                        T.C. Memo. 2011-171



                      UNITED STATES TAX COURT



                 JEFFREY S. KURTZ, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10233-10L.            Filed July 13, 2011.



     Jeremy Bell, for petitioner.

     Michael T. Shelton, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   Petitioner, while residing in Illinois,

petitioned the Court under section 6330(d) to review a

determination of respondent’s Office of Appeals (Appeals)

sustaining a proposed levy upon petitioner’s property.1

     1
      Section references are to the Internal Revenue Code, and
                                                   (continued...)
                                -2-

Respondent proposed the levy to collect a $20,532 deficiency in

petitioner’s 2005 Federal income tax, a $4,106 addition to tax

under section 6651(a)(1), and a $4,106 accuracy-related penalty

under section 6662(a).   Respondent has filed with the Court his

motion for summary judgment under Rule 121.   Although ordered to

do so, petitioner did not file a response to respondent’s motion.

We shall grant respondent’s motion.

                            Background

     Respondent selected petitioner’s 2005 Federal income tax

return for audit.   As a result of that audit, respondent issued

to petitioner a notice of deficiency dated August 7, 2008 (first

notice of deficiency).   In the first notice of deficiency

respondent determined a $20,532 deficiency in petitioner’s 2005

Federal income tax, a $4,106 addition to tax under section

6651(a)(1), and a $4,106 accuracy-related penalty under section

6662.

     Respondent also selected petitioner’s 2006 and 2007 Federal

income tax returns for audit.   As a result of that audit,

respondent issued to petitioner and Nicole Jungstand Kurtz (Ms.

Kurtz) a second notice of deficiency dated August 7, 2008 (second

notice of deficiency).   In the second notice of deficiency,

respondent determined deficiencies of $24,624 and $18,956 in


     1
      (...continued)
Rule references are to the Tax Court Rules of Practice and
Procedure. Some dollar amounts are rounded.
                                  -3-

petitioner’s 2006 and 2007 Federal income taxes, respectively,

accuracy-related penalties under section 6662(a) of $4,925 and

$3,791, respectively, and a $2,603 addition to tax under section

6651(a)(1) related to petitioner’s 2006 Federal income tax

return.

     By letter dated March 15, 2009, petitioner’s representative

acknowledged receipt of the first and second notices of

deficiency.   Petitioner did not petition the Court to challenge

respondent’s determinations in the first notice of deficiency.

Nor did petitioner and Ms. Kurtz petition the Court to challenge

respondent’s determinations in the second notice of deficiency.

Respondent assessed the liabilities determined in the first and

second notices of deficiency in due course.

     On April 9, 2009, respondent sent to petitioner a Letter

1058, Final Notice of Intent to Levy and Notice of Your Right to

a Hearing (final levy notice), with respect to (1) petitioner’s

2005 Federal income tax liability, and (2) petitioner and Ms.

Kurtz’s 2006 and 2007 Federal income tax liabilities.   The final

levy notice informed petitioner that respondent intended to levy

upon his property to collect unpaid tax liabilities for 2005,

2006, and 2007.   The final levy notice also advised petitioner

that he was entitled to a hearing with Appeals to review the

propriety of the proposed levy.
                                  -4-

     In response to the final levy notice petitioner sent to

respondent Form 12153, Request for a Collection Due Process or

Equivalent Hearing, for his 2005, 2006, and 2007 Federal income

tax liabilities.   On that Form 12153 petitioner asserted that the

proposed levy was inappropriate because respondent’s auditor did

not evaluate the documentation which petitioner submitted in

connection with his audit.     Petitioner did not request an

installment agreement or an offer-in-compromise on that Form

12153.

     On March 19, 2010, a settlement officer in Appeals held a

face-to-face collection due process (CDP) hearing with

petitioner’s representative.     The settlement officer determined

that petitioner had been provided with several opportunities to

dispute his 2005, 2006, and 2007 Federal income tax liabilities

but was unable to convince respondent’s auditor that he was not

liable for those taxes.   Following the CDP hearing Appeals issued

to petitioner a notice of determination for 2005.     Appeals also

issued to petitioner and Ms. Kurtz a notice of determination for

each of the years 2006 and 2007.     By notice of determination

dated April 6, 2010 (notice), Appeals sustained the proposed

collection action for 2005.2



     2
      Appeals sustained the proposed collection action for
petitioner’s 2006 and 2007 Federal income tax liabilities by
separate notices of determination dated Apr. 6 and 13, 2010,
respectively.
                                -5-

      The notice stated that Appeals had verified or received

verification that the requirements of applicable law and

administrative procedure for the proposed levy had been met.

