                        T.C. Memo. 2003-107



                      UNITED STATES TAX COURT



                   ANDY HROMIKO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 15437-02L.               Filed April 17, 2003.


     Andy Hromiko, pro se.

     Jeremy L. McPherson, for respondent.



                        MEMORANDUM OPINION


     GALE, Judge:   This case is before us on respondent’s motion

for summary judgment under Rule 121.1   Respondent contends that

there is no dispute as to any material fact with respect to this

levy action and that respondent’s determination to proceed with


     1
       Unless otherwise noted, 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 -

the proposed levy should be sustained as a matter of law.    For

reasons set forth below, we shall grant respondent’s motion.

     Summary judgment is intended to expedite litigation and

avoid unnecessary 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 in

controversy “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); Sundstrand

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

(7th Cir. 1994).   The moving party bears the burden of proving

that there is no genuine issue of material fact, and factual

inferences are drawn 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).

                             Background2

     At the time of filing the petition in the instant case,

petitioner resided in Roseville, California.




     2
       The facts hereinafter are established in the record and/or
undisputed.
                                - 3 -

     On June 7, 2001, we issued an opinion in MatrixInfoSys Trust

v. Commissioner, T.C. Memo. 2001-133, in which we sustained

income tax deficiencies and additions to tax against petitioner

as follows:

                                       Additions to Tax
     Year        Deficiency     Sec. 6651(a)(1)     Sec. 6654

     1994        $20,340           $5,085             $1,055
     1995         20,176            5,044              1,094
     1996         19,447            4,862              1,035
     1997         18,366            4,592                983

In addition, we imposed a penalty under section 6673(a)(1) of

$12,500.    All of these amounts shall hereinafter be collectively

referred to as the “unpaid liability”.    Decision was entered in

MatrixInfoSys Trust on July 9, 2001.     Petitioner subsequently

appealed the decision to the Court of Appeals for the Ninth

Circuit.    Petitioner did not file a bond with this Court at the

time he filed his Notice of Appeal in that case.

     Respondent assessed the unpaid liability plus interest and

mailed Statutory Notices of Balance Due with regard thereto on

February 25, 2002.   On or about June 6, 2002, respondent sent

petitioner a Letter 1058, Final Notice of Intent to Levy and

Notice of Your Right to a Hearing, with respect to the unpaid

liability.

     Petitioner timely requested a hearing under section 6330(b).

In his request, petitioner asserted that respondent’s collection

actions were premature, given that an appeal in MatrixInfoSys
                                - 4 -

Trust was pending before the Court of Appeals for the Ninth

Circuit.

     A face-to-face meeting was held between petitioner and an

Appeals officer of respondent on August 16, 2002.   On August 30,

2002, respondent issued to petitioner a Notice of Determination

Concerning Collection Action(s) Under Section 6320 and/or 6330

(notice of determination).    The notice of determination states:

     He [petitioner] wanted to see the physical documents
     that created the assessments. I told him that I had
     ordered a form 4340, Certificate of Official Record.
     This is sufficient proof for the Courts to show the
     assessment was properly made. Once this is received, I
     will mail him a copy and keep the originals in the file
     for the case record.

     Was the action legally and procedurally correct?

     I have reviewed the administrative file and the
     transcripts of the liability and determined that the
     proposed levy was legally and procedurally correct.

     The Appeals officer also concluded that respondent was not

barred from collecting prior to the disposition of petitioner’s

appeal because petitioner had not filed a bond as required by

section 7485(a).

     Petitioner filed a timely petition for review of

respondent’s determination.   The only issue raised in the

original petition was that collection was inappropriate because

petitioner had filed an appeal with respect to the underlying tax

liability that was pending before the Court of Appeals for the
                               - 5 -

Ninth Circuit.   Petitioner subsequently amended the petition to

allege that the Appeals officer had failed, as required by

section 6330(c)(1), to verify that all applicable laws and

administrative procedures had been met; in particular, petitioner

alleged that the liabilities had not been properly assessed and

that he had not received notice of the assessments as required by

section 6303.

     Subsequent to the filing of respondent’s motion for summary

judgment and petitioner’s response, the Court of Appeals on

February 14, 2003, affirmed our opinion in MatrixInfoSys Trust v.

Commissioner, supra, sustaining the underlying tax liabilities

that are the subject of this collection action, and entered

judgment.   Hromiko v. Commissioner, 56 Fed. Appx. 359 (9th Cir.

2003).

                            Discussion

     Section 6331(a) provides that if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand, the Secretary may collect such tax by levy on

the person’s property.   Section 6331(d) provides that at least 30

days before enforcing collection by levy on the person’s

property, the Secretary must provide the person with a final

notice of intent to levy, including notice of the administrative

appeals available to the person.
                                - 6 -

     Section 6330 generally provides that the Secretary cannot

proceed with collection by levy on any property of any person

until the person has been given notice and the opportunity for an

administrative review of the matter (in the form of an Appeals

Office hearing) and, if dissatisfied, with judicial review of the

administrative determination.    Davis v. Commissioner, 115 T.C.

