                        T.C. Memo. 2009-7



                       UNITED STATES TAX COURT



              JOHN CHARLES VUCKOVICH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 26456-07L.             Filed January 12, 2009.



     John Charles Vuckovich, pro se.

     J. Robert Cuatto, for respondent.



                         MEMORANDUM OPINION


     HALPERN, Judge:    This case is before us to review a Notice

of Determination Concerning Collection Action(s) under Section

6320 and/or 6330 (the notice) issued by respondent’s Appeals

Office (Appeals).   The notice concerns petitioner’s 1999, 2000,

and 2002 Federal income tax liabilities, and it sustains an

Appeals officer’s determination that a notice of Federal tax lien

for those years should stand.   We review the notice pursuant to
                               - 2 -

sections 6320(c) and 6330(d)(1).1   Respondent has moved for

summary judgment and to impose a section 6673 penalty (the

motion).   Petitioner objects (the response).   We shall grant the

motion in both respects.

     We may grant summary judgment “if the pleadings, answers to

interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law.”   Rule 121(b).   In

pertinent part, Rule 121(d) provides:   “When a motion for summary

judgment is made and supported * * *, an adverse party may not

rest upon the mere allegations or denials of such party’s

pleading, but such party’s response * * * must set forth specific

facts showing that there is a genuine issue for trial.”

     In support of the motion, respondent relies on the

pleadings, the declaration of J. Robert Cuatto, an attorney

assigned to defend the notice, and respondent’s proposed

stipulation of facts, which we shall take as true because

petitioner had the opportunity to object but did not do so.2


     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
        After receiving respondent’s proposed stipulation of
facts, petitioner sent a letter to respondent stating: “I am in
the process of reviewing your proposed Stipulation of Facts, and
preparing a response to certain proposed facts.” Petitioner
                                                   (continued...)
                               - 3 -

                            Background

     Petitioner failed to file Federal income tax returns for

1999, 2000, and 2002; respondent determined deficiencies in, and

additions to, tax for those years, and, following petitioner’s

failure either to pay the tax and additions or to challenge

respondent’s determinations in this Court, respondent assessed

those deficiencies and additions (the assessments).   Petitioner

did not pay the assessments, and, on July 6, 2006, respondent

notified petitioner that (1) he had filed a Federal tax lien with

respect to the assessments and (2) petitioner had a right to

appeal that action.   In response, petitioner submitted to the

Internal Revenue Service (IRS) IRS Form 12153, Request for a

Collection Due Process Hearing, alleging that the notice of

Federal tax lien constituted “an inappropriate collection action”


     2
      (...continued)
failed to send the promised response, however, and respondent
moved for petitioner to show cause why the proposed stipulation
of facts should not be accepted as established. We ordered
petitioner to show cause. In response to our order, petitioner
conceded that he did not “dispute” the proposed stipulation of
facts. In his subsequent response to the motion for summary
judgment, petitioner argues that “not disputing, does not convert
to agreement”. Petitioner is wrong. Rule 91(f)(2) provides that
in responding to an order to show cause, where a party disputes
any matter, the party shall set forth the reasons for his
dispute. Because petitioner failed to set forth any dispute with
respondent’s proposed facts, we accept them as true. See, e.g.,
Console v. Commissioner, T.C. Memo. 2001-232 (accepting as true
proposed facts where taxpayer “failed to respond to the substance
of our order”), affd. 85 Fed. Appx. 869 (3d Cir. 2003); Brookbank
v. Commissioner, T.C. Memo. 1999-51 (accepting as true proposed
facts where taxpayer filed “frivolous response” to our order),
affd. without published opinion 215 F.3d 1325 (6th Cir. 2000).
                               - 4 -

and disputing “[t]he existence or amount of the tax, since I did

not receive a notice of deficiency and did not otherwise have an

opportunity to dispute the tax liability.”3

     An Appeals official, Settlement Officer Michael Freitag,

then wrote to petitioner on January 26, 2007, informing him that

he would schedule a telephone conference for February 28, 2007,

and that (1) to dispute his tax liabilities for 1999, 2000, and

2002, petitioner needed to submit original signed tax returns for

those years and (2) for Appeals to consider collection

alternatives for those years, petitioner needed to submit signed

tax returns for 2003, 2004, and 2005, since he had not filed

returns for those years, along with a completed IRS Form 433-A,

Collection Information Statement.   Petitioner neither contacted

Mr. Freitag to reschedule the meeting nor submitted any

documents.   Petitioner missed the telephone conference, and Mr.

