

opportunity for a trial, the Court should grant the motion only

after a careful consideration of the case.    Associated Press v.

United States, 326 U.S. 1, 6 (1945); Kroh v. Commissioner, 98

T.C. 383, 390 (1992).

     For purposes of respondent’s motion for summary judgment,

respondent has the burden of showing the absence of a genuine

issue as to any material fact.    Petitioner is afforded the

benefit of all reasonable doubt, and the material submitted by

both sides is viewed in the light most favorable to petitioner.

See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970);

Kroh v. Commissioner, supra at 390.

     Respondent moves the Court for summary judgment on the

ground that the settlement officer did not abuse her discretion

in rejecting collection alternatives and determining to proceed

with levy because petitioner was not in compliance with the

filing requirements.    Petitioner asks that the levy not be

sustained because, if her wages are taken, she will be unable to

pay her basic living expenses; and, if her car is taken, she will

not be able to work.

B.   Collection of Federal Taxes by Levy

     If a taxpayer liable for Federal taxes fails to pay the

taxes within 10 days after notice and demand, section 6331

authorizes the Secretary to collect the tax by levy upon all

property and rights to property (except any property that is
                              - 11 -

exempt under section 6334) belonging to the taxpayer or on which

there is a lien for the payment of the tax.

     Section 6343(a)(1) provides that, under regulations

prescribed by the Secretary, if the Secretary has determined that

the levy is creating an economic hardship due to the financial

condition of the taxpayer, the Secretary must release a levy upon

all, or part of, a taxpayer’s property or rights to property.5

Sec. 6343(a)(1)(D).   The regulations provide that a levy is

creating an economic hardship due to the financial condition of

an individual taxpayer and must be released “if satisfaction of

the levy in whole or in part will cause an individual taxpayer to

be unable to pay his or her reasonable basic living expenses.”

Sec. 301.6343-1(b)(4), Proced. & Admin. Regs.

     A taxpayer alleging that collection of the liability would

create undue hardship must submit complete and current financial

data to enable the Commissioner to evaluate the taxpayer’s

qualification for collection alternatives or other relief.



     5
      The regulations provide a method whereby a taxpayer may
inform the Secretary that a levy is creating an economic hardship
and request that the levy be released. See sec. 301.6343-1(c),
Proced. & Admin. Regs. “A taxpayer who wishes to obtain a
release of a levy must submit a request for release in writing or
by telephone to the district director for the Internal Revenue
district in which the levy was made.” Id. However, service
center directors and compliance center directors (to whom
requests by taxpayers are not made) who have determined that a
levy is creating an economic hardship must also release the levy
and promptly notify the taxpayer of the release pursuant to sec.
301.6343-1(a), Proced. & Admin. Regs.
                               - 12 -

Picchiottino v. Commissioner, T.C. Memo. 2004-231.   The

regulations provide that, for purposes of determining the

taxpayer’s reasonable amount of living expenses, any information

that is provided by the taxpayer is to be considered, including

the following:

          (A) The taxpayer’s age, employment status and
     history, ability to earn, number of dependents, and
     status as a dependent of someone else;

          (B) The amount reasonably necessary for food,
     clothing, housing * * *, medical expenses * * *,
     transportation, current tax payments * * *, alimony,
     child support, or other court-ordered payments, and
     expenses necessary to the taxpayer’s production of
     income * * *;

          (C) The cost of living in the geographic area in
     which the taxpayer resides;

          (D) The amount of property exempt from levy which
     is available to pay the taxpayer’s expenses;

          (E) Any extraordinary circumstances such as
     special education expenses, a medical catastrophe, or
     natural disaster; and

          (F) Any other factor that the taxpayer claims
     bears on economic hardship and brings to the attention
     of the director.

Sec. 301.6343-1(b)(4)(ii), Proced. & Admin. Regs.

