                                T.C. Memo. 2012-222



                         UNITED STATES TAX COURT



                    EILEEN M. YOEL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 26319-10L.                      Filed August 2, 2012.



      Eileen M. Yoel, pro se.

      Jayne M. Wessels, for respondent.



                           MEMORANDUM OPINION


      RUWE, Judge: This matter is before the Court on respondent’s motion for

summary judgment (motion) pursuant to Rule 121.1 Respondent contends that no



      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
as amended.
                                          -2-

[*2] genuine issue exists as to any material fact and that the determination to

maintain a notice of Federal tax lien (NFTL) filed under section 6323 should be

sustained. Petitioner has not responded to the motion, despite an order from this

Court instructing her to do so.

                                      Background

      At the time the petition was filed, petitioner resided in Pennsylvania.

      Respondent filed the NFTL regarding petitioner’s unpaid taxes for the

taxable years 2001, 2002, and 2003 (years at issue). Respondent sent petitioner a

Letter 3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under

IRC 6320, dated February 9, 2010, advising petitioner that a notice of Federal tax

lien had been filed with respect to her unpaid liabilities for the years at issue and

that she could request a hearing with respondent’s Office of Appeals. Petitioner

submitted a timely Form 12153, Request for a Collection Due Process or

Equivalent Hearing, in which she did not contest the underlying tax liabilities but

instead requested an installment agreement. By letter dated June 14, 2010,

respondent’s settlement officer acknowledged receipt of petitioner’s collection due

process (CDP) hearing request and scheduled a telephone conference for July 13,
                                         -3-

[*3] 2010. In the letter the settlement officer requested that petitioner provide a

completed Form 433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals, so that she could make a decision regarding petitioner’s

request for an installment agreement.

      On June 28, 2010, the settlement officer received from petitioner a facsimile

requesting a face-to-face hearing. In response the settlement officer telephoned

petitioner and left a voice mail message stating that before a face-to-face hearing

could be scheduled petitioner needed to send the financial information previously

requested. On July 12, 2010, the settlement officer received another letter from

petitioner requesting a face-to-face hearing. Petitioner did not include a completed

Form 433-A with the letter. The settlement officer again telephoned petitioner and

left a voice mail message explaining that she had to submit Form 433-A before a

face-to-face hearing could be scheduled. On September 9, 2010, the settlement

officer made one last attempt to contact petitioner by leaving a voice mail message

stating that she had to provide a completed Form 433-A by September 23, 2010, or

her case would be closed.

      Petitioner never submitted a completed Form 433-A. Petitioner failed to

participate in a conference with the settlement officer and presented no

information or documentation to the settlement officer for consideration.
                                         -4-

[*4] Respondent issued petitioner a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330, dated October 28, 2010, determining

that respondent followed all legal and procedural requirements in the filing of the

NFTL and that the NFTL was appropriate.

      Petitioner timely filed a petition with this Court.

                                      Discussion

      Summary judgment is intended to expedite litigation and to avoid

unnecessary and expensive trials. Shiosaki v. Commissioner, 61 T.C. 861, 862

(1974). Summary judgment may be granted where the pleadings and other

materials 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); see Schlosser v.

Commissioner, T.C. Memo. 2007-298, 2007 Tax Ct. Memo LEXIS 300, at *6,

aff’d, 287 Fed. Appx. 169 (3d Cir. 2008). The burden is on the moving party to

demonstrate that no genuine issue as to any material fact remains and that he is

entitled to judgment as a matter of law. FPL Grp., Inc. & Subs. v. Commissioner,

116 T.C. 73, 74-75 (2001). In all cases, the evidence is viewed in the light most

favorable to the nonmoving party. Bond v. Commissioner, 100 T.C. 32, 36

(1993). However, the nonmoving party is required “to go beyond the pleadings

and by her own affidavits, or by the ‘depositions, answers to interrogatories, and
                                          -5-

[*5] admissions on file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also

Rauenhorst v. Commissioner, 119 T.C. 157, 175 (2002); FPL Grp., Inc. & Subs. v.

Commissioner, 115 T.C. 554, 559 (2000). Petitioner failed to respond to

respondent’s motion and has failed to indicate that there is a genuine issue for trial.

Consequently, we conclude that there is no issue as to any material fact and that a

decision may be rendered as a matter of law.

      Section 6321 provides that, if any person liable to pay any tax neglects or

refuses to do so after demand, the amount shall be a lien in favor of the United

States upon all property and rights to property, whether real or personal, belonging

to such person. Section 6323 authorizes the Commissioner to file an NFTL.

