                        T.C. Memo. 2007-362



                      UNITED STATES TAX COURT



   ESTATE OF BONNIE W. DEESE, DECEASED, GLADYS DEESE, PERSONAL
                   REPRESENTATIVE, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No.   13920-06L.          Filed December 10, 2007.



     Gladys Deese, for petitioner.

     Lauren B. Epstein, for respondent.



                        MEMORANDUM OPINION

     THORNTON, Judge:   This matter is before the Court on

respondent’s motion for summary judgment, filed pursuant to Rule
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121.1       As discussed in detail below, we shall grant respondent’s

motion.

                                Background

        On October 7, 1997, respondent received a Form 870-AD, Offer

to Waive Restrictions on Assessment and Collection of Tax

Deficiency and to Accept Overassessment, showing signatures of

Bonnie W. Deese (Mr. Deese) and his wife Gladys Deese (Ms.

Deese), consenting to the immediate assessment and collection of

specified deficiencies in their joint Federal tax liabilities for

taxable years 1990 through 1994.       On December 26, 1997, Mr. Deese

died.       On February 9, 1998, respondent assessed these agreed-upon

deficiencies along with interest.

        On August 21, 2002, respondent sent the deceased Mr. Deese a

Notice of Federal Tax Lien Filing and Your Right to a Hearing

Under IRC Section 6320 with respect to taxable years 1991, 1993,

and 1994.       No collection hearing was requested in response to

this notice.

        On February 23, 2005, respondent sent the deceased Mr. Deese

another Notice of Federal Tax Lien Filing and Your Right to a

Hearing Under IRC Section 6320, this time for taxable years 1990

through 1994.       In response to this notice, on April 4, 2005,



        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 in effect for the
years at issue.
                              - 3 -

Ms. Deese, as personal representative of the deceased Mr. Deese,

submitted a Form 12153, Request for a Collection Due Process

Hearing (CDP hearing).

     After a face-to-face hearing between respondent’s Appeals

officer, Ms. Deese, and her C.P.A. representative, respondent’s

Appeals Office issued petitioner a Notice of Determination

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

for taxable years 1990 and 1992.   Respondent also issued

petitioner a Decision Letter Concerning Equivalent Hearing Under

Section 6320 and/or 6330 for taxable years 1991, 1993, and 1994.

The notice and decision letter upheld the filing of notice of tax

lien against the deceased Mr. Deese for the respective    relevant

years.

     On July 19, 2006, the petition was timely filed.    Ms. Deese,

then residing in Georgia, signed the petition as “Personal

Representative for Bonnie W. Deese (deceased)”.2   On September 5,

2007, respondent filed his motion for summary judgment.     On

September 6, 2007, we ordered petitioner to file a response to



     2
       The petition states that it is with respect to
petitioner’s taxable years 1990, 1991, 1992, 1993, and 1994. By
Order dated Dec. 29, 2006, this Court granted respondent’s motion
to dismiss for lack of jurisdiction and to strike as to taxable
years 1991, 1993, and 1994, on the ground that petitioner had
failed to make a timely request for a sec. 6320 hearing within
the statutorily mandated period after respondent sent the first
notice of tax lien filing for those years on Aug. 21, 2002.
Consequently, only taxable years 1990 and 1992 remain at issue.
                               - 4 -

respondent’s motion for summary judgment by October 3, 2007.    The

Court has received no response.

                            Discussion

     Summary judgment may be granted where there is no genuine

issue of any material fact, and a decision may be rendered as a

matter of law.   Rule 121(a) and (b); see Sundstrand Corp. v.

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

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988).

When a motion for summary judgment is made and properly

supported, the adverse party may not rest upon mere allegations

or denials of the pleadings but must set forth specific facts

showing that there is a genuine issue for trial.   Rule 121(d).

If appropriate, a decision may be entered against a party who

fails to respond to a motion for summary judgment.   Id.

     Section 6321 imposes a lien in favor of the United States on

all property and property rights of a person who is liable for

and fails to pay tax after demand for payment has been made.    For

the lien to be valid against certain third parties, the Secretary

must file a notice of Federal tax lien; within 5 business days

thereafter, the Secretary must provide written notice to the

person against whom the lien is filed.   Secs. 6320(a), 6323(a).

