                       T.C. Memo. 2002-219



                     UNITED STATES TAX COURT



                GINGER HARMORNICK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10230-00L.               Filed September 3, 2002.



     Ginger Harmornick, pro se.

     Wendy S. Harris and Julie A. Pals, for respondent.



                       MEMORANDUM OPINION


     ARMEN, Special Trial Judge:   This matter is before the Court

on respondent’s Motion For Summary Judgment And To Impose A

Penalty Under I.R.C. Section 6673, filed February 8, 2002,
                                - 2 -

pursuant to 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 collection of

petitioner’s outstanding tax liabilities for 1990 through 1993

should be sustained as a matter of law.

     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(b); 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);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).    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).


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 3 -

     As explained in detail below, there is no genuine issue as

to any material fact, and a decision may be rendered as a matter

of law.   Accordingly, we shall grant respondent’s motion for

summary judgment.

Background

     The record establishes and/or the parties do not dispute the

following.

     A.   Petitioner’s Failure To File

     Petitioner has a history of failing to file Federal income

tax returns.    Specifically, petitioner failed to file Federal

income tax returns for 1990 through 1993, the four taxable years

in issue.    The record suggests that petitioner also failed to

file Federal income tax returns for 1994 through 1999.

     B.   Respondent’s Notices of Deficiency

     On May 17, 1994, respondent issued a notice of deficiency to

petitioner for 1990.    In the notice, respondent determined a

deficiency in petitioner’s Federal income tax in the amount of

$3,121, an addition to tax under section 6651(a)(1) in the amount

of $585 for failure to file a tax return, and an addition to tax

under section 6654(a) in the amount of $148 for failure to pay

estimated tax.    The deficiency in income tax was based on

respondent’s determination that petitioner failed to report

wages, unemployment compensation, and interest income as reported

to respondent by various third-party payors.
                                   - 4 -

     On April 13, 1995, respondent issued separate notices of

deficiency to petitioner for 1991, 1992, and 1993.       In the

notices, respondent determined deficiencies in, and additions to,

petitioner’s Federal income taxes as follows:

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

      1991          $198              $100             ---
      1992        15,240             3,810            $663
      1993         5,781             1,445             239

The deficiencies in income taxes were based on respondent’s

determination that petitioner failed to report nonemployee

compensation, interest income, and unemployment compensation as

reported to respondent by various third-party payors.

     Respondent’s records reflect that the notices of deficiency

were not returned undelivered to respondent by the U.S. Postal

Service.     Notably, petitioner has not denied that she received

the notices.

     C.    Assessment of Petitioner’s Liabilities

     Petitioner did not file a petition for redetermination with

this Court challenging the notices of deficiency.       See sec.

6213(a).     Accordingly, on October 24, 1994, respondent assessed

the determined deficiency and additions to tax for 1990, as well

as statutory interest.       On that same day, respondent sent

petitioner a notice of balance due, informing petitioner that she

had a liability for 1990 and requesting that she pay it.

Petitioner failed to do so.        On November 13, 1995, respondent
                                - 5 -

assessed the determined deficiencies and additions to tax for

1991, 1992, and 1993, as well as statutory interest.     On that

same day, respondent sent petitioner notices of balance due,

informing petitioner that she had liabilities for 1991, 1992, and

1993, and requesting that she pay them.     Petitioner failed to do

so.

      D.   Respondent’s Final Notice and Petitioner’s Response

      On October 25, 1999, respondent sent petitioner a Final

Notice-–Notice of Intent to Levy and Notice of Your Right to a

Hearing (the Final Notice).    The Final Notice was issued in

respect of petitioner’s outstanding liabilities for 1990 through

1993.

      On November 23, 1999, petitioner submitted to respondent

Form 12153, Request for a Collection Due Process Hearing.

Petitioner’s request stated in pertinent part:     “The basis of my

complaint is what I believe to be the lack of a valid summary

record of assessment pursuant to 26 CFR §301.6203-1.”

      E.   The Administrative Hearing

      On June 22, 2000, Veronica Lindersmith of respondent’s

Appeals Office in Las Vegas, Nevada, conducted an administrative

hearing by way of a telephone conference with petitioner’s

representative, Thomas W. Roberts.2     By letter dated August 8,



      2
        The conference was conducted by telephone in order to
accommodate Mr. Roberts, whose office was located out of state.
                                   - 6 -

2000, the Appeals officer provided Mr. Roberts with copies of

Forms 4340 (Certificate of Assessments, Payments, and Other

Specified Matters) for each of the years 1990, 1991, 1992, and

1993.     Copies of the Forms 4340 are attached to respondent’s

motion for summary judgment, which was served on petitioner.

