                        T.C. Memo. 2003-47



                     UNITED STATES TAX COURT



                 GLORIA M. STARK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9570-02L.           Filed February 25, 2003.


     Gloria M. Stark, pro se.

     Charles J. Graves, for respondent.



                        MEMORANDUM OPINION


     THORNTON, Judge:   Respondent has moved for summary judgment

on the question of whether respondent may proceed with collection

of petitioner’s outstanding tax liabilities for tax years 1994

through 1997.

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   Fla. Peach Corp. v.
                               - 2 -

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted where there is no genuine issue of any material fact and

a decision may be rendered as a matter of law.   Rule 121(a) and

(b); see 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).1   The moving party bears

the burden of proving that there is no genuine issue of material

fact; factual inferences will be read 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).   When a motion for summary judgment is

made and properly supported, the adverse party may not rest upon

mere allegations or denials of the pleadings but must set forth

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

Rule 121(d).

     As discussed in detail below, we conclude that there is no

dispute as to any material fact and that respondent is entitled

to summary judgment as a matter of law.

                            Background

     On September 8, 1987, the Circuit Court for the County of

Midland, Michigan, entered a judgment of divorce between

petitioner and her former husband, Forrest Stark (the divorce


     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code, as amended.
                               - 3 -

judgment).   The divorce judgment ordered, inter alia, that

permanent alimony be awarded to petitioner in the amount of

$1,000 per month.

     Petitioner made several unsuccessful appeals to the Michigan

Supreme Court regarding her divorce.   See Stark v. George, 489

N.W.2d 784 (Mich. 1992) (denying petitioner’s application for

leave to appeal an action against the attorneys who represented

Forrest Stark in the divorce proceedings); Stark v. Midland

Circuit Judge, 435 Mich. 877 (1990) (denying petitioner’s

application for leave to appeal and denying a motion “to

disqualify a party”); Stark v. Stark, 432 Mich. 898 (1989)

(denying petitioner’s application for leave to appeal an action

against Forrest Stark), motion for reconsideration denied, Stark

v. Stark, Nos. 85431, 85, 85432, 83, 1989 Mich. LEXIS 1217; Stark

v. Stark, 431 Mich. 877 (1988) (denying petitioner’s application

for leave to appeal an action against Forrest Stark).2

     Petitioner filed a Federal income tax return for 1994

showing tax liability, but she did not remit payment for the

reported liability.   Petitioner filed a Federal income tax return

for 1996, but not for 1995 or 1997.

     2
       On petitioner’s Form 12153, Request for a Collection Due
Process Hearing, dated July 12, 2000, petitioner contended that
her divorce was invalid and stated that her “case is now in
Federal Court.” We take judicial notice that on July 12, 2000,
the United States Court for the Eastern District of Michigan
entered an order granting the State of Michigan’s motion to
dismiss the action filed by petitioner in Stark v. Michigan, No.
00-CV-10066 (E.D. Mich., filed Feb. 23, 2000).
                                - 4 -

     On June 21, 1999, respondent sent petitioner a notice of

deficiency for 1995, 1996, and 1997, determining income tax

deficiencies of $7,054, $6,305, and $6,711, respectively, plus

additions to tax under sections 6651(a)(1) and 6654 for 1995 and

1997.   Petitioner did not petition this Court for

redetermination.

     On March 29, 1999, respondent assessed the unpaid tax

liability reported on petitioner’s 1994 tax return, plus

penalties and interest.    On February 7, 2000, respondent assessed

the income tax deficiencies and additions to tax, plus interest,

as determined in the notice of deficiency for 1995, 1996, and

1997.

     On June 15, 2000, respondent sent petitioner a Final Notice

-- Notice of Intent to Levy and Notice of Your Right to a

Hearing, regarding petitioner’s 1994 through 1997 income tax

liabilities.   On July 12, 2000, petitioner submitted to

respondent a Form 12153, Request for a Collection Due Process

Hearing.   On the Form 12153, the only issue that petitioner

raised was whether payments received from her former husband were

taxable to her as alimony.

     On April 10, 2001, an administrative hearing was held

between petitioner and respondent’s Appeals officer (the

administrative hearing).   On April 30, 2002, respondent issued

petitioner a Notice of Determination Concerning Collection
                                - 5 -

Action(s) Under Section 6320 and/or 6330 (notice of

determination) regarding petitioner’s 1994 through 1997 tax

liabilities.   In the notice of determination, respondent

determined that all applicable legal and administrative

procedures had been met and that collection actions could proceed

against petitioner.   The notice of determination states:   “The

underlying tax liability is correct.    You were divorced and the

alimony payments received from your former husband are properly

included into income.”

