                         T.C. Memo. 2003-252



                       UNITED STATES TAX COURT



                  LANCE A. MCLEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10572-02L.              Filed August 20, 2003.



     Lance A. McLee, pro se.

     Veena Luthra, for respondent.



                         MEMORANDUM OPINION


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

dent’s motion for summary judgment (respondent’s motion).1    We

shall grant respondent’s motion.




     1
      Although the Court ordered petitioner to file a response to
respondent’s motion, petitioner failed to do so.
                                 - 2 -

                             Background

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

following.

     Petitioner resided in Chesapeake, Virginia, at the time he

filed the petition in this case.

     On June 18, 2000, petitioner filed a Federal income tax

(tax) return for his taxable year 1997 (return).    In that return,

petitioner showed total income of $41,914 consisting of Schedule

C net profit, total tax of $11,727, tax due of $8,487, and an

estimated tax penalty of $413.    When petitioner filed his return,

he did not pay the tax due shown in his 1997 return.

     On July 17, 2000, respondent assessed petitioner’s tax, as

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

taxable year 1997.2   (We shall refer to those assessed amounts,

as well as interest as provided by law accrued after July 17,

2000, as petitioner’s unpaid liability for 1997.)

     Respondent issued to petitioner the notice and demand for

payment required by section 6303(a) with respect to petitioner’s

unpaid liability for 1997.

     On June 28, 2001, respondent issued to petitioner a final

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

(notice of intent to levy) with respect to petitioner’s unpaid


     2
      Respondent assessed petitioner’s tax after correcting the
total tax shown in petitioner’s return for mathematical or
computational errors.
                               - 3 -

liability for 1997.

     On or about July 12, 2001, in response to the notice of

intent to levy, petitioner filed Form 12153, Request for a

Collection Due Process Hearing (Form 12153), and requested a

hearing with respondent’s Appeals Office (Appeals Office).    In

Form 12153 that petitioner filed with respondent, petitioner

stated only: “I believe it to be a big mistake.    Need time to

obtain documents and information from my IMF.”

     On October 16, 2001, the Appeals Office sent petitioner a

letter notifying him that it had received petitioner’s Form 12153

and that it would be contacting him about an Appeals Office

hearing.

     On March 14, 2002, respondent’s Appeals officer (Appeals

officer) called petitioner to discuss petitioner’s case (March

14, 2002 telephone call).   During that call, petitioner told the

Appeals officer that he had retained JK Harris to represent him

with respect to his Appeals Office hearing.   The Appeals officer

requested in the March 14, 2002 telephone call that petitioner

submit to him Form 2848, Power of Attorney (Form 2848), authoriz-

ing JK Harris to represent petitioner with respect to his Appeals

Office hearing.   The Appeals officer further indicated in the

March 14, 2002 telephone call that, before the Appeals Office

could consider any collection alternatives with respect to

petitioner’s unpaid liability for 1997, petitioner must file tax
                               - 4 -

returns for his taxable years 1996, 1999, and 2000 (petitioner’s

unfiled returns) and provide the Appeals officer with copies of

such returns after filing them.

     On March 14, 2002, the Appeals officer sent petitioner a

letter (March 14, 2002 letter) confirming the discussion that he

had had with petitioner during the March 14, 2002 telephone call.

In the March 14, 2002 letter, the Appeals officer asked peti-

tioner to answer the following questions:

          1) What law or administrative procedure has the
     Service not followed?

          2) What IRS actions do you not agree with? Pro-
     vide specific reasons and documentation why you do not
     agree.

          3) What specific alternatives are you proposing to
     resolve the tax liabilities.

     On April 2, 2002, the Appeals officer telephoned petitioner

(April 2, 2002 telephone call) because the Appeals officer had

not received petitioner’s Form 2848 authorizing JK Harris to

represent him.   During the April 2, 2002 telephone call, peti-

tioner advised the Appeals officer that he would send that form

to the Appeals officer and that he would file petitioner’s

unfiled returns.

     On April 11, 2002, the Appeals officer telephoned petitioner

(April 11, 2002 telephone call) but was unable to reach him.

The Appeals officer left petitioner a message indicating that he

had still not received petitioner’s Form 2848 authorizing JK
                                - 5 -

Harris to represent him.   On May 10, 2002, the Appeals officer

again telephoned petitioner (May 10, 2002 telephone call) but was

unable to reach him.   The Appeals officer left petitioner another

message requesting petitioner to telephone him.   Petitioner did

not respond to the April 11, 2002 telephone call or the May 10,

2002 telephone call.

     On May 22, 2002, the Appeals Office mailed to petitioner a

notice of determination concerning collection action(s) under

[section] 63303 (notice of determination).   The notice of deter-

mination stated in pertinent part:

     Summary of Determination

          !    Your request for a Collection Due Process
               (CDP) hearing was timely filed; accordingly,
               you were entitled to a CDP Hearing,

          !    You failed to prosecute or pursue your re-
               quest for a hearing,

          !    You stated in your request that you signed
               July 11, 2001, that you need time to obtain
               documents and information, you have had sub-
               stantial time for this, but have not provided
               anything,

          !    A viable collection alternative is not viable
               as you have not responded and are not current
               in filing delinquent returns,

          !    Since you have not responded, the proposed
               levy action balances the efficient collection
               of taxes with the taxpayer’s legitimate con-
               cern that the collection action be no more


     3
      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.
                              - 6 -

               intrusive than necessary.