     F.    Respondent’s Notice of Determination

     On August 28, 2000, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330.     The notice stated that the Appeals Office had

determined that it was appropriate for respondent to proceed with

the collection of petitioner’s outstanding tax liabilities for

1990 through 1993.

     G.    Petitioner’s Petition

     On September 29, 2000, petitioner filed with the Court a

petition for lien or levy action seeking review of respondent’s

notice of determination.3    The petition includes allegations

that: (1) The Appeals officer failed to obtain proper

verification from the Secretary that the requirements of all

applicable laws and administrative procedures were met as

required by section 6330(c)(1); and (2) the Appeals officer

failed to provide petitioner with requested documents such as a

summary record of assessment.



     3
        At the time that the petition was filed, petitioner
resided in Henderson, Nevada.
                                - 7 -

     H.    Respondent’s First Motion For Summary Judgment

     On July 20, 2001, respondent filed a Motion For Summary

Judgment And To Impose A Penalty Under I.R.C. Section 6673.

Respondent’s motion was called for hearing in Las Vegas, Nevada,

on September 10, 2001.    Petitioner appeared at the hearing and

informed the Court that she intended to file tax returns for the

years in issue.    In response, counsel for respondent informed the

Court that if petitioner were in compliance and if she were to

concede the case, respondent would withdraw his request for the

imposition of a penalty under section 6673.    Under the

circumstances, the Court denied respondent’s motion for summary

judgment in order to allow petitioner time to file her tax

returns.

     I.    Respondent’s Second Motion for Summary Judgment

     Contrary to her representation to the Court, petitioner

failed to file tax returns for the years in issue or to work with

respondent’s counsel toward that end.    As a result, on February

8, 2002, respondent filed a second Motion For Summary Judgment

And To Impose A Penalty Under I.R.C. Section 6673.    It is this

motion that is before us at this time.

     In his motion, respondent asserts that there is no dispute

as to a material fact and that respondent is entitled to judgment

as a matter of law.    In particular, respondent contends that

because petitioner received the notices of deficiency dated May
                                - 8 -

17, 1994, and April 13, 1995, she cannot challenge the existence

or amount of her underlying tax liabilities for 1990 through 1993

in this collection review proceeding.   Respondent further

contends that the Appeals officer’s review of Forms 4340 with

regard to petitioner’s account for 1990 through 1993 satisfied

the verification requirement imposed under section 6330(c)(1).

     The Court issued a notice of filing to petitioner directing

her to file an objection, if any, to respondent’s motion.

Petitioner failed to respond.   Thereafter, pursuant to notice,

respondent’s motion was called for hearing at the Court's motions

session in Washington, D.C.   Counsel for respondent appeared at

the hearing and presented argument in support of the pending

motion.   Although there was no appearance by or on behalf of

petitioner at the hearing, she did file a statement pursuant to

Rule 50(c).

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 for payment, the Secretary is authorized to

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 is

obliged to provide the person with a final notice of intent to

levy, including notice of the administrative appeals available to

the person.
                               - 9 -

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy 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.   See Davis v. Commissioner, 115 T.C. 35, 37

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

     Section 6330(c) prescribes the matters that a person may

raise at an Appeals Office hearing.    In sum, section 6330(c)

provides that a person may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner's

intended collection action, and possible alternative means of

collection.   Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing only if the person did not receive a

notice of deficiency for the tax in question or did not otherwise

have an earlier opportunity to dispute the tax liability.     See

Sego v. Commissioner, 114 T.C. 604, 609 (2000);    Goza v.

Commissioner, supra.   Section 6330(d) provides for judicial

review of the administrative determination in the Tax Court or a

Federal District Court, as may be appropriate.

     A.   Summary Judgment

     Petitioner asserts that the Appeals officer failed to obtain

verification from the Secretary that the requirements of all

applicable laws and administrative procedures were met as
                                - 10 -

required by section 6330(c)(1).    The record shows otherwise.     In

particular, the Appeals officer obtained and reviewed

transcripts of account (Forms 4340) with regard to petitioner’s

taxable years 1990 through 1993.

