                          T.C. Memo. 2007-9



                       UNITED STATES TAX COURT



               GIUSEPPE EVANGELISTA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6453-06L.             Filed January 16, 2007.



     Giuseppe Evangelista, pro se.

     Theresa G. McQueeney, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:   This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).1   We

shall grant respondent’s motion.




     1
      Although the Court ordered petitioner to file a response to
respondent’s motion, petitioner failed to do so.
                                 - 2 -

                              Background

     The record establishes and/or the parties do not dispute the

following.

     Petitioner resided in Ridgewood, New York, at the time he

filed the petition in this case.

     Petitioner did not timely file a Federal income tax (tax)

return for any of his taxable years 1995, 1996, 1997, 1999, and

2000.

     On April 17, 2002, respondent issued to petitioner a notice

of deficiency (notice) with respect to his taxable years 1995,

1996, 1997, 1999, and 2000.     In that notice, respondent deter-

mined the following deficiencies in, and additions to, the tax of

petitioner:

                                         Additions to Tax
                                  Sec.           Sec.        Sec.
   Year         Deficiency    6651(a)(1)2     6651(a)(2)     6654
   1995           $50,198       $12,550             $0      $2,722
   1996            13,567          3,053         3,392         722
   1997            36,327          8,174         7,629       1,944
   1999            18,363          4,132         1,653         889
   2000            14,280          3,213           428         768

        Petitioner did not file a petition with the Court with

respect to the notice relating to his taxable years 1995, 1996,

1997, 1999, and 2000.



     2
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 3 -

     On August 26, 2002, respondent assessed petitioner’s tax, as

well as additions to tax and interest as provided by law, for

each of his taxable years 1995, 1996, 1997, 1999, and 2000.    (We

shall refer to any such unpaid assessed amounts, as well as

interest as provided by law accrued after August 26, 2002, as

petitioner’s unpaid liabilities for 1995, 1996, 1997, 1999, and

2000.)

     On January 9, 2003, respondent received from petitioner

and Debra A. Evangelista (Ms. Evangelista) Forms 1040, U.S.

Individual Income Tax Return (Form 1040), for taxable years 1996

(petitioner’s3 Form 1040 for 1996), 1997 (petitioner’s Form 1040

for 1997), 1999 (petitioner’s Form 1040 for 1999), and 2000

(petitioner’s Form 1040 for 2000).     On January 13, 2003, respon-

dent received from petitioner and Ms. Evangelista Form 1040 for

taxable year 1995 (petitioner’s Form 1040 for 1995).

     On October 30, 2003, in response to petitioner’s Form 1040

for 1995, petitioner’s Form 1040 for 1996, petitioner’s Form 1040

for 1997, petitioner’s Form 1040 for 1999, and petitioner’s Form

1040 for 2000, respondent sent petitioner separate letters with

respect to such respective years (respondent’s October 30, 2003

letters).   Each of those letters stated in pertinent part:




     3
      This case involves only petitioner, and not Ms.
Evangelista. For convenience, we shall sometimes refer only to
petitioner, and not to petitioner and Ms. Evangelista.
                              - 4 -

          We’ve finished looking at the information you sent
     us and we’ve made a decision about your audit reconsid-
     eration * * *.

          We regret to inform you that we decided that we
     should not change the original tax amount. The at-
     tached Form 886-A, Explanation of Items, explains how
     and why we made our decision.

     Attached to each of respondent’s October 30, 2003 letters

was Form 886-A, Explanation of Items, that stated in pertinent

part:

     Since you did not provide documentation to verify the
     deductions being claimed, we are not changing the
     previous determination.

     On September 16, 2005, respondent filed notices of Federal

tax lien with respect to petitioner’s taxable years 1995, 1996,

1997, 1999, and 2000.

     On September 21, 2005, respondent issued to petitioner a

notice of Federal tax lien filing and your right to a hearing

(notice of tax lien) with respect to his taxable years 1995,

1996, 1997, 1999, and 2000.

