                               T.C. Memo. 2012-234



                         UNITED STATES TAX COURT



                  EDWARD E. CURRAN, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 967-11L.                          Filed August 13, 2012.



      George J. Smith, for petitioner.

      Cindy Shin Young Park, for respondent.



                           MEMORANDUM OPINION


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

summary judgment (motion) pursuant to Rule 121.1 Respondent contends that no


      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
as amended.
                                          -2-

[*2] genuine issue exists as to any material fact and that the determination to collect

petitioner’s income tax liability by levy should be upheld. Petitioner has not

responded to the motion, despite an order from this Court instructing him to do so.2

                                     Background

       At the time the petition was filed, petitioner resided in New Jersey.

       Petitioner filed a Federal income tax return for 2008 but failed to pay the

liability reported on the return. As a result, respondent assessed the tax shown on

the return.

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

Notice of Your Right to a Hearing, dated March 22, 2010, advising him that

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

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 an installment agreement. By letter dated August 2, 2010,




       2
       On December 7, 2011, the Court ordered petitioner to file a response on or
before December 29, 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] respondent’s settlement officer acknowledged receipt of petitioner’s collection

due process (CDP) hearing request and scheduled a telephone conference. In the

letter the settlement officer requested that petitioner provide a completed Form 433-

A, Collection Information Statement for Wage Earners and Self-Employed

Individuals, and Form 433-B, Collection Information Statement for Businesses, so

that she could make a decision regarding petitioner’s request for an installment

agreement.

        During the telephone conference on November 1, 2010, George J. Smith,

petitioner’s representative, requested petitioner’s account be placed in currently not

collectible (CNC) status because petitioner could not pay the debt at that time.

Additionally, petitioner’s representative claimed that petitioner had sold a property

at a loss in 2010. Petitioner’s representative stated that petitioner intended to carry

back the loss to 2008 and that the carryback would reduce the 2008 tax liability to

zero.

        On November 16, 2010, the settlement officer informed petitioner’s

representative that her review of Forms 433-A and B indicated that petitioner owned

property that could be sold to pay off his tax liability. The settlement officer told

petitioner’s representative that she could offer a 120-day extension for petitioner to

submit the loss carryback paperwork to resolve the 2008 tax liability.
                                         -4-

[*4] The settlement officer informed petitioner’s representative that she would issue

a notice of determination if she did not hear back from him by November 19, 2010.

Petitioner’s representative did not contact the settlement officer after the November

16, 2010, telephone conference.

      Respondent issued petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330, dated December 10, 2010,

sustaining the levy action. On January 11, 2011, petitioner timely filed a petition

with this Court, stating generally that he disagreed with the proposed collection

action because it would create an economic hardship and that he did not currently

have the ability to pay the liability or enter into an installment payment agreement.

The Form 4340, Certificate of Assessments, Payments, and Other Specified

Matters, attached to respondent’s motion shows that an abatement of $176,943 was

posted to petitioner’s account on May 16, 2011, resulting from a tentative carryback

claim. Despite the abatement, petitioner still had an outstanding balance due of

$58,895.88 as of December 1, 2011.

                                      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
                                         -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(a); 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 the motion and has failed to demonstrate that there is a genuine
                                          -6-

[*6] dispute for trial.3 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 (Appeals hearing). If a taxpayer requests an Appeals hearing, he may

raise at that hearing any relevant issue relating to the unpaid tax or proposed levy.

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


      3
        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] 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.

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).
                                           -8-

[*8] In the CDP hearing request petitioner requested an installment agreement as

an alternative means of collection. In the Appeals hearing, petitioner’s

representative requested that petitioner’s liability be placed in CNC status.

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

denying petitioner’s requests for an installment agreement and to place his tax

liability in CNC status because petitioner had sufficient assets to pay his tax

liability.

       Petitioner’s Forms 433-A and B show he had sufficient assets to pay off his

tax liability. Generally, it is not an abuse of discretion for the settlement officer to

deny a taxpayer’s requests for an installment agreement or for the liability to be

placed in CNC status when the taxpayer has sufficient assets to pay his tax

liability. See Foley v. Commissioner, T.C. Memo. 2007-242, 2007 Tax Ct. Memo

LEXIS 245, at *4-6; Castillo v. Commissioner, T.C. Memo. 2004-238, 2004 Tax

Ct. Memo LEXIS 247, at *8; see also Internal Revenue Manual pt. 5.14.1.4(5)

(June 1, 2010) (“Taxpayers do not qualify for installment agreements if balance

due accounts can be fully or partially satisfied by liquidating assets”.). Therefore,

we find that the settlement officer did not abuse her discretion in denying
                                            -9-

[*9] petitioner’s requests for an installment agreement and to place the liability in

CNC status.4

      In the petition, petitioner argues that sustaining the levy would create an

economic hardship for him. Petitioner has not demonstrated that the levy would

create an unwarranted economic hardship that would be sufficient to find that the

settlement officer abused her discretion.

      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.




      4
        Indeed petitioner seems to have abandoned the installment agreement
argument. In his petition, petitioner states: “The taxpayer does not currently have
the ability to enter in to an installment payment arrangement.”
