                           T.C. Summary Opinion 2012-89



                          UNITED STATES TAX COURT



                  WILLIAM M. HIRSCH, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 24997-11S L.                        Filed September 11, 2012.



      Richard G. Reilly, Jr., for petitioner.

      Rachel L. Schiffman, for respondent.



                               SUMMARY OPINION


      RUWE, Judge: The petition in this case was filed pursuant to the provisions

of section 74631 of the Internal Revenue Code. Pursuant to section 7463(b), the


      1
       Unless otherwise indicated, all section references are to the Internal Revenue
Code as amended, and all Rule references are to the Tax Court Rules of Practice
and Procedure.
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decision to be entered is not reviewable by any other court, and this opinion shall

not be treated as precedent for any other case. This matter is before the Court on

respondent’s motion for summary judgment (motion) pursuant to Rule 121.

Respondent contends that no genuine issue exists as to any material fact and that the

determination to maintain a notice of Federal tax lien (NFTL) filed under section

6323 should be sustained. Petitioner has not responded to the motion, despite an

order from this Court instructing him to do so.2

                                      Background

      At the time the petition was filed, petitioner resided in New York.

      On October 15, 2010, respondent filed the NFTL regarding petitioner’s

unpaid liabilities for section 66723 penalties for the periods ending June 30,

September 30, and December 31, 2005, and March 31, 2006 (periods at issue).

Respondent sent petitioner a Notice of Federal Tax Lien Filing and Your Right to a

Hearing Under IRC 6320, dated October 14, 2010, advising petitioner that an NFTL

had been filed with respect to his unpaid liabilities for the periods at issue and that

      2
       By order dated June 12, 2012, the Court directed petitioner to file a response
on or before July 12, 2012. No response was filed by petitioner.
      3
       Under sec. 6672 “the officers or employees of the employer responsible for
effectuating the collection and payment of trust-fund taxes who willfully fail to do so
are made personally liable to a ‘penalty’ equal to the amount of the delinquent
taxes.” Slodov v. United States, 436 U.S. 238, 244-245 (1978).
                                         -3-

he could request a hearing with respondent’s Office of Appeals. Petitioner timely

submitted a Form 12153, Request for a Collection Due Process or Equivalent

Hearing, in which he did not contest the underlying liabilities but instead requested

an installment agreement and an offer-in-compromise. By letter dated January 18,

2011, respondent’s settlement officer acknowledged receipt of petitioner’s

collection due process (CDP) hearing request and scheduled a telephone conference

for February 14, 2011. In the letter the settlement officer requested that petitioner

provide a completed Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals, and Form 656, Offer in Compromise, so

that a decision could be made regarding petitioner’s request for an installment

agreement and an offer-in-compromise.

      On February 22, 2011, the Internal Revenue Service (IRS) received

petitioner’s Form 433-A, Form 656, and Form 656-A, Income Certification for Offer

in Compromise Application Fee and Payment. The settlement officer sent

petitioner’s Form 656 to the IRS’ Centralized Offer in Compromise (COIC) unit for

review. In a letter dated March 21, 2011, the COIC unit informed petitioner that the

Form 656 he submitted was missing information and that he had to provide the

requested information within 30 days of the letter. In a letter dated May 10, 2011,

the COIC unit informed petitioner that because he did not provide the requested
                                          -4-

financial information, the offer-in-compromise would be returned to the settlement

officer.

       On June 10, 2011, the IRS received petitioner’s revised offer-in-compromise.

On August 5, 2011, the settlement officer faxed to petitioner’s counsel worksheets

showing that petitioner had the ability to pay the liabilities for section 6672

penalties. The settlement officer requested that petitioner’s counsel review the

worksheets and respond with any additional information by August 12, 2011. The

settlement officer also called petitioner’s counsel on August 5, 2011, and left a

voice mail message. Petitioner’s counsel did not respond to the settlement officer’s

facsimile or the voice mail message. On August 22, 2011, the settlement officer left

another voice mail message with petitioner’s counsel stating that if no response was

received by August 26, 2011, the case would be closed. As of September 8, 2011,

petitioner’s counsel had not responded to the settlement officer’s facsimile or the

voice mail messages.

       Respondent issued petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330, dated September 22, 2011,

determining that respondent had followed all legal and procedural requirements in

the filing of the NFTL and that the NFTL was appropriate.

       Petitioner timely filed a petition with this Court.
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                                      Discussion

      Summary judgment is intended to expedite litigation and to avoid

unnecessary and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862

(1974). Summary judgment may be granted where the pleadings and other

materials show that there is no genuine dispute as to any material fact and that a

decision may be rendered as a matter of law. Rule 121(a); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). The

burden is on the moving party to demonstrate that no genuine dispute as to any

material fact remains and that he is entitled to judgment as a matter of law. FPL

Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75 (2001). In all cases, the

evidence is viewed in the light most favorable to the nonmoving party. Bond v.

