                    T.C. Summary Opinion 2006-21



                      UNITED STATES TAX COURT



                   JORGE TORRES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8004-05S.             Filed February 7, 2006.


     Jorge Torres, pro se.

     Willard N. Timm, Jr., for respondent.



     RUWE, Judge:   This case was heard pursuant to the provisions

of section 74631 in effect at the time the petition was filed.

The decision to be entered is not reviewable by any other court,




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

and this opinion should not be cited as authority.    This case is

before the Court on respondent’s motion for summary judgment,

pursuant to Rule 121.

                            Background

     At the time the petition was filed in this case, petitioner

resided in Anaheim, California.

     Petitioner timely filed his income tax return for the 2001

taxable year.   On his return, petitioner’s filing status was

reported as head of household, he listed one dependent, and he

claimed the earned income credit.   On June 20, 2003, respondent

sent to petitioner a notice of proposed changes that disallowed

the head of household filing status, the dependency exemption

deduction, and the earned income credit.    That notice instructed

petitioner to respond by letter if he did not agree with the

proposed adjustments.   Petitioner sent a letter and supporting

documentation to respondent on August 26, 2003.

     On August 29, 2003, respondent sent a notice of deficiency

to petitioner’s last known address.    Petitioner did not file a

petition within the 90-day period prescribed by section 6213(a),

which expired on November 28, 2003.2




     2
       The 90th day after the issuance of the notice of
deficiency was Nov. 27, 2003, which was a legal holiday in the
District of Columbia.
                               - 3 -

     On January 2, 2004, respondent notified petitioner that the

information that he had provided with respect to his 2001 tax

return did not support a change to the proposed adjustments.     The

correspondence also informed petitioner that “You have had 90

days to file a petition with the United States Tax Court.   If you

did not file a petition and still disagree with our

determination, you may, after paying the additional tax due, file

an amended return or a claim for refund.”

     On February 9, 2004, respondent assessed the additional tax

against petitioner as a result of the adjustments and the

disallowance of the earned income credit.   Petitioner neither

paid the additional tax assessed for 2001 nor filed an amended

return or claim for refund.   On March 29, 2004, petitioner sent a

letter to this Court requesting the necessary documents to file a

petition for redetermination of a deficiency for the 2002 taxable

year.3   This Court treated the letter as a petition and assigned

it docket No. 5812-04S.   On April 5, 2004, this Court issued an

order directing petitioner to file a proper amended petition in

docket No. 5812-04S.   On May 10, 2004, petitioner filed the

amended petition and disputed the deficiency respondent asserted

for the 2001 taxable year.


     3
       Although petitioner’s Mar. 29, 2004, letter refers to his
2002 taxable year, respondent did not send petitioner a notice of
deficiency regarding his 2002 taxable year. Petitioner’s
reference to 2002 appears to be an error; in fact, the amended
petition disputes the deficiency for petitioner’s 2001 tax year.
                               - 4 -

     On August 19, 2004, respondent sent to petitioner a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing

because petitioner failed to pay his outstanding 2001 tax

liability.   The notice informed petitioner that respondent

intended to levy to collect the unpaid liability for the 2001

taxable year.   The notice also stated that petitioner could

“Appeal the intended levy on your property by requesting a

Collection Due Process hearing within 30 days from the date of

this letter.”

     On September 7, 2004, petitioner timely filed a Form 12153,

Request for a Collection Due Process Hearing.    Before

respondent’s Appeals officer and petitioner held a section 6330

hearing, the Court scheduled petitioner’s case in docket No.

5812-04S for trial on February 14, 2005.    On December 2, 2004,

respondent’s settlement officer conducted a section 6330 hearing

with petitioner and discussed collection alternatives.    Although

respondent’s settlement officer researched petitioner’s tax

records and tentatively concluded that petitioner had not acted

on the notice, he elected to postpone his determination until the

Court reached a decision.

     Respondent subsequently filed a motion to dismiss for lack

of jurisdiction in docket No. 5812-04S.    On March 1, 2005, the

Court granted respondent’s motion to dismiss because petitioner

failed to file the petition in that case within the time
                               - 5 -

prescribed by section 6213(a) or 7502.    On the basis of the

Court’s order, respondent’s settlement officer concluded that

petitioner had not acted on the notice for the 2001 taxable year.

     On April 12, 2005, respondent sent to petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330.   Petitioner filed his petition in this case on May

2, 2005.   In his petition, petitioner asserted:

          The underlying liability of this collections
     action is unjust. I did not have an adequate
     opportunity to prove that I was entitled to head of
     household, one dependency exemption, and the earned
     income credit for the tax year ended 12/31/2001. All I
     want is the opportunity to present proof to this Court
     that I am entitled to such and that this levy action is
     not valid. The appeals office refused to accept my
     proof and therefore I am petitioning this court to hear
     my argument.

     In his motion for summary judgment, respondent argues that

section 6330(c)(2)(B) precludes petitioner from challenging the

underlying tax liability for 2001 because petitioner received a

notice of deficiency and failed to file a petition within the

time prescribed by sections 6213(a) and 7502.    In his response to

respondent’s motion for summary judgment, petitioner only argues

that respondent never provided him with a meaningful opportunity

to participate in a hearing regarding his proposed tax liability.