     On June 3, 2002, this Court received from petitioner, who

then resided in Independence, Missouri, a letter which the Court

treated as a timely imperfect petition for review of respondent’s

notice of determination.    On June 26, 2002, petitioner filed an

amended petition.   In her amended petition, petitioner states

that she “does not contest the tax owed or any additions to the

tax for penalty or interest.   The petitioner merely states that

the IRS is billing the wrong person for the taxes owed for the

years 1994, 1995, 1996 and 1997.”   She contends that the Midland

County, Michigan, circuit judge who signed the divorce judgment

had been “previously disqualified from making any further rulings

between the two parties.”   Thus, she contends, there was “No

legal divorce” and consequently “no alimony” to be included in

her taxable income.
                                 - 6 -

                               Discussion

     If any person neglects or refuses to make payment of any

Federal tax liability within 10 days of notice and demand, the

Secretary is authorized to collect the tax by levy on the

person’s property.   Sec. 6331(a).    At least 30 days before taking

such action, however, the Secretary generally must provide the

person with a final notice of intent to levy that describes,

among other things, the administrative appeals available to the

person.   Sec. 6331(d).   Upon request, the person is entitled to

an administrative hearing before the Appeals Office of the

Internal Revenue Service.   Sec. 6330(b)(1).   If dissatisfied with

the Appeals Office determination, the person may seek judicial

review in the U.S. Tax Court or a Federal District Court, as

appropriate.   Sec. 6330(d).    Generally, the proposed levy actions

are suspended for the pendency of the hearing and any judicial

appeals therein.   Sec. 6330(e)(1).

     Section 6330(c) prescribes matters that a person may raise

at an Appeals Office hearing, including spousal defenses, the

appropriateness of the Commissioner’s intended collection action,

and possible alternative means of collection.    The existence or

amount of the underlying tax liability may be challenged in the

collection proceeding only if the person received no statutory

notice of deficiency or otherwise had no opportunity to dispute
                                 - 7 -

the tax liability.     Sec. 6330(c)(2)(B); see Sego v. Commissioner,

114 T.C. 604, 609 (2000).     If the underlying tax liability is not

properly at issue, we review respondent’s determination for an

abuse of discretion.     Sego v. Commissioner, supra at 610.

Otherwise, we review the matter de novo.     Id.

     The only issue petitioner has raised is whether payments

received from her former husband pursuant to a disputed divorce

judgment should be included in her taxable income.    Respondent

argues that in the circumstances of this case, section

6330(c)(2)(B) bars petitioner from challenging her underlying tax

liability.   We need not resolve this issue, however; as discussed

below, even if petitioner were allowed to challenge her

underlying tax liability, she would not prevail on the merits.

Cf. Young v. Commissioner, T.C. Memo. 2003-6; Horn v.

Commissioner, T.C. Memo. 2002-207.

      Under section 71(a), “Gross income includes amounts

received as alimony or separate maintenance payments.”    Section

71(b)(1) defines alimony as “any payment in cash if--(A) such

payment is received by (or on behalf of) a spouse under a divorce

or separation instrument”.    Petitioner argues that the payments

she received from her former husband were not alimony because

they were made pursuant to an invalid divorce decree.    She

contends that the divorce decree was invalid because the Midland

County, Michigan, circuit judge who entered it had previously

disqualified himself from the case.
                               - 8 -

     In effect, having failed to achieve satisfaction in her

numerous appeals to the Michigan Supreme Court, petitioner seeks

to relitigate her domestic relations dispute here.   We decline to

inject ourselves into this Michigan domestic relations dispute.

     Marital relationships are peculiarly creatures of State law.

Lee v. Commissioner, 64 T.C. 552, 558 (1975), affd. per curiam

550 F.2d 1201 (9th Cir. 1977); see also Overman v. United States,

563 F.2d 1287, 1290 (8th Cir. 1977); Eccles v. Commissioner, 19

T.C. 1049, 1051 (1953), affd. per curiam 208 F.2d 796 (4th Cir.

1953).

     Petitioner’s divorce judgment was entered in Midland County,

Michigan, on September 8, 1987.   Although petitioner has

contested the validity of the divorce judgment, no State court

has overturned it.   To the contrary, between 1988 and 1992, the

Michigan Supreme Court rejected petitioner’s several appeals

relating to her divorce.3   Principles of collateral estoppel and

full faith and credit counsel that we respect the State court

judgments.   See Calhoun v. Commissioner, T.C. Memo. 1992-246

(declining to decide whether a New York divorce judgment was

invalid as violative of due process where no New York appellate

court had overturned, reversed, or otherwise modified the divorce




     3
       Notably, in Stark v. Midland Circuit Judge, 435 Mich. 877
(1990), the Michigan Supreme Court denied petitioner’s motion to
“disqualify a party.”
                               - 9 -

judgment), affd. without published opinion 993 F.2d 1533 (2d Cir.

1993).

     The petition does not explicitly raise a request for

equitable relief under section 6015(f).     To the extent that the

petition might be construed to raise such a claim inferentially,

we hold that petitioner is not entitled to such relief, having

failed to file a joint Federal income tax return for any year at

issue.   See Raymond v. Commissioner, 119 T.C. 191, 195 (2002).

     Petitioner has failed to make a valid challenge to the

appropriateness of respondent’s intended collection action.       She

has raised no issue in this proceeding regarding any offer of an

alternative means of collection.4   These issues are now deemed

conceded.   Rule 331(b)(4).

     Accordingly, we conclude that respondent is entitled to

summary judgment as a matter of law.     To reflect the foregoing,


                                            An appropriate order and

                                       decision will be entered

                                       granting respondent’s motion

                                       for summary judgment.




     4
       After the administrative hearing, petitioner submitted an
offer in compromise to respondent but withdrew it before
respondent issued the notice of determination.
