                  T.C. Summary Opinion 2006-38



                     UNITED STATES TAX COURT



   TERRIE ELAINE BANKS, Petitioner v. COMMISSIONER OF INTERNAL
                       REVENUE, Respondent



     Docket No. 6501-05S.           Filed March 14, 2006.


     Terrie Elaine Banks, pro se.

     Lauren B. Epstein, for respondent.



     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of sections 6330(d) and 7463.1   The

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

this opinion should not be cited as authority.




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended.
                                - 2 -

     Respondent issued petitioner a Notice of Determination

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

(notice of determination) for unpaid Federal income tax for the

taxable year 1995.    The notice of determination relates to a

notice of intent to levy dated September 11, 2004.

     The issue for decision is whether, in the context of

respondent’s motion for summary judgment, respondent’s

determination to proceed with a notice of levy was an abuse of

discretion.

Background

     Petitioner resided in Orlando, Florida, at the time the

petition was filed.

     On February 12, 2002, respondent issued to petitioner a

notice of deficiency for the taxable year 1995.    The notice

determined a $12,222 deficiency and a $1,872.50 addition to tax

pursuant to section 6651(a)(1).    On May 31, 2002, the Court

received a petition submitted by Terrie Elaine Banks, to which

the Court assigned docket No. 9220-02S.    The petition sought to

challenge the notice of deficiency for the taxable year 1995.

The petition arrived in an envelope bearing a private postage

meter postmark (Winter Garden, FL) dated May 13, 2002, and a U.S.

Postal Service postmark (Orlando, FL) dated May 14, 2002.
                                - 3 -

     By order of dismissal entered August 21, 2002, the Court

granted respondent’s motion to dismiss for lack of jurisdiction.

The Court concluded that, considering the U.S. Postal Service

postmark, the petition was mailed 91 days after the mailing of

the notice of deficiency and accordingly, the petition was

untimely.    See Malekzad v. Commissioner, 76 T.C. 963 (1981); sec.

301.7502-1(c)(1)(iii), Proced. & Admin. Regs.

     After the dismissal of that case, respondent assessed the

deficiency and addition to tax.   On September 11, 2004, a notice

of intent to levy was sent to petitioner.     Petitioner timely

requested a hearing.   The tax liability, including addition to

tax and interest, at this point was $13,914.58.     In the request

for hearing, petitioner questioned the Court’s prior dismissal of

the deficiency case and asked that it be reopened.2

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

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

controversy.   Rule 121(a).   Because there are no genuine issues



     2
        Petitioner also objected on the basis that a notice of
Federal tax lien had been filed on July 17, 1996, and that this
proceeding represents “double taxation”. Petitioner attached a
copy of the notice of lien which lists the taxpayer as “Terrie
Canaday Banks, Aim Alternatives in Managed Care”. The notice of
lien is for employment taxes for periods in 1996.
                                - 4 -

of material fact, as discussed infra, we conclude that summary

judgment is appropriate in this case.    Naftel v. Commissioner, 85

T.C. 527, 529 (1985).

     Section 6331(a) authorizes the Secretary to levy upon

property and property rights of a taxpayer liable for taxes who

fails to pay those taxes within 10 days after the notice and

demand for payment is made.    Section 6331(d) provides that the

levy authorized in section 6331(a) may be made with respect to

“unpaid tax” only if the Secretary has given written notice to

the taxpayer 30 days before the levy.    Section 6330(a) requires

the Secretary to send a written notice to the taxpayer of the

amount of the unpaid tax and of the taxpayer’s right to a section

6330 hearing at least 30 days before the levy is begun.

     If a section 6330 hearing is requested, the hearing is to be

conducted by the Office of Appeals, and, at the hearing, the

Appeals officer conducting it must verify that the requirements

of any applicable law or administrative procedure have been met.

Sec. 6330(b)(1), (c)(2).   The taxpayer may raise at the hearing

“any relevant issue relating to the unpaid tax or the proposed

levy”.   Sec. 6330(c)(2)(A).   The taxpayer may also raise

challenges to the existence or amount of the underlying tax

liability at a hearing if the taxpayer did not receive a

statutory notice of deficiency with respect to the underlying tax

liability or did not otherwise have an opportunity to dispute
                               - 5 -

that liability.   Sec. 6330(c)(2)(B); see Montgomery v.

Commissioner, 122 T.C. 1 (2004).

     This Court has jurisdiction under section 6330 to review the

Commissioner’s administrative determinations.   Sec. 6330(d); see

Iannone v. Commissioner, 122 T.C. 287, 290 (2004).     When the

validity of the underlying tax liability is properly at issue, we

review the determination on a de novo basis.    When the underlying

liability is not properly at issue, the Court will review the

Appeals officer’s determination for abuse of discretion.     Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 183 (2000).   Whether an abuse of discretion has

occurred depends upon whether the exercise of discretion is

without sound basis in fact or law.    See Freije v. Commissioner,

125 T.C. 14 (2005); Ansley-Sheppard-Burgess Co. v. Commissioner,

104 T.C. 367, 371 (1995).

     The record is clear that a notice of deficiency was issued

to petitioner for the taxable year 1995 on February 12, 2002.

Petitioner does not assert that it was not sent to her last known

address or that she did not receive it in time to file a timely

petition.   Petitioner filed a petition in response to the notice

of deficiency, and as clearly set forth in the Court’s order of

dismissal entered August 21, 2002, the petition was untimely.

The Court concludes that petitioner received the notice of

deficiency and was given an opportunity to dispute the underlying
                                - 6 -

tax liability for 1995.    Accordingly, it follows that petitioner

is not entitled to challenge the existence or the amount of the

underlying tax liability for 1995 in this collection review

proceeding.    See sec. 6330(c)(2)(B); Goza v. Commissioner, supra.

In this connection we note that petitioner’s reference to a

notice of lien filed in 1996 for employment taxes is not related

to this proceeding and has no bearing on the collection

proceeding at issue in this case.

     Petitioner has not alleged any irregularity in the

assessment procedure that would raise a question about the

validity of the assessments or the information contained in the

transcript of account.    Moreover, 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).    Under the circumstances, we conclude that respondent

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

notice of determination.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To give effect to the foregoing,


                                An appropriate order and

                           decision will be entered for respondent.
