                        T.C. Memo. 2003-292



                      UNITED STATES TAX COURT



                CARL R. NEUGEBAUER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8552-02L.             Filed October 21, 2003.



     Carl R. Neugebauer, pro se.

     Karen Nicholson Sommers, for respondent.



                        MEMORANDUM OPINION


     LARO, Judge:   Petitioner, while residing in Murrieta,

California, petitioned the Court under section 6330(d) to review

respondent’s proposed collection activity in the form of a levy.

Respondent proposed this action to collect petitioner’s Federal

income tax liability for 1989.   Currently, the case is before the

Court on respondent’s motion for summary judgment under Rule
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121(a).   Petitioner responded to respondent’s motion under Rule

121(b).

     We shall grant respondent’s motion for summary judgment.

Section references are to the applicable versions of the Internal

Revenue Code.   Rule references are to the Tax Court Rules of

Practice and Procedure.

                            Background

     Petitioner filed a delinquent Federal income tax return for

1989.   Respondent sent a notice of deficiency to petitioner with

respect to his income tax liability for that year.   Petitioner

then petitioned the Court contesting his liability specified in

the notice of deficiency.   Because the petition was not filed

within the time prescribed by section 6213(a) or 7502, we

dismissed the case for lack of jurisdiction.

     On or about April 18, 1994, an income tax deficiency and

related penalties and interest were assessed against petitioner

with respect to 1989.   Petitioner failed to pay fully the amounts

assessed.   On or about May 7, 2001, respondent issued to

petitioner a letter entitled “Final Notice - Notice of Intent to

Levy and Notice of Your Right to a Hearing Under IRC 6330".

     On or about June 8, 2001, petitioner submitted a Form 12153,

Request For A Collection Due Process Hearing.   On January 10,

2002, petitioner submitted an offer in compromise and a

collection information statement in connection with his request
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for a hearing.   Respondent’s Appeals officer determined that the

offer in compromise should not be accepted because the offer and

supporting financial information were incomplete.    Petitioner did

not comply with the Appeals officer’s request to provide the

complete information.   On January 17, 2002, a hearing was held

between respondent’s Appeals officer and petitioner’s counsel

Judy E. Hamilton.   In connection with the hearing, the Appeals

officer reviewed Internal Revenue Service transcripts of account

for petitioner’s 1989 tax liability.

     On April 12, 2002, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) under Section 6320

and/or 6330 (Notice of Determination) regarding petitioner’s 1989

Federal income tax liability.   On May 13, 2002, petitioner filed

with the Court a Petition for Lien or Levy Action.   Neither in

the petition nor in the previous request for a hearing did

petitioner raise any issues with respect to the existence or the

amount of the underlying tax liability.   Instead, petitioner

alleges that he was denied his right to a hearing under section

6330, that he was denied participation in the proceedings

relating to offer in compromise, and that he was subjected to

punitive conduct by personnel of the Internal Revenue Service

(IRS).   In addition, petitioner maintains that the factual

foundation of the Notice of Determination lacked veracity.

Petitioner asks the Court to remand this case to Appeals for
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further consideration of an offer in compromise or,

alternatively, to transfer this case to the appropriate Federal

District Court.

     On July 8, 2002, respondent filed with the Court a Motion to

Dismiss for Lack of Jurisdiction and to Strike as to Trust Fund

Recovery Penalty Liabilities on the basis that the Court did not

have jurisdiction under section 6330(d) to decide respondent’s

determination as to those liabilities.     On September 26, 2002, we

granted the motion.

     On July 11, 2003, respondent moved for summary adjudication

as to the remaining issues.    On August 20, 2003, petitioner filed

with the Court a reply to that motion.

                              Discussion

     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(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994).   The moving party bears the burden of proving
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that there is no genuine issue of material fact, and factual

inferences are drawn 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).