C.   Section 6330 Procedures

     Section 6330(a) provides the general rule that no levy may

be made on any property or right to property of any taxpayer

unless the Secretary has provided 30 days’ notice to the taxpayer

of the right to an administrative hearing before the levy is

carried out.   If the taxpayer makes a timely request for an
                               - 13 -

administrative hearing, the hearing is conducted by the IRS

Office of Appeals (Appeals Office) before an impartial officer.

Sec. 6330(b)(1), (3).

     The taxpayer may raise any relevant issue during the

hearing, including appropriate spousal defenses and challenges to

“the appropriateness of collection actions”, and may make “offers

of collection alternatives, which may include the posting of a

bond, the substitution of other assets, an installment agreement,

or an offer-in-compromise.”    Sec. 6330(c)(2)(A).   The taxpayer

also may raise challenges to the existence or amount of the

underlying tax liability if he/she did not receive a notice of

deficiency for that liability or did not otherwise have an

opportunity to dispute it.    Sec. 6330(c)(2)(B).

     During the hearing the Appeals officer must verify that the

requirements of applicable law and administrative procedure have

been met, consider issues properly raised by the taxpayer, and

consider whether any proposed collection action balances the need

for the efficient collection of taxes with the taxpayer’s

legitimate concern that any collection action be no more

intrusive than necessary.    Sec. 6330(c)(3).   The Appeals Office

then issues a notice of determination indicating whether the

proposed levy may proceed.

     Under section 6330(d)(1) the taxpayer may petition this

Court to review the determination made by the Appeals Office.
                              - 14 -

See sec. 301.6330-1(f)(1), Proced. & Admin. Regs.   Where, as in

this case, the underlying tax liability is not at issue, we

review the Appeals Office’s determinations regarding the

collection action for abuse of discretion.   Goza v. Commissioner,

114 T.C. 176 (2000).   An abuse of discretion occurs if the

Appeals Office exercises its discretion “arbitrarily,

capriciously, or without sound basis in fact or law.”   Woodral v.

Commissioner, 112 T.C. 19, 23 (1999).

     When a taxpayer establishes in a pre-levy collection hearing

under section 6330 that the proposed levy would create an

economic hardship, it is unreasonable for the settlement officer

to determine to proceed with the levy which section 6343(a)(1)(D)

would require the IRS to immediately release.   Rather than

proceed with the levy, the settlement officer should consider

alternatives to the levy.

     Respondent argues under the holdings of Rodriguez v.

Commissioner, T.C. Memo. 2003-153, and McCorkle v. Commissioner,

T.C. Memo. 2003-34, that there is no abuse of discretion if a

settlement officer rejects collection alternatives because the

taxpayer was not in compliance with the filing requirements for

all required tax returns.6


     6
      Generally, the IRS will not grant an installment agreement,
accept an offer-in-compromise, or report an account as currently
not collectible if any tax return for which the taxpayer has a
filing requirement has not been filed. See Internal Revenue
                                                   (continued...)
                              - 15 -

     Generally, we have found the Commissioner’s policy requiring

individuals seeking collection alternatives to be current with

filing their returns to be reasonable.7   However, taxpayers in

those cases have had sufficient income to meet basic living

expenses.   See, e.g., Speltz v. Commissioner, 124 T.C. 165, 178

(2005) (taxpayers claimed hardship because the tax liability was

disproportionate to the value that they received from initial

stock offerings and because they had already been forced to

change their lifestyle), affd. 454 F.3d 782 (8th Cir. 2006);