     Federal tax assessments are formally recorded on a record of

assessment.    Sec. 6203.   “The summary record, through supporting

records, shall provide identification of the taxpayer, the

character of the liability assessed, the taxable period, if

applicable, and the amount of the assessment.”    Sec. 301.6203-1,

Proced. & Admin. Regs.

     Section 6330(c)(1) does not require the Commissioner to rely

on a particular document to satisfy the verification requirement

imposed therein.    Roberts v. Commissioner, 118 T.C. 365, 371 n.10

(2002), on appeal (11th Cir. July 26, 2002); Weishan v.

Commissioner, T.C. Memo. 2002-88; Lindsey v. Commissioner, T.C.

Memo. 2002-87; Tolotti v. Commissioner, T.C. Memo. 2002-86;

Duffield v. Commissioner, T.C. Memo. 2002-53; Kuglin v.

Commissioner, T.C. Memo. 2002-51.     In this regard, we observe

that the Forms 4340 on which the Appeals officer relied contained

all the information prescribed in section 301.6203-1, Proced. &

Admin. Regs.    See Weishan v. Commissioner, supra; Lindsey v.

Commissioner, supra; Tolotti v. Commissioner, supra; Duffield v.

Commissioner, supra; Kuglin v. Commissioner, supra.

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the
                              - 11 -

validity of the assessments or the information contained in the

Forms 4340.   See Davis v. Commissioner, supra at 41; Mann v.

Commissioner, T.C. Memo. 2002-48.   Accordingly, we hold that the

Appeals officer satisfied the verification requirement of section

6330(c)(1).   Cf. Nicklaus v. Commissioner, 117 T.C. 117, 120-121

(2001).

     Petitioner also contends that the Appeals officer failed to

provide her with requested documents such as a summary record of

assessment.   We note that section 6330(c)(1) does not require

that the Appeals officer provide the taxpayer with a copy of the

verification at the administrative hearing.    Nestor v.

Commissioner, 118 T.C. 162, 166 (2002).    In any event, as

previously discussed, the record shows that the Appeals officer

provided petitioner with Forms 4340 for all of the years in

issue.

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.   Rule 331(b)(4).    In the

absence of a valid issue for review, we conclude that respondent

is entitled to judgment as a matter of law sustaining the notice

of determination dated August 28, 2000.4


     4
        Petitioner has not expressly challenged the existence or
amount of her underlying tax liabilities in this collection
review proceeding. However, to the extent that one might regard
                                                   (continued...)
                              - 12 -

     B.   Imposition of a Penalty Under Section 6673

     We turn now to that part of respondent’s motion that moves

for the imposition of a penalty on petitioner under section 6673.

     As relevant herein, section 6673(a)(1) authorizes the Tax

Court to require a taxpayer to pay to the United States a penalty

not in excess of $25,000 whenever it appears that proceedings

have been instituted or maintained by the taxpayer primarily for

delay or that the taxpayer's position in such proceeding is

frivolous or groundless.   The Court has indicated its willingness

to impose such penalty in lien and levy cases.   See Pierson v.

Commissioner, 115 T.C. 576, 580-581 (2000).




     4
      (...continued)
petitioner’s statement at the hearing on Sept. 10, 2001, that she
intended to file tax returns for the years in issue as tantamount
to such a challenge, we note that a taxpayer’s receipt of a
notice of deficiency, coupled with the taxpayer’s failure to file
a petition for redetermination with this Court, bars the taxpayer
from challenging the existence or amount of his or her underlying
tax liability. Sec. 6330(c)(2)(B). In this regard, we note that
the notices of deficiency that were issued to petitioner were not
returned undelivered to respondent by the U.S. Postal Service,
and that petitioner has not denied that she received those
notices. In any event, petitioner has adduced nothing to create
a triable issue of fact regarding the existence or amount of any
of her underlying liabilities.
                             - 13 -

     In the present case, we shall give petitioner the benefit of

the doubt and not impose a penalty under section 6673.

Nevertheless, we admonish petitioner that the Court will consider

imposing such a penalty should she return to the Court in the

future and advance frivolous or groundless arguments or institute

or maintain an action primarily for delay.

     In order to give effect to the foregoing,



                              An order and decision will be

                         entered granting respondent's motion for

                         summary judgment and denying

                         respondent's request for the imposition

                         of a penalty under section 6673(a).