35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000).

Where the underlying tax liability is not at issue, the Court

will review the Appeals officer’s determination for abuse of

discretion.   Sego v. Commissioner, 114 T.C. 604, 610 (2000).

     In the instant case, the unpaid liability was redetermined

by this Court after petitioner received a notice of deficiency

with respect thereto.   Therefore, the existence or amount of the

underlying tax liability is not at issue, and we need only decide

whether the Appeals officer abused his discretion in determining

that collection may proceed.

     A.   Verification Requirement

     Petitioner contends that the Appeals officer failed to

satisfy section 6330(c)(1), which requires the Appeals officer to

obtain verification from the Secretary that the requirements of

any applicable law or administrative procedure have been met.

Specifically, petitioner alleges that respondent failed to verify

that the unpaid liability was properly assessed or that
                               - 7 -

petitioner received notice of the assessment as required by

section 6303.

     Petitioner argues that the notice of determination on its

face reveals that the verification requirement of section

6330(c)(1) was not met.   The notice of determination indicates

that Forms 4340 for the years at issue were not in the possession

of the Appeals officer during the face-to-face meeting with

petitioner.   However, the notice further states that the Appeals

officer “reviewed the administrative file and the transcripts of

the liability” in determining whether the proposed levy was

“legally and procedurally correct”.

     To the extent the notice of determination may leave any

ambiguity concerning the documentation used by the Appeals

officer to comply with section 6330(c)(1), we are nonetheless

satisfied, based on our review of the certified copies of the

Forms 4340 submitted by respondent in support of his motion, that

the requirements of applicable law or administrative procedure

have been met with respect to the amounts that respondent seeks

to collect herein.   Section 6330(c)(1) does not require the

Appeals officer to rely upon a particular document (e.g., a Form

4340 rather than transcripts of account) in order to satisfy the

verification requirement.   Craig v. Commissioner, 119 T.C. 252,

261-262 (2002).   The Forms 4340 in the record indicate that

assessments of the unpaid liability were made on February 25,
                               - 8 -

2002, and that statutory notices of balance due were mailed to

petitioner on that date.   Absent some showing of irregularity in

the Forms 4340, which petitioner has not alleged, those records

serve as presumptive evidence that the tax was validly assessed,

see Davis v. Commissioner, supra at 40-41, and that notice and

demand pursuant to section 6303(a) was mailed to petitioner, see

Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); United

States v. Chila, 871 F.2d 1015, 1019 (11th Cir. 1989); Craig v.

Commissioner, supra at 262-263.   Since the evidence in the record

demonstrates fulfilment of the requirements of applicable law and

administrative procedure that petitioner contends were not

satisfied, petitioner’s allegations concerning the verification

requirement of section 6330(c)(1) are no bar to summary judgment.

     B.   Collection Where Appeal Pending

     The remaining issue raised by petitioner concerns the

appropriateness of collection action where the underlying tax

liability is the subject of a pending appeal.   Petitioner argues

that respondent should not pursue collection while the appeal of

MatrixInfoSys Trust v. Commissioner, supra, is pending.3


     3
       As noted earlier, on Feb. 14, 2003, the Court of Appeals
for the Ninth Circuit in Hromiko v. Commissioner, 56 Fed. Appx.
359 (9th Cir. 2003), affirmed our opinion in MatrixInfoSys Trust
v. Commissioner, T.C. Memo. 2001-133, which sustained the
underlying tax liabilities that are the subject of the instant
collection action. As petitioner’s right to further review in
the deficiency proceeding may not be exhausted, we address his
contentions on the merits.
                               - 9 -

Petitioner further contends that respondent generally does not

undertake collection actions while appeals of the underlying tax

liability are pending and that respondent’s doing so in the

instant case violates his right to due process and equal

protection.

     Petitioner’s argument has no merit.   Section 7485(a)(1)

specifically provides that review of a decision of the Tax Court

by a U.S. Court of Appeals shall not operate as a stay of

collection of any deficiency determined by the Tax Court unless

the taxpayer files a bond with the Tax Court on or before the

time his notice of appeal is filed.    Petitioner concedes that he

posted no bond.   Accordingly, it was not an abuse of discretion

for the Appeals officer to conclude that respondent could proceed

with collection actions notwithstanding the appeal.4

     C.   Conclusion

     For the reasons discussed above, we conclude that all

arguments raised by petitioner against respondent’s determination

to proceed with collection lack merit.   Accordingly, we hold that

respondent did not abuse his discretion and may proceed with the

collection actions that were the subject of the notice in Letter


     4
       Petitioner’s contentions based on his rights to due
process or equal protection hardly merit comment. Suffice it to
say that the instant proceeding pursuant to sec. 6330 accords
petitioner his rights under the Fifth Amendment; he has obtained
review of the proposed levy both by an Appeals officer and this
Court.
                             - 10 -

1058 covering taxable years 1994 through 1997.   To reflect the

foregoing,

                                   An appropriate order and

                              decision will be entered.
