                              T.C. Memo. 2015-245



                         UNITED STATES TAX COURT



                    GENE HAWKINS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 20408-14L.                        Filed December 21, 2015.


      Gene Hawkins, pro se.

      Andrew K. Glover, for respondent.



                           MEMORANDUM OPINION


      LAUBER, Judge: In this collection due process (CDP) case, petitioner

seeks review pursuant to section 6330(d)(1)1 of the determination by the Internal

Revenue Service (IRS or respondent) to uphold a notice of intent to levy. Respon-


      1
       All statutory references are to the Internal Revenue Code in effect at all
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure. We round all monetary amounts to the nearest dollar.
                                           -2-

[*2] dent has moved for summary judgment under Rule 121, contending that there

are no disputed issues of material fact and that his determination to sustain the

proposed collection action was proper as a matter of law. We agree and

accordingly will grant the motion.

                                      Background

       The following facts are based on the parties’ pleadings and respondent’s

motion, including the attached affidavits and exhibits. Petitioner resided in Mary-

land when he filed his petition.

       Petitioner filed delinquent Federal income tax returns for tax years 2003

through 2012 and did not pay the tax shown as due. The IRS subsequently made

tax assessments against him. On March 24, 2014, in an effort to collect these

unpaid liabilities, the IRS sent petitioner a Final Notice of Intent to Levy and

Notice of Your Right to a Hearing. On April 23, 2014, petitioner timely submitted

a Form 12153, Request for a Collection Due Process or Equivalent Hearing. In his

request petitioner stated that he could not pay the balances owed and sought a

collection alternative in the form of an installment agreement or an offer-in-

compromise. Petitioner did not indicate an intention to challenge his underlying

tax liability for any of the tax years at issue.
                                        -3-

[*3] Immediately after receiving petitioner’s case, a settlement officer (SO) from

the IRS Appeals Office reviewed his administrative file and confirmed that the tax

liabilities in question had been properly assessed and that all other requirements of

applicable law and administrative procedure had been met. On May 29, 2014, the

SO sent petitioner a letter scheduling a telephone CDP hearing for July 9, 2014.

The SO informed petitioner that, in order for her to consider a collection

alternative, he had to provide her, by June 19, 2014, a completed Form 433-A,

Collection Information Statement for Wage Earners and Self-Employed

Individuals, and Form 656-B, Offer in Compromise, together with supporting

financial information. The SO emphasized in her letter that she could not consider

a collection alternative unless petitioner supplied the completed forms and

information to her.

      Petitioner provided none of the requested documentation before the CDP

hearing. He participated in that hearing, during which the SO reiterated that she

could not consider a collection alternative without those documents. Petitioner

acknowledged that he had not sent the SO any of the requested documents, and

there is no evidence that he requested additional time to do so. Petitioner noted

that he previously had an installment agreement under which he was to pay the

IRS $50 per month and asked why it had been terminated. The SO explained that
                                        -4-

[*4] this agreement had been terminated because significant new liabilities had

been added to the balances owed on his accounts. Petitioner did not raise during

the hearing any challenge to his underlying tax liabilities for 2003-2012.

      Because petitioner failed to submit the required financial information, the

SO determined that he was not eligible for a collection alternative. The SO ac-

cordingly closed the case and, on July 31, 2014, issued petitioner a Notice of

Determination Concerning Collection Action sustaining the proposed levy for the

ten tax years at issue.

      On August 28, 2014, petitioner timely petitioned this Court for review of

the notice of determination. In his petition he acknowledged that he had not sub-

mitted the required paperwork to the SO at the time of the CDP hearing but said

that he had the paperwork ready and “wished to make a compromise on taxes.”

      On August 21, 2015, respondent filed a motion for summary judgment. On

August 26, 2015, this Court ordered petitioner to respond. Our order informed

him that, if he disagreed with any facts stated in the IRS motion, he should point

out those factual issues. Our order also informed petitioner that failure to respond

would be grounds for granting respondent’s motion and entering judgment against

him. Petitioner did not respond to this Court’s order and has not otherwise

responded to the IRS motion for summary judgment.
                                        -5-

[*5]                                Discussion

A.     Summary Judgment

       The purpose of summary judgment is to expedite litigation and avoid costly,

time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90

T.C. 678, 681 (1988). Under Rule 121(b), the Court may grant summary judgment

when there is no genuine dispute as to any material fact and a decision may be

rendered as a matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In deciding whether to grant summary

judgment, we construe factual materials and inferences drawn from them in the

light most favorable to the nonmoving party. Id. However, the nonmoving party

may not rest upon mere allegations or denials but instead must set forth specific

facts showing that there is a genuine dispute for trial. Rule 121(d); see Sundstrand

Corp., 98 T.C. at 520.