That notice also stated that collection alternatives were

discussed but none was initiated.     That notice also determined

that petitioner had been given several prior opportunities to

dispute his 2005 Federal income tax liability but failed to do

so.   Finally, the notice balanced the proposed collection action

with the concern that such action be no more intrusive than

necessary.   On May 4, 2011, petitioner petitioned the Court.3

                            Discussion

      We decide whether to grant respondent’s motion for summary

judgment in this collection review proceeding.4    Summary judgment

may be granted with respect to any part of the legal issue in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable 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)

and (b); Craig v. Commissioner, 119 T.C. 252, 259-260 (2002).       As



      3
      Petitioner and Ms. Kurtz also petitioned the Court in
response to the notices of determination for 2006 and 2007.
      4
      Respondent has filed separate motions for summary judgment
with respect to each petition filed in response to the 2005,
2006, and 2007 collection actions. We address these motions in
separate Memorandum Opinions because these cases were not
consolidated.
                                 -6-

the moving party, respondent bears the burden of establishing

that there is no genuine issue of material fact.     Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,

79 T.C. 340, 344 (1982).   Although factual inferences will be

drawn in a light most favorable to petitioner as the nonmoving

party, petitioner cannot merely rest upon the allegations or

denials in the pleadings but must “set forth specific facts

showing that there is a genuine issue for trial.”     See Rule

121(d); Dahlstrom v. Commissioner, supra at 820-821.     Respondent

supports his motion for summary judgment with the pleadings, a

declaration from the Appeals manager who supervised petitioner’s

CDP hearing, and various exhibits.     Petitioner, in failing to

respond to respondent’s motion for summary judgment, has failed

to raise any genuine issue of material fact.     We therefore

conclude that this case is ripe for summary judgment.

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

taxpayer’s property where that taxpayer is liable for taxes but

neglects or refuses to pay that liability within 10 days after

notice and demand for payment.   Section 6330 generally provides

that the Commissioner may not proceed with collection by levy

until the taxpayer has been given written notice and an

opportunity for a hearing with an impartial Appeals officer.       See

sec. 6330(a) and (b); Davis v. Commissioner, 115 T.C. 35, 37

(2000).   Following the CDP hearing Appeals must issue a notice of
                                  -7-

determination which sets forth its findings and decisions.        See

sec. 6330(c)(3); see also sec. 301.6330-1(e)(3), Q&A-E8, Proced.

& Admin. Regs.    Section 6330(d)(1) allows for judicial review of

Appeals’ determination where the taxpayer files a timely petition

with the Court.

     A taxpayer may generally challenge the existence or amount

of an underlying tax liability only if he or she did not receive

a statutory notice of deficiency for such liability or did not

otherwise have an opportunity to dispute that tax liability.

Sego v. Commissioner, 114 T.C. 604, 609 (2000); see also sec.

6330(c)(2)(B).    Where the underlying tax liability is not at

issue, we review the Commissioner’s administrative determination

for abuse of discretion.    Lunsford v. Commissioner, 117 T.C. 183,

185 (2001); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

Abuse of discretion exists where Appeals acted arbitrarily,

capriciously, or without sound basis in fact or law.      Murphy v.

Commissioner, 125 T.C. 301, 320 (2005), affd. 469 F.3d 27 (1st

Cir. 2006); Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

Petitioner received a notice of deficiency for 2005 and

acknowledged receipt of that notice of deficiency through a

letter from his representative.    Because petitioner did not file

a petition for redetermination within 90 days, he is precluded

from challenging his 2005 tax liability.     See Martinez v.

Commissioner, T.C. Memo. 2010-181.      We thus review Appeals’
                                -8-

determination to sustain the proposed levy for abuse of

discretion.   Goza v. Commissioner, supra.

     Under section 6330(c)(3), the determination of an Appeals

officer must consider (A) the verification that the requirements

of applicable law and administrative procedure have been met, (B)

any relevant issues relating to the unpaid tax or proposed levy,

and (C) whether the proposed levy balances the need for efficient

collection of tax with the taxpayer’s legitimate concern that the

collection action be no more intrusive than necessary.     Here, the

Appeals settlement officer addressed each of these requirements.

She reviewed the Internal Revenue Service’s transcripts and

computer records of petitioner’s account to determine that the

requirements of applicable law and administrative procedure had

been met.   See Neugebauer v. Commissioner, T.C. Memo. 2003-292;

Hack v. Commissioner, T.C. Memo. 2002-243.   The Appeals

settlement officer considered the issues petitioner raised but

determined that he could not contest the validity or amount of

his underlying tax liability because he had been given a prior

opportunity to do so.   See Martinez v. Commissioner, supra.

Finally, the Appeals settlement officer balanced the need for

efficient collection of taxes against petitioner’s legitimate

concern that the proposed collection action be no more intrusive

than necessary.
                                 -9-

     We conclude that Appeals did not abuse its discretion in

sustaining the proposed levy on petitioner’s property to satisfy

his 2005 Federal income tax liability.     Accordingly, we will

grant respondent’s motion for summary judgment.

     To reflect the foregoing,


                                            An appropriate order and

                                       decision will be entered.