An attachment to the notice of determination stated in pertinent

part:

     I. Applicable Law and Administrative Procedures.

     On June 28, 2001, the Internal Revenue Service mailed a
     Letter 11, FINAL NOTICE - NOTICE OF INTENT TO LEVY AND
     NOTICE OF YOUR RIGHT TO A HEARING, concerning unpaid
     Form 1040 for the periods [sic] ending December 31,
     1997. In response to our letter you submitted Form
     12153, received on July 17, 2001 requesting a Collec-
     tion Due Process Hearing.

          *       *       *       *        *      *         *

          * * * Review of transcripts have confirmed the tax
     was assessed, and notice and demand was mailed to the
     taxpayer at his last known address, and there is still
     a balance due.

          *       *       *       *        *      *         *

          * * * The record shows that such a notice was
     mailed to you via certified mail, return receipt re-
     quested, on June 28, 2001.

          *       *       *       *        *      *         *

          * * * The Appeals Officer assigned to hear your
     case has had no prior involvement with respect to any
     of your tax liabilities.

          *       *       *       *        *      *         *

          * * * You filed a timely protest and were provided
     ample time and opportunity to schedule a face-to-face,
     telephonic or correspondence hearing with the Appeals
     officer, and to raise any relevant issues at such a
     hearing. You declined to schedule a hearing, notwith-
     standing the fact that a letter was sent to you on
     October 16, 2001 at the address shown on your hearing
     request and a second letter was sent to you on March
     14, 2002 at the address shown on IRS records, confirmed
     by you by phone on March 14, 2002. Other calls were
                         - 7 -

also made, and messages left to which you did not
respond. 1996, 1999, 2000 and 2001 have still not been
filed.

This Appeal Officer has had no prior involvement with
respect to these liabilities. Our determination in
this matter is based on the information available to us
in the administrative file.

We find that all legal and procedural requirements for
the proposed levy have been satisfied.

II. Relevant Issues Presented by the Taxpayer.

Challenges to the Existence or Amount of the Liability.
Your request states “I believe it to be a big mistake.
Need time to obtain documents.” This was July 11,
2001, you should have had time to get those documents
by now. You stated on March 14, 2002 by phone that JK
Harris would be handling your Appeal. I requested by
phone and letter to have form 2848 to me within 10
days, and delinquent returns and other financial infor-
mation to me by April 25, 2002. No documents or power
of attorney forms have been provided to date.

No other issues were raised by the taxpayer.

Challenges to the Appropriateness of the Proposed
Collection Action. You were given the opportunity to
raise any relevant issue relating to the unpaid tax or
the proposed levy in accordance with IRC Section
6330(c). However, you did not respond to the confer-
ence letter mailed to you, or the phone messages left
for you. You did not contact the Appeals Officer to
schedule either a face-to-face hearing or a telephonic
hearing.

III. Balancing Efficient Collection and Intrusiveness.

Although a levy is intrusive, since you presented no
information or any alternatives for collection, the
levy is the most efficient method of collection remain-
ing. The proposed levy therefore balances the need for
efficient collection with the taxpayer’s legitimate
concern that the collection action be no more intrusive
than necessary.
                                  - 8 -

                            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).      We

conclude that there are no genuine issues of material fact

regarding the questions raised in respondent’s motion.

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

tax liability is not properly placed at issue, the Court will

review the determination for abuse of discretion.     Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

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

     Petitioner filed no response to respondent’s motion.

Petitioner indicated in the petition that he wishes “to pay

outstanding overdue taxes with the mercy of the court in the

terms that the court will reconsider the interest for the amount

owed.”4   As we understand petitioner’s position in the petition,
he concedes that he owes the unpaid liability for 1997 but is

asking the Court to abate some or all of the interest under

section 6404.5   The record does not establish that petitioner


     4
      In the petition, petitioner further alleged that “the
company [that he worked for during the year at issue] was
responsible for any and all taxes other than FICA, Social
Security, etc.” We conclude that petitioner has abandoned
advancing the foregoing allegation. In any event, the record
does not establish that petitioner’s allegation is correct.
     5
      Sec. 6404(e) was amended by Taxpayer Bill of Rights 2, Pub.
L. 104-168, sec. 301, 110 Stat. 1452, 1457 (1996), to permit the
                               - 9 -

raised with the Appeals Office respondent’s failure to abate

interest under section 6404.   Consequently, we shall not consider

that matter.6   See Washington v. Commissioner, 120 T.C. 114, 123-

124 (2003); Magana v. Commissioner, 118 T.C. 488, 493-494 (2002).

     Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioner’s

unpaid liability for 1997.

     Any of petitioner’s contentions and arguments that are not

discussed herein are without merit and/or irrelevant.

     On the record before us, we shall grant respondent’s motion.




Secretary to abate interest with respect to an “unreasonable”
error or delay resulting from “managerial” as well as ministerial
acts. The foregoing amendment applies to interest accruing with
respect to deficiencies or payments for taxable years beginning
after July, 30, 1996, and is applicable in the instant case.
     6
      Assuming arguendo (1) that the record before us established
that petitioner raised with the Appeals Office respondent’s
failure to abate interest under sec. 6404 with respect to his
taxable year 1997 and (2) that we concluded that we have
jurisdiction under sec. 6404 to consider petitioner’s request
that we review such failure, see Katz v. Commissioner, 115 T.C.
329, 340-341 (2000), on the instant record, we find that
petitioner has not shown that respondent abused respondent’s
discretion in failing to abate interest under sec. 6404 for his
taxable year 1997. See sec. 6404(g). In fact, we find on that
record that petitioner has failed to establish any error or delay
attributable to an officer or employee of respondent being
erroneous or dilatory in performing a ministerial or managerial
act within that meaning of sec. 6404(e) requiring an abatement of
interest with respect to his taxable year 1997.
                        - 10 -

To reflect the foregoing,



                                 An order granting respondent’s

                            motion and decision will be entered

                            for respondent.
