                        T.C. Memo. 2004-25



                      UNITED STATES TAX COURT




                    SUE TAYLOR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent




     Docket No. 13491-03L.            Filed February 3, 2004.



     Sue Taylor, pro se.

     Erin K. Huss, for respondent.



                       MEMORANDUM OPINION


     GERBER, Judge:   Respondent, in a motion filed on November 6,

2003, moved for summary judgment on the question of whether

respondent may proceed with collection of Federal income tax

assessed against petitioner.   Petitioner, on November 14, 2003,

filed a cross-motion for summary judgment on the question of
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whether this case should be remanded to respondent’s Appeals

Office for a recorded administrative hearing.   Petitioner objects

to respondent’s motion, and respondent objects to petitioner’s

motion.   All section references are to the Internal Revenue Code

in effect for the year in issue, and all Rule references are to

the Tax Court Rules of Practice and Procedure, unless otherwise

indicated.

Background

     On June 21, 2001, respondent mailed to petitioner a

statutory notice of deficiency for the taxable period ending

December 31, 1997.   Petitioner received the statutory notice, but

failed to petition this Court.    On November 26, 2001, respondent

assessed petitioner’s 1997 Federal income tax deficiency.

     A Form 1058, Final Notice--Notice of Intent to Levy and

Notice of Your Right to a Hearing, was sent to petitioner on

April 2, 2002.   On April 9, 2002, respondent sent petitioner a

letter entitled, “Notice of Federal Tax Lien Filing and Your

Right to a Hearing under I.R.C. §6320”.   Petitioner’s designated

representative timely requested an administrative hearing under

sections 6320 and 6330.   Petitioner’s sole contention in the

administrative hearing request was that “there are egregious

errors that once corrected would mitigate the collection

activity.”
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     On June 23, 2003, respondent’s Appeals officer sent

petitioners’s designated representative a letter scheduling the

date and time of the requested hearing for July 10, 2003, at

9 a.m.   Attached to the letter was a copy of petitioner’s Form

4340, Certificate of Assessments, Payments, and Other Specified

Matters, with respect to petitioner’s 1997 tax year.   The Appeals

officer also noted in the letter that petitioner’s representative

could request a phone conference instead of an in-person meeting

if he preferred.

     Neither petitioner nor her designated representative

appeared for the scheduled conference.   Further neither

petitioner nor her representative attempted to schedule an

alternative conference date.   At this point, the Appeals officer

reviewed petitioner’s certified transcript and the information in

petitioner’s file.   After this review, respondent issued a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330, dated July 17, 2003, wherein respondent

determined the proposed collection action was appropriate.

     Petitioner asserts that the Appeals officer refused to allow

petitioner to make a recording of the administrative hearing.

Respondent, however, points out that neither petitioner nor her

representative made a request to record an administrative

hearing.   Respondent also reiterates the fact that neither
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petitioner nor her representative appeared for the scheduled

hearing and no attempt was made to reschedule.

Discussion

     Respondent seeks summary judgment with respect to whether he

may proceed with collection against petitioner, and petitioner

seeks summary judgment on whether this case should be remanded to

respondent’s Appeals Office for a recorded administrative

hearing.    Rule 121 provides for summary judgment to be employed

as to part or all of the legal issues in controversy if there is

no genuine issue as to any material fact and a summary

adjudication may be rendered as a matter of law.    See also

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994).    In that regard, summary judgment is

intended to expedite litigation and avoid unnecessary and

expensive trials.    Fla. Peach Corp. v. Commissioner, 90 T.C. 678,

681 (1988).

     There is no genuine issue as to any material fact in this

case.   Respondent had filed a notice of Federal tax lien and

pursuant to section 6331(a) was seeking to levy on petitioner’s

property.    In accord with sections 6330(a) and 6331(d),

respondent provided petitioner with final notice of intent to

levy, which also included notice of petitioner’s right

to an administrative appeal before such levy was made.

In that regard, the Commissioner cannot collect by levy
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without the opportunity for a taxpayer to seek an administrative

review of the proposed levy and filed lien and/or the opportunity

for judicial review of the administrative determination to

proceed with collection.   Davis v. Commissioner, 115 T.C. 35, 37

(2000).

     Petitioner opted for an administrative review and, after

respondent’s determination to go forward with collection, sought

review by this Court.   Petitioner did not file a petition for her

1997 tax year following respondent’s issuance of a statutory

notice of deficiency.   Accordingly, petitioner is afforded review

by this Court solely on the question of abuse of discretion

because the validity of the underlying liability is not at issue.

Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 610

(2000).

     Because petitioner is not entitled to question the

underlying tax liability, her administrative review was limited

to collection issues, including spousal defenses, the

appropriateness of respondent’s intended collection action, and

possible alternatives to collection.   Sec. 6330(c)(2). However,

when the hearing date arrived, neither petitioner nor her

designated representative appeared for the scheduled conference,

and neither one had attempted to schedule an alternative

conference date.
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     Once a taxpayer has been given an opportunity for a hearing

but fails to avail herself of that opportunity, the Appeals

officer may proceed in making a determination by reviewing the

case file.   See Mann v. Commissioner, T.C. Memo. 2002-48; sec.

301.6330-1(d)(2) Q&A-D7, Proced. & Admin. Regs.    When neither

petitioner nor her representative appeared for the hearing, the

Appeals officer reviewed petitioner’s case, and considered the

sole issue raised by petitioner, that “there are egregious errors

that once corrected would mitigate the collection activity.”

Petitioner did not allege specific errors, nor did she challenge

the appropriateness of the intended method of collection or offer

a collection alternative.    Also, petitioner did not raise any

other defenses to collection.    After this review, respondent

issued the Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330.

     Petitioner does not raise the issue of whether she had an

opportunity for a hearing.    Rather, petitioner asserts that she

was denied the opportunity to record the administrative hearing,

and is therefore entitled to have her case remanded for a second

hearing.   Recently, in Keene v. Commissioner, 121 T.C. 8, 9

(2003), we held that a taxpayer is entitled to audio record his

section 6330 hearing pursuant to section 7521(a)(1).    Section

7521(a)(1) essentially provides that a taxpayer, in connection
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with an in-person interview and upon advance request, will be

allowed to make an audio recording of the interview.

     In this case, however, petitioner did not make a request to

record, and as required in section 7521(a)(1), such requests must

be made in advance.   In her response to respondent’s motion for

summary judgment, petitioner tacitly admits that she did not make

a request to record the Appeals conference.      Significantly,

neither petitioner nor her representative attended the meeting

with the Appeals officer, and neither of them requested or was

refused the opportunity to record.      Therefore, petitioner’s

argument fails.

     Accordingly, we hold that there is no genuine issue as to

any material fact supporting petitioner’s claim that there was an

abuse of discretion in respondent’s determination concerning the

collection action(s) under section 6320 and/or 6330.      As such, we

further hold that respondent is entitled to proceed with

collection of petitioner’s 1997 tax liability.      We have

considered all of petitioner’s arguments, and, to the extent that

they are not mentioned herein, we find them to be moot,

irrelevant, or without merit.
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To reflect the foregoing,

                                    An order and decision will be

                            entered granting respondent’s

                            motion for summary judgment and

                            denying petitioner’s cross-motion.
