                   T.C. Summary Opinion 2009-199



                      UNITED STATES TAX COURT



                  AISTE K. GUDEN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 29911-08S.              Filed December 29, 2009.



     Aiste K. Guden, pro se.

     Mark S. Schwarz, for respondent.



     GERBER, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986 as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

this opinion shall not be treated as precedent for any other

case.

     Respondent notified petitioner of the intent to file notices

of Federal tax lien and to proceed by levy with collection of

petitioner’s 2004 and 2005 income tax liabilities.    Petitioner

sought administrative review and subsequently petitioned this

Court for relief from respondent’s determination to proceed with

collection.   After this case had been calendared for trial at the

October 26, 2009, Las Vegas, Nevada, trial session of this Court

respondent filed a motion for summary judgment, which was

calendared for a hearing at the trial session.    Petitioner did

not respond to respondent’s motion or appear at the scheduled

hearing.   The question we consider is whether there was an abuse

of discretion in respondent’s determination to proceed with

collection activity.

                             Background

     Respondent sent petitioner, for her 2004 and 2005 tax years,

a notice of intent to levy and a notice of Federal tax lien on

February 25 and April 4, 2008, respectively.    Petitioner sought a

hearing with respect to both notices, and a single hearing was

scheduled for both.    Respondent issued one determination

approving the filing of the notices and decision to proceed with

collection and petitioner timely petitioned this Court to

commence this collection proceeding (collection case).
                                - 3 -

     For 2004 and 2005 petitioner filed Federal income tax

returns reflecting a self-assessed and unpaid tax liability for

each year.   Respondent audited both returns and on August 11,

2008, issued notices of deficiency in income tax from which

petitioner filed one single petition to commence a deficiency

proceeding in this Court, which has been designated docket No.

29843-08S (deficiency case).2   The collection and deficiency cases

were placed on this Court’s October 26, 2009, trial session at

Las Vegas, Nevada.   Petitioner failed to appear at the trial

session, and respondent filed a motion to dismiss for lack of

prosecution in the deficiency case.     Subsequently, on November

12, 2009, the Court granted respondent’s motion in the deficiency

case and entered an order of dismissal and decision with respect

to the income tax deficiencies for 2004 and 2005.

     In seeking an administrative hearing regarding collection,

petitioner explained that her reason was that she “disputes the

underlying liability * * * [and that she] cannot afford to pay

the liability and wishes it to be shown as currently not

collectible.”   Petitioner was contacted by the Appeals Office

during May and June 2008 regarding her request for a hearing.       On

July 1, 2008, the settlement officer sent petitioner a letter


     2
      As explained later, petitioner filed for bankruptcy during
July 2008. It is noted that the issuance of the notices of
deficiency was not affected by the bankruptcy proceeding.
Petitioner’s time to file a petition, however, was suspended by
sec. 6213(f) and 11 U.S.C. sec. 362(a)(8) (2006).
                               - 4 -

setting July 31, 2008, for a face-to-face hearing and requested

that petitioner complete and submit a Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals, to assist in the hearing process.   On July 1, 2008,

petitioner filed for chapter 13 bankruptcy protection in the

U.S. District Court for the District of Nevada, and the

administrative collection process and the hearing were suspended

during the pendency of the bankruptcy proceeding.   Petitioner’s

bankruptcy case was dismissed on September 22, 2008, no discharge

was issued, and petitioner’s 2004 and 2005 self-assessed tax

liabilities remained outstanding and unsatisfied.

     On September 26, 2008, respondent proposed an October 29,

2008, hearing date.   Petitioner’s representative advised

respondent on October 28, 2008, that he no longer represented her

and that he would advise petitioner of the hearing date.

Petitioner did not appear for the October 29, 2008, hearing.     On

October 29, 2008, petitioner was sent notification of a new

hearing date, November 13, 2008, but petitioner did not appear

for that scheduled hearing.   The settlement officer issued a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 on November 26, 2008, from which

petitioner sought review by this Court.
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                            Discussion

     Summary judgment may be granted when 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).       The opposing

party cannot rest upon mere allegations or denials in his

pleadings.   Rule 121(d).   The moving party bears 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); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).   There is no dispute about the facts in this case, and it

is ripe for resolution, as a matter of law, by means of summary

judgment.

     Petitioner filed returns for 2004 and 2005 and reported

income tax due but did not pay it.       Following an audit

examination respondent issued notices of deficiency for the same

tax years, and petitioner petitioned this Court with respect to

those determinations.   Petitioner had the opportunity to question

the underlying merits of respondent’s deficiency determinations

but failed to come forward, and a decision was entered in the

deficiency case with respect to the income tax as determined in

respondent’s notices of deficiency.
                                - 6 -

     The summary judgment motion we consider concerns

respondent’s collection activity for the self-assessed tax

liabilities.    Regarding the self-assessed and unpaid tax

liabilities for 2004 and 2005, petitioner raised the underlying

merits of those assessments and explained that she could not pay

the tax liabilities (apparently, she was seeking collection

alternatives).    Petitioner was afforded two separate

opportunities for a face-to-face meeting regarding respondent’s

proposed collection activity.    She did not attend either

scheduled meeting, nor did she submit the requested Form 433-A so

that the settlement officer could consider collection

alternatives.    Petitioner’s failure to come forward and/or to

raise the question of the underlying merits of her self-assessed

tax liabilities is of her own doing and is not an abuse of

discretion on respondent’s part.    See Giamelli v. Commissioner,

129 T.C. 107 (2007).   Accordingly, and because petitioner had

opportunities to question the merits of the underlying

liabilities and did not, we consider respondent’s actions under

an abuse of discretion standard.   See sec. 6330(c)(2)(B);    Goza

v. Commissioner, 114 T.C. 176 (2000).

     In general, petitioner’s failure to come forward and to

present her position results in no abuse of discretion by

respondent in sustaining the decision to approve the action of

filing the notices of lien and to go forward with collection
                                - 7 -

activity by levy.    Respondent also offered petitioner the

opportunity to present financial information so that collection

alternatives could be considered.    Petitioner failed to submit

any information.    It appears, from the affidavit supplied by

respondent and the determination letter, that the settlement

officer considered the verification requirements.    The settlement

officer also considered the issues petitioner raised and whether

the proposed collection action balanced the need for efficient

collection with any legitimate concerns of petitioner.

     Under these circumstances, respondent’s motion for summary

judgment will be granted, and the determination approving the

filing of lien notices and to proceed with collection was not an

abuse of discretion.    To reflect the foregoing,


                                          An appropriate order and

                                     decision will be entered.