Commissioner, 100 T.C. 32, 36 (1993). However, the nonmoving party is required

“to go beyond the pleadings and by * * * [his] own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on file,’ designate

‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986); see also Rauenhorst v. Commissioner, 119 T.C.

157, 175 (2002); FPL Grp., Inc. & Subs. v. Commissioner, 115 T.C. 554, 559

(2000). Petitioner failed to respond to the motion and has failed to demonstrate
                                          -6-

that there is a genuine dispute for trial.4 Consequently, we conclude that there is no

dispute as to any material fact and that a decision may be rendered as a matter of

law.

       Section 6321 provides that if any person liable to pay any tax neglects or

refuses to do so after demand, the amount shall be a lien in favor of the United

States upon all property and rights to property, whether real or personal, belonging

to such person. Section 6323 authorizes the Commissioner to file an NFTL.

Pursuant to section 6320(a) the Commissioner must provide the taxpayer with notice

of and an opportunity for an administrative review of the propriety of the NFTL

filing. See Katz v. Commissioner, 115 T.C. 329, 333 (2000). If a taxpayer requests

a CDP hearing, he may raise at that hearing any relevant issue relating to the unpaid

tax or the lien. Sec. 6330(c)(2). Relevant issues include possible alternative means

of collection such as an installment agreement or an offer-in-compromise. Sec.

6330(c)(2)(A)(iii).

       If a taxpayer’s underlying liability is properly at issue, the Court reviews any

determination regarding the underlying liability de novo. Goza v. Commissioner,




       4
        By failing to respond to the assertions in the motion, petitioner waived his
right to contest them. See Rule 121(d); Lunsford v. Commissioner, 117 T.C. 183,
187 (2001); Akonji v. Commissioner, T.C. Memo. 2012-56, 2012 Tax Ct. Memo
LEXIS 49, at *6.
                                          -7-

114 T.C. 176, 181-182 (2000). Petitioner has the burden of proof regarding his

underlying liabilities. See Rule 142(a). A taxpayer is precluded from disputing the

underlying liability if it was not properly raised in the CDP hearing. See Giamelli v.

Commissioner, 129 T.C. 107, 114 (2007). Petitioner did not raise his underlying

liabilities for section 6672 penalties in his request for a CDP hearing. In his petition

he made no specific allegations or arguments regarding the correctness of the

underlying liabilities, and he failed to file any response to the motion.

Consequently, petitioner’s underlying liabilities are not properly before the Court.

      The Court reviews administrative determinations by the Commissioner’s

Office of Appeals regarding nonliability issues for abuse of discretion. Hoyle v.

Commissioner, 131 T.C. 197, 200 (2008); Goza v. Commissioner, 114 T.C. at 182.

The determination of the Office of Appeals must take into consideration: (1) the

verification that the requirements of applicable law and administrative procedure

have been met; (2) issues raised by the taxpayer; and (3) whether any proposed

collection action balances the need for the efficient collection of taxes with the

legitimate concern of the person that any collection be no more intrusive than

necessary. Secs. 6320(c), 6330(c)(3); see also Lunsford v. Commissioner, 117
                                          -8-

T.C. 183, 184 (2001). We note that the settlement officer properly based the

determination on the factors required by section 6330(c)(3).

      Generally, it is not an abuse of discretion for the settlement officer to deny a

taxpayer’s request for an offer-in-compromise or an installment agreement when the

taxpayer does not provide collection information requested by the settlement officer.

See Olsen v. United States, 414 F.3d 144, 154 (1st Cir. 2005); Sapp v.

Commissioner, T.C. Memo. 2006-104, 2006 Tax Ct. Memo LEXIS 105, at *30.

The settlement officer requested that petitioner’s counsel provide information on

petitioner’s ability to pay his liabilities. Petitioner’s counsel did not provide the

requested information. “In the absence of the requested information, respondent’s

settlement officer did not abuse her discretion in denying petitioner’s request for

collection alternatives.” Yoel v. Commissioner, T.C. Memo. 2012-222, at *8 (citing

Wright v. Commissioner, T.C. Memo. 2012-24, 2012 Tax Ct. Memo LEXIS 25, at

*7-*8). As a result, respondent’s determination is sustained.

      To reflect the foregoing,

                                                       An appropriate order will be

                                                issued granting respondent’s motion,

                                                and decision will be entered for

                                                respondent.