     On October 17, 2005, in response to the notice of tax lien,

petitioner, through his authorized representative, mailed to

respondent Form 12153, Request for a Collection Due Process

Hearing, and requested a hearing with respondent’s Appeals Office

(Appeals Office).

     On February 14, 2006, a settlement officer with the Appeals

Office (settlement officer) held a telephonic Appeals Office

hearing with petitioner’s authorized representative.
                                - 5 -

     On March 15, 2006, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination).   That notice

stated in pertinent part:

     Summary of Determination

     You failed to provide any collection alternatives or
     information needed to resolve the lien issue. Collec-
     tion is sustained.

An attachment to the notice of determination stated in pertinent

part:

     SUMMARY

     You requested a hearing under IRC 6320 to dispute the
     filing of a Notice of Federal Tax Lien for the periods
     shown above [petitioner’s taxable years 1995, 1996,
     1997, 1999, and 2000]. You wished to raise the issue
     of the underlying tax liability and have your returns
     reconsidered.

     Our determination is that the lien is sustained.

     BRIEF BACKGROUND

     * * * [The settlement officer] offered a conference to
     the taxpayer via a substantive contact letter. The
     taxpayer’s representative responded to the letter with
     a telephone call. During this call the representative
     was advised that the underlying liability issue is
     precluded because the taxpayer received his Statutory
     Notice of Deficiency with the right to appeal on all
     periods. Furthermore, the IRS had granted a reconsid-
     eration of the liability previously, which resulted in
     no change to the tax. The representative was given
     additional time to submit a valid alternative to fur-
     ther collection action. The representative agreed that
     if he was unable to provide information necessary to
     consider alternatives by February 28, 2006, * * * [the
     settlement officer] would issue a determination.
                          - 6 -

DISCUSSION AND ANALYSIS

Verification - Legal and Procedural Requirements

a. General Verification Requirements -

Assessment was properly made per IRC § 6201 for each
tax and period listed on the CDP notice. The notice
and demand for payment letter was mailed to the tax-
payer’s last known address, within 60 days of the
assessment, as required by IRC § 6303. There was a
balance due when the NFTL filing was requested.

The collection period allowed by statute to collect
these taxes has been suspended by the appropriate
computer codes for the tax periods at issue. The
taxpayer had no pending bankruptcy case at the time the
CDP notice was sent.

This Appeals employee has had no prior involvement with
this taxpayer concerning the applicable tax periods
before the first CDP case on these periods.

The Service is required to make reasonable efforts to
contact the taxpayer before filing a Notice of Federal
Tax Lien (NFTL) to advise the taxpayer that a NFTL may
be filed if full payment is not made. Issuance of a
balance due notice in which a possible NFTL filing is
mentioned constitutes reasonable efforts

Case transcripts show the assessment and assessment
notice dates as follows:

Year      Date of Assessment       Date of Notice

1995      8/26/2002                8/26/2002
1996      8/26/2002                8/26/2002
1997      8/26/2002                8/26/2002
1999      8/26/2002                8/26/2002
2000      8/26/2002                8/26/2002

Letter 3172 was sent by certified mail to the tax-
payer’s last known address. Computer copies of Letter
3172 and NFTL were included in the case file submitted
to Appeals.
                         - 7 -

Description of Verification Process for Both Lien and
Levy Situations

* * * [The settlement officer] verified through exami-
nation of transcripts and the administrative file,
including the original examination file and copies of
the statutory notices of deficiency, that all adminis-
trative and legal procedures were followed. The Statu-
tory Notice of Deficiency was mailed to your current
residence. You did not dispute the receipt of this
notice. The notice apprised you of your right to
petition the US Tax Court to dispute the assessment.
You did not file said petition within the timeframe set
by law.

Issues Raised by the Taxpayer

In a letter attached to your Form 12153 Request for a
Collection Due Process Hearing your representative
stated, in part “We are interested in reaching a con-
clusion and a reasonable payment plan as soon as possi-
ble, as stated back in June. Please adjust your re-
cords accordingly, since all returns were filed.” In
your June letter, your representative stated, “We are
at a loss to understand why the Service has not prop-
erly adjusted its records to reflect the true liability
as all returns have been filed to date and we have
asked for this on a number of occasions to no avail.”

