                  T.C. Memo. 2004-72



                UNITED STATES TAX COURT



          EARLY ROBERTSON, JR., Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10113-02L.           Filed March 18, 2004.


     In a collection proceeding, R issued a notice of
determination with respect to P’s 1995 through 1999
taxable years. After P petitioned this Court for
review, R filed a motion for summary judgment.

     Held: R’s motion for summary judgment will be
granted as to 1995 and 1996. P received a notice of
deficiency for those years and has not raised any
material issues regarding an abuse of discretion by R.

     Held, further, R’s motion for summary judgment
will be denied as to 1997. P is entitled to challenge
his self-reported liabilities for that year and has
raised a question of material fact with respect
thereto.

     Held, further, R’s motion for summary judgment
will be granted as to 1998 and 1999. P has not raised
any material issues of fact with respect to his
underlying liabilities for those years or with respect
to any abuse of discretion by R.
                               - 2 -


     Early Robertson, Jr., pro se.

     Marshall R. Jones and Robert W. West, for respondent.



                        MEMORANDUM OPINION


     WHERRY, Judge:   This case is before the Court on

respondent’s motion for summary judgment pursuant to Rule 121.

The instant proceeding arises from a petition for judicial review

filed in response to a Notice of Determination Concerning

Collection Actions(s) Under Section 6330 of the Internal Revenue

Code.1   The issue for decision is whether respondent may proceed

with collection action as so determined.

                            Background

     On May 29, 1998, respondent issued to petitioner a notice of

deficiency for the 1995 and 1996 taxable years.   The notice

reflected deficiencies of $2,911 and $3,013 in petitioner’s

income taxes for 1995 and 1996, respectively.   Petitioner did not

file a petition with the Court contesting this deficiency notice.

     Thereafter, on October 17, 2000, respondent issued to

petitioner a Final Notice--Notice of Intent to Levy and Notice of

Your Right to a Hearing with respect to unpaid tax liabilities



     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code, as amended, and Rule references are to the
Tax Court Rules of Practice and Procedure.
                                 - 3 -

for years 1995 through 1999.   The total amount due for the 5

years was shown as $14,133.01.    On November 15, 2000, respondent

received from petitioner a timely Form 12153, Request for a

Collection Due Process Hearing.

     A hearing was conducted by telephone on May 3, 2002.

Following the hearing, on May 8, 2002, respondent issued to

petitioner the Notice of Determination Concerning Collection

Action(s) Under Section 6330 sustaining the proposed levy.    The

notice summarized the determination as follows:

     We have determined that the proposed levy is
     appropriate. We considered the liability issues you
     raised for tax years 1997, 1998 and 1999 and determined
     that the liability should not be decreased. We did not
     consider the liability issues you raised for tax years
     1995 and 1996 because you received the statutory notice
     of deficiency for those years.

An attachment to the notice then expanded on the foregoing

summary, under the heading “Relevant Issues Presented by the

Taxpayer”:

     You have raised a liability issue regarding a
     dependency exemption, head of household filing status,
     and the earned income credit. These liability issues
     for years 1995 and 1996 could not be discussed at the
     hearing because you received the statutory notice of
     deficiency. You failed to invoke the jurisdiction of
     the U.S. Tax Court and the tax for 1995 and 1996 was
     properly assessed. * * *

     We did consider the liability issues you raised for tax
     years 1997-1999 as part of the Collection Due Process
     Hearing. However, you failed to provide any
     documentation to show that you were entitled to claim a
     dependent, head of household filing status and the
                                - 4 -

     earned income credit. Therefore, your liabilities for
     these years were not decreased.

     No other issues were raised at the hearing.

     On June 12, 2002, the Court filed as an imperfect petition a

document received from petitioner.      Therein petitioner stated his

desire to file a petition “for the tax period of 1995 to 1999

because my dependent was not on the tax form.”     Petitioner at

that time resided in Andalusia, Alabama.     Subsequently, on August

20, 2002, petitioner filed an amended petition expressing

disagreement for the years “1993 to 1997” on the following

grounds:    “I did not file proper information during these years.

I have enclosed information that should correct the filing

procedure for those years.”

