                                T.C. Memo. 2015-94



                         UNITED STATES TAX COURT



             ETHEL LINDA FRIERSON-HARRIS, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 25593-13L.                          Filed May 18, 2015.



      Ethel Linda Frierson-Harris, pro se.

      Peter N. Scharff, for respondent.



                           MEMORANDUM OPINION


      LARO, Judge: Petitioner, while residing in New York, petitioned the Court

under sections 6320 and 6330 for review of respondent’s determination to sustain

the filing of a notice of Federal tax lien (NFTL) with respect to petitioner’s

Federal income tax liabilities for the 2006, 2007, and 2008 tax years (years at
                                          -2-

[*2] issue).1 Currently, the case is before the Court on respondent’s motion for

summary judgment (motion) under Rule 121(a). The Court ordered petitioner to

respond to the motion, but she failed to do so. The sole issue for decision is

whether respondent is entitled to a summary adjudication that the Office of

Appeals (Appeals) did not abuse its discretion in rejecting petitioner’s proposed

collection alternatives. We hold that respondent is so entitled, and we will grant

respondent’s motion.

                                     Background

      Our background statement of this case is derived from the pleadings, the

motion, and the exhibits attached to the declaration that respondent filed in

support of his motion.

      Petitioner did not file a Federal income tax return for any year at issue. As a

result, respondent prepared for each year a substitute for return that met the

requirements of section 6020 and issued to petitioner a statutory notice of

deficiency for each of the years at issue. Petitioner failed to file a petition

challenging the notices of deficiency. Respondent subsequently assessed tax,

interest, and penalties against petitioner for each of the years at issue. Aside from

      1
       All section references are to the Internal Revenue Code in effect at all
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure, unless otherwise indicated.
                                           -3-

[*3] income tax withholding, petitioner failed to make any payments toward her

assessed tax liabilities for the years at issue.

        On March 27, 2012, respondent issued to petitioner by certified mail a

Letter 1058, Final Notice of Intent to Levy and Notice of Your Right to a Hearing

(FNIL), advising her that respondent intended to collect unpaid tax liabilities for

the years at issue. The FNIL further advised petitioner of her right to request a

collection due process (CDP) hearing with Appeals. To request a CDP hearing,

petitioner had to complete a Form 12153, Request for a Collection Due Process or

Equivalent Hearing, and mail it to respondent within 30 days from the date of the

FNIL. On April 26, 2012, respondent issued to petitioner a Letter 3172, Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, setting

forth petitioner’s unpaid tax liabilities for the years at issue and advising her that

she could request a CDP hearing to appeal the lien but had to do so by June 4,

2012.

        On June 4, 2012, petitioner submitted by fax a completed Form 12153

requesting a CDP hearing with respect to both the FNIL and the NFTL. On the

Form 12153 petitioner requested that respondent consider both an installment

agreement and an offer-in-compromise as collection alternatives. If her request
                                         -4-

[*4] for a CDP hearing did not meet the requirements for a timely request,

petitioner requested a CDP equivalent hearing by checking the appropriate box on

the Form 12153.

      Petitioner designated her spouse, Michael Wesley Frierson-Harris (Frierson-

Harris), as her authorized representative for the purposes of the CDP hearing.

Frierson-Harris spoke with Appeals by telephone on several occasions to discuss a

potential resolution to petitioner’s tax liabilities. On April 1, 2013, Frierson-

Harris sent to Appeals a letter stating that “[t]he only issue we want to have heard

is our offer to pay the taxes and penalties owed out of the sale/auction of a

condominium we owe [sic].” On June 19, 2013, Settlement Officer Marilyn

Matthews (SO Matthews) issued to petitioner a letter scheduling a telephone

conference for July 24, 2013, and informing her that her requests for a CDP

hearing with respect to the NFTL and the FNIL were untimely. The June 19,

2013, letter further stated that the telephone conference would serve as a CDP

equivalent hearing with respect to the NFTL and the FNIL. In addition, the June

19, 2013, letter stated that in order for SO Matthews to consider alternative

collection methods such as an offer-in-compromise or an installment agreement,

petitioner had to provide a completed Form 433-A, Collection Information

Statement for Wage Earners and Self-Employed Individuals, in addition to
                                        -5-

[*5] supporting documentation; signed Forms 1040, U.S. Individual Income Tax

Return, for the 2011 and 2012 tax years; and a copy of the condominium sales

contract, all within 14 days of the June 19, 2013, letter. SO Matthews informed

petitioner that she would not be able to consider collection alternatives unless

these items were submitted to her.

