                  T.C. Summary Opinion 2009-195



                     UNITED STATES TAX COURT



  LEEDREAU, LLC, LEONIA M. BOUDREAU, SOLE MEMBER, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 30376-08S.               Filed December 15, 2009.


     Leonia M. Boudreau, for petitioner.

     Molly H. Donohue, for respondent.



     ARMEN, Special Trial 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 subsequent section
references are to the Internal Revenue Code, as amended, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
                                - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     The instant case arises from a petition for judicial review

filed in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330.    The issue

presented is whether respondent may proceed with the collection

action as so determined.    Before us now is respondent’s Motion

For Summary Judgment.

                             Background

     Leonia M. Boudreau (Ms. Boudreau) resided in the State of

Massachusetts when the petition was filed.    During the periods at

issue, Leedreau, LLC (the LLC), was a single-member limited

liability company validly created under Massachusetts law.

     Ms. Boudreau was the sole member of the LLC during the

periods at issue.    She did not elect to have the LLC treated as a

corporation for Federal income tax purposes.    All references to

petitioner refer to the LLC and its sole member, Ms. Boudreau,

who are treated as a single taxpayer under the regulations as

discussed below.

Petitioner’s Tax Liability

     The LLC failed to file Forms 941, Employer’s Quarterly

Federal Tax Return, for tax periods ended June 30, September 30,

and December 31, 2005; and March 31, June 30, September 30, and

December 31, 2006.    In addition, the LLC failed to file a Form
                              - 3 -

940, Employer’s Annual Federal Unemployment (FUTA) Tax Return,

for the tax period ended December 31, 2006.

     Respondent generated Substitutes for Return pursuant to

section 6020(b) for these tax periods and, consistent with

existing procedures, assessed the taxes due.

Final Notices of Intent To Levy

     On March 11, 2008, respondent issued a Final Notice--Notice

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

regard to each of the tax periods at issue except the tax period

ended December 31, 2005.

     On April 1, 2008, petitioner timely submitted a Form 12153,

Request for a Collection Due Process or Equivalent Hearing, in

respect of all of the tax periods at issue including the tax

period ended December 31, 2005.   Petitioner requested the hearing

only on the basis that Ms. Boudreau was not a responsible officer

of the LLC.

     On September 4, 2008, respondent issued a Final Notice--

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

with regard to the tax period ended December 31, 2005.

     On September 25, 2008, petitioner timely submitted a Form

12153 for the tax period ended December 31, 2005, again stating

only that Ms. Boudreau was not a responsible officer of the LLC.
                                - 4 -

Administrative Developments

     A settlement officer from respondent’s Appeals Office was

assigned to petitioner’s collection case for all of the tax

periods at issue.

     By letter dated October 8, 2008, sent to both petitioner and

petitioner’s authorized representative, the settlement officer

scheduled a telephone conference for November 5, 2008.   This

letter also stated that in order for the settlement officer to

consider a collection alternative, petitioner was required to

submit:    A collection information statement; signed tax returns

for designated tax periods; and proof of Federal tax deposits for

one tax period.

     Neither petitioner nor petitioner’s representative contacted

the settlement officer at the scheduled time for the conference

call.   In addition, petitioner did not submit the requested

information to the settlement officer.

     Ultimately, on November 21, 2008, respondent’s Appeals

officer issued a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 sustaining respondent’s

proposed levy.

Petition

     On December 17, 2008, Ms. Boudreau filed the petition.     In

the petition Ms. Boudreau states that she disagrees with the

notice of determination on the basis that the liability is not
                               - 5 -

her liability, as she was not a responsible officer of the LLC

and the operation was leased to a third party.

     On February 6, 2009, respondent filed the Answer to the

petition.

Respondent’s Motion for Summary Judgment

     On August 13, 2009, respondent filed the Motion For Summary

Judgment that is presently before the Court.

Hearing on Respondent’s Motion For Summary Judgment

     The Court calendared for hearing respondent’s Motion For

Summary Judgment on September 23, 2009.    Both parties appeared

and were heard.   At the hearing petitioner filed an Objection to

respondent’s motion.

     Respondent argues that because the LLC did not elect to be

treated as a corporation for Federal tax purposes, Ms. Boudreau,

as the sole member, is personally liable for the LLC’s tax

liabilities.

     Ms. Boudreau argues that she should not be personally liable

for the LLC’s tax liabilities because she was not a responsible

officer of the LLC.2   Ms. Boudreau contends that the LLC was

leased to a third party who was permitted to use the taxpayer

identification number of the LLC.   Ms. Boudreau further contends


     2
        In Petitioner’s Objection to Respondent’s Motion for
Summary Judgment, petitioner conceded that Ms. Boudreau was a
responsible officer for the period of Feb. 5, 2006, through Mar.
31, 2006.
                                  - 6 -

that this lessee is responsible for the tax liabilities of the

LLC pursuant to their lease agreement.

