                  T.C. Summary Opinion 2007-157



                      UNITED STATES TAX COURT



              JEFFREY SANDOR ORLING, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11456-06S.            Filed September 6, 2007.



     Jeffrey Sandor Orling, pro se.

     Michelle L. Maniscalco, for respondent.



     GOEKE, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code.   Unless

otherwise indicated all section references are to the Internal

Revenue Code in effect when the petition was filed, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

Pursuant to section 7463(b), the decision to be entered is not
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reviewable by any other court, and this opinion shall not be

treated as precedent for any other case.

     This matter is before the Court on respondent’s motion for

summary judgment pursuant to Rule 121.    This case results from a

timely petition of respondent’s notice of determination

sustaining respondent’s intent to levy regarding petitioner’s

income tax liability for 2002.    Because we determine that

petitioner may not raise the underlying tax liability in this

proceeding, we find no abuse of discretion in respondent’s

determination, and we shall grant respondent’s motion for summary

judgment.

                             Background

     On March 31, 2003, respondent issued a notice of deficiency

to petitioner for the taxable year ended December 31, 2002.

Respondent determined a deficiency of $12,758, which was based on

the disallowance of certain deductions claimed on Schedule C,

Profit or Loss From Business, and itemized deductions claimed on

Schedule A, Itemized Deductions.    A petition to this Court was

not filed in response to this notice of deficiency.

      Petitioner gave conflicting testimony relative to the

receipt of the notice of deficiency, which was mailed to

petitioner’s address, the same address at which he currently

resides.    Initially, petitioner admitted receiving the notice of

deficiency.   Later, he testified he could not remember whether he
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received it, but he acknowledged receipt of other documents

mailed by respondent.

     Respondent submitted a United States Postal Service (USPS)

Track and Confirm document verifying delivery of a postal package

to petitioner’s address on April 5, 2005.   Respondent maintains

the notice of deficiency was enclosed in this package.   The

actual receipt received upon delivery of the notice of deficiency

was no longer available in the records of the USPS.

     Following the issuance of the notice of deficiency,

respondent began efforts to collect the liability for 2002.

These actions culminated in the issuance by respondent of a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing on

February 22, 2006.    Petitioner timely filed a Form 12153, Request

For A Collection Due Process Hearing, and subsequently had a

telephone conversation with the Appeals officer assigned by

respondent.   Respondent alleges that during this discussion

petitioner refused to address anything other than the underlying

liability for 2002.   Petitioner did not submit any alternative

payment options to respondent’s Appeals officer.

     On June 8, 2006, respondent issued to petitioner a Notice of

Determination Concerning Collection Action(s) relating to 2002

(notice of determination) sustaining the proposed intent to levy.

A timely petition for a review of the determination was filed in

this Court.
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     A hearing was conducted on respondent’s Motion for Summary

Judgment on April 30, 2007, at which time the testimony of

petitioner and exhibits were received into the record.

Respondent’s motion was also supported by an affidavit with

attached exhibits.

                            Discussion

     Summary judgment is intended to expedite litigation and

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

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

granted with respect to all or any part of the legal issues

presented if the acceptable materials available show 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).   The moving

party bears the burden of establishing that there is no genuine

issue of material fact, and any factual inferences will be read

in a manner most favorable to the party opposing summary

judgment.   Dahlstrom v. Commissioner, 85 T.C. 812 (1985).     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).

     Under section 6330(a), the Secretary is required to notify a

person upon whose property respondent intends to levy that the

person has a right to a hearing.    If a timely request for hearing

is made, a hearing shall be held before an impartial officer or
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employee of respondent’s Appeals Office.      Sec. 6330(b).    At the

hearing, a taxpayer may raise any relevant issue relating to the

unpaid tax or the proposed levy, including collection

alternatives.    Sec. 6330(c)(2)(A).    The taxpayer may challenge

the existence or amount of the underlying tax liability, however,

only if the taxpayer failed to receive a statutory notice of

deficiency for such tax liability or did not otherwise have an

earlier opportunity to dispute such tax liability.      Sec.

6330(c)(2)(B).

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

review the Appeals officer’s determination.      Where the underlying

tax liability is not properly at issue, we review the

determination for abuse of discretion.      Goza v. Commissioner, 114

T.C. 176, 181-182 (2000).

     Petitioner maintains that he is not precluded from

contesting the underlying liability for 2002 because he did not

receive the notice of deficiency.      Petitioner was given an

opportunity to testify at the hearing and to produce any other

evidence he had to support his allegation.      Petitioner’s

testimony and the documents he provided do not create a genuine

factual issue regarding his receipt of the notice of deficiency.

Petitioner offers only his testimony that he never received the

notice of deficiency, about which he himself gave conflicting

testimony.   Petitioner simply has not provided credible factual
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assertions to overcome the strong presumption of proper mailing

and delivery in the instant case.        Figler v. Commissioner, T.C.

Memo. 2005-230.   Accordingly, petitioner failed to establish that

there is a genuine issue of material fact in this case.

     Petitioner also did not offer any factual information to

rebut respondent’s position that petitioner raised only the

liability issue before the Appeals officer.       Based upon the

petition and petitioner’s testimony, we find that such is the

only issue in this case.   Because petitioner cannot raise the

underlying liability for 2002 in this proceeding, we sustain

respondent’s determination and shall grant respondent’s Motion

for Summary Judgment.

     To reflect the foregoing,


                                             An order and decision

                                     will be entered.
