                         T.C. Memo. 2008-178



                       UNITED STATES TAX COURT



                 RONALD C. PARKER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10148-07L.               Filed July 29, 2008.



     Ronald C. Parker, pro se.

     Lisa K. Hunter, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).1   We

shall grant respondent’s motion.




     1
      Although the Court ordered petitioner to file a response to
respondent’s motion, petitioner failed to do so.
                                   - 2 -

                                Background

     The record establishes and/or the parties do not dispute the

following.

     Petitioner’s address shown in the petition in this case was

in Omaha, Nebraska.

     Petitioner did not file a Federal income tax (tax) return

for any of his taxable years 2000, 2001, and 2002.         Respondent

prepared a substitute for return for each of those years.

     On April 21, 2005, respondent issued to petitioner a notice

of deficiency with respect to his taxable years 2000, 2001, and

2002 (notice of deficiency for 2000, 2001, and 2002), which he

received.    In that notice, respondent determined the following

deficiencies in, and additions to, petitioner’s tax:

                                      Additions to Tax Under
   Year     Deficiency   Sec. 6651(a)(1)2 Sec. 6651(a)(2) Sec. 6654(a)
                                              *
   2000       $6,367        $1,432.58           $1,559.92    $340.08
                                                *
   2001       14,049         3,161.03             2,599.07    561.46
                                                *
   2002       10,892         2,450.70             1,361.50    363.98

           *Respondent determined that the addition to tax will
     continue to accrue from the due date of the return at a rate of
     0.5 percent for each month, or fraction thereof, of nonpayment,
     not exceeding 25 percent.

     Petitioner did not file a petition with the Court with

respect to the notice of deficiency for 2000, 2001, and 2002.




     2
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 3 -

     On September 26, 2005, respondent assessed the following

tax, additions to tax, and interest as provided by law for

petitioner’s taxable years 2000, 2001, and 2002:

                         Additions to Tax Under
                       Sec.         Sec.        Sec.
   Year     Tax     6651(a)(1)   6651(a)(2)    6654(a)   Interest
   2000    $6,367   $1,432.58    $1,559.92    $340.08    $2,176.88
   2001    14,049    3,161.03     2,599.07     561.46     3,331.58
   2002    10,892    2,450.70     1,361.50     363.98     1,698.78

     On September 26, 2005, respondent issued to petitioner

respective notices of balance due with respect to any unpaid

assessed amounts for petitioner’s taxable years 2000, 2001, and

2002.

     On November 14, 2005, respondent assessed additional addi-

tions to tax under section 6651(a)(2) of $31.83, $421.47, and

$326.76 for petitioner’s taxable years 2000, 2001, and 2002,

respectively.

     On November 14, 2005, respondent issued to petitioner

respective notices of balance due with respect to any unpaid

assessed amounts for petitioner’s taxable years 2000, 2001, and

2002.

     On December 19, 2005, respondent assessed additional addi-

tions to tax under section 6651(a)(2) of $70.24 and $54.46 for

petitioner’s taxable years 2001 and 2002, respectively.

     On December 19, 2005, respondent issued to petitioner

respective notices of balance due with respect to any unpaid
                               - 4 -

assessed amounts for petitioner’s taxable years 2001 and 2002.

(We shall refer to any unpaid assessed amounts with respect to

petitioner’s respective taxable years 2000, 2001, and 2002, as

well as interest as provided by law accrued thereafter, as

petitioner’s unpaid liabilities for 2000, 2001, and 2002.)

     On August 29, 2006, respondent issued to petitioner a notice

of Federal tax lien filing and your right to a hearing under IRC

6320 (notice of tax lien) with respect to petitioner’s unpaid

liabilities for 2000, 2001, and 2002.   Petitioner did not request

a hearing with respondent’s Appeals Office (Appeals Office) with

respect to that notice.

     On October 16, 2006, respondent issued to petitioner a final

notice of intent to levy and notice of your right to a hearing

(notice of intent to levy) with respect to petitioner’s unpaid

liabilities for 2000, 2001, and 2002.