Response: Because you neglected to file your returns
when the Service requested you to do so, the Service
prepared returns for you based on income information
submitted to the IRS by payers. The authority to
prepare returns when a taxpayer fails to do so volun-
tarily is found in IRC 6020(b). After the assessments
were made, you filed your returns. Although you de-
faulted on the original Statutory Notice of Deficiency
by failing to petition the US Tax Court, the Service
allowed your audit to be reconsidered. The administra-
tive record shows that on 10/30/2003 the Service issued
Letter 2726 advising you that the changes you requested
based on your own returns were considered, however, you
failed to supply any supporting documentation. This
letter also explained your right to contest this deci-
sion in Appeals. IRC § 6330(c)(2)(B) precludes the
underlying liability issue from being raised with a
Collection Due Process hearing if the taxpayer had a
prior opportunity to appeal the assessment.
                               - 8 -

     Your Form 12153 also requested that consideration be
     given to an installment agreement. An extension was
     given to your representative to supply financial infor-
     mation by February 28, 2006. Your representative
     agreed that if the information necessary to determine
     whether or not an installment agreement could be grant-
     ed was not received, a determination would be issued.
     You did not supply information for * * * [the settle-
     ment officer] to consider.

     You did not raise any other issues or collection alter-
     natives.

     Collection Action Be No More Intrusive Than Necessary

     On February 14, 2006 your representative contacted
     * * * [the settlement officer] to discuss your case.
     He was advised of why we could not accept your returns
     as an alternative to the proposed collection action
     within this hearing. He agreed to try to submit finan-
     cial information with a collection alternative by
     2/28/2006, however, as of March 8, 2006, * * * [the
     settlement officer] did not receive any further infor-
     mation to consider. You have not offered any collec-
     tion alternatives during the CDP hearing process nor
     did you submit any financial information. As discussed
     above, the assessments at issue are valid. Therefore,
     given your failure to propose any collection alterna-
     tives, the lien balances the need for efficient collec-
     tion with your concern that any collection action be no
     more intrusive than necessary. [Reproduced literally.]

                            Discussion

     The Court may grant summary judgment where 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).    We

conclude that there are no genuine issues of material fact

regarding the questions raised in respondent’s motion.
                                - 9 -

     The only issue that petitioner appears to raise in the

petition in this case is the underlying tax liability for peti-

tioner’s taxable years 1995, 1996, 1997, 1999, and 2000.    In the

petition, petitioner alleges:

     I was under tremendous stress and medical conditions
     that did not allow me to function normally in the daily
     life. As soon as I became capable of living my normal
     life I addressed the issues that burdened me during
     that time. [Reproduced literally.]

     Respondent issued a notice of deficiency to petitioner with

respect to his taxable years 1995, 1996, 1997, 1999, and 2000,

but petitioner did not file a petition with the Court with

respect to that notice.    On the instant record, we find that

petitioner may not challenge the existence or the amount of

petitioner’s unpaid liabilities for 1995, 1996, 1997, 1999, and

2000.   See sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C.

604, 610-611 (2000); Goza v. Commissioner, 114 T.C. 176, 182-183

(2000).

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the determination of the Commissioner of Internal Revenue

for abuse of discretion.    Sego v. Commissioner, supra at 610;

Goza v. Commissioner, supra at 182.

     Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

making the determinations in the notice of determination with
                             - 10 -

respect to petitioner’s taxable years 1995, 1996, 1997, 1999, and

2000.

     We have considered all of the contentions and arguments of

the parties that are not discussed herein, and we find them to be

without merit, irrelevant, and/or moot.

     On the record before us, we shall grant respondent’s motion.

     To reflect the foregoing,


                                      An order granting respondent’s

                                 motion and decision for respondent

                                 will be entered.
