                         T.C. Memo. 2008-2



                      UNITED STATES TAX COURT



                 GLENN BRODERICK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13849-05L.            Filed January 2, 2008.



     Glenn Broderick, pro se.

     Patricia A. Komor, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   This matter is before the Court on

respondent’s motion for summary judgment, filed pursuant to Rule

121,1 and to impose a penalty under section 6673.   In this



     1
      Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code.
                                 - 2 -

opinion, we shall treat respondent’s motion as a motion for

summary judgment only, and we decide only whether respondent is

entitled to summary judgment under Rule 121.2

                            Background

     This is an appeal from respondent’s determination upholding

the filing of a Federal tax lien against petitioner for unpaid

income tax liabilities for the years 1995, 1996, and 1997.    When

his petition was filed, petitioner showed his address as c/o 4108

E. Indian School Road, Phoenix, Arizona 85018.

     Petitioner did not file Federal income tax returns for 1995,

1996, or 1997.   Respondent sent petitioner a notice of deficiency

for 1995-97, and petitioner filed a petition for redetermination.

See Broderick v. Commissioner, docket No. 10847-00.    On April 10,

2002, we dismissed docket No. 10847-00 because of petitioner’s

failure to properly prosecute the case.    On or about August 23,

2002, petitioner appealed the decision to the U.S. Court of

Appeals for the Ninth Circuit.    On May 16, 2003, the Court of

Appeals affirmed our decision.     Broderick v. Commissioner, 63

Fed. Appx. 374 (9th Cir. 2003).

     On October 7, 2002, respondent assessed petitioner’s Federal

income tax liabilities, including interest, for 1995-97.

Respondent subsequently mailed to petitioner a Notice of Federal

Tax Lien Filing and Notice of Your Right to a Hearing, dated


     2
      We deny respondent’s request for a penalty under sec. 6673.
                               - 3 -

September 23, 2003.   On October 27, 2003, petitioner, through an

authorized representative, submitted a Form 12153, Request for a

Collection Due Process Hearing.   Petitioner included with Form

12153 a five-page statement containing several arguments and

demands that were frivolous and groundless.

     The settlement officer assigned to petitioner’s hearing

request mailed a letter to petitioner dated December 29, 2003,

advising him that a telephone hearing would be held on January

15, 2004.   The letter also requested that petitioner file a

collection information statement and all unfiled returns.    The

letter stated that if petitioner did not provide the requested

information, the settlement officer would make a determination

based on the information in the file.

     On January 15, 2004, the settlement officer received a

letter from John Turner (Mr. Turner) on behalf of petitioner.

The letter stated that petitioner’s previous representative had

been enjoined from dealing with the Internal Revenue Service

(IRS), and it requested a postponement of the hearing to permit

Mr. Turner to provide a power of attorney.    In response to this

request, the settlement officer rescheduled the hearing for

January 20, 2004.

     Mr. Turner did not contact the settlement officer or file a

power of attorney by January 20, 2004.   Consequently, the

settlement officer mailed a letter to petitioner on January 20,
                              - 4 -

2004, in which he stated that petitioner’s arguments were without

merit, that petitioner had not filed the requested returns, and

that the settlement officer did not have petitioner’s phone

number or a power of attorney from Mr. Turner.   The settlement

officer gave petitioner 10 days to contact him and provide

additional information regarding petitioner’s case.

     On January 21, 2004, Mr. Turner submitted a power of

attorney and requested that the hearing be rescheduled.    The

settlement officer rescheduled the hearing for January 26, 2004,

and a telephone hearing was held on that date.   Neither

petitioner nor his representative provided the collection

information statement or the returns that the settlement officer

had requested, and they did not offer any information regarding

petitioner’s plans to pay the liabilities at the hearing.    Mr.

Turner asked for additional time to submit the information, and

the settlement officer gave him until the end of the day to do so

or the settlement officer would sustain the lien and close the

hearing.

     On January 27, 2004, Mr. Turner sent a fax to the settlement

officer that contained a declaration signed by petitioner.    The

declaration stated that petitioner had not received the notices

of assessment.

     On January 29, 2004, respondent mailed to petitioner a

Notice of Determination Concerning Collection Action(s) Under
                                - 5 -

Section 6320 and/or 6330.    In the notice, respondent concluded

that all of the requirements for proceeding with collection had

been met and that petitioner had not provided a valid reason why

the lien should be withdrawn.    The notice advised petitioner that

he had to file a petition in the United States Tax Court if he

wanted to dispute respondent’s determination.