     On November 13, 2006, petitioner timely submitted to respon-

dent Form 12153, Request for a Collection Due Process Hearing

(petitioner’s Form 12153), with respect to the notice of intent

to levy.   In that form, petitioner indicated his disagreement

with the notice of intent to levy and requested a hearing with

the Appeals Office.   In petitioner’s Form 12153, petitioner

stated in pertinent part:

     I TOLD IRS IN OMAHA, MOST OF MY MONEY CAME FROM MY
     MOTHER WHEN SHE DIED AND SOME CAME FROM GAMBLING. THEY
     COULD NOT PROVE THE MONEY CAME FROM GAMBLING AND I
     CANNOT PROVE MONEY CAME FROM MY MOTHER SO THEY JUST
                                - 5 -

     DECIDED THE MONEY WAS GAMBLING. NO WAY COULD ANYONE
     WIN THAT MUCH MONEY AT A CASINO WITH NO CASINO RECORD.

     By letter dated December 5, 2006 (respondent’s December 5,

2006 letter), respondent acknowledged receipt of petitioner’s

Form 12153.    That letter stated in pertinent part:

     :    6.   To expedite the processing of your request,
          please complete the enclosed Collection Informa-
          tion Statement, and return this form in the enve-
          lope provided by December 14, 2006.

     :    7.   Additional information is needed to expedite
          the processing of your request. Please contact me
          at the number listed above by December 14, 2006.
          If I do not hear from you by this date, your re-
          quest will be forwarded to your local Appeals
          Office for consideration.

     :    8.     Other     IRS accepts an Audit Reconsidera-
                           tion Request If: You have informa-
                           tion that we have not considered
                           previously which might change the
                           amount of tax you owe, or credit
                           you believe you are entitled to. I
                           have enclosed Publication 3598 for
                           your convenience. If you would
                           like to request an Audit Reconsid-
                           eration at this time, our Collec-
                           tions Department can place a hold
                           on your account to allow you to
                           process your request. Please con-
                           tact me at the number listed above
                           if you are considering an Audit
                           Reconsideration.

Petitioner did not respond to respondent’s December 5, 2006

letter.

     By letter dated December 21, 2006, respondent informed

petitioner that he would be “notified within 60 days of the date

and time of your hearing, by an Appeals office.”
                               - 6 -

     A settlement officer with the Appeals Office who was as-

signed petitioner’s Form 12153 (settlement officer) sent peti-

tioner a letter dated February 27, 2007 (settlement officer’s

February 27, 2007 letter).   That letter stated in pertinent part:

    Appeals received your request for a Collection Due
    Process (CDP) Hearing. I have scheduled a telephone
    conference call for you on March 20, 2007 at 1:30 CST.
    This call will be your primary opportunity to discuss
    with me the reasons you disagree with the collection
    action and/or to discuss alternatives to the collection
    action.

       *       *       *        *       *       *         *

    If this time is not convenient for you, the phone
    number has changed, or you would prefer your conference
    to be held by face-to-face at the Appeals office clos-
    est to your current residence, the school you attend or
    your place of employment or if you are a business, your
    business address, or by correspondence, please let me
    know within fourteen (14) days from the date of this
    letter. I will discuss with you if there are any
    offices that may be more convenient for you (e.g.,
    Appeals office nearest place of employment or school)
    when you contact me.

       *       *       *        *       *       *         *

    During the hearing, I must consider:

           •   Whether the IRS met all the requirements of
               any applicable law or administrative proce-
               dure

           •   Any relevant issues you wish to discuss.
               These can include:

               1.   Collection alternatives to levy such as
                    full payment of the liability, install-
                    ment agreement, offer in compromise or
                    temporary suspension of collection ac-
                    tion if the action imposes a hardship
                    condition. * * *
                          - 7 -

           2.   Challenges to the appropriateness of
                collection action. * * *

           3.   Spousal defenses, when applicable.

      •    We may also consider whether you owe the
           amount due, but only if you have not other-
           wise had an opportunity to dispute it with
           Appeals or did not receive a statutory notice
           of deficiency.

      •    We will balance the IRS’ need for efficient
           tax collection and your legitimate concern
           that the collection action be no more intru-
           sive than necessary.

  *        *          *    *       *       *         *

Regarding the liability you are raising:

You are not able to dispute the liability because you
had a prior opportunity to do so when the lien was
filed in August 2006 for the same periods; therefore,
this issue cannot be disputed in Appeals.

How do you wish to resolve your liabilities? For me to
consider alternative collection methods such as an
installment agreement or offer in compromise, you must
provide any items listed below. In addition, you must
have filed all federal tax returns required to be
filed.

      1.   Collection alternative(s).

      2.   A completed Collection Information Statement
           (Form 433-A for individuals and/or Form 433-B
           for businesses) including all required at-
           tachments.

