                         T.C. Memo. 2000-320



                       UNITED STATES TAX COURT



               ROBERT C. MacELVAIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16631-99L.                    Filed October 13, 2000.



     Robert C. MacElvain, pro se.

     John F. Driscoll and Kerry Bryan, for respondent.


                         MEMORANDUM OPINION


     ARMEN, Special Trial Judge:    This matter is before the Court

on respondent's Motion for Partial Summary Judgment, filed

pursuant to Rule 121.1   As explained below, we shall grant

respondent's motion.


     1
        All Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to
sections of the Internal Revenue Code, as amended.
                                - 2 -

Background

     From 1984 through 1990, petitioner commenced four cases in

this Court for the redetermination of deficiencies in Federal

income taxes and additions to tax for each of the four taxable

years 1980 through 1983.   See sec. 6213(a).   A description of

each of those four cases follows herein:

A. Taxable Year 1980

     On June 15, 1984, respondent issued a notice of deficiency

to petitioner determining a deficiency of $576,896 in his Federal

income tax for 1980.    Respondent also determined that petitioner

was liable for an addition to tax under section 6653(a) for

negligence or intentional disregard of rules and regulations.

     On October 29, 1984, petitioner filed a petition with the

Court (assigned docket No. 37347-84) contesting the notice of

deficiency for 1980.2   In February 1986, shortly before

petitioner's case was scheduled for trial, petitioner entered

into a stipulated decision with respondent agreeing to a

deficiency in income tax and an addition to tax under section

6653(a) for 1980 in the amounts of $190,291 and $9,515,

respectively.   Petitioner subsequently filed a motion to vacate

the stipulated decision.   In MacElvain v. Commissioner, T.C.



     2
        The petition was timely filed within the 150-day period
prescribed by sec. 6213(a).
     There is no support in the record for petitioner's assertion
that he did not file a petition for 1980 until May 22, 1986.
                                 - 3 -

Memo. 1987-366, the Court denied petitioner's motion to vacate.

     Petitioner did not file any notice of appeal in docket No.

37347-84.    Accordingly, the Court's decision in that docket has

long been final.   See secs. 7481(a)(1), 7483.

B. Taxable Year 1981

     On August 19, 1988, respondent issued a notice of deficiency

to petitioner determining a deficiency of $205,662 in his Federal

income tax for 1981.   Respondent also determined that petitioner

was liable for additions to tax for such year under section

6653(a)(1) and (2) for negligence or intentional disregard of

rules and regulations.

     On November 16, 1988, petitioner filed a timely petition

with the Court (assigned docket No. 29751-88) contesting the

notice of deficiency for 1981.    On July 20, 1989, the Court

entered an Order of Dismissal and Decision, sustaining

respondent's determinations for 1981 on the ground that

petitioner had failed to properly prosecute his case and had

failed to comply with a prior order of the Court.     The Court

subsequently denied petitioner's Motion to Vacate its order of

dismissal.

     Petitioner did not file any notice of appeal in docket No.

29751-88.    Accordingly, the Court's decision in that docket has

long been final.   See secs. 7481(a)(1), 7483.
                                - 4 -

C. Taxable Year 1982

     On June 12, 1989, respondent issued a notice of deficiency

to petitioner determining a deficiency in and additions to his

Federal income tax for 1982.   On September 5, 1989, petitioner

filed a timely petition with the Court (assigned docket No.

21830-89) contesting the notice of deficiency for 1982.    On May

17, 1991, the Court entered a stipulated decision that petitioner

was liable for a deficiency in income tax in the amount of

$36,016, an addition to tax under section 6653(a)(1) in the

amount of $1,800.80, an addition to tax under section 6653(a)(2)

in an amount equal to 50 percent of the interest due on the

deficiency, and an addition to tax under section 6661 for

substantial understatement of liability in the amount of

$9,004.00.

     Petitioner did not file any notice of appeal in docket No.

21830-89.    Accordingly, the Court's decision in that docket has

long been final.   See secs. 7481(a)(1), 7483.

D. Taxable year 1983

     On June 15, 1990, respondent issued a notice of deficiency

to petitioner determining a deficiency of $167,381 in his Federal

income tax for 1983.   Respondent also determined that petitioner

was liable for additions to tax under section 6653(b)(1) and (2)

for fraud and under section 6661 for substantial understatement

of liability.
                               - 5 -

     Although petitioner contends that he did not receive the

notice of deficiency for 1983, the record shows that he did.3    On

September 12, 1990, petitioner filed an imperfect petition with

the Court (assigned docket No. 20618-90).   On January 10, 1991,

the Court entered an Order of Dismissal for Lack of Jurisdiction

in that docket on the ground that petitioner had failed to file a

proper amended petition or pay the requisite filing fee within

the time prescribed by the Court.   Although the Court, pursuant

to its normal procedure, has destroyed all of its records in

docket No. 20618-90 with the exception of the above-referenced

order of dismissal, both the Court’s docket record and

respondent's records show that the Court served respondent with a

copy of the petition on September 17, 1990.   Respondent’s records

also show that attached as an exhibit to the copy of the petition

served on respondent were the first two pages of the notice of

deficiency dated June 15, 1990.   In serving petitions on

respondent, see Rule 21(b)(1), it has long been the Court’s

practice to photocopy and serve at least the letter portion of

any notice of deficiency that accompanies the petition.

