                        T.C. Memo. 2008-205



                      UNITED STATES TAX COURT



                  VALDY OLENDER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 1082-06L, 21969-06L.    Filed August 28, 2008.



     Valdy Olender, pro se.

     Lauren B. Epstein, for respondent.



                        MEMORANDUM OPINION

     SWIFT, Judge:   These consolidated matters are before us

under Rule 121 on respondent’s motion for summary judgment.

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.
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     Respondent moves for summary judgment as to petitioner’s

challenges to respondent’s lien filing and proposed levy relating

to petitioner and his wife’s outstanding Federal income tax

liability for 1999 in the approximate total amount of $20,700.

Petitioner objects to respondent’s motion for summary judgment

and contends that respondent failed to assess petitioner and his

wife’s 1999 Federal income tax liability within the assessment

period of limitations set out in section 6501.   Petitioner also

challenges generally the amount of his and his wife’s 1999

Federal income tax liability as determined by respondent.    For

the reasons stated, we will grant respondent’s motion for summary

judgment.

                           Background

     The facts set forth below are established in the pleadings,

moving papers, responses thereto, and attachments.

     In 1999 petitioner and his wife received wages in the

approximate total amount of $72,500.

     On April 15, 2000, petitioner and his wife filed with

respondent a 1999 joint Federal income tax return reporting zero

in wages and zero for their taxable income, which respondent

treated as a valid return for filing purposes.

     On November 21, 2001, and after an audit of petitioner and

his wife’s 1999 Federal income tax return, respondent did not

charge petitioner and his wife with the above $72,500 in wage
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income, but respondent did determine a deficiency in petitioner

and his wife’s 1999 Federal income tax of $518.    Respondent

timely mailed to petitioner and his wife and they received a

notice of deficiency (first notice of deficiency) for this

additional $518.    Neither petitioner nor his wife filed a

petition in this Court with regard to the first notice of

deficiency, and on May 6, 2002, respondent assessed against

petitioner and his wife the $518.

     On May 29, 2003, respondent mailed to petitioner and his

wife a second notice of deficiency, which they received.      In the

second notice of deficiency respondent charged petitioner and his

wife with the $72,500 in wage income which petitioner and his

wife had omitted from their 1999 joint Federal income tax return

(and which respondent had not included in the first notice of

deficiency), resulting in an additional $11,169 deficiency in

petitioner and his wife’s Federal income taxes for 1999.      Neither

petitioner nor his wife filed a petition in this Court with

regard to the second notice of deficiency, and on October 22,

2003, respondent assessed against petitioner and his wife the

$11,169.

     On June 7, 2005, respondent timely mailed to petitioner and

his wife a notice of Federal tax lien relating to the October 22,

2003, assessment.    On July 5, 2005, petitioner requested an

Appeals Office collection hearing relating thereto.    In
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connection with this hearing, petitioner did not provide

respondent with the financial information which respondent

requested.   Petitioner did challenge the assessment as untimely.

     On December 16, 2005, respondent’s Appeals Office mailed to

petitioner and his wife a notice of determination sustaining

respondent’s lien filing against them.   On January 13, 2006,

petitioner filed with this Court his petition challenging

respondent’s determination sustaining respondent’s lien filing.

     On February 10, 2006, respondent timely mailed to petitioner

and his wife a final notice of intent to levy relating to the

October 22, 2003, assessment.   On March 7, 2006, petitioner

requested an Appeals Office hearing relating to respondent’s

proposed levy.   In connection with this hearing, petitioner

submitted to respondent’s Appeals Office limited financial

information.   On September 28, 2006, respondent’s Appeals Office

mailed to petitioner and his wife a notice of determination

sustaining respondent’s proposed levy.

     On October 30, 2006, petitioner filed with this Court his

petition challenging respondent’s Appeals Office’s determination

sustaining respondent’s levy.


                            Discussion

     Petitioner contends that respondent’s October 22, 2003,

assessment of petitioner’s 1999 Federal income tax liability was

not made within the assessment period of limitations prescribed
                               - 5 -
by section 6501.   A taxpayer’s contention, however, that an

assessment period of limitations lapsed before the Commissioner

made an assessment against the taxpayer constitutes a challenge

to the underlying tax liability.   In a collection case under

section 6320 or section 6330, a taxpayer is not permitted to

challenge his underlying Federal income tax liability if he or

she had a prior opportunity to do so.   Hoffman v. Commissioner,

119 T.C. 140, 145 (2002); Hoffenberg v. Commissioner, T.C. Memo.

2008-139 n.4; see also Boyd v. Commissioner, 117 T.C. 127, 130

(2001); MacElvain v. Commissioner, T.C. Memo. 2000-320.

