                         T.C. Memo. 2007-192



                       UNITED STATES TAX COURT



                       SAID JUMAA, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14842-06L.                 Filed July 18, 2007.



     Said Jumaa, pro se.

     Lisa K. Hunter, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).         We

shall grant respondent’s motion.

                              Background

     The record establishes and/or the parties do not dispute the

following.
                                - 2 -

     Petitioner resided in Ottumwa, Iowa, at the time he filed

the petition in this case.

     Petitioner did not timely file a Federal income tax (tax)

return for his taxable year 1998.

     On March 12, 2001, respondent mailed to petitioner at his

last known address a notice of deficiency with respect to his

taxable year 1998.   In that notice, respondent determined the

following deficiency in, and additions to, the tax of petitioner:

                                       Additions to Tax
                                Sec.           Sec.          Sec.
   Year      Deficiency      6651(a)(1)1    6651(a)(2)       6654
   1998       $159,289       $35,840.02     $14,336.01    $7,229.64

     Petitioner did not file a petition with the Court with

respect to the notice of deficiency relating to his taxable year

1998.

     On August 6, 2001, respondent assessed petitioner’s tax, as

well as additions to tax and interest as provided by law, for his

taxable year 1998.   (We shall refer to any such unpaid assessed

amounts, as well as interest as provided by law accrued after

August 6, 2001, as petitioner’s unpaid liability for 1998.)

     On August 6, 2001, respondent issued to petitioner the

notice and demand for payment required by section 6303(a) with

respect to petitioner’s unpaid liability for 1998.



     1
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 3 -

     On November 23, 2005, respondent issued to petitioner a

notice of intent to levy and notice of your right to a hearing

(notice of intent to levy) with respect to his taxable year 1998.

     On December 20, 2005, in response to the notice of intent to

levy, petitioner mailed to respondent Form 12153, Request for a

Collection Due Process Hearing (petitioner’s Form 12153), and

requested a hearing with respondent’s Appeals Office (Appeals

Office).    Petitioner’s Form 12153 stated:   “The amount of tax is

totally exaggerated.    I’ll explain other reason later.”

     On April 24, 2006, a settlement officer with the Appeals

Office (settlement officer) sent a letter to petitioner (April

24, 2006 letter) with respect to petitioner’s Form 12153.       That

letter stated in pertinent part:

     I have scheduled a telephone conference call for you on
     June 13, 2006 at 10:00a.m. This call will be your CDP
     hearing.

     Please call me at * * * at the date and time indicated
     above.

     If this time is not convenient for you, or you would
     prefer your CDP hearing to be held by face-to face
     conference at the Appeals office closest to your cur-
     rent residence or, if you are a business, the Appeals
     office closest to your business address, or by corre-
     spondence, please let me know within fourteen (14) days
     from the date of this letter.

        *        *       *        *       *       *         *

     Regarding the liability you are raising:

     The return was prepared by the Service when you failed
     to file your return as required. A Statutory Notice of
     Deficiency would have been issued, which would have
                              - 4 -

     given you a prior opportunity to contest the liability.
     Therefore, IRC 6330(c)(2)(B),a statutory bar against
     contesting the liability in the context of a collection
     due process hearing, maybe applicable. If you are
     interested in Audit Reconsideration, please follow
     procedures outlined in the enclosed publication 3598,
     and send that information to the address indicated.
     Your collection due process hearing will consist of a
     discussion on collection alternatives only.

     For me to consider alternative collection methods such
     as an installment agreement or offer in compromise, you
     must provide any items listed below. In addition, you
     must have filed all federal tax returns due.

          •    A completed Collection Information Statement
               (Form 433-A for individuals and/or Form 433-B
               for businesses.)

          •    Signed tax return(s) for the following tax
               periods. Our records indicate they have not
               been filed:
               Type of Tax:   1040
               Period or Periods: 12/31/1999, 12/31/2000,
               12/31/2001, 12/31/2002, 12/31/2003,
               12/31/2004, 12/31/2005

          •    Proof of estimated tax payments for the pe-
               riod(s) listed below: 12/31/2006

     Please send me the items above within 14 days from the
     date of this letter. I cannot consider collection
     alternatives in your hearing without the information
     requested above. I am enclosing the applicable forms
     and a return envelope for your convenience. [Repro-
     duced literally.]

     Petitioner did not respond to the settlement officer’s April

24, 2006 letter or provide any of the information requested in

that letter.