     Petitioner did not file any notice of appeal from the

Court’s order of dismissal.   Accordingly, such order has long


     3
        We note that the notice of deficiency for 1983 was mailed
to petitioner at the same Eufaula, Alabama, address that
petitioner had used in the docketed cases described above for
1981 and 1982 and the same address that petitioner is using in
the instant case.
                               - 6 -

been final.   See secs. 7481(a)(1), 7483.

E. District Court Collection Suit

     In or about March 1996, the United States commenced a civil

action against petitioner in the U.S. District Court for the

Middle District of Alabama.   The action, which sought to reduce

the Government’s tax claims for 1980 through 1982 to judgment,

prayed that the Court find the “defendant, Robert C. MacElvain,

indebted to the United States in the amount of $2,091,477.76, as

of March 18, 1996, for unpaid federal income tax liabilities for

calendar years 1980, 1981, and 1982, plus further accruals of

interest and statutory additions thereon according to law, and

that judgment be entered in favor of plaintiff United States of

America for that amount.”

     Petitioner participated actively in the foregoing action,

asserting a variety of defenses, specifically including the

statute of limitations.

     In April 1997, the District Court entered judgment in favor

of the United States and against petitioner “for unpaid taxes,

interest, penalties and lien fees for the years 1980, 1981 and

1982 * * * in the amount of $2,091,477.76 plus interest and

statutory additions as allowed by law”.4



     4
        The District Court’s judgment made clear that the sum of
$2,091,477.76 represented “the amount due and payable through
March 18, 1996" and did not include “additional interest,
penalties or fees which may have accrued since that time.”
                                 - 7 -

F. Administrative Collection Matters

     On January 29, 1999, respondent mailed a final notice of

intent to levy to petitioner.    See sec. 6331.   The notice states

that petitioner owes taxes, interest, and penalties for the years

and in the amounts as follows:

                  Year           Amount

                  1980     $  793,308.52
                  1981      1,632,232.54
                  1982        278,290.41
                  1983      1,278,878.58
                  1984        175,098.63
                  1985        404,236.97
                  1986        196,256.57

The notice also states that respondent is preparing to collect

these amounts and that petitioner would be given 30 days to

request an Appeals Office hearing.

     Petitioner timely requested a hearing with respondent's

Appeals Office.   In particular, petitioner argued that “the time

for making an assessment for all the periods listed on your

'NOTICE OF INTENT TO LEVY' was negated on May 8, 1987".

     On September 29, 1999, the Appeals Office issued a Notice of

Determination Concerning Collection Actions to petitioner stating

that respondent would proceed with collection.    The determination

letter makes reference to petitioner's challenge to the validity

of the assessments and states that, because petitioner had an

earlier opportunity to dispute the underlying tax liabilities,

that issue would not be addressed by the Appeals Office.
                               - 8 -

G. Commencement of the Present Case

     On October 27, 1999, petitioner filed with the Court a

petition for review of respondent's determination to proceed with

collection.5   The petition includes an allegation that petitioner

is not liable for the underlying taxes because of the expiration

of the period of limitations on assessment for the years in issue

and government fraud.

     After filing an answer to the petition, respondent filed a

Motion for Partial Summary Judgment.   Respondent contends that,

because petitioner received notices of deficiency for the taxable

years 1980, 1981, 1982, and 1983 (and therefore was presented

with an earlier opportunity to contest his tax liabilities for

those years), petitioner is precluded by statute from contesting

the underlying taxes for those years in this proceeding.

Petitioner filed an opposition to respondent's motion.

     This matter was called for hearing at the Court's motions

session in Washington, D.C., on September 6, 2000.   Counsel for

respondent appeared at the hearing and offered argument in

support of respondent's motion.   Petitioner appeared at the

hearing and offered argument in opposition to respondent's

motion.   Petitioner also offered the testimony of a witness,


     5
        The petition was filed pursuant to Title XXXII of the
Court’s Rules of Practice and Procedure governing Lien and Levy
Actions.
     At the time that the petition was filed, petitioner resided
in Eufaula, Alabama.
                                - 9 -

Victoria Osborn.    The Court rejected Ms. Osborn's proposed

testimony after a brief voir dire revealed that she did not have

any firsthand knowledge regarding petitioner's above-described

Tax Court cases assigned docket Nos. 37347-84, 29751-88, 21830-

89, and 20618-90.

Discussion

     Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon property belonging to the taxpayer.