       In letters dated July 9 and 22, 2013, Frierson-Harris informed SO Matthews

that petitioner disagreed with her determination that the CDP hearing requests

were not timely. Frierson-Harris further stated that neither petitioner nor Frierson-

Harris would participate in the scheduled conference call unless SO Matthews

reversed her determination as to the timeliness of petitioner’s CDP hearing

requests. In a letter dated July 31, 2013, SO Matthews informed Frierson-Harris

that the CDP hearing request with respect to the NFTL was timely but the CDP

hearing request with respect to the FNIL was untimely. SO Matthews extended

the time to August 20, 2013, for petitioner to provide the requested information

and offered to reschedule both the CDP hearing and the CDP equivalent hearing

for a later date.

       Petitioner did not submit any of the requested materials to SO Matthews.

Instead, in a letter dated August 14, 2013, Frierson-Harris informed SO Matthews

that petitioner was not willing to participate in either a CDP hearing with respect
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[*6] to the NFTL or a CDP equivalent hearing with respect to the FNIL until SO

Matthews reversed her determination that with respect to the FNIL petitioner’s

Form 12153 was untimely. SO Matthews subsequently closed petitioner’s case,

and on September 26, 2013, respondent issued to petitioner a Notice of

Determination Concerning Collective Action(s) Under Section 6320 and/or 6330

(notice of determination) for the years at issue, upholding the filing of the NFTL.

      Petitioner timely petitioned the Court challenging the notice of

determination with respect to both the NFTL and the FNIL. We dismissed for lack

of jurisdiction that part of petitioner’s petition that applied to the FNIL.2

                                      Discussion

      Summary judgment is intended to avoid unnecessary and expensive trials

and to expedite litigation. Hodgson v. Commissioner, T.C. Memo. 2003-122,

2003 WL 1960405, at *1. Summary judgment is appropriate with respect to any

or all of the legal issues in controversy if “the pleadings, answers to

interrogatories, depositions, admissions, and any other acceptable materials,

together with the affidavits or declarations, if any, show that there is no genuine


      2
        Petitioner and Frierson-Harris jointly filed the petition. Because the notice
of determination was issued solely to petitioner, by order dated March 12, 2014,
we dismissed the petition insofar as it relates to Frierson-Harris for lack of
jurisdiction.
                                          -7-

[*7] dispute as to any material fact and that a decision may be rendered as a matter

of law.” Rule 121(b); see also Neugebauer v. Commissioner, T.C. Memo. 2003-

292, 2003 WL 22390275, at *2. The moving party bears the burden of showing

that there are no genuine issues of material fact, and we draw factual inferences in

a manner most favorable to the nonmoving party. Dahlstrom v. Commissioner, 85

T.C. 812, 821 (1985).

      Petitioner has raised no genuine dispute as to any material fact, and

respondent supported his motion with pleadings, exhibits, and an affidavit by SO

Matthews, which petitioner failed to contest. Accordingly, we conclude that this

case is ripe for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986).

      Section 6321 imposes a lien in favor of the United States on the property of

a person who neglects or refuses to pay any tax for which she is liable. The lien

arises at the time that the tax liability is assessed and generally continues until the

liability is satisfied. Sec. 6322. In order for the lien to be valid against any

purchaser, judgment lien creditor, mechanic’s lienor, or holder of a security

interest, the Secretary must file an NFTL in compliance with the requirements of

section 6323. Lindsay v. Commissioner, T.C. Memo. 2001-285, 2001 WL

1241972, at *1, aff’d, 56 Fed. Appx. 800 (9th Cir. 2003).
                                        -8-

[*8] When filing an NFTL, the Secretary must provide the delinquent taxpayer

with notice under section 6320 of the NFTL filing and cannot proceed with any

collection activity until the taxpayer has been given the opportunity for an

administrative review in the form of a CDP hearing or an equivalent hearing. Sec.

6320; see also sec. 6330; Davis v. Commissioner, 115 T.C. 35, 37 (2000)

(discussing the requirements of section 6330); Cunningham v. Commissioner, T.C.

Memo. 2014-200, at *10 (the procedures with respect to an NFTL CDP hearing

are the same as those for a CDP hearing for a notice of levy under section 6330).

If the taxpayer requests such a hearing, she may raise at the hearing any relevant

issues related to the NFTL filing or the unpaid tax including: (1) challenges to the

underlying tax liability where the taxpayer did not receive a statutory notice of

deficiency or did not otherwise have an opportunity to dispute the liability; (2)

offers of collection alternatives; and (3) challenges to the appropriateness of the

collection actions. Secs. 6320(c), 6330(c). The Appeals officer making the

determination as to whether to proceed with a collection action against the

taxpayer must (1) verify that the requirements of any applicable law or

administrative procedure have been met, (2) consider the issues raised by the

taxpayer at the hearing, if any, and (3) evaluate whether the proposed collection

action balances the Government’s need for the efficient collection of taxes with
                                        -9-

[*9] the taxpayer’s legitimate concern that a collection action be no more intrusive

than necessary. Sec. 6330(c)(3); Venhuizen v. Commissioner, T.C. Memo. 2012-

270, at *9. After Appeals makes a determination as to whether to proceed with its

proposed collection action, this Court has jurisdiction to review the determination

under section 6330(d).

