                          T.C. Memo. 2005-93



                       UNITED STATES TAX COURT



                     ROSIE L. MOORE, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21712-04L.             Filed May 2, 2005.



     Rosie L. Moore, pro se.

     Beth A. Nunnink, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).   We

shall grant respondent’s motion.

                              Background

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

following.
                               - 2 -

     Petitioner resided in Millington, Tennessee, at the time she

filed the petition in this case.

     Petitioner timely filed a Federal income tax (tax) return

for her taxable year 2000 (2000 return).   Respondent conducted an

examination of petitioner’s 2000 return.   On April 18, 2002,

respondent mailed a 30-day letter (respondent’s 30-day letter) to

petitioner at the following address:   2839 Coach Drive, Apartment

3, Memphis, Tennessee 38128.   On May 22, 2002, respondent re-

ceived correspondence from petitioner.

     Thereafter, on October 29, 2002, respondent mailed to

petitioner at the address to which respondent mailed respondent’s

30-day letter a notice of deficiency with respect to petitioner’s

taxable year 2000, which she received.   Petitioner did not file a

petition in the Court with respect to the notice of deficiency

relating to her taxable year 2000.

     On April 21, 2003, respondent assessed petitioner’s tax as

well as interest as provided by law for her taxable year 2000.

(We shall refer to any such unpaid assessed amounts, as well as

interest as provided by law accrued after April 21, 2003, as

petitioner’s unpaid liability for 2000.)

     Respondent issued to petitioner a notice of balance due with

respect to petitioner’s unpaid liability for 2000, as required by
                                 - 3 -

section 6303(a).1

     On April 8, 2004, respondent issued to petitioner a final

notice of intent to levy and notice of your right to a hearing

(notice of intent to levy) with respect to her taxable year 2000.

On April 19, 2004, in response to the notice of intent to levy,

petitioner filed Form 12153, Request for a Collection Due Process

Hearing (Form 12153), and requested a hearing with respondent’s

Appeals Office (Appeals Office).     Petitioner indicated in her

Form 12153 that she did not agree with the “Filed Notice of

Federal Tax Lien”.     However, respondent did not issue to peti-

tioner a notice of Federal tax lien filing with respect to her

taxable year 2000.

     On October 13, 2004, respondent’s Appeals officer (Appeals

officer) held a telephonic conference (telephonic conference)

with petitioner.     During that telephonic conference, petitioner

attempted to challenge the underlying tax liability for her

taxable year 2000.     The Appeals officer refused to consider any

such challenge.     That was because petitioner did not file a

petition with the Court with respect to the notice of deficiency

that she received from respondent with respect to her taxable

year 2000.   Except for her attempted challenge of the underlying

tax liability for her taxable year 2000, petitioner raised no

     1
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                  - 4 -

other issues during the telephonic conference with the Appeals

officer.

     On October 22, 2004, the Appeals Office issued to petitioner

a notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination) in which the

Appeals Office sustained the issuance of the notice of intent to

levy.     An attachment to the notice of determination stated in

pertinent part:

                             BRIEF BACKGROUND

           *        *       *       *       *       *       *

        In the Form 12153 you state that: “First, I got a
        letter from IRS saying I owed $4000 for the year of
        2000. I had to send this information proving I was
        head of my household. I sent it twice before they came
        to the conclusion that I was head of household. I got
        that cleared up OK. Now they’re saying I wasn’t due
        the earned income credit for that year. Before they
        came up with this they asked me to send proof my de-
        pendents were in school. I faxed that information. I
        talked to Mr. Brown. He said it was not showing any-
        where that they received this information.”

        A review of a transcript of your account indicates the
        following:

               1.   The 2000 return was filed by the 4/15/2001
                    due date.
               2.   The return reflected a tax liability of
                    $0.00.
               3.   Withholding credits of $447 and the earned
                    income credit of $3154 were claimed.
               4.   A refund of $3601 was issued 3/26/2001.
               5.   Your return was subsequently audited.
               6.   Additional tax of $666 and interest of
                    $517.91 were assessed 4/21/2003. The earned
                    income credit of $3154 was not allowed.
               7.   Your 2002 overpayments of $1207.41 were ap-
                    plied to the liability.
                         - 5 -

     8.   You have made no other payments.
     9.   At your request, the audit was reconsidered,
          but the adjustments were not changed.

                DISCUSSION AND ANALYSIS

Applicable Law and Administrative Procedures

With the best information available, the requirements
of various applicable law or administrative procedures
have been met.

IRC §6331(d) requires that the Service   notify a tax-
payer at least 30 days before a Notice   of Levy can be
issued. IRC §6330(a) provides that no    levy may be made
unless the Service notifies a taxpayer   of the opportu-
nity for a hearing with Appeals.

