                        T.C. Memo. 2004-16



                      UNITED STATES TAX COURT



                  ARIEL J. DORRA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4437-03L.            Filed January 26, 2004.



     Ariel J. Dorra, pro se.

     Leonard T. Provenzale, for respondent.



                        MEMORANDUM OPINION


     GERBER, Judge:   Respondent in a motion filed on August 12,

2003, moves for summary judgment on the question of whether

collection may proceed in accord with the Notice of Determination

Concerning Collection Actions(s) Under Section 6320 and/or 6330

(notice of determination) sent to petitioner February 20, 2003.

Petitioner contends that he did not have a “hearing” within the
                              - 2 -

meaning of section 6320(b) or 6330(b).1   In particular,

petitioner contends that telephone contacts between himself, his

representative, and the Appeals officer do not constitute a

“hearing” as contemplated in section 6320(b).

Background

     Petitioner filed 1997, 1999, and 2000 Federal income tax

returns, but failed to pay all of the reported tax liabilities.

The liabilities were assessed by respondent and on March 25,

2002, petitioner was sent a Notice of Federal Tax Lien Filing And

Your Right to a Hearing Under I.R.C. 6320.   A Notice of Federal

Tax Lien had been filed and recorded on March 20, 2002, and on

March 28, 2002, petitioner entered into an installment agreement

to pay his outstanding tax liabilities.   After the filing of the

Notice of Federal Tax Lien and entering into the installment

agreement, petitioner sought to have the Notice of Federal Tax

Lien removed.

     On May 1, 2002, petitioner requested a hearing by submitting

a Form 12153, Request For A Collection Due Process Hearing, and

on November 25, 2002, respondent’s Appeals officer sent a letter

offering to schedule a hearing.   In a December 13, 2002, letter,

petitioner’s representative, a lawyer under a power of attorney

from petitioner, set forth the relief sought by his client, to


     1
       Section references are to the Internal Revenue Code in
effect for the period under consideration. Rule references are
to the Tax Court’s Rules of Practice and Procedure.
                                - 3 -

wit:    The release of the Notice of Federal Tax Lien because it

was causing petitioner a significant hardship.      The

representative proposed that if respondent released the Notice of

Federal Tax Lien, respondent could record a new notice if

petitioner defaulted with respect to the payments under the

installment agreement.

       On December 17, 2002, the Appeals officer engaged in a

telephonic conference with petitioner and his representative.

Petitioner’s representative agreed that the administrative

requisites had been followed or met by respondent.        Petitioner’s

representative also explained that petitioner was attempting to

refinance property and that respondent should release the Notice

of Federal Tax Lien because an installment payment agreement had

been entered into with petitioner.      The Appeals Office advised

that a notice of lien is not released until the liability is

satisfied or becomes uncollectible as a matter of law.

       Following the telephone conference with petitioner and his

representative, the Appeals officer, on February 20, 2003, issued

a notice of determination.    In the accompanying writeup, the

Appeals officer explained that the Notice of Federal Tax Lien

would not be released and that the notice was not released as a

matter of right if a taxpayer entered into an installment

agreement.    Petitioner resided in Jupiter, Florida, when he

timely filed his petition with this Court.
                               - 4 -

Discussion

     Respondent seeks summary judgment with respect to whether he

may proceed to collect certain outstanding tax liabilities

against petitioner.   Rule 121 provides for summary judgment for

part or all of the legal issues in controversy if there is no

genuine issue 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), 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.   The sole issue raised in petitioner’s pleading is that he

did not have a “hearing”, and that question is susceptible to

resolution by means of summary judgment.   Respondent, pursuant to

sections 6321 and 6323, seeks to maintain the Federal tax lien

filed with respect to petitioner’s property.   In accord with

section 6320(a), respondent provided petitioner with a notice of

the filing of a Notice of Federal Tax Lien.    The notice provided

to petitioner advised him of his right to an administrative

appeal of respondent’s determination to collect the tax.    In that

regard, the Commissioner, after filing a Notice of Federal Tax

Lien, must provide a taxpayer with the opportunity for an

administrative and/or judicial review of the determination to
                                - 5 -

file the lien and proceed with collection.      See Davis v.

Commissioner, 115 T.C. 35, 37 (2000).

     Under section 6320(b), if a taxpayer “requests a hearing

under subsection (a)(3)(B) [of section 6320], such hearing shall

be held by the Internal Revenue Service Office of Appeals.”       We

have decided that, under appropriate circumstances, the hearing

envisioned in sections 6320(b) and 6330(b) may be conducted

telephonically.    See Katz v. Commissioner, 115 T.C. 329, 334-339

(2000).   In that case we concluded that the Appeals officer heard

and considered all of petitioner’s arguments during a telephone

conference.   Id. at 337-338.

     In this case, we also conclude that the Appeals officer

heard and considered all of petitioner’s arguments.      In his

response to respondent’s motion, petitioner stated that, if given

another hearing, there is nothing more that he would argue to the

Appeals officer.   Petitioner and his representative communicated

in writing and by telephone with respondent’s Appeals officer.

In spite of this, petitioner contends that there was no “hearing”

within the meaning of the statute.      This contention is also

contrary to the regulations under section 301.6320-1(d)(2) A-D6

of the Procedural and Administrative Regs., which provide that

     CDP hearings * * * are informal in nature and do not
     require the Appeals officer or employee and the
     taxpayer, or the taxpayer’s representative, to hold a
     face-to-face meeting. A CDP hearing may, but is not
     required to, consist of a face-to-face meeting, one or
     more written or oral communications between an Appeals
                               - 6 -

     officer or employee and the taxpayer or the taxpayer’s
     representative, or some combination thereof. * * *

     Accordingly, we hold that petitioner did have an opportunity

for a “hearing” within the meaning of section 6320(b) and case

precedent and that the contention that his telephone conference

was not a “hearing” within the meaning of section 6320(b) is of

little moment since his representative, with power of attorney,

had authority to pursue or waive a hearing.   Based on the

undisputed allegation of respondent, petitioner’s representative

elected a telephonic conference in lieu of one that was face-to-

face.   It also appears that petitioner’s representative aired the

client’s concerns with the Appeals officer as petitioner

testified that he would not have raised any additional arguments

to the Appeals officer if given another hearing.   In addition, it

would be neither necessary nor productive to remand for a hearing

in any event.   See Lunsford v. Commissioner, 117 T.C. 183, 189

(2001).

     In connection with the appeals consideration that was

afforded to petitioner, a collection alternative was considered,

and agreement was reached on an installment payment plan for

petitioner.   The Appeals officer, however, refused to release the

Notice of Federal Tax Lien without full payment or other

arrangement to protect the Government’s priority creditor status

with respect to petitioner’s real property.   See sec. 6325; cf.

sec. 6331(k), relating to levies.   Petitioner has not shown
                              - 7 -

entitlement to a release as a matter of law or right, and,

accordingly, petitioner has not shown an abuse of discretion.    We

also note that petitioner and his representative were offered

proof that respondent had complied with the prerequisites of

sections 6320 and 6330 preliminary to proceeding with the filing

of a Notice of Federal Tax Lien or other collection activity.

     Respondent’s Motion For Summary Judgment will be granted.

To reflect the foregoing,

                                      An appropriate order and

                              decision will be entered for

                              respondent.