     Attached to the petition was a certified copy of an order

dated December 8, 1993, from the Circuit Court of Covington

County, Alabama.2   The order recited that “the child Tangie L.

Robertson, born August 7, 1976, has been living with the father

since August 1993” and, on the basis of that change of

circumstances, granted petitioner custody of the child and

modified petitioner’s child support obligations.     These

obligations continued to require monthly payments for two other

children.


     2
       This Court takes judicial notice of the Dec. 8, 1993,
order. See Fed. R. Evid. 201; Estate of Reis v. Commissioner, 87
T.C. 1016, 1027 (1986).
                                - 5 -

     Respondent answered the amended petition and thereafter, on

September 24, 2003, filed the subject motion for summary

judgment.   A hearing was held on October 20, 2003, and the motion

was taken under advisement.

                              Discussion

     Rule 121(a) allows a party to move “for a summary

adjudication in the moving party’s favor upon all or any part of

the legal issues in controversy.”    Rule 121(b) directs that a

decision on such a motion shall be rendered “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.”

     The moving party bears the burden of demonstrating that no

genuine issue of material fact exists and that he or she is

entitled to judgment as a matter of law.     Sundstrand Corp. v.

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

Cir. 1994).   Facts are viewed in the light most favorable to the

nonmoving party.   Id.   However, where a motion for summary

judgment has been properly made and supported by the moving

party, the opposing party may not rest upon mere allegations or

denials contained in that party’s pleadings but must by

affidavits or otherwise set forth specific facts showing that

there is a genuine issue for trial.     Rule 121(d).
                               - 6 -

I.   General Rules--Collection Actions

     Section 6331(a) authorizes the Commissioner to levy upon all

property and rights to property of a taxpayer where there exists

a failure to pay any tax liability within 10 days after notice

and demand for payment.   Sections 6331(d) and 6330 then set forth

procedures generally applicable to afford protections for

taxpayers in such levy situations.     Section 6331(d) establishes

the requirement that a person be provided with at least 30 days’

prior written notice of the Commissioner’s intent to levy before

collection may proceed.   Section 6331(d) also indicates that this

notification should include a statement of available

administrative appeals.   Section 6330(a) expands in several

respects upon the premise of section 6331(d), forbidding

collection by levy until the taxpayer has received notice of the

opportunity for administrative review of the matter in the form

of a hearing before the Internal Revenue Service Office of

Appeals.   Section 6330(b) grants a taxpayer who so requests the

right to a fair hearing before an impartial Appeals officer.

     Section 6330(c) addresses the matters to be considered at

the hearing:

          SEC. 6330(c). Matters Considered at Hearing.--In
     the case of any hearing conducted under this section--

                (1) Requirement of investigation.--The
           appeals officer shall at the hearing obtain
           verification from the Secretary that the
                                 - 7 -

          requirements of any applicable law or
          administrative procedure have been met.

                  (2) Issues at hearing.--

                       (A) In general.--The person may raise at
                  the hearing any relevant issue relating to
                  the unpaid tax or the proposed levy,
                  including--

                            (i) appropriate spousal defenses;

                            (ii) challenges to the
                       appropriateness of collection actions;
                       and

                            (iii) offers of collection
                       alternatives, which may include the
                       posting of a bond, the substitution of
                       other assets, an installment agreement,
                       or an offer-in-compromise.

                       (B) Underlying liability.--The person
                  may also raise at the hearing 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.

     Once the Appeals officer has issued a determination

regarding the disputed collection action, section 6330(d) allows

the taxpayer to seek judicial review in the Tax Court or a

District Court.    In considering whether taxpayers are entitled to

any relief from the Commissioner’s determination, this Court has

established the following standard of review:

     where the validity of the underlying tax liability is
     properly at issue, the Court will review the matter on
     a de novo basis. However, where the validity of the
     underlying tax liability is not properly at issue, the
     Court will review the Commissioner’s administrative
                               - 8 -

      determination for abuse of discretion. [Sego v.
      Commissioner, 114 T.C. 604, 610 (2000).]