     On June 13, 2006, the settlement officer held a telephonic

Appeals Office hearing (hearing) with petitioner.   During that
                                - 5 -

hearing, petitioner claimed that his liability for his taxable

year 1998 was incorrect because, according to petitioner, he made

some money in the stock market and later lost everything.

Petitioner provided no documents or specific information to

establish his claim during the hearing that his liability for his

taxable year 1998 was incorrect.   During the hearing, petitioner

indicated that he did not recall whether he received a notice of

deficiency relating to his taxable year 1998.   Petitioner further

stated that he was unable to pay petitioner’s unpaid liability

for 1998.   Petitioner acknowledged during the hearing that he had

not filed tax returns and indicated that he might need profes-

sional help.   During the hearing, the settlement officer reminded

petitioner that no collection alternatives were available because

he had not filed his delinquent tax returns and did not submit

the financial information that the settlement officer requested

in the April 24, 2006 letter.   The settlement officer advised

petitioner during the hearing that she intended to issue a notice

of determination with respect to petitioner’s unpaid liability

for 1998.

     On June 28, 2006, the Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination).   That notice

stated in pertinent part:
                                - 6 -

     Summary of Determination

     After discussion of the Notice of Intent to Levy during
     a phone conference with the taxpayer, review of the
     compliance case file, master file records, and any
     information submitted by the taxpayer, a determination
     was made to sustain the Notice of Intent to levy. The
     taxpayer has not filed returns for 1999, 2000, 2001,
     2002, 2003, 2004 and 2005, and did not submit the
     requested financial information in order to be eligible
     for a collection alternative. Therefore, the tax-
     payer’s case is being returned to the compliance func-
     tion for the appropriate action.

An attachment to the notice of determination stated in pertinent

part:

                    SUMMARY AND RECOMMENDATION

     After discussion of the Notice of Intent to Levy during
     a phone conference with the taxpayer, review of the
     compliance case file, master file records, and any
     information submitted by the taxpayer, a determination
     was made to sustain the Notice of Intent to levy. The
     taxpayer has not filed returns for 1999, 2000, 2001,
     2002, 2003, 2004 and 2005, and did not submit the
     requested financial information in order to be eligible
     for a collection alternative. Therefore, the tax-
     payer’s case is being returned to the compliance func-
     tion for the appropriate action.

                         BRIEF BACKGROUND

     The taxpayer failed to file the tax return for 1998 as
     required. The return was subsequently prepared by
     substitute for return processing. The Notice of Intent
     to Levy was issued November 23, 2005. Form 12153
     request for hearing was received by the Service timely
     on December 20, 2005.

                      DISCUSSION AND ANALYSIS

     1.   Verification of legal and procedural requirements;

     Based on review of the compliance file and computer
     records, all requirements of applicable law, regulation
     or administrative procedure appear to have been met.
                              - 7 -

The liabilities were assessed; notice and demand made;
liability remains unpaid; the Notice of Intent to Levy
was issued.

     *         *       *        *         *   *    *

This Settlement Officer has had no previous non-CDP
contact with the taxpayer periods being considered and
is not aware of any previous compliance contact.

The compliance function followed all legal and proce-
dural requirements and the actions taken or proposed
were appropriate under the circumstances.

2.       Issues raised by the taxpayer;

The issue the taxpayer raised in writing stated in
part: “The amount of tax is totally exaggerated. I’ll
explain other reasons later.”

Appeals issued an appointment letter on April 24, 2006
offering a face to face conference and scheduling a
phone conference at 10:00a.m.on June 13, 2006 if a face
to face was not preferred. The letter also requested
Form 433A Collection Information Statement for Wage
Earners and Self Employed, Forms 1040 returns for years
1999, 2000, 2001, 2002, 2003, 2004, and 2005, and proof
of sufficient income tax withholdings or estimated tax
payments for current tax year ending 2006. The infor-
mation was to be provided within 14 days from the date
of the letter.

The letter also advised the taxpayer that the issue of
the liability maybe precluded under IRC 6330(c)(2)(B)
due to the Services records showing a Notice of Defi-
ciency having been issued, and should have been re-
ceived. This notice would have provided a prior oppor-
tunity for consideration of the liability. The tax-
payer was provided with publication 3598 which provides
instructions for audit reconsideration. During the
conference the taxpayer could not remember if he had
received the Notice of Deficiency or not. He advised
that he resided at 8501 Millicent Way, Apt 2641,
Shreveport, LA from 1999 to 2005, which is during the
time the Notice of Deficiency was issued.

