                         T.C. Summary Opinion 2018-19



                         UNITED STATES TAX COURT



                 MICHELLE M. MORENO, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 15956-17S L.                       Filed April 5, 2018.



      Michelle M. Moreno, pro se.

      Erin K. Neugebauer, for respondent.



                              SUMMARY OPINION


      RUWE, Judge: This case was brought pursuant to the provisions of section

7463 of the Internal Revenue Code in effect when the petition was filed.1



      1
      Unless otherwise indicated, 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.
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Pursuant to section 7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent for any other case.

      The issue before the Court is whether to grant respondent’s motion for

summary judgment (motion) pursuant to Rule 121. Respondent contends that no

genuine dispute exists as to any material fact and that his determination to collect

petitioner’s unpaid tax liabilities for 2011, 2013, 2014, and 2015 by levy should be

upheld. Petitioner has not responded to the motion despite an order from this

Court dated January 9, 2018, instructing her to do so.2

                                    Background

      Petitioner resided in Pennsylvania when she filed her petition.

      On January 24, 2017, the Commissioner sent petitioner a Notice of Intent to

Levy and Notice of Your Right to a Hearing for her unpaid income tax liabilities

for 2011, 2013, 2014, and 2015. Petitioner timely submitted a request for a

collection due process (CDP) hearing, in which she sought an offer-in-

compromise. In her request she also stated that she wanted to “settle some of

these penalties and make affordable to get equity out of home to pay off” and that




      2
       Because petitioner failed to respond to respondent’s motion, the Court
could enter a decision against her for that reason alone. See Rule 121(d). We will
nevertheless consider the motion on its merits.
                                         -3-

she wanted to “clear up” a $900 penalty. The $900 penalty was a late filing

addition to tax for 2011 that the Commissioner abated on September 17, 2012.

      On April 14, 2017, a settlement officer (SO) from the Internal Revenue

Service Office of Appeals sent petitioner a letter acknowledging receipt of her

request for a CDP hearing and scheduling a telephone conference call to conduct

the CDP hearing for May 11, 2017. In the letter, the SO asked petitioner to submit

within 14 days: (1) a Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals; (2) proof of current tax payment

compliance for the year to date; and (3) a written explanation as to why petitioner

would be eligible for penalty abatement, and any substantiation that she may want

the SO to consider.

      Petitioner did not submit the requested information to the SO. Petitioner did

not call the SO for the scheduled CDP hearing. On May 12, 2017, the SO sent

petitioner a “last chance” letter, in which she offered petitioner an additional 14

days to submit the requested documents.

      On June 5, 2017, the SO received from petitioner a completed but unsigned

Form 433-A. On June 7, 2017, the SO called petitioner and advised her that the

Form 433-A required a signature and told her that she needed to submit the signed
                                         -4-

Form 433-A by June 9, 2017.3 Petitioner failed to submit the signed Form 433-A.

The SO discovered that petitioner was not in current payment compliance. On

June 28, 2017, the SO sent petitioner a Notice of Determination Concerning

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

action. Petitioner timely filed a petition with this Court, in which she: (1) claimed

that she provided the information requested by the SO; (2) disagreed with the $900

late filing addition to tax for 2011 that the Commissioner abated on September 17,

2012; and (3) claimed that she could not afford to pay the liabilities.

                                     Discussion

A. Summary Judgment

      Summary judgment is designed to expedite litigation and to avoid

unnecessary and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862

(1974). Under Rule 121(b), the Court may grant summary judgment when there is

no genuine dispute as to any material fact and a decision may be rendered as a

matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d,

17 F.3d 965 (7th Cir. 1994). The burden is on the moving party to demonstrate


      3
       After their conversation, the SO sent petitioner the signature page via
facsimile. The cover sheet erroneously listed the “Response Date” as September
20, 2017, but in the “COMMENTS” section the SO asked that the signature page
be returned by June 9, 2017.
                                         -5-

that no genuine issue as to any material fact remains and that he is entitled to

judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C.

73, 74-75 (2001). In deciding whether to grant summary judgment, we view the

evidence in the light most favorable to the nonmoving party. Bond v.

