                        T.C. Memo. 2009-129



                      UNITED STATES TAX COURT



         THOMAS B. AND LABELLE D. LANCE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18373-07L.             Filed June 4, 2009.



     Thomas B. and Labelle D. Lance, pro sese.

     Brenda M. Fitzgerald, for respondent.



                        MEMORANDUM OPINION


     GERBER, Judge:   Respondent sent petitioners notice of his

determination to collect petitioners’ 1996 and petitioner Thomas

Lance’s 1999 and 2001 income tax liabilities by levy.

Petitioners administratively appealed, and respondent sustained

the determination to proceed with the levy.     Petitioners

petitioned this Court seeking to forestall the levy action,
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stating in their petition that respondent did not properly

consider petitioners’ offer to compromise their 1996 tax

liability.   After the pleadings were complete, respondent moved

for summary judgment.1

                            Background

     Petitioners resided in Georgia at the time their petition

was filed.   Respondent audited petitioners’ 1996 Federal income

tax return and proposed adjustments.     Petitioners appealed to

respondent’s Office of Appeals and reached agreement with respect

to the 1996 income tax liability.   The parties entered into an

agreement on Form 870, Waiver of Restrictions on Assessment and

Collection of Deficiency in Tax and Acceptance of Overassessment,

defining the income tax deficiency for 1996.     Subsequently,

however, Mrs. Lance sought innocent spouse relief with respect to

the 1996 income tax liability, and she was notified by certified

mail on October 30, 2002, that relief would not be granted.      Mrs.

Lance did not petition this Court with respect to the

disallowance of innocent spouse relief.

     Mr. Lance was sent and received a statutory notice of

deficiency for his 1999 tax year on November 7, 2001, but he did



     1
      Petitioners were given ample opportunity over an extended
period to respond to respondent’s summary judgment motion. On
several occasions petitioners sought an extension of time to
respond, but they did not respond. Because adequate time for a
response has been afforded to petitioners, we proceed to address
respondent’s motion.
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not file a petition with this Court.   Mr. Lance was also sent and

received a statutory notice of deficiency for his 2001 tax year

on January 26, 2004, and he, likewise, did not file a petition

with this Court.   During the period 2003 through the beginning of

2006 petitioners had a great deal of interaction with respondent,

and numerous pieces of correspondence were exchanged.

Petitioners suggested an installment agreement, offers-in-

compromise, and other collection approaches during that period.

In letters dated February 6, 2006, respondent notified

petitioners of his intent to levy with respect to their joint

1996 tax liability and Mr. Lance’s 1999 and 2001 tax liabilities.

In those same letters respondent notified petitioners of their

right to a hearing.

     On March 22, 2006, respondent received a timely Form 12153,

Request for a Collection Due Process Hearing, with respect to

petitioners’ 1996 tax liability and Mr. Lance’s 1999 and 2001 tax

liabilities.   In their request petitioners stated that they

believed that the penalties and interest for the 3 tax years

should be abated in part.   No grounds were stated.   Petitioners

sought a face-to-face hearing, and their hearing request was

transferred to the Atlanta Appeals Office.

     On August 14, 2006, Settlement Officer Allen D. Powell (SO

Powell) sent petitioners a letter advising them that he had

scheduled a September 19, 2006, hearing, and he also enclosed a
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copy of Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals.   SO Powell stated in the

letter that if petitioners wished consideration of collection

alternatives, such as an installment agreement or an offer-in-

compromise, the form had to be completed and returned within

14 days.   On September 18, 2006, petitioners requested that the

hearing be rescheduled because of their son’s illness.

      For the next several months, no action was taken because of

petitioners’ son’s illness.   On January l8, 2007, SO Powell sent

petitioners a letter requesting an update on their

son’s health and further advising that petitioners contact SO

Powell to schedule a hearing if they still wished one.    On

February 22, 2007, SO Powell sent petitioners a letter scheduling

a face-to-face conference for April 3, 2007, at 10 a.m.    He

enclosed a second Form 433-A with that letter and advised

petitioners that if they wished to discuss any collection

alternatives they should provide him with a completed Form 433-A

at least 7 days before the hearing.

     The hearing scheduled for April 3, 2007, did not take place

and was rescheduled at petitioners’ request to May 15, 2007.

Petitioners were advised by SO Powell that this was their final

opportunity for a hearing.    On May 13, 2007, petitioners left a

voice mail message for SO Powell requesting another hearing date.

On May 15, 2007, SO Powell advised the petitioners that he
                               - 5 -

would not reschedule but that they were welcome to submit

information for his consideration on or before May 28, 2007.

     In a May 24, 2007, letter, petitioners suggested an offer-

in-compromise.   Petitioners also enclosed copies of

correspondence that had been sent to and received from

respondent, but no financial information to support an offer-in-

compromise or other collection alternative was included with

petitioners’ correspondence.   Petitioners mailed the letter and

enclosed documents to SO Powell on May 28, 2007, but did not

include a completed Form 433-A.   On June 1, 2007, SO Powell

reviewed and considered the information that petitioners

provided.   On July 12, 2007, SO Powell decided to sustain the

proposed levy based upon all available information.    Because

petitioners did not provide a completed Form 433-A, SO Powell was

unable to evaluate collection alternatives.   On July 16, 2007,

respondent issued a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 for each of petitioners’

1996 tax year and Mr. Lance’s 1999 and 2001 tax years.