II.   Contentions of the Parties

      Although less than entirely clear, petitioner’s petition and

amended petition appear to contest respondent’s collection

determination on the basis of a challenge to his underlying

liabilities for some or all of the years from 1993 to 1999.      The

pleadings filed suggest that petitioner believes he is entitled

to an additional dependent exemption deduction and head of

household filing status.   Conversely, neither of these documents

seems to raise issues related to spousal defenses, collection

alternatives, or other challenges to the appropriateness of the

collection action.   At the hearing on respondent’s motion,

petitioner did raise an installment agreement and 22 $65 payments

thereon, totaling $1,430, all of which were applied to his 1995

tax year.

      Respondent’s motion seeks summary judgment with respect to

the 1995 to 1999 period covered in the notice of determination.

As pertains to that period, the motion is premised on two

principal considerations, each of which addresses petitioner’s

attempts to dispute his underlying tax liabilities.     First,

respondent maintains that because petitioner received a notice of

deficiency for 1995 and 1996, he is precluded from challenging

his underlying liabilities as to those years.   Second, it is

respondent’s position that petitioner may not challenge his
                                 - 9 -

underlying liabilities for 1997, 1998, and 1999 because the

assessments for those years correspond to amounts self-reported

by petitioner on his respective returns.

III.    Analysis

       A.   1995 and 1996--Challenges to Underlying Liability

       As previously indicated, section 6330(c)(2)(B) precludes

challenges to the underlying tax liability where the taxpayer

received a statutory notice of deficiency.     Respondent issued to

petitioner on May 29, 1998, a notice of deficiency with respect

to 1995 and 1996.     Nothing in respondent’s records indicates that

petitioner did not receive the notice.     Additionally, while

petitioner testified at the hearing on respondent’s motion that

he did not remember anything about the notice of deficiency “off

the top of * * * [his] head”, he at no time claimed that he

failed to receive the notice.     He also confirmed that the address

shown on the notice was correct and remains his current location.

       We conclude that petitioner received the statutory notice

for 1995 and 1996 and, as result, is precluded from challenging

his underlying tax liabilities for those years in this action.     A

remedy, provided the statute of limitations remains open, is to

pay the liabilities and file a refund claim and, if necessary, a

refund suit.

       B.   1997, 1998, and 1999--Challenges to Underlying Liability

       As set forth above, section 6330(c)(2)(B) permits challenges

to underlying liability where the taxpayer did not receive a
                               - 10 -

notice of deficiency or otherwise have an opportunity to dispute

the tax liability.   With respect to the 1997 through 1999 years,

respondent concedes that petitioner was not issued a notice of

deficiency.   However, respondent contends that the “otherwise

have an opportunity to dispute” language of section 6330(c)(2)(B)

should not be interpreted to permit taxpayers to challenge self-

reported liabilities in conjunction with collection proceedings.

     Subsequent to the hearing in the instant matter, the Court

issued its Opinion in Montgomery v. Commissioner, 122 T.C. ___

(2004).   The taxpayers in that case claimed that they had erred

in computing the tax shown on their original return.    Id. at ___

(slip op. at 14).    In denying a motion for summary judgment filed

by the Commissioner, we held that

     section 6330(c)(2)(B) permits petitioners to challenge
     the existence or amount of the tax liability reported
     on their original income tax return because they have
     not received a notice of deficiency for 2000 and they
     have not otherwise had an opportunity to dispute the
     tax liability in question. * * * [Id.]

Consistent with Montgomery v. Commissioner, supra, we conclude

here that petitioner is not precluded by section 6330(c)(2)(B)

from challenging his underlying liability with respect to the

1997 through 1999 years.

     In opposing respondent’s motion for summary judgment,

petitioner testified at the hearing as follows:

          THE COURT: All right. Well, Mr. Robertson, as I
     understand it, you’re saying you believe you were
     entitled to a dependency deduction for your daughter,
                           - 11 -

beginning sometime in ‘93, that you didn’t claim on
your tax return?

     MR. ROBERTSON: That was when I went to court and
got custody of her. I should have filed her. Yes,
sir, I should have filed her, but I didn’t.

      THE COURT:   Okay.