Commissioner, 100 T.C. 32, 36 (1993). However, the nonmoving party is required

“to go beyond the pleadings and by * * * [his] own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on file,’ designate

‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986); see also Rauenhorst v. Commissioner, 119 T.C.

157, 175 (2002); FPL Grp., Inc. & Subs. v. Commissioner, 115 T.C. 554, 559

(2000).

      Petitioner failed to respond to respondent’s motion as ordered by this Court

and has failed to demonstrate that there is a genuine dispute for trial.

Consequently, we conclude that there is no dispute as to any material fact and that

a decision may be rendered as a matter of law.

B. Standard of Review

      Where the validity of a taxpayer’s underlying liability is properly at issue,

the Court reviews any determination regarding the underlying liability de novo.

Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). Where the taxpayer’s
                                          -6-

underlying liability is not properly at issue, we review the Office of Appeals’

determination for abuse of discretion only. Hoyle v. Commissioner, 131 T.C. 197,

200 (2008); Goza v. Commissioner, 114 T.C. at 182. A determination is an abuse

of discretion if it is arbitrary, capricious, or without sound basis in fact or law.

Murphy v. Commissioner, 125 T.C. 301, 308, 320 (2005), aff’d, 469 F.3d 27 (1st

Cir. 2006).

      The only challenge that petitioner seems to raise to her underlying liabilities

concerns the $900 late filing addition to tax for 2011. The $900 addition to tax

was abated on September 17, 2012, before petitioner filed her request for a CDP

hearing and her petition. Thus, we need not determine whether the underlying

liabilities are properly at issue. Accordingly, we will review respondent’s

determination for abuse of discretion only.

C. Analysis

      The determination of the Office of Appeals must take into consideration:

(1) the verification that the requirements of applicable law and administrative

procedure have been met; (2) issues raised by the taxpayer; and (3) whether any

proposed collection action balances the need for the efficient collection of taxes

with the legitimate concern of the person that any collection action be no more

intrusive than necessary. Sec. 6330(c)(3); see also Lunsford v. Commissioner, 117
                                        -7-

T.C. 183, 184 (2001). Our review of the record establishes that the SO properly

considered all of these factors when making her determination.

      In the petition, petitioner disagrees with the SO’s determination because she

contends that she provided the information that the SO requested and that she

cannot afford to pay the outstanding liabilities. When the Office of Appeals gives

the taxpayer a specific timeframe to submit requested items, it is not an abuse of

discretion to move ahead if the taxpayer fails to submit the requested items.

Pough v. Commissioner, 135 T.C. 344, 351 (2010); Glossop v. Commissioner,

T.C. Memo. 2013-208, at *17. Further, an SO is not required to negotiate

indefinitely or wait any specific time before issuing a determination. Kuretski v.

Commissioner, T.C. Memo. 2012-262, at *11, aff’d, 755 F.3d 929 (D.C. Cir.

2014).

      Petitioner did not provide the information that the SO requested. She was

given two separate deadlines to provide the signed Form 433-A but neglected to

do so. The SO was not required to indefinitely wait for petitioner to provide the

Form 433-A. Accordingly, it was not an abuse of discretion to conclude the CDP

hearing before receiving a signed Form 433-A from petitioner.

      Additionally, petitioner was not in current compliance with her tax payment

obligations. Typically, current compliance with the revenue laws is a prerequisite
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to being eligible for a collection alternative. See Cox v. Commissioner, 126 T.C.

237, 257 (2006), rev’d on other grounds, 514 F.3d 1119 (10th Cir. 2008);

Hennessey Manor Nursing Home, Inc. v. Commissioner, T.C. Memo. 2017-97, at

*12. Therefore, it was not an abuse of discretion for the SO to reject a collection

alternative because of petitioner’s current lack of compliance with her tax payment

obligations. See Giamelli v. Commissioner, 129 T.C. 107, 111-112 (2007).

      Finding no abuse of discretion in any respect, we will grant summary

judgment for respondent and sustain the proposed collection action. In reaching

our decision, we have considered all arguments made by the parties, and to the

extent not mentioned or addressed, they are irrelevant or without merit.

      To reflect the foregoing,


                                                    An appropriate order and

                                              decision will be entered.