     Upon receipt of respondent’s first and second notices of

deficiency petitioner had the opportunity to challenge his wife’s

joint 1999 Federal income tax liability.   Petitioner did not file

a petition in this Court within the 90-day period prescribed by

section 6213(a).   Petitioner is now barred in this case from

challenging his and his wife’s joint Federal income tax liability

for 1999 and from raising any issue as to the timeliness of

respondent’s assessment.

     Generally under section 6501 the Commissioner has 3 years

from the time a taxpayer files a Federal income tax return to

assess a deficiency.   Petitioners’ joint 1999 Federal income tax

return--which respondent treated as a valid return--was filed

April 15, 2000, and the 3-year period for assessment would have

expired on April 15, 2003.
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     Section 6503(a)(1), however, provides that the running of

the 3-year assessment period of limitations under section 6501

will “be suspended for the period during which the Secretary is

prohibited from making the assessment * * * and for 60 days

thereafter”, and section 6213(a) provides that after the

Commissioner mails a notice of deficiency to a taxpayer, no

assessment of the tax deficiency shall be made during the 90-day

period during which the taxpayer may file a petition in this

Court.

     Accordingly, under section 6213(a) respondent was barred

from making any assessment for each of the 90-day periods

immediately following respondent’s mailing to petitioner of the

first and the second notices of deficiency, dated November 21,

2001, and May 29, 2003, respectively.   Thus under section 6503

the running of the 3-year assessment period of limitations was

suspended for 180 days plus an additional 120 days.   Respondent’s

two notices of deficiency resulted in a total 300-day extension

in the assessment period of limitations running against

respondent and in favor of petitioner and his wife relating to

their 1999 Federal income taxes.

     This 300-day extension established a lapse date for the

assessment period of limitations that is applicable to this case
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                       1
of February 9, 2004.       Respondent’s October 22, 2003, assessment

falls well within this extended period of limitations.

     Petitioner raises several other vague grounds for

challenging respondent’s Appeals Office’s determination

sustaining respondent’s lien filing and proposed levy.

Petitioner contends that he did not receive fair Appeals Office

hearings and that he was denied an installment plan for payment

of his Federal income taxes.2

     Summary judgment is proper where there remains no genuine

issue of material fact and where the moving party is entitled to

judgment as a matter of law.      Beery v. Commissioner, 122 T.C.

184, 187 (2004).    In a collection action where the taxpayer’s tax

liability is not at issue, we review the appropriateness of the

Commissioner’s determination for abuse of discretion.      Sego v.

Commissioner, 114 T.C. 604, 609-610 (2000); Goza v. Commissioner,

114 T.C. 176, 182 (2000).

     In connection with petitioner’s first Appeals Office

hearing, petitioner failed to submit financial information and


     1
        Apr. 15, 2000, plus 3 years plus 300 days fell on Feb. 9,
2004.
     2
      We note that where a taxpayer raises a reasonable dispute
regarding an item of income which a third-party payor reported to
the Commissioner on an information return and where the taxpayer
fully cooperates with the Commissioner, the burden of production
as to the income shifts to the Commissioner. Sec. 6201(d).
Petitioner, however, has not raised any such dispute and would be
precluded from doing so under sec. 6330(c)(2)(B), and sec.
6201(d) presents no barrier to our granting summary judgment.
                              - 8 -
failed to request collection alternatives.   In connection with

petitioner’s first and second Appeals Office hearings, petitioner

has not alleged any specific facts showing there is a genuine

issue as to whether respondent’s Appeals Office abused its

discretion in sustaining respondent’s lien filing and proposed

levy action.   See Rule 121(d); Celotex Corp. v. Catrett, 477 U.S.

317, 322-323 (1986).

     On the record before us and as a matter of law we conclude

that respondent’s Appeals Office’s determination sustaining

respondent’s lien filing and proposed levy was not an abuse of

discretion.

     For the reasons stated, we shall grant respondent’s motion

for summary judgment.


                                    An appropriate order and

                               decisions will be entered.