     On March 1, 2004, petitioner filed a complaint for review of

the determination in the United States District Court for the

District of Arizona.   The case was dismissed on June 20, 2005,

for lack of jurisdiction.

     On July 25, 2005, petitioner filed in the Tax Court a

petition for lien or levy action.    On March 22, 2006, respondent

filed a motion for summary judgment and to impose a penalty under

section 6673.   Petitioner filed a response in opposition to the

motion in which he alleges, in pertinent part, that a motion for

summary judgment is an improper procedure for disposing of a case

in which the reviewing court was required to conduct a review on

the administrative record.    Specifically, petitioner contends

that respondent’s summary judgment motion should be denied

because “it is an inappropriate procedure for disposition of a

record review judicial review of an agency decision.”

Subsequently, petitioner submitted an affidavit that was filed on

June 26, 2006, as a supplement to his response in opposition to

respondent’s motion.   Neither petitioner’s opposition nor his
                               - 6 -

affidavit supplementing his opposition disputed any of the

material facts alleged in respondent’s summary judgment motion

and supporting materials.

      On April 17, 2006, a hearing was held on respondent’s

motion.   Petitioner did not appear.

                            Discussion

A.   Summary Disposition

      Summary judgment is a procedure designed to expedite

litigation and avoid unnecessary, time-consuming, 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 presented “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); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.

Commissioner, 90 T.C. 753, 754 (1988).   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).   The facts material to the

Court’s disposition of the motion for summary judgment are stated
                               - 7 -

solely for purposes of deciding the motion and are not findings

of fact for this case.   See Sundstrand Corp. v. Commissioner,

supra at 520.

     Petitioner makes a novel but flawed contention in his effort

to withstand summary disposition.   He argues that, because this

case involves only a record review, the use of summary

disposition is inappropriate and improper.   He cites Olenhouse v.

CCC, 42 F.3d 1560, 1579-1580 (10th Cir. 1994), as support for his

argument.

     In Olenhouse, various wheat producers had sued the

Agricultural Stabilization and Conservation Service (ASCS)

challenging ASCS’s decision to award reduced deficiency payments

for the producers’ wheat under a Federal price support program.

The producers claimed, among other things, that the ASCS’s action

was arbitrary and capricious in that it was the product of an

inadequate administrative appeals process and not supported by

substantial evidence in the administrative record.   Id. at 1564.

The producers had filed an administrative appeal and received an

adverse determination, which they appealed to the State ASCS

committee and then to the Deputy Administrator, State and County

Operations (DASCO).   Throughout the appeal process, the producers

unsuccessfully attempted to obtain information regarding the

basis for the reductions imposed on them and the way the

reductions were calculated.   Without making any findings of fact
                                 - 8 -

or articulating a reasoned basis for its decision, DASCO found

“no justification” for relief.    The District Court, in its

capacity as a reviewing court under the Administrative Procedure

Act (APA), summarily affirmed the ASCS’s determination.    In so

doing, the District Court relied solely on counsel’s

representations and other materials attached to the ASCS’s motion

to affirm and did not actually examine the administrative record

or conduct the thorough review required by the APA.     Id. at 1565.

The Court of Appeals concluded under the circumstances that the

District Court “employed neither the procedure nor the standard

of review required when agency action is challenged on appeal to

a district court in this circuit.”       Id.

     The facts of Olenhouse are distinguishable from the facts of

this case.   Olenhouse involved a review of an agency

determination that was subject to the APA.     Although the District

Court was obligated under the APA to conduct a detailed and

thorough review of the administrative record and the parties’

arguments regarding it, the Court of Appeals concluded that the

District Court did not do so.    Over the objections of the

aggrieved party, the District Court relied on the agency’s

representations regarding the record, without conducting the kind

of independent and detailed review that the APA required.      After

concluding that the District Court was required to do more than
                                - 9 -

simply rely on the agency’s representations and that the court

failed to do so, the Court of Appeals reversed.

       In contrast to the above, this case involves the review of a

determination to proceed with collection by the IRS.

Administrative hearings under sections 6320 (dealing with liens)

and 6330 (dealing with levies) must be conducted in accordance

with section 6330(c).    After the IRS issues its notice of

determination following the administrative hearing, a taxpayer

has the right to a judicial review of the determination.      Sec.

6330(d).    A taxpayer may petition this Court to review the

determination, and our review is subject to the provisions of

section 6330.

       The judicial review that we are required to conduct in

section 6320/6330 cases focuses on the determination made by the

IRS.    Unless the underlying tax liability of the taxpayer that is

the subject of the proceeding is properly at issue, we review the

IRS’s determination for abuse of discretion.    Sego v.