                            Discussion

     Summary judgment is intended to expedite litigation and

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

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

granted when there is no genuine issue of material fact and a
                                - 6 -

decision may be rendered as a matter of law.    Rule 121(b);2

Sundstrand Corp. v Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994).    The opposing party cannot rest upon

mere allegations or denials in his pleadings and must “set forth

specific facts showing that there is a genuine issue for trial.”

Rule 121(d).   The moving party bears the burden of proving that

there is no genuine issue of material fact, and factual

inferences will be read in a manner most favorable to the party

opposing summary judgment.     Dahlstrom v. Commissioner, 85 T.C.

812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).

     Respondent has provided all documents from the

administrative record, and petitioners have not come forward to

dispute or deny any portion thereof.3    Therefore, we are in a

position to render a decision, as a matter of law, as to whether

respondent abused his discretion in sustaining the proposed levy

action.

     We first consider whether petitioners were entitled to

question the underlying tax liabilities for the 1996, 1999,

and/or 2001 tax years.   The merits of the underlying tax



     2
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
     3
      Because this is a summary judgment motion with no facts in
dispute, we need not consider the ramifications of sec. 7491.
                               - 7 -

liability are proper issues in an Appeals Office hearing 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.”   Sec. 6330(c)(2)(B).

     Petitioners were not entitled to dispute the underlying tax

liability for 1996 because they had a prior opportunity, before

the Office of Appeals, to dispute the tax liability and entered

into a Form 870 agreement for the tax deficiency.    Taxpayers who

execute a Form 870 consenting to the immediate assessment and

collection of the deficiency waive their right to receive a

notice of deficiency and, hence, the right to contest the

underlying liability in a subsequent collection action.   Sec.

6330(c)(2)(B); Estate of Deese v. Commissioner, T.C. Memo. 2007-

362; A-Z Optics, Inc. v. Commissioner, T.C. Memo. 2007-27.

Accordingly, petitioners could not contest the underlying tax

liability for the year 1996.   Aguirre v. Commissioner, 117 T.C.

324, 327 (2001); Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 180-181 (2000).

     Similarly, Mr. Lance was not entitled to dispute his

underlying 1999 and 2001 tax liabilities because he received a

statutory notice of deficiency for each year and, accordingly,

had a prior opportunity to dispute those tax liabilities.    Sec.

6330(c)(2)(B); Nestor v. Commissioner, 118 T.C. 162, 165-166
                               - 8 -

(2002); Sego v. Commissioner, supra at 610; Goza v. Commissioner,

supra.

     In view of those circumstances, we proceed to decide whether

there was an abuse of discretion when respondent sustained the

proposed levy action.   See Sego v. Commissioner, supra at 610.

     Petitioners, although requested to do so on several

occasions, failed to provide financial information to SO Powell,

rendering him unable to evaluate collection alternatives.

Hearings were scheduled for several dates over an extended

period, and petitioners sought rescheduling on each occasion.

The first letter setting a hearing date was sent on August 14,

2006, and SO Powell did not issue his determinations until

July 16, 2007.   Throughout that period petitioners did not

submit complete financial information, nor did they submit a

completed Form 433-A.

     A financial statement is not required of taxpayers who make

offers-in-compromise based solely on doubt as to liability.

Sec. 7122; sec. 301.7122-1(d) Proced. & Admin. Regs.   However,

financial information is required of taxpayers who seek

collection alternatives on other bases, including offers-in-

compromise based upon doubt as to collectibility.   Additionally,

taxpayers who submit offers based on doubt as to collectibility

or based on effective tax administration are required to provide
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the Commissioner with a completed collection information

statement.

     In this case the lack of financial information rendered any

intended offer incomplete and prevented respondent from

considering collection alternatives.    When a hearing officer is

unable or refuses to consider collection alternatives because of

a taxpayer’s failure to provide financial information, courts

have held that there was no abuse of discretion.      Schwersensky v.

Commissioner, T.C. Memo. 2006-178.     We hold that the settlement

officer’s actions were appropriate and not an abuse of

discretion.

     A settlement officer must take into consideration:     (1) The

verification that the requirements of applicable law and

administrative procedures have been met, (2) the issues raised by

taxpayers, and (3) the legitimate concern of the person(s) that

any collection be no more intrusive than necessary.     Sec.

6330(c)(3).   The settlement officer in this case met those

requirements.   In addition, SO Powell responded to

petitioners’ request for rescheduling of hearing dates and was

responsive to all of petitioners’ requests.

     In view of the foregoing, we hold that there was no abuse of

discretion in respondent’s decision to proceed with collection by

levy.   Accordingly, respondent’s motion for summary judgment will

be granted.
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To reflect the foregoing,


                                 An appropriate order and

                            decision will be entered.