Freitag scheduled another.   Before the date of the second

scheduled telephone conference, petitioner requested a face-to-

face conference.   Another Appeals official, Settlement Officer

Paul Baker, then wrote petitioner, scheduling a face-to-face

conference for June 14, 2007, and requesting a completed

Collection Information Statement, the six tax returns described

above, and a seventh signed tax return for 2006 (which return had


     3
        Respondent sent the three statutory notices of deficiency
to petitioner’s last known address. Unable to deliver or forward
them, the post office returned all three to respondent.
                                - 5 -

since become due).    Mr. Baker warned petitioner that, if he did

not participate in the conference or submit the requested

documents, Appeals would make a determination on the basis of the

available evidence.    Petitioner submitted no documents.

Petitioner and Mr. Baker each rescheduled the face-to-face

conference twice.    After setting September 25, 2007, as the fifth

date for the conference, Mr. Baker wrote petitioner informing him

that both parties had to adhere to that date.    In a letter dated

September 21, 2007, petitioner requested that Appeals

indefinitely postpone the conference because petitioner had

“decided to seek legal representation regarding this matter * * *

[and so far had] been unsuccessful in finding affordable

representation.”    Petitioner then failed to attend the

conference.   In a letter dated September 26, 2007, Mr. Baker

denied petitioner’s request for a postponement, restating that

“both you and the [Internal Revenue] Service had to adhere to the

specified date and time” of the conference.    Noting that

petitioner had submitted none of the requested documents, Mr.

Baker granted petitioner an additional 10 days to do so.     Mr.

Baker warned that, if petitioner did not submit the necessary tax

returns, Appeals would make a determination on the basis of the

available evidence.    After petitioner again failed to submit the

requested documents, Appeals issued the notice.    The notice

contains the following “Summary of Determination”:
                               - 6 -

     Since you have not provided any information for us to
     consider your challenge to the tax assessments, it
     shall be assumed that the liabilities are correct.
     Also, since you have not filed your Forms 1040 for
     2003, 2004, 2005 and 2006, no alternatives such as an
     Installment Agreement can be considered at this time.
     Therefore, Appeals sustains in full the filing of the
     Notice of Federal Tax Lien, because the lien balances
     the need for the efficient collection of taxes with
     your legitimate concern that any collection action be
     no more intrusive than necessary.

     Petitioner timely filed the petition, assigning error to the

notice on the grounds that he did not receive a fair hearing

because Appeals “set an arbitrary drop dead date” for a hearing

and violated section 6330 by requiring statements and collection

information not associated with 1999, 2000, and 2002.   Petitioner

also claims:   “IRS offers no evidence that they obtained

verification from the Secretary that the requirements of any

applicable law or administrative procedure had been met as

required by Sec. 6330.”   Finally, petitioner claims the right to

challenge the existence of the underlying liabilities for tax.

     After petitioner filed the petition, respondent’s counsel

(counsel) scheduled a conference with petitioner for February 29,

2008, “to discuss this case and attempt to resolve all issues

short of trial.”   Counsel also requested that petitioner submit

all documents related to petitioner’s income tax liabilities for

the years in issue.   Petitioner responded that he was unable not

only to attend the conference but also to provide the requested

documents by that date.   Petitioner promised to contact counsel
                                  - 7 -

by March 17, 2008, to reschedule the conference.       When counsel

rescheduled the conference for March 13, 2008, petitioner

objected, restating his promise to contact counsel by March 17,

2008.      When petitioner failed to contact counsel by his self-

imposed deadline, counsel rescheduled the conference for April

24, 2008.      Petitioner did not attend the conference and did not

send counsel any documents.      Counsel then sent petitioner a copy

of the proposed stipulation of facts.       When petitioner failed to

provide a substantive response, respondent moved for, and we

issued, an order requiring petitioner to show cause why the facts

proposed to be stipulated should not be accepted as established.

In response to our order, petitioner conceded that he did not

“dispute” the stipulation of facts.       Respondent then filed the

motion.

                               Discussion

I.   Summary Judgment

      A.     Introduction

      Respondent asks for summary judgment in his favor on the

grounds that, considering the issues that petitioner had raised

in his request for a section 6330 hearing, and taking into

account that petitioner failed to participate in that hearing,

Appeals was justified in determining to proceed on the basis of

Settlement Officer Paul Baker’s (1) verification that the

requirements of any applicable law or administrative procedure
                                - 8 -

had been met, (2) consideration of whether the proposed

collection action balanced the need for efficient collection of

taxes with the legitimate concern that such action be no more

intrusive than necessary, and (3) consideration of the issues

petitioner had raised.    See sec. 6330(c)(3).   Petitioner opposes

the motion for summary judgment.