Commissioner, 114 T.C. 604, 610 (2000).

       It is now well established that a motion for summary

judgment may be used to resolve cases brought under sections 6320

and 6330 in appropriate circumstances.    Deutsch v. Commissioner,

478 F.3d 450 (2d Cir. 2007), affg. T.C. Memo. 2006-27; Speltz v.

Commissioner, 454 F.3d 782 (8th Cir. 2006), affg. 124 T.C. 165

(2005); Kindred v. Commissioner, 454 F.3d 688 (7th Cir. 2006);
                              - 10 -

Hobbs v. Commissioner, 110 Fed. Appx. 36 (9th Cir. 2004); Le Doux

v. Commissioner, 102 Fed. Appx. 641 (10th Cir. 2004); Minion v.

Commissioner, 79 Fed. Appx. 172 (6th Cir. 2003); Jones v.

Commissioner, 338 F.3d 463 (5th Cir. 2003); Roberts v.

Commissioner, 329 F.3d 1224 (11th Cir. 2003), affg. 118 T.C. 365

(2002).   Summary disposition under Rule 121 permits this Court to

decide a case without the necessity of a trial if there is no

genuine issue as to any material fact and if the Court determines

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

Summary disposition on the administrative record developed before

the IRS during the administrative hearing under section 6330(c)

is entirely appropriate if we conclude that the requirements of

Rule 121(b) are met.   We review the administrative record

submitted in connection with the motion for summary judgment, and

we may grant summary disposition only if we conclude that there

is no material issue of fact that prevents the entry of a summary

disposition and would require a trial.

      For the reasons that follow, we conclude that we may dispose

of this case by way of summary disposition pursuant to Rule 121.

B.   Respondent’s Determination Regarding Collection

      We turn now to the merits of respondent’s summary judgment

motion in this section 6330 proceeding.

      This is an action seeking judicial review under section 6320

of respondent’s determination to file a Federal tax lien to
                              - 11 -

secure the payment of petitioner’s unpaid Federal income tax

liabilities for 1995, 1996, and 1997.   Respondent’s determination

was made following an administrative hearing, which respondent

was required to conduct in accordance with the provisions of

section 6330(c).   Sec. 6320(c).

     Section 6330(c) requires the presiding officer who conducts

the administrative hearing to satisfy several requirements.     At

the hearing, the presiding officer must obtain verification from

the Secretary that the requirements of any applicable law or

administrative procedure have been met.   Sec. 6330(c)(1).    In

addition, in reaching his or her determination, the presiding

officer must consider any relevant issue that the taxpayer raised

at the hearing relating to the unpaid tax or the proposed

collection action and, if appropriate, must consider the

underlying tax liability.   Sec. 6330(c)(3).   Finally, the

presiding officer must determine whether the proposed collection

action balances the need for the efficient collection of taxes

with the legitimate concern of the person that any collection

action be no more intrusive than necessary.    Sec. 6330(c)(3)(C).

     The notice of determination and related materials that

respondent submitted with his summary judgment motion confirm

that the presiding officer performed the review required by

section 6330(c).   The administrative record in this case shows

that the presiding officer properly determined that petitioner
                               - 12 -

had received a notice of deficiency for each of the years at

issue and that, consequently, petitioner could not challenge the

underlying tax liabilities.    Sec. 6330(c)(2)(B); Goza v.

Commissioner, 114 T.C. 176, 183 (2000).    The administrative

record also demonstrates that the presiding officer obtained the

required verification that applicable legal and administrative

procedures had been met and considered the issues raised by

petitioner during the hearing process, even though the arguments

were not relevant and were frivolous attempts to disrupt the

collection process.3    Finally, the Appeals officer conducted an

appropriate analysis as required by section 6330(c)(3)(C).

     Petitioner did not show that there is a genuine issue as to

any of the material facts in this case, nor did petitioner raise

any issue of law that would preclude the entry of a summary

disposition under Rule 121.    We shall grant respondent’s motion

for summary judgment.

     To reflect the foregoing,


                                          An appropriate order and

                                     decision will be entered.



     3
      Petitioner alleged that (1) the notices of deficiency were
void, (2) that there was a failure to generate an assessment
list, (3) that the Commissioner failed to certify and transmit an
assessment list, (4) that the Commissioner failed to record the
assessment, (5) that the Commissioner failed to provide record of
assessment at petitioner’s request, and (6) that the Commissioner
failed to send a notice of assessment.
