                  T.C. Summary Opinion 2010-81



                      UNITED STATES TAX COURT



              LAURENCE L. GRABOWSKI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 28321-08S.            Filed June 23, 2010.



     Laurence L. Grabowski, pro se.

     Steven W. LaBounty, for respondent.



     GOLDBERG, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   Pursuant to section

7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent

for any other case.   Unless otherwise indicated, subsequent
                                - 2 -

section references are to the Internal Revenue Code.    All Rule

references are to the Tax Court Rules of Practice and Procedure.

     The petition in this case arises from an Appeals officer’s

issuance of a notice of determination allowing the Internal

Revenue Service (IRS) to proceed with collection by levy of

petitioner’s unpaid assessed 1998 Federal income tax liability.

The matter is presently before the Court on respondent’s motion

for summary judgment.    The case was called at a scheduled hearing

and trial session of the Court in St. Louis, Missouri, where

respondent’s counsel appeared and was heard.    Petitioner was not

present.    Petitioner timely faxed a written response to the

motion, which the Court accepted and filed.

                             Background

     The Court previously decided the merits of petitioner’s

underlying 1998 Federal income tax liability in Grabowski v.

Commissioner, T.C. Summary Opinion 2007-74.    There, the Court

sustained in full respondent’s determination of a $25,643

deficiency in petitioner’s Federal income tax for 1998.    The

Court entered its decision on May 18, 2007.

     The IRS subsequently assessed the deficiency on September

24, 2007.   As of December 1, 2008, the unpaid balance, including

accrued interest and an addition to tax for late payment, totaled

$48,396.
                                 - 3 -

     In an attempt to collect the unpaid income tax liability,

respondent issued a notice of intent to levy dated March 31,

2008.   In response, petitioner timely submitted to the IRS a Form

12153, Request for a Collection Due Process or Equivalent

Hearing.   Petitioner did not propose a collection alternative on

the Form 12153.    At the request of Larry R. Marshall, attorney-

in-fact for petitioner, the IRS transferred the case to the St.

Louis, Missouri, Appeals Office.

     Settlement Officer Sheila Jenkins sent a letter to

petitioner with a copy to Mr. Marshall acknowledging receipt of

petitioner’s request and scheduling a face-to-face collection

hearing for September 9, 2008.    Officer Jenkins’ letter stated

that she had to consider whether the IRS had met all requirements

of any applicable law or administrative procedure and any

nonfrivolous issue petitioner wished to discuss such as

collection alternatives and challenges to the appropriateness of

the collection action.

     Her letter continued by stating that she could consider the

underlying liability only if petitioner had not otherwise had an

opportunity to dispute the liability or had not received a notice

of deficiency.    Further, her letter emphasized that before she

could consider alternative collection methods such as an

installment agreement or an offer-in-compromise, petitioner was

required to send a completed Form 433-A, Collection Information
                               - 4 -

Statement for Wage Earners and Self-Employed Individuals, a copy

of his signed tax return for 2007, proof of estimated tax

payments for 2007 and 2008, 6 months of current bank statements,

and 2 months of current pay stubs.     The letter stated further

that she could not consider collection alternatives unless

petitioner was currently in compliance with Federal income tax

laws.

     Neither petitioner nor Mr. Marshall appeared at the

September 9, 2008, collection hearing.     However, on September 23,

2008, Mr. Marshall called Officer Jenkins and left a voice

message stating that the reason petitioner was unable to attend

was that petitioner had been experiencing some family problems

and illness.   Officer Jenkins returned the call reminding Mr.

Marshall that she had not received a completed Form 433-A and the

related information she had requested.     Officer Jenkins also

informed Mr. Marshall that she would extend the deadline for

petitioner’s submission of Form 433-A and related documents to

September 30, 2008.