     B.    Verification

     Because it is set forth in respondent’s proposed stipulation

of facts that, “[d]uring [p]etitioner’s * * * [section 6330]

hearing, the settlement officer verified that all legal and

administrative procedures were followed”, we shall take that to

be true.    That would seem to satisfy the requirements of section

6330(c)(1) and (3)(A):    “The appeals officer shall at the

[section 6330] hearing obtain verification from the Secretary

that the requirements of any applicable law or administrative

procedure have been met.”    Moreover, we have held:   “Section

6330(c)(1) does not require the Appeals officer to give the

taxpayer a copy of the verification that the requirements of any

applicable law or administrative procedure have been met.”

Nestor v. Commissioner, 118 T.C. 162, 166 (2002).

     C.    Balancing the Need for Efficient Collection of Taxes

     Petitioner’s request for a section 6330 hearing was based on

his claim that respondent’s lien was not an appropriate

collection action and his challenge to the existence and amount
                                 - 9 -

of the tax.   Respondent’s two settlement officers requested tax

returns for the years in issue to consider petitioner’s tax

liabilities for those years and collection information and

returns for subsequent years to consider collection alternatives.

Petitioner was warned at least twice that, if he did not submit

the requested documents, Appeals would proceed on the basis of

the available evidence.    Petitioner was given a final 10 days to

submit the documents.    Petitioner did not attend scheduled

conferences, did not respond to correspondence, did not submit

the requested documents, and attempted to postpone his hearing

indefinitely to obtain legal counsel, which, as of yet, he has

not obtained.   There is no requirement that Appeals issue a

notice of determination within a certain time.    See Gazi v.

Commissioner, T.C. Memo. 2007-342; sec. 301.6320-1(e)(3), Q&A-E9,

Proced. & Admin. Regs.    Given petitioner’s conduct and the

information available, Settlement Officer Baker did not abuse his

discretion by determining that the proposed collection action

balanced the need for the efficient collection of taxes with the

legitimate concern of petitioner that any collection action be no

more intrusive than necessary.    See sec. 6330(c)(3)(C); Castillo

v. Commissioner, T.C. Memo. 2004-238 (applying abuse of

discretion standard to review of section 6330(c)(3)(C)

determination).
                               - 10 -

      D.   Issues Petitioner Raised

      Petitioner raised his liability for the unpaid tax as a

defense to respondent’s collection action.   Petitioner had not

filed returns for 1999, 2000, and 2002, and the settlement

officers assigned to petitioner’s case asked for original signed

returns to consider his tax liability for those years.    Since

petitioner did not provide those returns or any other information

with respect to his liability, Settlement Officer Baker

determined on the basis of the information before him that the

assessments must be correct.    Appeals determined the assessments

were correct, and we see no error in that determination.

Moreover, even if Appeals erred in that respect, petitioner has

failed to support his assignment of error with a sufficient

specificity of fact as to his liabilities for 1999, 2000, and

2002 for us to consider those liabilities.   See Poindexter v.

Commissioner, 122 T.C. 280, 285 (2004), affd. 132 Fed. Appx. 919

(2d Cir. 2005).

      E.   Conclusion

      We shall grant summary judgment and sustain the notice on

the premises stated.

II.   Section 6673 Penalty

      Under section 6673(a)(1), this Court may require a taxpayer

to pay a penalty not in excess of $25,000 if the taxpayer has

instituted or maintained a proceeding primarily for delay.    We
                                - 11 -

see no reason for this case other than delay.   Indeed, delay

attributable to petitioner is manifest at almost every stage of

this proceeding.   He never provided any information necessary to

support his objections, choosing instead to ask for postponement

after postponement.   Petitioner has had almost 2 years to submit

to the settlement officers or counsel the necessary tax returns

to show error in the assessments and still he has not done so.

From the beginning, petitioner has refused to cooperate with

respondent.   For example, petitioner did not respond to

respondent’s proposed stipulation of facts until we ordered him

to show cause.   After replying that he did not “dispute” the

proposed stipulation, petitioner resorted to word games by

claiming that “not disputing, does not convert to agreement”.

Petitioner has failed to report income for at least 7 years.      He

deserves a substantial penalty for initiating this proceeding.

We shall, therefore, require petitioner to pay a penalty under

section 6673(a)(1) of $2,500.

     To reflect the foregoing,


                                          An appropriate order will

                                     be issued, and decision will

                                     be entered for respondent.