      3.   Form 656

      4.   The $150 application fee of Form 656-A, In-
           come Certification for Offer in Compromise
           Application (OIC) Fee and Payments.

      5.   Verification of the 20 percent payment with
           the lump sum offer, or a signed Form 656-A.
                                 - 8 -

          6.      Verification of the first installment payment
                  on a periodic payment offer, or a signed Form
                  656-A.

          7.      A current statement of all investments, in-
                  cluding borrowing terms.

     On March 20, 2007, the settlement officer held a telephonic

conference (March 20, 2007 conference) with petitioner.      During

that conference, petitioner claimed that he did not owe any tax.

The settlement officer informed petitioner during the March 20,

2007 conference that he was not entitled to challenge the respec-

tive underlying tax liabilities for his taxable years 2000, 2001,

and 2002 because he had had a prior opportunity to dispute those

liabilities (1) when he received the notice of deficiency for

2000, 2001, and 20023 and (2) when he received the notice of tax

lien with respect to those years.    During the March 20, 2007

conference, the settlement officer also informed petitioner that

she could consider ways to resolve petitioner’s unpaid liabili-

ties for 2000, 2001, and 2002, but petitioner stated that he was

not interested.    The settlement officer asked petitioner during

that conference if he had submitted any of the information

requested in the settlement officer’s February 27, 2007 letter.

Petitioner replied that he had not.      The settlement officer

advised petitioner during the March 20, 2007 conference that she



     3
      Petitioner did not dispute during the March 20, 2007 con-
ference, and does not dispute here, that he received the notice
of deficiency for 2000, 2001, and 2002.
                               - 9 -

intended to issue a notice of determination with respect to

petitioner’s unpaid liabilities for 2000, 2001, and 2002 in which

she would sustain the notice of intent to levy.

     On April 5, 2007, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination) with respect

to petitioner’s taxable years 2000, 2001, and 2002.   That notice

stated in pertinent part:   “Relief from the proposed levy is

denied.”

     The notice of determination included an attachment that

stated in pertinent part:

                   SUMMARY AND RECOMMENDATION

     You requested a Collection Due Process (CDP) hearing
     under Internal Revenue Code § 6330 as a result of
     receiving Letter 11, Final Notice, Notice of Intent to
     Levy and Notice of Your Right to a Hearing. You failed
     to provide financial information as requested; there-
     fore no alternative means of collection is available to
     you.

     Appeals determination is that relief is not granted
     from the levy action. No relief can be granted because
     you failed to propose an acceptable collection resolu-
     tion.

                        BRIEF BACKGROUND

     You requested a Collection Due Process (CDP) hearing
     under Internal Revenue Code § 6330 as a result of
     receiving Letter 11, Final Notice, Notice of Intent to
     Levy and Notice of Your Right to a Hearing.

     Your Form 1040, Individual Income Tax Return for tax
     years ending December 31, 2000, December 31, 2001 and
     December 31, 2002 were filed for you through the Sub-
     stitute for Return Program because you did not volun-
                         - 10 -

tarily file these returns.

A letter was mailed to you dated February 27, 2007
setting up a telephonic conference for March 20, 2007.
This letter requested collection alternatives and
financial information to determine your ability to pay.
This letter gave you the opportunity to have a face to
face hearing at the Appeals office closest to your
residence or by correspondence; however, you did not
request either.
The requested information was never received.

You called the Settlement Officer on March 20, 2007,
the day of the scheduled conference and agreed to
conduct your conference over the phone.

                 DISCUSSION and ANALYSIS

Under IRC § 6330(c)(2)(A) a person may raise at a
Collection Due Process hearing any relevant issue
relating to the unpaid tax or the proposed levy,
including-

     (i)     appropriate spousal defenses;

     (ii)    challenges to the appropriateness of
             collection actions; and

     (iii)   offers of collection alternatives, which
             may include the posting of a bond, the
             substitution of other assets, an
             installment agreement, or offer-in-
             compromise.

IRC § 6331(a) states that if any person liable to pay
any tax neglects or refuses to pay the same after
notice and demand, it shall be lawful for the Secretary
to collect such tax by levy upon all property and
rights to property belonging to such person. IRC
§ 6331(d) states a levy may be made after the Secretary
has notified such person in writing of his intention to
make such levy and the notice is required to be no less
than 30 days before the day of the levy.

Legal and Procedural Requirements:

     With the best information available, the require-
     ments of various applicable law or administrative
                        - 11 -

     procedures have been met.

