                  T.C. Summary Opinion 2009-51



                      UNITED STATES TAX COURT



               JOHN HERBERT SCHOPPE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5966-07S.               Filed April 13, 2009.



     John Herbert Schoppe, pro se.

     Inga C. Plucinski, for respondent.




     GERBER, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
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other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent filed a motion for summary judgment with respect

to petitioner’s appeal of respondent’s section 6330 determination

to proceed to collect petitioner’s outstanding 2001 income tax

liability by means of levy.   Petitioner objected to respondent’s

motion, and a hearing was held in Salt Lake City, Utah, on

February 9, 2009.   For the reasons expressed in this opinion,

respondent’s motion will be granted.

                          Background

     Petitioner resided in Utah at the time his petition was

filed.   Petitioner did not file a Federal income tax return for

tax year 2001, and he had an established pattern of failing to

file returns.   Petitioner contends that he did not file because

he had personal family difficulties and/or because he did not

have the financial ability to pay the tax.   Petitioner also

contends that he has few or no assets.

     During March 2004 respondent sent petitioner a statutory

notice determining an income tax deficiency based on third-party

reporting of income paid to petitioner.   Petitioner received the

notice of deficiency and chose not to file a petition with this

Court.   Accordingly, respondent assessed the income tax

deficiency against petitioner.
                                - 3 -

     On May 11, 2005, respondent notified petitioner of the

intent to collect petitioner’s outstanding 2001 income tax

liability by means of levy and of petitioner’s right to appeal.

Petitioner sought and was granted a hearing.   During the hearing

respondent’s representative met the requirements of section 6330,

and petitioner asked for the collection alternative of an offer-

in-compromise.   Respondent’s representative explained to

petitioner that an offer-in-compromise could not be processed

until petitioner filed delinquent returns for the intervening tax

periods, including 2001.   Petitioner indicated that he could not

file because of a lack of time and money to prepare the

delinquent returns.

     On February 7, 2007, respondent notified petitioner that the

determination to proceed with collection was sustained.     On March

5, 2007, petitioner’s petition was filed.   After the pleadings

were completed, respondent, on September 5, 2008, filed a motion

for summary judgment.    Petitioner’s opposition to the motion was

filed October 9, 2008.

     At this Court’s February 9, 2009, hearing on respondent’s

motion for summary judgment, petitioner produced a proposed

return for his 2001 tax year, which by petitioner’s computation

would not have resulted in any tax liability for the 2001 tax

year.   At the time of the hearing petitioner still had delinquent

unfiled returns for other tax periods.
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                          Discussion

     Summary judgment is intended to expedite litigation and

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

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

granted with respect to a legal issue if there is “no genuine

issue as to any material fact and * * * 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); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994).   This controversy may be resolved by summary judgment

as there is no genuine issue as to a material fact.2

     Petitioner may not question the underlying tax liability

because he had and did not take advantage of the opportunity to

do so upon his receipt of the notice of deficiency for 2001.

Accordingly, we review the determination to proceed with

collection on an abuse of discretion standard.    Goza v.

Commissioner, 114 T.C. 176 (2000).

     In accord with section 6330(c)(3), the Appeals officer

verified that the requirements of applicable law and

administrative procedure had been met and took into consideration

issues raised by petitioner and whether the collection action

balanced the need for the efficient collection of tax with the


     2
      There is no dispute concerning the question of the burden
or proof or production. See sec. 7491.
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concern that the collection action not be any more intrusive than

necessary.   We find nothing in the record or pleadings of this

case that would show that respondent’s determination to proceed

with collection was an abuse of discretion.

     Accordingly, respondent’s motion for summary judgment will

be granted and to reflect the foregoing,


                                       An appropriate order and

                               decision will be entered.