     As will be shown in the discussion that follows, petitioner

has raised no genuine issue as to any material fact.    Respondent

supported his motion for summary judgment with the pleadings,

exhibits, and an affidavit of one of his attorneys.    Petitioner’s

reply was supported by materials not responsive to the merits of

respondent’s motion.   The reply also did not set forth any

specific facts showing a genuine issue for trial.   We view “the

pleadings, answers to interrogatories, depositions, admissions,

and any other acceptable materials, together with the

affidavits”, and find no genuine issue as to any material fact.

Rule 121(b).   Accordingly, we conclude that this case is ripe for

summary judgment.   Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

     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 may collect such tax

by levy on the person’s property.   Section 6331(d) states that at

least 30 days before enforcing collection by levy on the person’s

property, the Secretary must furnish the person with a final

notice of intent to levy, including notice of the administrative
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appeals available to the person.

     Under section 6330, 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.      Davis v.

Commissioner, 115 T.C. 35, 37 (2000); Goza v. Commissioner, 114

T.C. 176, 179 (2000).   In the case of such judicial review, the

Court will review a taxpayer’s liability under the de novo

standard where the validity of the underlying tax liability is at

issue.   A taxpayer’s underlying tax liability may be at issue if

he or she “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 Court will

review the Commissioner’s administrative determination for abuse

of discretion with respect to all other issues.      Sego v.

Commissioner, 114 T.C. 604, 610 (2000).

     Here, petitioner does not dispute the existence or the

amount of an underlying tax liability.    Therefore, the proper

standard for our review of respondent’s determination is abuse of

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

Appeals officer must take into consideration (A) the verification

that the requirements of applicable law and administrative

procedures have been met, (B) issues raised by the taxpayer, and
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(C) whether any proposed collection action balances the need for

the efficient collection of taxes with the legitimate concern of

the person that any collection be no more intrusive than

necessary.

     Here, the Appeals officer addressed all these matters.

He satisfied the first requirement by reviewing the Internal

Revenue Service transcripts of petitioner’s account.    Hill v.

Commissioner, T.C. Memo. 2002-272; Weishan v. Commissioner, T.C.

Memo. 2002-88; Kuglin v. Commissioner, T.C. Memo. 2002-51.

     The Appeals officer satisfied the second requirement by

considering the issues raised by petitioner.   The only issue

raised by petitioner was his inability to pay the liability in

full, and, in that regard, petitioner requested that he be

allowed to satisfy the liability through an offer in compromise.

The Appeals officer addressed this request by reviewing the

information submitted, explaining that it was incomplete, and

asking for additional information.    Petitioner failed to submit a

properly completed Form 656, Offer in Compromise, and the

required financial information for the consideration of his

request.

     As to the third requirement, the Appeals officer properly

balanced the need for efficient collection of taxes through the

proposed levy against the concern that any collection action be

no more intrusive than necessary.    Petitioner failed to provide
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the information required in order to consider an alternative

collection action.

     Throughout the proceeding, petitioner’s conduct demonstrates

propensity to cause delay in collecting his outstanding tax

liabilities.   We sustain respondent’s determination regarding the

proposed levy as a permissible exercise of discretion.       We note

as to the allegations set forth in the petition that petitioner

did receive a hearing under section 6330, that petitioner was

given an opportunity to participate in the proceeding relating to

an offer in compromise, and that petitioner’s unsupported

allegations raise no triable issue of fact concerning “punitive

conduct” by the IRS personnel.

     Regarding the petitioner’s request to refer this case to a

different forum, we observe that this Court has jurisdiction over

the appeal of the administrative determinations where the

underlying tax liability concerns unpaid income taxes, as opposed

to certain other taxes.   See, e.g., Goza v. Commissioner, supra

at 182.   We decline to grant the petitioner’s request.

     We have considered all arguments raised by the parties and

have found those arguments not discussed herein to be irrelevant

and/or without merit.   Accordingly,

                                         An appropriate order and

                                 decision will be entered for

                                 respondent.