      We review the determination de novo only where the validity of the

underlying tax liability was properly at issue at the hearing. Goza v.

Commissioner, 114 T.C. 176, 181 (2000). We review the determination for abuse

of discretion with respect to all other issues. Id. at 182. Under the abuse of

discretion standard of review, we will not disturb Appeals’ determination unless it

is arbitrary, capricious, or without sound basis in fact or law. Venhuizen v.

Commissioner, at *12. Petitioner does not contest her underlying liabilities.

Instead, petitioner contends that with respect to her request for a CDP hearing,

respondent waited approximately a year to act, ignored her request for a CDP

hearing, and made the determinations in the notice of determination against her

objections. Accordingly, we review respondent’s determination for abuse of

discretion.

      Petitioner submitted her Form 12153 request for a CDP hearing on June 4,

2012. By letter dated June 19, 2013, respondent scheduled a telephone CDP
                                       - 10 -

[*10] equivalent hearing for July 24, 2013. Respondent’s account transcript

shows that petitioner, Frierson-Harris, and respondent had regular and substantial

contact in the intervening time, with respondent asking for additional information

or documentation concerning petitioner’s matter. Petitioner failed to provide this

information in most instances. During this intervening time the case was

transferred between Appeals branch offices after respondent learned of petitioner’s

change of address. The case was subsequently reassigned to SO Matthews.

      In the June 19, 2013, letter, SO Matthews stated that petitioner’s CDP

hearing request was untimely. By letter dated July 9, 2013, Frierson-Harris

contested this determination of untimeliness. By letter dated July 22, 2013,

Frierson-Harris informed SO Matthews that neither he nor petitioner would

participate in the scheduled July 24, 2013, hearing. By letter dated July 31, 2013,

SO Matthews revised her determination of untimeliness with respect to the CDP

hearing request for the NFTL, extended the time for petitioner to submit requested

documentation, and indicated that she would schedule a new CDP hearing upon

receipt of those documents. By letter dated August 14, 2013, Frierson-Harris

informed SO Matthews that neither he nor petitioner would participate in a CDP

hearing with respect to the NFTL unless SO Matthews revised her determination

that the Form 12153 was untimely with respect to the FNIL. Petitioner did not
                                        - 11 -

[*11] submit the information and documentation that SO Matthews requested. SO

Matthews was unable to consider petitioner’s proposed collection alternatives

absent this documentation and thereafter closed the NFTL case.

      On the basis of the record in this case, we find no procedural or substantive

defects in Appeals’ determination that would justify our disturbing SO Matthews’

decision to sustain the NFTL filing. A delay in CDP proceedings is in and of itself

not sufficient to find that the Internal Revenue Service abused its discretion where

the primary factors contributing to the delay are petitioner’s failure to provide

documentation and transfers of the case between Appeals officers done in the

regular course of business. See Johnson v. Commissioner, 136 T.C. 475, 498

(2011), aff’d, 502 Fed. Appx. 1 (D.C. Cir. 2013). The notice of determination

confirms that SO Matthews verified that all requirements of applicable law and

administrative procedure have been met. See Venhuizen v. Commissioner, at *12.

SO Matthews’ correspondence with petitioner and Frierson-Harris demonstrates

that she took petitioner’s concerns into account and revised her determination as to

the issue of timeliness of the CDP hearing request at Frierson-Harris’ urging. SO

Matthews provided petitioner with more than one opportunity to submit

substantiating information and documentation, which petitioner failed to do. See

Kanofsky v. Commissioner, T.C. Memo. 2010-46, 2010 WL 845943, at *4, aff’d,
                                        - 12 -

[*12] 424 Fed. Appx. 189 (3d Cir. 2011). SO Matthews was unable to consider

issues petitioner raised at the CDP hearing because petitioner refused to

participate in a CDP hearing. As a result, SO Matthews closed the case. An

Appeals officer is not required to attempt to negotiate with a taxpayer indefinitely.

Kuretski v. Commissioner, T.C. Memo. 2012-262, at *11, aff’d, 755 F.3d 929

(D.C. Cir. 2014). SO Matthews thereafter made her determination on the basis of

the information available to her, balancing the need for efficient collection of tax

with petitioner’s concerns that the collection action be no more intrusive than

necessary and concluded that the notice was proper.

      On these facts, we conclude that Appeals did not act arbitrarily,

capriciously, or without sound basis in fact or law. In addition, the Court finds

there is no genuine dispute of material fact. Respondent’s motion for summary

judgment will be granted, and respondent’s collection action will be sustained.

We have considered all of the parties’ arguments, and to the extent not discussed

herein we conclude they are irrelevant, moot, or without merit.

      To reflect the foregoing,


                                                 An appropriate order and decision

                                       will be entered for respondent.