     Verified through review of computer transcripts of
     your account:

     •    Assessments were made on the CDP notice
     periods per IRC § 6201.

     •    The notice and demand for payment letter was
          mailed to the last known address within 60
          days of the assessment, as required by IRC
          § 6303.

     •    There was a balance due when the CDP notice
          was issued per IRC § 6322 and 6331(a).

     •    There is no indication that you had a pending
          bankruptcy when the CDP notice was issued or
          that you currently have a pending bankruptcy.

     The Settlement Officer has not had any prior in-
     volvement regarding these liabilities under Col-
     lection Due Process in either a previous Appeals
     hearing or Collection activity.

Issues relating to the unpaid liability

     •    On your Form 12153, Request for a Collection
          Due Process Hearing, you indicated that you:

     •    You told the IRS in Omaha that most of the
          money came from your mother when she died and
          some came from gambling. They could not
          prove the money came from gambling and you
          cannot prove it came from your mother, so
          they just decided the money was gambling. No
          way could anyone win that much money at a
          casino with no casino record.

According to our records you previously received a CDP
Notice in August 2006 with respect to the same tax and
tax period under IRC § 6320 and did not request a CDP
hearing with respect to that earlier CDP Notice; there-
fore, you already had an opportunity to dispute the
existence or amount of the underlying tax liability.

Also, according to our records a Notice of Deficiency
letter was mailed to you. This letter informed you
                               - 12 -

     that the IRS determined that there was a deficiency
     (increase) in your tax for this year. This letter gave
     you the right to contest this determination in Tax
     Court, 90 days from the date of the letter. There is
     no indication that you petitioned the Tax Court or that
     you did not receive this notice. You failed to propose
     an acceptable collection resolution.

     If you want audit reconsideration, see enclosed Publi-
     cation 3598.

            •    You raised the liability issue.

            •    You presented no relevant challenges to the
                 appropriateness of the collection action.

            •    No other issues were raised.

     Balancing efficient tax collection with concern regard-
     ing intrusiveness:

     You did not provide the requested financial data neces-
     sary to make a determination concerning an alternate
     means of collection. Given the facts and circumstances
     of your case, the levy is the only means remaining to
     collect the tax. Therefore, it balances the need for
     efficient collection of taxes with a taxpayer’s legiti-
     mate concern that the collection action be no more
     intrusive than necessary. [Reproduced literally.]

     On May 8, 2007, petitioner filed a petition commencing this

case.    On June 26, 2007, petitioner filed an amended petition.

Petitioner alleged in the amended petition that he disagrees with

“the determination contained in the notice issued by the Internal

Revenue Service for the year(s) or period(s) 2000-2001 & 2003”.4


     4
      Although petitioner alleged in the amended petition that he
disagrees with “the determination contained in the notice issued
by the Internal Revenue Service for the year(s) or period(s)
2000-2001 & 2003”, the notice of determination that respondent
issued to petitioner and that petitioner attached to the petition
and the amended petition pertains to petitioner’s taxable years
                                                   (continued...)
                                - 13 -

In the amended petition, petitioner further alleged in pertinent

part:     “I ALSO REALIZE THAT IRS IS RELUTANT [sic] TO SPEND AS

MUCH TIME AS THEY DID TO PROVE THEIR CASE (WHICH THEY HAVE NOT)

BECAUSE THEY MIGHT BE REPRIMANDED FOR NOT DROPPING THE CASE.

THAT WOULD ALSO TAKE AWAY (1) ONE ATTABOY [sic].”

                              Discussion

     The Court may grant summary judgment where there is no

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

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 are no genuine issues of material fact

regarding the questions raised in respondent’s motion.

     Petitioner did not file a petition with the Court with

respect to the notice of deficiency for 2000, 2001, and 2002.

Where, as is the case here, the validity of the underlying tax

liability is not properly placed at issue, the Court will review

the determination of the Commissioner of Internal Revenue for

abuse of discretion.     Sego v. Commissioner, 114 T.C. 604, 610

(2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000).

        Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

making the determinations in the notice of determination with



     4
      (...continued)
2000, 2001, and 2002, and not 2003.
                             - 14 -

respect to petitioner’s taxable years 2000, 2001, and 2002.

     We have considered all of the parties’ contentions and

arguments that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     On the record before us, we shall grant respondent’s motion.

     To reflect the foregoing,


                                      An order granting respondent’s

                                 motion and decision for respondent

                                 will be entered.