A Letter 1058 Final Notice--Final Notice of Intent to
Levy and Your Right to a Hearing was sent to you by
certified mail 4/8/2004.

A levy source was identified prior to issuance of the
Notice of Intent to Levy.

IRC §6330(c)(2)(A) allows the taxpayer to raise any
relevant issue relating to the unpaid tax or the pro-
posed levy at the hearing.

You were provided the opportunity to raise any issue at
the hearing.

IRC §6330(c)(2)(B) provides that a taxpayer may only
raise challenges to the existence or amount of the
underlying tax liability if the person did not receive
a statutory notice of deficiency for such tax liablity
or did not otherwise have an opportunity to dispute the
liability.

The Appeals Officer has had no prior involvement with
respect to these liabilities as required by IRC
§6330(b)(3).
                           - 6 -

Relevant Issues Presented by the Taxpayer

Challenge to the amount of the liability

You indicate in the Form 12153 that you do not agree
with the amount of the liability.

A statutory notice of deficiency was issued on
10/29/2002 to:

     Rosie Moore
     2839 Coach Dr Apt 3
     Memphis, TN 38128

The notice was not returned by the Post Office as
undeliverable or unclaimed.

A copy of the notice is in the file.

When asked during the hearing whether you received the
statutory notice * * * you stated that you could not
recall.

The information in the file shows that you requested
and received reconsideration of your audit. However,
the audit adjustments were unchanged. The Appeals
Officer explained that head of household filing status
and the earned income credit were not allowed since it
was determined that you did not meet the definition of
“certain married individuals living apart” found in IRC
§7703.

Since you were previously given the opportunity to
contest the liability, the liability issue cannot be
considered in the Collection Due Process Hearing.

Challenges to the appropriateness
of the collection action

You raised no specific challenge to the appropriateness
of the collection action.

Other issues

In a letter dated 9/16/2004, the Appeals Officer ad-
vised you that to be considered for an installment
agreement or offer in compromise, you must provide a
completed Collection Information Statement (Form 433-
                               - 7 -

     A). This information was to be submitted within 14
     days of the date of the letter, but was never provided.
     In the CDP hearing, you refused to discuss payment
     alternatives to the levy.

     You raised no other issues.

     Balancing Efficient Collection and Intrusiveness

     The issuance of the Notice of Intent to Levy was not
     unnecessarily intrusive. You did not contact the
     Service to make arrangements to pay or otherwise re-
     solve the liabilities. The proposed collection action
     balances the need for the efficient collection of taxes
     with the legitimate concern that any collection action
     be no more intrusive than necesssary.

                           MY EVALUATION

     Since you were previously given the opportunity to
     contest the liability, the liability issue cannot be
     considered in the CDP hearing. The liability remains
     unpaid. You have offered no payment alternative to the
     levy. The Notice of Intent to Levy issued 4/8/2004 for
     tax year ending 12/2000 is sustained.

                            Discussion

     The Court may grant summary judgment where there is no

genuine issue of material fact and a decision may be rendered as

a matter of law.   Rule 121(b); Sunstrand Corp. v. Commissioner,

98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).    In

petitioner’s response to respondent’s motion (petitioner’s

response), petitioner agrees with the material facts set forth in

respondent’s motion and the attachments thereto.   We conclude

that there are no genuine issues of material fact regarding the

questions raised in respondent’s motion.
                               - 8 -

     The only issue raised in petitioner’s petition and in

petitioner’s response is the underlying tax liability for peti-

tioner’s taxable year 2000.   In petitioner’s response, petitioner

states:

          3.   Please allow Petitioner to re-emphasize the
     overall issue in question raised by I.R.S. audit was
     that of Petitioner Rosie L. Moore’s legal filing status
     for calendar year 2000.

          4.   The question of legal filing status for Rosie
     L. Moore led to Respondent’s presumption of said under-
     lying liability.

          5.    Petitioner provided proper documentation in
     support of filing status claimed by said Petitioner in
     year 2000.

     Petitioner received a notice of deficiency with respect to

her taxable year 2000, but she did not file a petition with

respect to that notice.   On the instant record, we find that

petitioner may not challenge the existence or the amount of

petitioner’s unpaid liability for 2000.    See sec. 6330(c)(2)(B);

Sego v. Commissioner, 114 T.C. 604, 610-611 (2000); Goza v.

Commissioner, 114 T.C. 176, 182-183 (2000).

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the determination of the Commissioner of the Internal

Revenue for abuse of discretion.   Sego v. Commissioner, supra at

610; Goza v. Commissioner, supra at 182.

     Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in
                                 - 9 -

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioner’s

taxable year 2000.

     On the record before us, we shall grant respondent’s motion.

     To reflect the foregoing,


                                 An appropriate order granting

                         respondent’s motion and decision will be

                         entered for respondent.
