                        T.C. Memo. 2009-165



                      UNITED STATES TAX COURT



                KENNETH R. HURLEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 29669-07L.             Filed July 9, 2009.



     Kenneth R. Hurley, pro se.

     Denise A. DiLoreto, for respondent.



                        MEMORANDUM OPINION


     RUWE, Judge:   Pursuant to section 6330(d)(1),1 petitioner

seeks review of respondent’s determination to proceed with




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 2 -

collection by levy of petitioner’s 2003 unpaid income tax

liability.

     This case was set for trial on February 23, 2009.   On

November 13, 2008, respondent filed a motion for summary judgment

(motion) asserting that respondent had not abused his discretion

in sustaining the levy and that no genuine issue of material fact

remains for adjudication.   By order dated November 18, 2008, the

Court directed petitioner to file a response to the motion.

Petitioner did not file a response addressing the merits of the

motion but, instead, requested an additional 120 days to file a

response to the motion.   The Court denied petitioner’s request

for additional time to respond and calendared the motion for

hearing on February 23, 2009, which was also the date set for

trial.   Petitioner failed to appear on February 23, 2009.

                            Background

     The facts set forth below are based upon examination of the

pleadings, moving papers, and attachments.

     Petitioner resided in Kentucky at the time the petition was

filed.

     On August 22, 2005, respondent sent to petitioner, by

certified mail, a notice of deficiency in which respondent

determined a $757 deficiency and a $151 section 6662(a) accuracy-

related penalty regarding petitioner’s 2003 Federal income tax

liability.   Petitioner did not petition this Court with respect
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to the adjustments reflected in the notice of deficiency and, on

December 19, 2005, respondent assessed the deficiency and the

penalty.

     On June 12, 2007, respondent sent to petitioner a Letter

1058, Final Notice of Intent to Levy and Notice of Your Right to

a Hearing, regarding petitioner’s unpaid 2003 tax liability.

Petitioner responded, submitting to respondent a Form 12153,

Request for a Collection Due Process or Equivalent Hearing,

wherein he requested an installment agreement as a collection

alternative.   By letter dated October 4, 2007, Settlement Officer

Veronica Smith (SO Smith) advised petitioner that his hearing

request had been received, that the hearing was set for November

6, 2007, and that he had to complete Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals, and submit yet unfiled tax returns for 2000 and 2004

within 14 days of the letter in order for her to consider

collection alternatives.

     At the hearing SO Smith was unable to consider collection

alternatives because petitioner neither completed Form 433-A nor

submitted tax returns for 2000 and 2004.   During the hearing

petitioner attempted to contest underlying tax liabilities for

multiple tax periods (including tax year 2003) but was told by SO

Smith that he was precluded from raising the underlying tax

liability because, as he had admitted to her, he received the
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notice of deficiency.   SO Smith verified that the requirements of

applicable law and administrative procedures had been met by

verifying that the notice of deficiency for 2003 had been issued;

verifying the timeliness of the assessment of the deficiency

reflected in the notice; verifying that the period of limitations

on collection of the liability had not expired; and verifying

that the appropriate collection notices had been sent to

petitioner.   Following the hearing, respondent sent to petitioner

a Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, dated November 20, 2007, sustaining the

notice of intent to levy for the 2003 unpaid tax liability.

     Petitioner timely filed a petition contesting the notice of

determination regarding the unpaid tax and penalty for 2003.     In

the petition, petitioner indicated that he disputed the amount of

tax owed and wanted to present a payment plan.

                            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 as to any material fact

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

and (b); see also Sundstrand Corp. v. Commissioner, 98 T.C. 518,

520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Naftel v.

Commissioner, 85 T.C. 527, 529 (1985).    The moving party bears
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the burden of proving that there is no genuine issue of material

fact, and factual inferences will be read in a manner most

favorable to the party opposing summary judgment.     Dahlstrom v.

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

supra at 529.   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).    The motion, however, must be granted “if the Court

is satisfied that no real factual controversy is present so that

the remedy can serve ‘its salutary purpose in avoiding a useless,

expensive and time consuming trial where there is no genuine,

material fact issue to be tried.’”      Casanova Co. v. Commissioner,

87 T.C. 214, 217 (1986) (quoting Lyons v. Bd. of Educ., 523

F.2d 340, 347 (8th Cir. 1975)).

     Where the validity of the underlying tax liability is

properly at issue, the Court will review the matter on a de novo

basis.   Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

Where the validity of the underlying tax liability is not

properly at issue, however, the Court will review the

Commissioner’s administrative decision for abuse of discretion.

Id. at 182.

     Section 6330(c)(2)(A) prescribes the issues that may be

raised by a taxpayer in a collection due process hearing,
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including spousal defenses to collection, challenges to the

appropriateness of the Commissioner's intended collection action,

and offers of alternative means of collection.   Section

6330(c)(2)(B) provides that a person may “raise at the hearing

challenges to the existence or amount of the underlying tax

liability for any tax period if the person did not receive any

statutory notice of deficiency for such tax liability or did not

otherwise have an opportunity to dispute such tax liability.”

     Respondent’s case activity record attached to the motion

indicates that petitioner told SO Smith that he had received the

notice of deficiency.   Although he now contests the underlying

tax liability, petitioner has neither denied that he received the

notice of deficiency nor denied any other allegations in the

motion.   Thus we find that petitioner received the notice of

deficiency for the tax year 2003 but did not avail himself of the

opportunity to file a petition for redetermination with the Court

pursuant to section 6213(a).   In accordance with section

6330(c)(2)(B), petitioner therefore was precluded from contesting

the validity of the underlying tax liability during his

collection due process hearing and likewise is precluded from

raising the issue anew in this proceeding.   See Goza v.

Commissioner, supra at 182-183.

     Petitioner presented no information on which to base any

collection alternatives.   Petitioner presented nothing to refute
                                 - 7 -

the facts presented in the motion and failed to appear at the

time and place which this Court set for hearing on the motion and

for trial.   Accordingly, no genuine issue remains for trial, and

we shall grant the motion.

     To reflect the foregoing,

                                              An appropriate order and

                                         decision will be entered.