Section 6331(d) provides that the Secretary is obliged to provide

the taxpayer with notice before proceeding with collection by

levy on the taxpayer's property, including notice of the

administrative appeals available to the taxpayer.

     In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress

enacted new sections 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide protections for taxpayers in

tax collection matters.    Section 6330 generally provides that the

Commissioner cannot proceed with the collection of taxes by way

of a levy on a taxpayer's property until the taxpayer has been

given notice of, and the opportunity for, an administrative

review of the matter (in the form of an Appeals Office hearing);

if dissatisfied with the outcome of such hearing, the taxpayer
                                - 10 -

may seek judicial review of the administrative determination in

either the Tax Court or a Federal District Court, during which

review the suspension of the levy continues.

     Section 6330(c)(2)(B) provides that the existence or the

amount of the underlying tax liability can be contested at an

Appeals Office hearing if the taxpayer did not receive a notice

of deficiency for the taxes in question or did not otherwise have

an earlier opportunity to dispute such tax liability.   Section

6330(d)(1)(A) provides that a taxpayer may file a petition for

review of the Commissioner's administrative determination with

the Tax Court if the Court has jurisdiction of the underlying tax

liability.

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   See Florida 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 in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the 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(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);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
                              - 11 -

     In Goza v. Commissioner, 114 T.C. 176 (2000), we explained

that section 6330(c) provides for an Appeals Office hearing to

address collection issues such as spousal defenses, the

appropriateness of the Commissioner's intended collection

activities, and possible alternative means of collection.   The

taxpayer in Goza had received a notice of deficiency, yet failed

to file a petition for redetermination with the Court.    When the

taxpayer subsequently attempted to use the Court's procedures

governing Lien and Levy Actions as a forum to assert frivolous

and groundless constitutional arguments against the Federal

income tax, we cited the statutory limitation imposed under

section 6330(c)(2)(B) and dismissed the petition for failure to

state a claim upon which relief could be granted.6

     Based on our review of the record in this case, we hold that

there is no dispute as to a material fact and that respondent is

entitled to partial summary judgment as a matter of law.    In

particular, the record in the instant case shows that petitioner

received notices of deficiency for the taxable years 1980, 1981,

1982, and 1983.   Morever, petitioner filed petitions with the

Court contesting those notices.   As previously discussed, those

petitions were disposed of either by stipulated decision, order


     6
        In Goza v. Commissioner, 114 T.C. 176 (2000), the
Commissioner moved to dismiss for failure to state a claim before
filing an answer. In the present case, respondent did not move
for partial summary judgment until well after the case was at
issue within the meaning of Rule 38.
                               - 12 -

of dismissal and decision, or order of dismissal for lack of

jurisdiction.    Under the circumstances, section 6330(c)(2)(B)

clearly bars petitioner from contesting the existence or amount

of his tax liabilities for those years before the Appeals Office

or the Court.7   Petitioner failed to raise a spousal defense or

challenge respondent's proposed levy by offering a less intrusive

means for collecting the taxes in either the Appeals Office

hearing or in his Lien and Levy Action petition filed with the

Court.   See sec. 6330(c)(2)(A).   These issues are now deemed

conceded.   See Rule 331(b)(4).

     Petitioner has failed to state a justiciable claim for

relief in this Lien and Levy proceeding with respect the taxable

years 1980, 1981, 1982, and 1983.    Petitioner's claim that the

period of limitations for assessment expired on May 8, 1987, for

these years constitutes a challenge to the existence of the

underlying tax liabilities.    Section 6330(c)(2)(B) precludes

review of those tax liabilities in this proceeding.8


     7
        Petitioner’s liabilities for the taxable years 1980
through 1982 are established by the Court’s decisions entered in
docket Nos. 37347-84, 29751-88, and 21830-89, which decisions are
all final. The doctrine of res judicata precludes petitioner
from relitigating his liabilities for those years. See, e.g.,
Krueger v. Commissioner, 48 T.C. 824, 829-830 (1967).
     8
        We note that petitioner’s “defense” of the statute of
limitations appears to ignore a number of statutory provisions,
among them sec. 6501(c)(1), providing for an unlimited period of
limitations in the case of a false or fraudulent return with the
intent to evade tax, and sec. 6503, providing for the suspension
of running of the period of limitations under various
circumstances, including the issuance of a notice of deficiency.
                                                   (continued...)
                             - 13 -

     In view of the foregoing, we hold that respondent's

determinations to proceed with collection for the taxable years

1980, 1981, 1982, and 1983 are correct.    Accordingly, we shall

grant respondent's Motion for Partial Summary Judgment.

     To reflect the foregoing,



                                      An appropriate order

                                 will be issued granting

                                 respondent’s Motion for Partial

                                 Summary Judgment.




     8
      (...continued)
     We also note that the District Court considered, and
rejected, a statute of limitations defense that petitioner
asserted in the civil collection action described supra.