Pursuant to section 6320(a) the Commissioner must provide the taxpayer with notice

of and an opportunity for an administrative review of the propriety of the NFTL

filing. See Katz v. Commissioner, 115 T.C. 329, 333 (2000). If a taxpayer requests

a CDP hearing, she may raise at that hearing any relevant issue relating to the

unpaid tax or the lien. Sec. 6330(c)(2). Relevant issues include possible alternative

means of collection such as an installment agreement. Sec. 6330(c)(2)(A)(iii).
                                          -6-

[*6] If a taxpayer’s underlying liability is properly at issue, the Court reviews any

determination regarding the underlying liability de novo. Goza v. Commissioner,

114 T.C. 176, 181-182 (2000). Petitioner has the burden of proof regarding her

underlying liabilities. See Rule 142(a). A taxpayer is precluded from disputing an

issue, including a challenge to the underlying liability, which was not properly raised

in the CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107, 114 (2007).

Petitioner did not raise her underlying tax liabilities in her request for a CDP

hearing. In her petition she made no specific allegations or arguments regarding the

correctness of the underlying tax liabilities, and she failed to file any response to the

motion. Consequently, petitioner’s underlying tax liabilities are not properly before

the Court.

      The Court reviews administrative determinations by respondent’s Office of

Appeals regarding nonliability issues for abuse of discretion. Hoyle v.

Commissioner, 131 T.C. 197, 200 (2008); Goza v. Commissioner, 114 T.C. at 182.

The determination of the Office of Appeals must take into consideration: (1) the

verification that the requirements of applicable law and administrative procedure

have been met; (2) issues raised by the taxpayer; and (3) whether any proposed

collection action balances the need for the efficient collection of taxes with the

legitimate concern of the person that any collection be no more intrusive than
                                          -7-

[*7] necessary. Secs. 6320(c), 6330(c)(3); see also Lunsford v. Commissioner, 117

T.C. 183, 184 (2001). We note that the settlement officer properly based her

determination on the factors required by section 6330(c)(3).

      Petitioner claims that the settlement officer abused her discretion by not

taking into consideration issues petitioner raised. In her petition, petitioner alleges

that the settlement officer improperly denied her request for a face-to-face hearing.

Respondent contends that the settlement officer did not abuse her discretion because

petitioner failed to provide the requested necessary financial information.

      A face-to-face hearing is not required under section 6330. See Katz v.

Commissioner, 115 T.C. at 337-338 (a proper section 6330 hearing may occur by

telephone conference); Leineweber v. Commissioner, T.C. Memo. 2004-17, 2004

Tax Ct. Memo LEXIS 16, at *11. We have decided that it is not an abuse of

discretion when the Commissioner denies a taxpayer’s face-to-face hearing request

if the taxpayer did not provide the required financial information requested by the

settlement officer. See Golditch v. Commissioner, T.C. Memo. 2010-260, 2010

Tax Ct. Memo LEXIS 335, at *13-14; see also Stanwyck v. Commissioner, T.C.

Memo. 2012-180, 2012 Tax Ct. Memo LEXIS 181, at *20 (an officer does not

abuse any discretion by refusing to consider collection alternatives if the taxpayer

fails to submit the required and requested financial information).
                                          -8-

[*8] Petitioner was given multiple opportunities to submit a completed Form 433-

A but failed to do so. We conclude that the settlement officer’s denial of

petitioner’s request for a face-to-face hearing was not an abuse of discretion in the

light of the fact that petitioner failed to provide a completed Form 433-A. Because

petitioner failed to submit the requested financial information, the settlement officer

was unable to accurately ascertain her financial circumstances and, consequently,

could not determine the appropriate installment agreement terms. In the absence of

the requested information, respondent’s settlement officer did not abuse her

discretion in denying petitioner’s request for collection alternatives. See Wright v.

Commissioner, T.C. Memo. 2012-24, 2012 Tax Ct. Memo LEXIS 25, at *7-8.

Also, by failing to respond to the motion, petitioner waived her right to contest it.

See Rule 121(d); Lunsford v. Commissioner, 117 T.C. at 187; Akonji v.

Commissioner, T.C. Memo. 2012-56, 2012 Tax Ct. Memo LEXIS 49, at *6. As a

result, respondent’s determination is sustained.

      To reflect the foregoing,


                                                      An appropriate order will be

                                                issued granting respondent’s motion,

                                                and decision will be entered for

                                                respondent.