The taxpayer called as scheduled for the conference.
He wanted to know what he could do to settle the ac-
                               - 8 -

     count. Referred him to the page of the appointment
     letter which explained collection alternatives and what
     is required in order for him to be eligible. The
     taxpayer had no specific reason for not having filed
     returns, and no financial information was submitted.
     Therefore, the taxpayer was not eligible for a collec-
     tion alternative.

     The taxpayer raised the issue of the liability to the
     extent mentioned above. There were no other issues
     raised by the taxpayer.

     3.   Balancing of need for efficient collection with
          taxpayer concern that the collection action be no
          more intrusive than necessary.

     The issuance of the Notice of Intent to levy is sus-
     tained.

     Although less intrusive alternatives such as offers and
     installment agreements exist, the taxpayer’s failure to
     file all returns, and submit requested financial infor-
     mation balance against them; and so while more intru-
     sive, the Government’s proposed levy action is appro-
     priate and the action is sustained. [Reproduced liter-
     ally.]

     In reviewing respondent’s examination file with respect to

petitioner’s taxable year 1998, respondent’s counsel discovered

that that file shows that the notice of deficiency with respect

to petitioner’s taxable year 1998 that respondent mailed to

petitioner at his last known address was returned to respondent

by the U.S. Postal Service because it was unclaimed.

                            Discussion

     The Court may grant summary judgment where there is no

genuine issue of material fact and 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).
                                - 9 -

     Although respondent issued a notice of deficiency to peti-

tioner with respect to his taxable year 1998 and although peti-

tioner did not file a petition with the Court with respect to

that notice, respondent acknowledges in respondent’s motion that

a review of respondent’s examination file with respect to peti-

tioner’s taxable year 1998 shows that that notice was returned to

respondent as unclaimed.    According to respondent, “it appears

that petitioner did not receive the notice of deficiency for the

year 1998.    Accordingly, he may challenge the underlying liabil-

ity.”

     In light of respondent’s concession that petitioner did not

receive the notice of deficiency that respondent issued to him

for his taxable year 1998, we conclude that petitioner may

challenge the existence or the amount of petitioner’s liability

for that year.    See sec. 6330(c)(2)(B).2

     Where, as is the case here, the validity of the underlying

tax liability is properly placed at issue, the Court will review

the determination of the Commissioner of Internal Revenue on a de

novo basis.    Sego v. Commissioner, 114 T.C. 604, 610 (2000).


     2
        Sec. 6330(c)(2)(B) provides:

          (B) Underlying liability.--The person may also
     raise at the hearing [under sec. 6330(b)] challenges to
     the existence or amount of the underlying tax liability
     for any tax period if the person did not receive any
     statutory notice of deficiency for such tax liability
     or did not otherwise have an opportunity to dispute
     such tax liability. [Emphasis added.]
                              - 10 -

     As directed by the Court, petitioner filed a response to

respondent’s motion.   That response stated:

     This letter is in response to the motion filed for
     summary judgment. I would respectfully ask that this
     judgment not be granted to the respondent. As I am
     currently in the process of addressing all the concerns
     and the requested documents asked by the respondent.
     [Reproduced literally.]

     Petitioner filed petitioner’s response to respondent’s

motion over six months ago.   The Court has given petitioner ample

time to establish his claim that respondent’s motion should not

be granted.   He has failed to do so.3

     Based upon our examination of the entire record before us,

we conclude that petitioner has failed to show that there are

genuine issues of material fact regarding the questions raised in

respondent’s motion.   On that record, we find that petitioner has

failed to show error in the determinations that respondent made

in the notice of deficiency that respondent issued to him for his

taxable year 1998.   On the record before us, we find that the

determinations in the notice of determination with respect to

petitioner’s taxable year 1998 should be sustained.   On that



     3
      The petition that petitioner filed in this case also is
unhelpful to petitioner’s position. The only issue that
petitioner appears to raise in the petition in this case is the
underlying tax liability for his taxable year 1998. However,
petitioner fails to allege any specific error in the petition
relating to the determinations that respondent made in the notice
of deficiency that respondent issued to him with respect to that
year.
                             - 11 -

record, we shall grant respondent’s motion.

     To reflect the foregoing,



                                      An order granting respondent’s

                                 motion and decision for respondent

                                 will be entered.
