                        T.C. Memo. 2007-241



                      UNITED STATES TAX COURT



                 BOBBY J. PRATER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22188-06L.              Filed August 22, 2007.



     Paul R. Tom, for petitioner.

     Elizabeth Downs, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion for summary judgment, filed under Rule 121.1




     1
      All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code in effect for the years at issue.
                                - 2 -

                             Background

     This is an appeal from respondent’s determination upholding

the proposed use of a levy to collect petitioner’s unpaid Federal

income tax liabilities for 1999, 2000, 2003, and 2004.

Petitioner resided in Hominy, Oklahoma, when the petition was

filed.

     Petitioner filed income tax returns for 1999, 2000, 2003,

and 2004.    Petitioner did not pay all of his reported tax

liabilities.    Respondent assessed the tax owed.   On May 1, 2006,

respondent sent petitioner a Final Notice of Intent to Levy and

Notice of Your Right to Hearing for the years at issue.

Petitioner timely submitted a Form 12153, Request for a

Collection Due Process Hearing.    In his request, petitioner

asserted that a levy would cause him “irreparable harm” and

requested payment of his tax liabilities through an installment

agreement.

     On August 16, 2006, Settlement Officer Norman E. Chapman

(Officer Chapman) sent petitioner a letter acknowledging

petitioner’s request for a section 6330 hearing and scheduled a

telephone conference on September 18, 2006, to discuss collection

alternatives.    Before the conference, Officer Chapman requested

that petitioner produce a Form 433-A, Collection Information

Statement for Wage Earners and Self-Employed Individuals, and

proof of estimated tax payments for 2005 and the first and second
                                 - 3 -

quarters of 2006.   Officer Chapman informed petitioner that he

could not consider collection alternatives without petitioner’s

financial information.   Petitioner failed to submit any of the

requested information to Officer Chapman.

     On September 18, 2006, Officer Chapman held petitioner’s

section 6330 hearing by telephone with petitioner’s

representative.   Officer Chapman explained that he could not

consider an installment agreement without petitioner’s financial

information.   Petitioner’s representative responded that he did

not have the requested information.      On September 25, 2006,

respondent issued petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 sustaining

respondent’s proposed collection action.

     On October 31, 2006, the petition was filed.      Petitioner

alleges that although he was unable to obtain all of the

requested information before the September 18, 2006, telephone

conference, he now possesses the necessary financial information.

Petitioner thus requests that the Court remand his case to the

Appeals Office to consider an installment agreement.

     On May 10, 2007, we issued petitioner a notice setting his

case for trial during the Court’s October 15, 2007, Oklahoma

City, Oklahoma, trial session.    On May 10, 2007, respondent filed

a motion for summary judgment.    On May 11, 2007, we ordered
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petitioner to respond to respondent’s motion for summary judgment

by June 4, 2007.   Petitioner failed to respond.

                            Discussion

I.   Summary Judgment

     Summary judgment is a procedure designed to expedite

litigation and avoid unnecessary, time-consuming, and expensive

trials.   Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681

(1988).   Summary judgment may be granted with respect to all or

any part of the legal issues presented “if the pleadings, answers

to interrogatories, depositions, admissions, and any other

acceptable materials, together with 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(a) and

(b); 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

establishing that there is no genuine issue of material fact, and

factual inferences will be drawn in a manner most favorable to

the party opposing summary judgment.     Dahlstrom v. Commissioner,

85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340,

344 (1982).   The nonmoving party, however, cannot rest upon the

allegations or denials in his pleadings but must “set forth

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

Rule 121(d); Dahlstrom v. Commissioner, supra at 820-821.
                                 - 5 -

II.   Section 6330

      Section 6330(a) provides that no levy may be made on any

property or right to property of any person unless the Secretary

has notified such person in writing of the right to a hearing

before the levy is made.     If the person makes a request for a

hearing, a hearing shall be held before an impartial officer or

employee of the Internal Revenue Service Office of Appeals.       Sec.

6330(b)(1), (3).     At the hearing, a taxpayer may raise any

relevant issue, including appropriate spousal defenses,

challenges to the appropriateness of the collection action, and

collection alternatives.     Sec. 6330(c)(2)(A).   A taxpayer may

contest the existence or amount of the underlying tax liability

at the hearing if the taxpayer did not receive a notice of

deficiency for the tax liability in question or did not otherwise

have an earlier opportunity to dispute the tax liability.       Sec.

6330(c)(2)(B); see also Sego v Commissioner, 114 T.C. 604, 609

(2000).

      Following a hearing, the Appeals Office must make a

determination whether the proposed levy action may proceed.       The

Appeals Office is required to take into consideration:      (1)

Verification presented by the Secretary that the requirements of

applicable law and administrative procedures have been met, (2)

relevant issues raised by the taxpayer, and (3) whether the

proposed levy action appropriately balances the need for
                                 - 6 -

efficient collection of taxes with a taxpayer’s concerns

regarding the intrusiveness of the proposed levy action.   Sec.

6330(c)(3).

     Section 6330(d)(1) grants this Court jurisdiction to review

the determination made by the Appeals Office in connection with

the section 6330 hearing.   Where the underlying tax liability is

not in dispute, the Court will review the determination of the

Appeals Office for abuse of discretion.    Lunsford v.

Commissioner, 117 T.C. 183, 185 (2001); Sego v. Commissioner,

supra at 610; Goza v. Commissioner, 114 T.C. 176, 182 (2000).     An

abuse of discretion occurs if the Appeals Office exercises its

discretion “arbitrarily, capriciously, or without sound basis in

fact or law.”   Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

     Petitioner does not dispute his underlying tax liabilities

for any of the relevant years.    Accordingly, we shall review

respondent’s determination for abuse of discretion.

     In his petition, petitioner alleges that he now has the

financial information requested by Officer Chapman and that the

Court should remand his case to the Appeals Office for

consideration of payment through an installment agreement.

Respondent asserts that the Appeals officer did not abuse his

discretion by rejecting an installment agreement because

petitioner did not provide the requested financial information at

the section 6330 hearing.
                                - 7 -

     As we previously stated, Officer Chapman requested that

petitioner submit a Collection Information Statement and proof of

estimated tax payments for 2005 and the first and second quarters

of 2006 before the section 6330 hearing.      Officer Chapman warned

petitioner that he could not consider an installment agreement

without the requested financial information from petitioner.

Because petitioner failed to submit the requested financial

information,2 Officer Chapman could not consider petitioner’s

request to pay his tax liability through an installment

agreement.   Accordingly, respondent did not abuse his discretion

in rejecting an installment agreement and sustaining the proposed

collection action.    See Chandler v. Commissioner, T.C. Memo.

2005-99; Roman v. Commissioner, T.C. Memo. 2004-20.

     We conclude that there is no genuine issue of material fact

requiring a trial in this case, and we hold that respondent is

entitled to the entry of a decision sustaining the proposed levy

as a matter of law.



                                             An appropriate order and

                                        decision will be entered.




     2
      Nothing in the record indicates that petitioner or
petitioner’s representative requested additional time to submit
the requested financial information.