                            Discussion

A.   Summary Judgment

      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 all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, 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).

      After carefully reviewing the record, we are satisfied that

there is no genuine issue as to any material fact, and a decision

may be rendered as a matter of law.       Accordingly, we shall grant

respondent’s Motion For Summary Judgment.

B.   Respondent’s Proposed Levy

      Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the taxpayer has been given

notice and the opportunity for an administrative review of the

matter (in the form of an Appeals Office hearing) and, if

dissatisfied, with judicial review of the administrative

determination.   See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).
                                - 7 -

     Section 6330(c) prescribes the matters that a taxpayer may

raise at an Appeals Office hearing.     In sum, section 6330(c)

provides that a taxpayer may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner's

intended collection action, and possible alternative means of

collection.   Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing only if the person did not receive a

notice of deficiency for the tax in question or did not otherwise

have an earlier opportunity to dispute the tax liability.     See

Sego v. Commissioner, 114 T.C. 604, 609 (2000); Goza v.

Commissioner, supra at 180-181.

     Section 6330(d) grants the Court jurisdiction to review the

Appeals Office’s determination to proceed with collection action

via levy after the hearing.    When rendering a judgment as a

matter of law, the standard of review makes no difference; we

must reject erroneous views of the law.     McCorkle v.

Commissioner, 124 T.C. 56, 63 (2005).

     Although petitioner was given the opportunity for an

administrative hearing, neither petitioner nor petitioner’s

representative called the settlement officer at the appointed

time.   Petitioner has not alleged any spousal defenses,

challenged the appropriateness of collection actions, or proposed

any collection alternatives.    Any such issue is now deemed to be

conceded.   See Rule 331(b)(4) (“Any issue not raised in the
                                 - 8 -

assignments of error shall be deemed to be conceded.”).      Ms.

Boudreau’s only contention is that she is not liable for the

taxes owed by the LLC because she was not a responsible officer

of the LLC.

C.   Check-the-Box Regulations

      Sections 301.7701-1 through 301.7701-3, Proced. & Admin.

Regs. (check-the-box regulations), provide rules for the

classification of business entities for Federal tax purposes.

These regulations provide rules and procedures for taxpayers to

choose the tax treatment of their business entity.

      Upon formation, a business entity, such as a limited

liability company, with two or more members is treated as a

partnership unless it elects to be treated as a corporation.

Sec. 301.7701-3(b)(1)(I), Proced. & Admin. Regs.    However, a

business entity with only one member is treated as a disregarded

entity unless it elects to be treated as a corporation separate

from its owner.    Sec. 301.7701-3(b)(1)(ii), Proced. & Admin.

Regs.   A single-member entity must make an affirmative election

on a Form 8832, Entity Classification Election, in order to be

treated as a corporation separate from its owner.     Comensoli v.

Commissioner, T.C. Memo. 2009-242.

      Petitioner does not challenge the validity of the check-the-

box regulations.    In any event, this Court has previously held

those regulations to be valid in this context.   See Med. Practice

Solutions, LLC v. Commissioner, 132 T.C. __ (2009).    For
                                   - 9 -

employment taxes related to wages paid on or after January 1,

2009, a disregarded entity is treated as a corporation for

purposes of employment tax reporting and liability.         Sec.

301.7701-2(c)(2)(iv), (e)(5), Proced. & Admin. Regs.; see Med.

Practice Solutions, LLC v. Commissioner, supra at __ (slip op. at

7).    This amendment does not apply to the instant case.

       During all of the taxable periods at issue Ms. Boudreau was

the sole member of the LLC.    Ms. Boudreau never filed a Form 8832

to have the LLC treated as a corporation for Federal tax

purposes.    Accordingly, the LLC is disregarded as an entity

separate from Ms. Boudreau pursuant to section 301.7701-

3(b)(1)(ii), Proced. & Admin. Regs.         Thus, Ms. Boudreau is

personally liable for the taxes owed by the LLC.         It is

irrelevant that Ms. Boudreau allowed a third party to use the

taxpayer identification number associated with her solely owned

LLC.    Respondent is thereby authorized to collect the LLC’s

unpaid taxes from Ms. Boudreau by means of the levy.

       To reflect the foregoing,


                                           An order granting respondent’s

                                   Motion For Summary Judgment and

                                   decision for respondent will be

                                   entered.
