                          T.C. Memo. 2005-79



                       UNITED STATES TAX COURT



                    OLIVIA SCIBILIA, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8085-04L.               Filed April 11, 2005.



     Olivia Scibilia, pro se.

     Marie E. Small, for respondent.



                          MEMORANDUM OPINION


     LARO, Judge:    Petitioner petitioned the Court under section

6330(d) to review a determination of the Commissioner’s Office of

Appeals (Appeals) sustaining respondent’s proposed levy upon her

property.1    Respondent proposed the levy to collect 1998 Federal


     1
       Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code. Rule
                                                   (continued...)
                                -2-

income taxes with additions thereto totaling approximately

$331,202.39.2   Respondent has filed a motion for summary judgment

under Rule 121, to which petitioner has not responded.      We shall

grant respondent’s motion for summary judgment.

                             Background

     Petitioner won the lottery in 1997.      In 1998, she sold for

$1,705,000 a portion of her interest in the future lottery

payments and reported the sales price as capital gains income on

her 1998 Federal income tax return.    Following an audit,

respondent determined that this amount was taxable as gambling

income at ordinary income tax rates.      A notice of deficiency

reflecting this determination was issued on March 19, 2002.

Petitioner did not petition this Court with respect to the

notice.

     On August 5, 2002, petitioner’s tax liability was assessed

as determined in the notice of deficiency.      When she failed to

pay the amount due, respondent issued a notice of intent to levy

on February 7, 2003.   She timely requested a section 6330

hearing, which Appeals conducted telephonically with her

designated representative.   During this hearing, petitioner



     1
      (...continued)
references are to the Tax Court Rules of Practice and Procedure.
     2
       We say “approximately” as these amounts were computed
before the present proceeding and have since increased on account
of interest.
                                 -3-

attempted to challenge the amount of her underlying tax

liability.    On April 14, 2004, respondent mailed to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, sustaining the proposed levy.     This

petition followed.   Petitioner alleges that respondent’s

underlying determination as to liability is invalid because

respondent did not allow her to contest her underlying tax

liability at an appeals hearing before the notice of deficiency

was issued.

                             Discussion

     Summary judgment may be granted with respect to any part of

the legal issues in controversy if the records before the Court

“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(a)

and (b); Craig v. Commissioner, 119 T.C. 252, 259-260 (2002).

Respondent bears the burden of proving there is no genuine issue

of material fact; all facts are viewed in the light most

favorable to petitioner.    Craig v. Commissioner, supra at 260.

However, petitioner must do more than merely allege or deny

facts; she must set forth “specific facts showing that there is a

genuine issue for trial.”   Rule 121(d); Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986).   Under this standard, petitioner has

failed to raise any genuine issue of material fact, and summary

judgment is appropriate.
                                -4-

     Section 6331(a) provides that where taxpayers refuse to pay

the tax for which they are liable within 10 days after notice and

demand for payment, the Commissioner may collect such tax by levy

on their property.   See also sec. 7701(a)(11)(B) and (12).

Section 6330 provides that the Commissioner cannot proceed with

collection by levy until the taxpayer has been given notice and

the opportunity for administrative review.   Davis v.

Commissioner, 115 T.C. 35, 37 (2000).   The Court reviews

nonliability administrative determinations for abuse of

discretion.   Hoffman v. Commissioner, 119 T.C. 140, 144-145

(2002); Sego v. Commissioner, 114 T.C. 604, 610 (2000).

     Petitioner raises no valid legal arguments.   She alleges in

her petition that respondent erred in not letting her argue to

Appeals that the subject income was properly reported and taxed

as capital gains income.   Her argument is mistaken.    Petitioner,

having received a notice of deficiency and having forgone the

opportunity to challenge her underlying liability, is barred from

doing so during a section 6330 hearing.3   See sec. 6330(c)(2)(B);


     3
       Petitioner does not argue that she did not receive the
notice of deficiency. She does appear to argue she had a right
to a hearing with Appeals before the notice of deficiency was
issued, and that respondent’s failure to conduct such a hearing
invalidates the notice of deficiency. We know of no such right
under the minimal standards for notices of deficiency and hold
that the notice is valid. See Abrams v. Commissioner, 84 T.C.
1308 (1985), affd. 814 F.2d 1356 (9th Cir. 1987), affd. 787 F.2d
939 (4th Cir. 1986), affd. sub nom. Donley v. Commissioner, 791
F.2d 383 (5th Cir. 1986), affd. sub nom. Gaska v. Commissioner,
                                                   (continued...)
                                  -5-

Sego v. Commissioner, supra.     We uphold the determination by

Appeals and shall therefore grant respondent’s motion for summary

judgment.

     To reflect the foregoing,

                                             An appropriate order and

                                        decision will be entered for

                                        respondent.




     3
      (...continued)
800 F.2d 633 (6th Cir. 1986), affd. without published opinion sub
nom. Becker v. Commissioner, 799 F.2d 753 (7th Cir. 1986), affd.
sub nom. Spector v. Commissioner, 790 F.2d 51 (8th Cir. 1986),
affd. sub nom. Alford v. Commissioner, 800 F.2d 987 (10th Cir.
1986), affd. sub nom. Benzvi v. Commissioner, 787 F.2d 1541 (11th
Cir. 1986).