Peterson v. Commissioner, T.C. Memo. 2009-46 (the Court upheld

rejection of taxpayers’ offer of $20,000 to compromise $70,000

liability where, although they had minimal income from Social

Security retirement and disability payments, they had reasonable

collection potential of $68,000 from two parcels of real property

valued at $80,000); Fangonilo v. Commissioner, T.C. Memo. 2008-75

(Commissioner’s refusal to treat taxpayer’s tax liability as


     6
      (...continued)
Manual pts. 5.14.1.4.1(4)-(6) (Sept. 26, 2008) (installment
agreements); 5.8.3.13(1), (2), (4) (Sept. 23, 2008) (offers-in-
compromise); 5.16.1.1(5) and (6), 5.16.1.2.9(8) (May 5, 2009)
(currently not collectible), 5.1.11.2.3 (June 2, 2004) (general
collection procedures).
     7
      In Estate of Atkinson v. Commissioner, T.C. Memo. 2007-89,
we found reasonable requirements that an entity seeking
collection alternatives to full payment, including reporting an
account as currently not collectible, filing any outstanding tax
returns and submitting a full financial statement and
verification information for analysis. Mandatory release of levy
creating an economic hardship applies only to individuals. Sec.
301.6343-1(b)(4), Proced. & Admin. Regs.
                              - 16 -

currently not collectible was not an abuse of discretion where

although taxpayer’s income was not sufficient to meet his stated

monthly living expenses, he had a liquid asset worth more than

his tax liability); Willis v. Commissioner, T.C. Memo. 2003-302

(taxpayers’ ability to make some payments toward their cumulative

liability made them ineligible to have the cumulative liability

classified as currently not collectible); Rodriguez v.

Commissioner, T.C. Memo. 2003-153 (taxpayer had not filed returns

for 12 years and did not submit all of the financial information

supporting her offer-in-compromise that the settlement officer

requested); Ashley v. Commissioner, T.C. Memo. 2002-286 (taxpayer

had income in excess of expenses and sufficient equity in his

real property to pay his tax liability in full).

     We have found no cases addressing the requirement that the

taxpayer be current with filing returns in a levy case involving

economic hardship under section 6343(a)(1)(D) and section

301.6343-1(b)(4), Proced. & Admin. Regs.   Neither section 6343

nor the regulations condition a release of a levy that is

creating an economic hardship on the taxpayer’s compliance with

filing and payment requirements.   The purpose of section 6330 is

to “afford taxpayers adequate notice of collection activity and a

meaningful hearing before the IRS deprives them of their

property.”   S. Rept. 105-174, at 67 (1998), 1998-3 C.B. 537, 603

(emphasis added).   A determination in a hardship case to proceed
                               - 17 -

with a levy that must immediately be released is unreasonable and

undermines public confidence that tax laws are being administered

fairly.   In a section 6330 pre-levy hearing, if the taxpayer has

provided information that establishes the proposed levy will

create an economic hardship, the settlement officer cannot go

forward with the levy and must consider an alternative.

D.   Appeals Office’s Determination To Proceed With Levy of
     Petitioner’s Assets

     The financial information petitioner submitted on the Form

433-A, which was consistent with other information the settlement

officer obtained, showed that if petitioner’s wages are levied

on, she will be unable to pay her basic living expenses; and, if

her car is levied on, she will not be able to work.   After

analyzing petitioner’s financial information, the settlement

officer concluded that the levy would create an economic hardship

and so stated in her log.   However, the settlement officer

determined collection alternatives to the levy, including an

installment agreement, an offer-in-compromise, and reporting the

account as currently not collectible, were not available because

petitioner had not filed her 2005 and 2007 returns.   The

settlement officer’s determination to proceed with the levy was

reviewed and approved by the Appeals team manager who signed the

notice of determination.    Although the attachment to the notice

of determination shows that the Appeals team manager was aware of

petitioner’s financial situation and health problems, the Appeals
                              - 18 -

team manager signed the notice of determination to proceed with

the levy because petitioner had not filed her 2005 and 2007

returns.   Proceeding with the levy would be unreasonable because

section 6343 would require its immediate release, and the

determination to do so was arbitrary.    The determination to

proceed with the levy was wrong as a matter of law and,

therefore, was an abuse of discretion.    Respondent is not

entitled to summary judgment, and respondent’s motion will be

denied.


                                    An order denying respondent’s

                               motion will be issued.
