                        T.C. Memo. 2007-13



                      UNITED STATES TAX COURT



               CLETUS GAYLON WATERS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1561-06L.            Filed January 17, 2007.



     Cletus Gaylon Waters, pro se.

     Melinda K. Fisher, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   This matter is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.1




     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.
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The issue we must decide is whether respondent’s Appeals Office

abused its discretion in determining to proceed with collection

of petitioner’s tax liability for taxable years 1997 and 1998.

                             Background

     At the time of filing the petition in the instant case,

petitioner resided in Leesburg, Virginia.

     On June 22, 1998, petitioner filed his 1997 tax return

jointly with Sharon Lee Waters (Mrs. Waters), showing tax due

of $12,095.2   Petitioner had withheld payments of $15,000, and

respondent issued petitioner and Mrs. Waters a refund of $2,905

on June 22, 1998.

     Respondent examined petitioner’s 1997 return and assessed

additional taxes on December 24, 2000, and November 3, 2003, of

$1,919, and $9,884, respectively.   On October 24, 2005, the

outstanding balance, including interest and penalties, for

petitioner’s 1997 tax year was $14,763.21.

     On November 29, 1999, petitioner filed his 1998 tax return

jointly with Mrs. Waters, showing tax due of $37,382.03.

Petitioner’s withholding for the 1998 year and payment submitted

with the return totaled $32,200.    On January 27, 2000, petitioner

made a subsequent payment toward his liability for his 1998

taxable year of $5,868.02.




     2
      Sharon Lee Waters is not a party to this case.
                                - 3 -

       On December 16, 2002, petitioner filed an amended return

for his 1998 taxable year.   On November 10, 2003, respondent

assessed additional taxes for petitioner’s 1998 taxable year of

$16,567.   On October 24, 2005, the outstanding balance, including

interest and penalties, for petitioner’s 1998 taxable year was

$20,720.51.

     On April 15, 2005, respondent sent petitioner and Mrs.

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

Hearing under IRC 6320 for taxable years 1997 and 1998.   On May

23, 2005, petitioner filed a Form 12153, Request for Collection

Due Process Hearing.

     By letter dated October 25, 2005, respondent’s Settlement

Officer, Mary Craca (Ms. Craca), informed petitioner that she had

been assigned to his case and set an appointment for a face-to-

face meeting in the Washington, D.C., Appeals Office at 1:00 p.m.

on November 8, 2005.    Ms. Craca also stated in the letter that,

for her to consider collection alternatives, petitioner must

submit a completed Form 433-A, Collection Information Statement

for Wage Earners and Self-Employed Individuals, and 2001, 2002,

and 2003 tax returns.

     On November 8, 2005, petitioner telephoned Ms. Craca and

left a message stating that he would not be able to attend the

hearing.   Ms. Craca returned petitioner’s telephone call later
                               - 4 -

that day, and they discussed petitioner’s tax accounts over the

telephone.   Petitioner agreed that he owed the liabilities for

taxable years 1997 and 1998 and did not dispute the accuracy of

the assessed amounts.   Petitioner likewise acknowledged that he

had not filed tax returns for 2001, 2002, and 2003.   Petitioner

stated that he had an appointment with a return preparer the week

of November 14, 2005.   Ms. Craca set a deadline of December 5,

2005, for petitioner to provide her with the returns.

     Ms. Craca did not receive any correspondence, tax returns,

or financial information from petitioner by December 5, 2005.

Ms. Craca verified that she had no prior involvement with the

unpaid taxes at issue and that all legal and procedural

requirements for proceeding with a lien had been met.   Ms. Craca

concluded that, because petitioner had not filed the required

returns and had not provided the requested financial information,

she could not consider collection alternatives.   Ms. Craca then

closed the case, sustaining the proposed lien.    Respondent sent

petitioner a Notice of Determination dated December 22, 2005.

     By letter dated January 16, 2006, petitioner’s probation

officer3 submitted a letter to the Court, requesting that

respondent schedule a redetermination hearing, which letter the




     3
      Petitioner spent 15 months in prison for filing fraudulent
tax returns and fraud. He is now on supervised release for a
term of 3 years.
                               - 5 -

Court filed as a petition in docket No. 1561-06L.     On January 24,

2006, the Court ordered petitioner to file an amended petition by

March 10, 2006.

     On February 1, 2006, petitioner filed a petition from the

Notice of Determination for taxable years 1997 and 1998, which

was designated as docket No. 2327-06L.    On February 17, 2006,

respondent moved that the case at docket No. 2327-06L be closed

on grounds of duplication.   On March 2, 2006, the Court closed

the case at docket No. 2327-06L and ordered that the petition in

that case become the amended petition in the instant case.    The

amended petition does not assign error to respondent’s

determination, stating that petitioner’s income is exclusively

from Social Security payments and he is disabled.

     On November 15, 2006, respondent filed the motion for

summary judgment.   The Court ordered petitioner to respond to

the motion by December 20, 2006; however, petitioner has failed

to do so.

                             Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials and may be granted where

there is no genuine issue of material fact and a decision may be

rendered as a matter of law.   Rule 121(a) and (b);    Fla. Peach

Corp. v. Commissioner, 90 T.C. 678, 681 (1988).     The moving party
                                 - 6 -

bears the burden of proving that there is no genuine issue of

material fact, and factual inferences are viewed in a light most

favorable to the nonmoving party.        Craig v. Commissioner, 119

T.C. 252, 260 (2002); Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985).   The party opposing summary judgment must set forth

specific facts that show that a genuine question of material fact

exists and may not rely merely on allegations or denials in the

pleadings.    Grant Creek Water Works, Ltd. v. Commissioner, 91

T.C. 322, 325 (1988); Casanova Co. v. Commissioner, 87 T.C. 214,

217 (1986).

     Section 6320(a)(1) requires the Secretary to give persons

liable to pay taxes written notice of the filing of a tax lien.

Section 6320(a)(3)(B) and (b)(1) provides that the notice shall

inform such persons of the right to request a hearing in

respondent’s Appeals Office.

     Section 6320(c) provides that an Appeals Office hearing

generally shall be conducted consistently with the procedures set

forth in section 6330(c), (d), and (e).       The Appeals officer must

verify at the hearing that the applicable laws and administrative

procedures have been followed.    Sec. 6330(c)(1).     At the hearing,

the person against whom the lien is made may raise any relevant

issues relating to the unpaid tax or the lien, including

appropriate spousal defenses, challenges to the appropriateness
                               - 7 -

of collection actions, and collection alternatives.   Sec.

6330(c)(2)(A).   The person may challenge the existence or amount

of the underlying tax, however, only if he did not receive any

statutory notice of deficiency for the tax liability or did not

otherwise have an opportunity to dispute the tax liability.     Sec.

6330(c)(2)(B).

     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.      Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 181-182 (2000).

     Petitioner has not challenged the underlying tax liability

in his petition or any other filing.   Accordingly, we review

respondent’s determination for abuse of discretion.

     During the Appeals hearing, the only issue petitioner raised

was the possibility of collection alternatives.   However,

petitioner failed to provide Ms. Craca with the requisite

documentation, including Form 433-A.   Additionally, petitioner

failed to file tax returns for taxable years 2001, 2002, and

2003.   Finally, petitioner never submitted a collection

alternative for Ms. Craca to consider.   On the basis of the
                                 - 8 -

foregoing, we hold that no genuine issue of material fact exists

requiring trial and that respondent is entitled to summary

judgment.   Accordingly, we hold that respondent’s determination

to sustain the lien was not an abuse of discretion.

     To reflect the foregoing,


                                              An appropriate order and

                                         decision will be entered.
