                        T.C. Memo. 2003-62



                      UNITED STATES TAX COURT



     MICHAEL A. MILNES AND ESTHER N. MILNES, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8612-02L.            Filed March 4, 2003.



     Michael A. Milnes and Esther N. Milnes, pro se.

     Trent D. Usitalo, for respondent.



                        MEMORANDUM OPINION


     COLVIN, Judge:   This matter is before the Court on

respondent’s motion for summary judgment.    The issue is whether

it is appropriate to decide by summary judgment that respondent’s

determination to proceed with collection of petitioners’ tax

liabilities was not an abuse of discretion.     For reasons stated

below, we will grant respondent’s motion.
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     Section references are to the Internal Revenue Code as

amended, and Rule references are to the Tax Court Rules of

Practice and Procedure.

                            Background

     Petitioners are married and lived in Fresno, California,

when they filed their petition.     Michael A. Milnes (petitioner)

is an attorney.

A.   The Notices of Federal Tax Lien

     On August 27, 1992, respondent filed with the Fresno County

Recorder’s Office a notice of Federal tax lien relating to

petitioners’ income tax liability for tax year 1991.    On March

10, 1997, respondent filed with the Fresno County Recorder’s

Office a notice of Federal tax lien relating to petitioners’

income tax liabilities for tax years 1993 and 1995.

B.   The Notice of Intent To Levy

     On March 26, 2001, respondent issued to petitioners a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing

relating to petitioners’ income tax liabilities for 1991, 1993,

and 1995.   On April 25, 2001, petitioners filed a Request for a

Collection Due Process Hearing, Form 12153, for tax years 1987-

951 in which they contended that:    (1) Respondent should abate

penalties relating to tax years 1988 and 1989; (2) respondent


     1
        Petitioners’ tax years 1987-90, 1992, and 1994 are not in
issue here because respondent’s notice of intent to levy did not
include those years; only 1991, 1993, and 1995 are at issue here.
                               - 3 -

failed to respond to petitioner’s request to abate penalties for

late filing of individual tax returns for 1981-91; (3)

petitioners want to extend the time to assess tax to allow time

to resolve the above issues and to obtain funds to pay taxes due;

and (4) they were entitled to relief on the basis of various

claims relating to employment taxes with respect to petitioner’s

law corporation and the notices of liens filed in 1992 and 1997.

Petitioners stated that they had applied for a loan on real

property, the proceeds of which they would use to pay their tax

liabilities in full.

C.   The Section 6330(b) Hearing and Respondent’s Notice of
     Determination

     On March 8 and April 2, 2002, respondent’s Appeals Office

conducted a hearing on petitioners’ case for tax years 1991,

1993, and 1995.   Petitioners attended the hearing.    At the

hearing, petitioners offered to obtain a loan on real property to

pay their tax liabilities for the years in issue.     Petitioners

did not challenge their underlying tax liability for 1991, 1993,

or 1995 at the hearing.   The Appeals officer concluded that

petitioners did not qualify for alternatives to collection, such

as an installment agreement or an offer in compromise, because

petitioners were not currently in compliance with Federal tax

laws and they had not submitted financial information that would

enable respondent to ascertain whether they qualified for any

alternatives to collection once they became compliant.
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     On April 11, 2002, respondent sent petitioners a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (the determination letter), in which respondent

denied petitioners’ request for relief.

     On May 14, 2002, petitioners filed a petition for lien or

levy action under section 6320(c) or 6330(d).    In their petition,

petitioners contended only that:   (1) Respondent erred in trying

to collect from petitioners employment taxes owed by petitioner’s

law corporation; and (2) respondent failed to send to their last

known address any notice of the Federal tax liens filed in 1992

and 1997.   Petitioners did not propose any alternatives to

collection in their petition.

     Respondent filed a motion for summary judgment.    The Court

ordered petitioners to file a response to respondent’s motion,

but they did not do so.

                            Discussion

A.   Summary Judgment

     Summary judgment is intended to expedite litigation and to

avoid the need for expensive trials.     Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    We may grant summary

judgment if the pleadings, answers to interrogatories,

depositions, admissions, affidavits, and any other acceptable

materials show that there is no genuine issue of material fact

and a decision may be rendered as a matter of law.    Rule 121(b);
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Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753,

754 (1988).     The moving party bears the burden of proving that

there is no genuine issue of material fact.     Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,

79 T.C. 340, 344 (1982).

B.   Analysis

     Petitioners do not challenge the existence or amounts of

their underlying income tax liabilities for the years in issue.

Where the taxpayer’s underlying tax liability is not at issue, we

review the Commissioner’s administrative determination for abuse

of discretion.     Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 181 (2000).

     There are no genuine issues of material fact.     We conclude

that summary judgment is appropriate.     See Rule 121(b).

     1.   Whether We Have Jurisdiction Over Employment Taxes

     Petitioners contend that respondent erroneously tried to

collect employment taxes related to petitioner’s law corporation

from petitioners.     We lack jurisdiction to decide that issue.

Moore v. Commissioner, 114 T.C. 171, 175 (2000).

     2.   Whether We Have Jurisdiction To Decide Whether
          Respondent Sent Notices of Federal Tax Liens to
          Petitioners’ Last Known Address

     Petitioners contend that respondent did not send notice of

the Federal tax liens for tax years 1991, 1993, and 1995 to their
                                - 6 -

last known address.    We lack jurisdiction to consider

petitioners’ claim.    Respondent filed the notices of Federal tax

lien on August 27, 1992, and March 10, 1997.      Section 6320

applies to collection actions initiated after January 19, 1999.

Internal Revenue Restructuring & Reform Act of 1998, Pub. L. 105-

206, sec. 3401, 112 Stat. 746; Hurford v. Commissioner, T.C.

Memo. 2002-94; see Parker v. Commissioner, 117 T.C. 63, 66 (2001)

(liens and levies are separate collection actions for purposes of

sections 6320 and 6330).    Because the notices of Federal tax lien

were filed before January 19, 1999, they are not subject to

section 6320.

     3.   Conclusion

     The above discussion rejects the grounds upon which

petitioners relied in their petition.      Also, by failing to

respond to respondent’s motion, petitioners waived their right to

contest it.   See Rule 121(d); Lunsford v. Commissioner, 117 T.C.

183, 187 (2001).   We conclude that respondent’s determination to

proceed with collection of the tax liabilities assessed against

petitioners was not an abuse of discretion.      Accordingly, we will

grant respondent’s motion for summary judgment.



                                             An appropriate order and

                                        decision will be entered.