     MR. ROBERTSON: I had just went through a divorce
and I wasn’t doing that right.

     THE COURT: And that continued through ‘99?       Is
that what you said?

     MR. ROBERTSON: I never put her on. She went all
the way through school, and finished school, and she
went about a year or something in nursing. I never did
put her on.

     THE COURT:    So you believe this condition existed
in ‘93?

     MR. ROBERTSON: She was 16 when      I had gotten her.
I think she stayed with me until she     finished school,
and then she went to nursing school,     and then she might
have left about 20, when she left my     house, and got her
an apartment, and bought her a car.      I think she moved
along there somewhere.

      THE COURT:   So she was how old when you got her,
16?

      MR. ROBERTSON:   Yes, sir.

     THE COURT:    And you think she moved out when she
was 20?

      MR. ROBERTSON:   I think that’s about right.

     THE COURT: So if you added four years--if you
took 20 and subtracted 16, that leaves four years that
she lived in your house. Is that correct?

      MR. ROBERTSON:   That’s correct.
                               - 12 -

          THE COURT: All right. So if we took the year
     1993 and added four years to it, then you would say,
     you got her in December ‘93. Was that what you said?

          MR. ROBERTSON:    December ‘93 was when it was filed
     in the courthouse.

          THE COURT: So at most that would be like, maybe
     ‘93, but ‘94, ‘95, ‘96, and ‘97, but ‘98 and ‘99, she
     wouldn’t have lived in your house any more. Is that--

           MR. ROBERTSON:   That’s true.

     Through the foregoing colloquy, petitioner has raised a

question of material fact with respect to his entitlement to a

dependent exemption deduction for his daughter for 1997, as well

as to other potential correlative changes such as head of

household filing status.3   See secs. 2, 151, 152.    Accordingly,

we will deny respondent’s motion for summary judgment as it

relates to 1997.   At the same time, as regards 1998 and 1999,

petitioner appears to have conceded that the criteria for such a

deduction would not have been met.      He thus has failed properly

to oppose respondent’s motion for summary judgment for 1998 and

1999, at least insofar as the issue of underlying liability is

concerned.

     C.   1995, 1996, 1998, and 1999--Abuse of Discretion

     In light of our conclusions above regarding challenges to

the underlying liability, disposition of the remainder of

respondent’s motion rests on whether petitioner has, for 1995,


     3
       On the basis of the limited factual record available to
the Court, there may be merit to these contentions.
                               - 13 -

1996, 1998, or 1999, raised material issues pertaining to any of

those matters enumerated in section 6330(c)(2)(A) and subject to

review for abuse of discretion.   These items include spousal

defenses, collection alternatives, and other valid challenges to

the appropriateness of the collection action.    Id.

     The record does not reflect that petitioner has at any time

pursued a spousal defense.    As to collection alternatives, there

was some discussion at the hearing on respondent’s motion

concerning a series of $65 payments made by petitioner at some

time between 1999 and 2002.   A review of transcripts of

petitioner’s accounts revealed that these payments had been

properly credited, and petitioner did not suggest that he had

proposed or was currently seeking an installment agreement or

other collection alternative to satisfy his outstanding

liabilities for the period before us.   Nor is there any

indication that petitioner has otherwise challenged the

appropriateness of the collection action within the meaning of

section 6330(c)(2)(A).

     Given that matters not properly raised or preserved in

collection proceedings are typically deemed conceded, see Rule

331(b)(4); Magana v. Commissioner, 118 T.C. 488, 493-494 (2002);

Lunsford v. Commissioner, 117 T.C. 183, 185-186 (2001); Goza v.

Commissioner, 114 T.C. 176, 183 (2000), we conclude that

petitioner has not advanced any issues of material fact with
                              - 14 -

regard to whether respondent’s determination to proceed with

collection for 1995, 1996, 1998, and 1999 was an abuse of

discretion.   We therefore shall deny respondent’s motion with

respect to 1997 and grant summary judgment with respect to 1995,

1996, 1998, and 1999.

     To reflect the foregoing,


                                              An appropriate order

                                         will be issued granting

                                         in part and denying in

                                         part respondent’s motion

                                         for summary judgment.