     Petitioner provided a Form 433-A, dated October 1, 2008,

together with various financial information.     However, petitioner

did not provide all of the information Officer Jenkins had

requested, and petitioner did not provide a copy of his 2007

Federal income tax return.   In addition, petitioner did not make

his estimated tax payments for 2007 and 2008.
                                 - 5 -

     Officer Jenkins reviewed the documents that petitioner

provided.   On the Form 433-A, petitioner listed $5.2 million in

net equity in real property.   Officer Jenkins concluded that

petitioner had sufficient equity to satisfy his entire unpaid

Federal income tax liability for 1998.    Petitioner did not

propose a collection alternative at the time he submitted the

Form 433-A.

     Officer Jenkins scheduled a conference call for October 7,

2008, to discuss the information that petitioner had provided.

Neither petitioner nor Mr. Marshall responded to the conference

call.   Consequently, Officer Jenkins made a determination to

sustain the levy on the basis of the information in the

administrative case file.

                            Discussion

     Summary judgment may be granted when there is no genuine

issue of material fact and 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).     The opposing

party cannot rest upon mere allegations or denials in his

pleadings and must “set forth specific facts showing that there

is a genuine issue for trial.”    Rule 121(d).   The moving party

bears the burden of proving 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.
                                 - 6 -

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

79 T.C. 340, 344 (1982).    In this case there is no dispute about

any material fact, and, accordingly, the issues may be decided on

the basis of a summary judgment motion.

     If a taxpayer neglects or refuses to pay a Federal income

tax liability within 10 days after notice and demand for payment,

the Commissioner may collect the tax by levy upon the person’s

property.   Sec. 6331(a).   The Commissioner generally must provide

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

levy is made.   Sec. 6330(a).   Upon a timely request, the taxpayer

is entitled to an administrative hearing before an impartial

officer or employee of the Appeals Office.    Sec. 6330(b).

Following the hearing, the Appeals officer must determine whether

the collection action is to proceed, taking into account the

verification the Appeals officer has made, the issues raised by

the taxpayer at the hearing, and whether the collection action

balances the need for the efficient collection of taxes with the

legitimate concern of the taxpayer that any collection action be

no more intrusive than necessary.    Sec. 6330(c)(3).

     The Tax Court is a court of limited jurisdiction, and the

Court may exercise jurisdiction only to the extent expressly

authorized by Congress.     Breman v. Commissioner, 66 T.C. 61, 66

(1976).   We review under an abuse of discretion standard when the

underlying tax liability is not in issue.     Goza v. Commissioner,
                               - 7 -

114 T.C. 176, 182 (2000).   Under the abuse of discretion

standard, petitioner is required to show that respondent’s

actions were arbitrary, capricious, or without sound basis in

fact.   See Knorr v. Commissioner, T.C. Memo. 2004-212.     We will

now apply the law to the present facts and circumstances.

     Petitioner had a full opportunity to dispute his underlying

Federal income tax liability for 1998 in his previous case,

Grabowski v. Commissioner, T.C. Summary Opinion 2007-74.

Essentially, here as there petitioner asserts that he would be

able to eliminate his entire 1998 Federal income tax liability if

only he had access to books and records that his brother controls

with respect to certain joint businesses.     In his prior case the

Court held in favor of respondent.     Accordingly, petitioner is

not entitled to contest again the underlying liability in this

collection action.

     The Commissioner may properly decline to consider a

collection alternative solely on the ground that the taxpayer is

not currently in compliance with Federal tax laws.     Londono v.

Commissioner, T.C. Memo. 2003-99.    Petitioner was not currently

in compliance with filing his 2007 Federal income tax return, and

he failed to make estimated Federal income tax payments for 2007

and 2008.   Moreover, petitioner failed to provide all of the

information the Appeals officer requested, petitioner had
                                 - 8 -

sufficient equity to pay his 1998 Federal income tax liability,

and he failed to offer a collection alternative.

     Thus, for all of these reasons, with no material facts in

dispute and viewing the facts in a light most favorable to

petitioner, the party opposing the summary judgment motion, we

hold that the Appeals officer’s determination to sustain the

proposed levy was not an abuse of discretion.

     To reflect the foregoing,


                                         An appropriate order and

                                  decision will be entered for

                                  respondent.