       Because petitioner did not respond to the motion for summary judgment, we

could enter decision against him for that reason alone. See Rule 121(d). We will

nevertheless consider the motion on its merits. We conclude that no material facts

are in dispute and that this case is appropriate for summary adjudication.
                                         -6-

[*6] B.      Standard of Review

       Where (as here) there is no challenge to the amount of a taxpayer’s under-

lying tax liabilities for the years at issue,2 the Court reviews the IRS determination

for abuse of discretion. Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

Abuse of discretion exists when a determination is arbitrary, capricious, or without

sound basis in fact or law. See Murphy v. Commissioner, 125 T.C. 301, 320

(2005), aff’d, 469 F.3d 27 (1st Cir. 2006).

C.    Analysis

      The only question is whether the IRS properly sustained a proposed levy to

collect petitioner’s unpaid tax liabilities. We review the record to determine

whether the SO: (1) properly verified that the requirements of any applicable law

or administrative procedure have been met; (2) considered any relevant issues

petitioner raised; and (3) considered whether “any proposed collection action

balances the need for the efficient collection of taxes with the legitimate concern




      2
        Petitioner did not challenge his underlying tax liabilities during the CDP
hearing or in his petition to this Court. He is thus precluded from challenging
those liabilities here. Rule 331(b)(4) (“Any issue not raised in the assignments of
error shall be deemed to be conceded.”); see Thompson v. Commissioner, 140
T.C. 173, 178 (2013) (“A taxpayer is precluded from disputing the underlying
liability if it was not properly raised in the CDP hearing.”); sec. 301.6330-1(f)(2),
Q&A-F3, Proced. & Admin. Regs.
                                          -7-

[*7] of the person that any collection action be no more intrusive than necessary.”

Sec. 6330(c)(3).

        As to the first point, this Court has authority to review an SO’s satisfaction

of the verification requirement regardless of whether the taxpayer raised that issue

at the CDP hearing. See Hoyle v. Commissioner, 131 T.C. 197, 200-203 (2008).

However, petitioner did not allege in his petition that the SO failed to satisfy the

verification requirement. That issue is therefore deemed conceded. See Rule

331(b)(4) (“Any issue not raised in the assignments of error shall be deemed to be

conceded.”); Triola v. Commissioner, T.C. Memo. 2014-166, at *9-*10; Dinino v.

Commissioner, T.C. Memo. 2009-284. In any event, even if petitioner had

properly preserved this issue, he has set forth no specific facts showing that there

is a genuine issue for trial concerning the propriety of the assessments for 2003-

2012.

        At his CDP hearing petitioner was entitled to make offers of collection

alternatives, such as an offer-in-compromise or an installment agreement. Sec.

6330(c)(2) and (3). This right, however, carries with it certain obligations on the

taxpayer’s part. As provided in the regulations, “[t]axpayers will be expected to

provide all relevant information requested by * * * [the Appeals officer], including
                                          -8-

[*8] financial statements, for * * * [her] consideration of the facts and issues

involved in the hearing.” Sec. 301.6330-1(e)(1), Proced. & Admin. Regs.

      On his Form 12153 petitioner indicated that he could not pay the balances

due and expressed interest in an installment agreement or an offer-in-compromise.

Before the CDP hearing the SO asked petitioner to submit a completed Form 433-

A and Form 656 to enable her to consider collection alternatives. Petitioner ne-

glected to put any offer on the table and failed to submit the documentation

required for consideration of an offer.

      The SO provided petitioner ample time to submit the required documenta-

tion. Cf. Szekely v. Commissioner, T.C. Memo. 2013-227, at *9-*12. In her

response to petitioner’s request for a CDP hearing the SO asked petitioner to

provide these documents by June 19, 2014, three weeks after petitioner submitted

his request. Petitioner failed to supply any documentation by that date or during

the ensuing three weeks before the hearing on July 9, 2014. The SO waited an-

other three weeks before closing the case on July 31, 2014. Petitioner could have

asked the SO to afford him additional time to submit the documents, but he made

no such request and offered no excuse for his failure to timely provide the

information.
                                         -9-

[*9] We have consistently held that it is not an abuse of discretion for an Ap-

peals officer to reject collection alternatives and sustain the proposed collection

action where the taxpayer has failed to put a specific offer on the table and has

failed, after being given sufficient opportunities, to supply the SO with the re-

quired forms and supporting financial information. See Huntress v. Commis-

sioner, T.C. Memo. 2009-161; Prater v. Commissioner, T.C. Memo. 2007-241;

Roman v. Commissioner, T.C. Memo. 2004-20. We will accordingly grant sum-

mary judgment for respondent and affirm the proposed collection action as to all

tax years. Petitioner is advised that he is free to submit to the IRS an offer-in-

compromise on Form 656, supported by the necessary financial information, for

consideration by the IRS at any time.

      To reflect the foregoing,


                                                   An appropriate order and decision

                                          will be entered.