                            Discussion

     Summary judgment serves to “expedite litigation and avoid

unnecessary and expensive trials.”     Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Either party may move for
                                - 6 -

a summary judgment upon all or any part of the legal issues in

controversy.   Rule 121(a).   Rule 121(b) provides that the Court

shall render a decision when the pleadings, answers to

interrogatories, depositions, admissions, affidavits, and any

other acceptable materials show that “no genuine issue as to any

material fact” exists and “that a decision may be rendered as a

matter of law.”   The moving party bears the burden of proving

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

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

T.C. 527, 529 (1985).   The Court will view any factual material

and inferences in the light most favorable to the nonmoving

party.   Dahlstrom v. Commissioner, supra at 821; Naftel v.

Commissioner, supra at 529.    Because there are no genuine issues

of material fact, as discussed infra, we agree with respondent

that summary judgment is appropriate in this case.

     Section 6330(a)(1) requires the Commissioner to provide a

taxpayer with written notice of the right to a hearing before the

Commissioner may levy on any property or property right.    The

notice must inform the taxpayer of the right to request a hearing

during the 30-day period before the first levy.    Sec. 6330(a)(2)

and (3).   If the taxpayer requests a hearing, an Appeals officer

of the Commissioner shall hold the hearing.   Sec. 6330(b)(1).

     At the hearing, the taxpayer may raise any relevant issue

relating to the unpaid tax or the proposed levy, including
                                 - 7 -

appropriate spousal defenses, challenges to the appropriateness

of collection actions, and offers of collection alternatives.

Sec. 6330(c)(2)(A).   Section 6330(c)(2)(B) limits the taxpayer’s

ability to challenge the underlying tax liability during the

hearing.   Specifically, the taxpayer may “raise at the hearing

challenges to the existence or amount of the underlying tax

liability for any tax period if the person did not receive any

statutory notice of deficiency for such tax liability or did not

otherwise have an opportunity to dispute such tax liability.”

Sec. 6330(c)(2)(B).

     The taxpayer may seek judicial review of a determination

made by the Appeals officer.     Sec. 6330(d).   This Court has

jurisdiction to review the Commissioner’s administrative

determination where the underlying tax liability is of a type

over which this Court normally has deficiency jurisdiction.       Id.;

Goza v. Commissioner, 114 T.C. 176, 181 (2000).      When the

underlying tax liability is properly at issue, the Court will

review the administrative determination on a de novo basis.       Sego

v. Commissioner, 114 T.C. 604, 610 (2000) (quoting H. Conf. Rept.

105-599, at 266 (1998), 1998-3 C.B. 747, 1020).      When the

validity of the underlying tax liability is not properly at

issue, the Court will review the Appeals officer’s determination

for abuse of discretion.   Id.
                                 - 8 -

     This Court has held that taxpayers have had an opportunity

to dispute the underlying tax liability when they have received a

notice of deficiency.     Goza v. Commissioner, supra at 182-183;

Sego v. Commissioner, supra.    Whether the underlying tax

liability is properly at issue in a section 6330 administrative

hearing depends on whether the taxpayer had an opportunity to

challenge the liability, not whether the taxpayer acted upon that

opportunity.    See sec. 6330(c)(2)(B); Sego v. Commissioner, supra

at 611.    Even though the taxpayer neglected to file a petition

with this Court to challenge the underlying tax liability, the

notice of deficiency offered the taxpayer the opportunity to

oppose the underlying liability.    See Sego v. Commissioner,

supra.    When the taxpayer declines an opportunity to challenge

the underlying liability, section 6330(c)(2)(B) precludes the

taxpayer from contesting the underlying tax liability before the

Appeals officer.    See Goza v. Commissioner, supra; Sego v.

Commissioner, supra at 610-611.

     Petitioner argues that “There is a genuine issue of material

fact in this case, being that the petitioner has never had the

opportunity for a hearing regarding his tax liability.”      We

disagree.    Petitioner does not dispute that he received a notice

of deficiency regarding his 2001 tax liability.    The notice of

deficiency provided petitioner with an opportunity to challenge

his 2001 tax liability.    Petitioner failed to petition this Court
                                 - 9 -

within the 90-day period prescribed by section 6312.   Because

petitioner had an opportunity to contest his income tax liability

and failed to do so, section 6330(c)(2)(B) precluded petitioner

from questioning that underlying liability at his section 6330

hearing.   See Goza v. Commissioner, supra at 182-183 (“Although

* * * [the taxpayer] received a notice of deficiency * * * he did

not avail himself of the opportunity to file a petition for

redetermination with the Court pursuant to section 6213(a).

Consistent with section 6330(c)(2)(B), * * * [the taxpayer]

therefore was precluded from contesting his liability for the

underlying taxes before the Appeals Office.”).   As petitioner’s

underlying tax liability was not properly at issue in the section

6330 hearing, we hold that the validity of the underlying tax

liability is not properly before this Court.   See Sego v.

Commissioner, supra at 611.

     Petitioner failed to raise any other relevant issues or

challenges in the petition.   Pursuant to Rule 331(b)(4), all

other issues are deemed conceded.

     The decision in this case will indicate that we sustain

respondent’s administrative determination to proceed with

collection against petitioner.    Our decision does not serve as a

review of respondent’s determination as to petitioner’s
                             - 10 -

underlying tax liability for 2001.    For the reasons set forth

herein, respondent’s motion for summary judgment will be granted.



                                          An appropriate order and

                                     decision will be entered for

                                     respondent.