Within 30 days commencing the day after the end of the 5 business

days, the person may request an administrative hearing before an
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Appeals officer.   Sec. 6320(b)(1); sec. 301.6320-1(c)(1), Proced.

& Admin. Regs.

     At the Appeals Office hearing, the person against whom the

lien is filed generally may raise any relevant issue, including

spousal defenses, challenges to the appropriateness of the

Commissioner’s intended collection action, and possible

alternative means of collection.    Secs. 6320(b)(4), 6330(c)(2).

At the hearing, the person may challenge the existence or amount

of the underlying tax liability only if the person did not

receive a notice of deficiency or did not otherwise have an

opportunity to dispute the liability.    Sec. 6330(c)(2)(B); see

Sego v. Commissioner, 114 T.C. 604, 609 (2000); Goza v.

Commissioner, 114 T.C. 176, 180-181 (2000).    Once the Appeals

Office issues a notice of determination, the person may seek

judicial review in this Court.    Secs. 6320(c), 6330(d)(1).

     In the petition, Ms. Deese contends that she, as “the

surviving spouse”, should not be liable for the underlying tax

liabilities.   The proposed collection action and notice of

determination upon which this case is based, however, relate only

to the unpaid tax liabilities of the deceased Mr. Deese.

Consequently, notwithstanding that Ms. Deese may be responsible

for paying the underlying joint tax liabilities both in her

individual capacity and in her capacity as the personal

representative of Mr. Deese’s estate, her personal liability in
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either capacity is outside the scope of judicial review in this

proceeding.

     Moreover, by submitting the Form 870-AD, consenting to the

immediate assessment and collection of their deficiencies, Mr.

and Ms. Deese waived their right to a notice of deficiency and

gave up any right to challenge their underlying liabilities in a

collection proceeding.   See sec. 6330(c)(2)(B); Aguirre v.

Commissioner, 117 T.C. 324, 327 (2001); Rivera v. Commissioner,

T.C. Memo. 2003-35, affd. 102 Fed. Appx. 594 (9th Cir. 2004).3

Hence, to the extent that petitioner means to challenge the

underlying liabilities of Mr. Deese, such a challenge is

precluded in this collection proceeding.


     3
       The petition alleges that Gladys Deese (Ms. Deese) signed
the Form 870-AD, Offer to Waive Restrictions on Assessment and
Collection of Tax Deficiency and to Accept Overassessment, for
herself and her ailing husband, Bonnie W. Deese (Mr. Deese). We
might question this allegation, inasmuch as the Form 870-AD seems
to show the signatures of Mr. and Ms. Deese in two different
hands. In his motion for summary judgment, respondent alleges
that both Mr. and Ms. Deese signed the Form 870-AD. Since
petitioner filed no response to respondent’s motion for summary
judgment, we might assume that petitioner no longer disputes that
Mr. Deese signed the Form 870-AD. See, e.g., Bergmann v.
Commissioner, T.C. Memo. 1985-290. We need not decide this
issue, however; even if we were to assume, for purposes of
argument, that Ms. Deese signed the Form 870-AD on behalf of Mr.
Deese, it would make no material difference for purposes of our
ruling upon respondent’s motion for summary judgment. In
particular, the petition does not allege or suggest that Ms.
Deese lacked authority to sign the Form 870-AD on behalf of her
husband; to the contrary, in the petition Ms. Deese appears to
justify her allegedly signing Mr. Deese’s signature by reason of
his illness. Similarly, petitioner has not alleged any duress,
coercion, fraud, or misrepresentation such as might invalidate
the waiver. See Shireman v. Commissioner, T.C. Memo. 2004-155.
                              - 7 -

     We conclude that there is no genuine issue of material fact

requiring a trial in this case.   We hold that respondent is

entitled as a matter of law to the entry of a decision sustaining

the filing of the notice of tax lien.


                                           An appropriate order and

                                      decision will be entered.
