                       T.C. Memo. 2005-229



                     UNITED STATES TAX COURT



           CHRISTOPHER MICHAEL FRAZIER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14372-04L.             Filed October 3, 2005.


     Christopher Michael Frazier, pro se.

     Scott A. Hovey, for respondent.



                       MEMORANDUM OPINION


     GERBER, Chief Judge:    This case is before the Court on

respondent’s motion for summary judgment.    See Rule 121.1   The

issue for our consideration is whether respondent abused his




     1
       All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                - 2 -

discretion in proceeding with a proposed levy on petitioner’s

assets.

                              Background

     At the time of the filing of the petition in this case,

petitioner resided in Washington, D.C.      At all relevant times,

petitioner had outstanding income tax liabilities for taxable

years 1990, 1991, 1992, 1993, 1995, 1999, and 2000 (collectively,

petitioner’s unpaid tax liability).      On July 20, 2002, respondent

sent petitioner a Final Notice - Notice of Intent to Levy and

Notice of your Right to a Hearing (levy notice) with respect to

petitioner’s unpaid tax liability.      In response, on August 15,

2002, petitioner timely filed a Request for a Collection Due

Process Hearing (request) for taxable years 1990, 1991, 1992,

1993, 1995, 1999, and 2000.

     The request consisted, in its entirety, of the following:

     I do not understand the Account Summary page total
     please explain to me what is going on [sic]

     Assessed Balance, Statutory Additions, Total, how did
     you come up with that balance. [sic] I would like to
     make monthly payment that I can aford. [sic] I do
     realize that it may take me the rest of my life to pay.
     How do I start paying and were. [sic] Please contact me
     by mail or phone * * * HELP

     Between September 18, 2003, and July 13, 2004, petitioner

and respondent’s Appeals officer engaged in telephonic

conversations and exchanged correspondence.      Petitioner and the

Appeals officer discussed collection alternatives, including an
                                - 3 -

offer-in-compromise.   When the Appeals officer determined that

petitioner was not eligible for an offer-in-compromise, the

possibility of petitioner’s paying his tax liability through an

installment agreement was discussed.

     The Appeals officer and petitioner negotiated a proposed

installment agreement under which petitioner was to make biweekly

payments of $370 until the unpaid tax liability was paid in full.

Entering into this agreement was conditioned upon petitioner’s

timely filing of a 2003 tax return.     Petitioner also signed a

Form 2159, Payroll Deduction Agreement, which permitted

respondent to withdraw automatically biweekly payments from

petitioner’s wage payments beginning on May 21, 2004.

     Between March 22 and April 15, 2004, the Appeals officer

contacted petitioner several times to notify him of his need to

file his 2003 tax return to be eligible for the installment

agreement.    However, petitioner did not file his 2003 tax return

by April 15, 2004.   On July 13, 2004, respondent issued a Notice

of Determination proposing a levy on petitioner’s assets.

     On August 11, 2004, petitioner timely filed his petition

with this Court, challenging the amount assessed and requesting

an installment agreement.   On April 28, 2005, respondent filed

the motion for summary judgment.   Petitioner did not respond to

the motion.
                               - 4 -

                            Discussion

     The purpose of summary judgment is to expedite litigation

and avoid the expense of unnecessary trials.     Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).     A motion for summary

judgment may be granted where there is no dispute as to a

material fact and a decision may be rendered as a matter of law.

See Rule 121.   The moving party bears the burden of proving that

there is no genuine issue of material fact, and factual

inferences are viewed in a light most favorable to the nonmoving

party.   Craig v. Commissioner, 119 T.C. 252, 260 (2002);

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

Commissioner, 79 T.C. 340, 344 (1982).     The party opposing

summary judgment must set forth specific facts which show that a

question of genuine material fact exists and may not rely merely

on allegations or denials in the pleadings.    See Grant Creek

Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988);

Casanova Co. v. Commissioner, 87 T.C. 214, 217 (1986).

     A petition for lien or levy action must contain clear and

concise assignments of each and every error alleged to have been

committed in the notice of determination and any issue not raised

is deemed conceded.   Rule 331(b)(4).    The petition must also

contain clear and concise facts upon which the petitioner bases

each assignment of error.   Rule 331(b)(5).
                               - 5 -

     Section 6331(a) authorizes the Commissioner to levy on

property and property rights of a taxpayer liable for taxes who

fails to pay them within 10 days after notice and demand for

payment.   Sections 6331(d) and 6330(a), however, require written

notice to be sent to the taxpayer of the intent to levy and of

the taxpayer’s right to a hearing prior to the making of the

levy.

     Section 6330(c)(2)(A) provides that the taxpayer may raise

at the hearing “any relevant issue relating to the unpaid tax or

the proposed levy” including spousal defenses, challenges to the

appropriateness of collection actions, and alternatives to

collection.   Section 6330(c)(1) requires that the Appeals officer

obtain verification that the requirements of any applicable law

or administrative procedure have been met.

     When an Appeals officer issues a determination regarding a

disputed collection action, a taxpayer may seek judicial review

with the Tax Court or a district court, as appropriate.   Sec.

6330(d); see Davis v. Commissioner, 115 T.C. 35, 37 (2000); Goza

v. Commissioner, 114 T.C. 176, 179 (2000).   The underlying tax

liability may be questioned if the taxpayer “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).
                                 - 6 -

     Petitioner raises two issues.       First, he disagrees with the

amount assessed.   Second, he wants to make installment payments.

     Respondent argues that petitioner is prohibited from

challenging the underlying liability because petitioner did not

raise it at the section 6330 hearing, and this Court cannot

determine whether respondent abused his discretion as to a matter

not raised at the section 6330 hearing.      We need not address

whether petitioner raised the issue of his underlying liability

or whether he is permitted to challenge it.      Petitioner alleges

no facts in the petition or any other pleadings that would show

the assessed amounts are in error.       See Rule 331(b)(5); Grant

Creek Water Works, Ltd. v. Commissioner, supra; Casanova Co. v.

Commissioner, supra.     In addition, petitioner failed to respond

to respondent’s motion.

     Respondent also argues that petitioner had the opportunity

to pay under an installment plan but failed to comply with the

conditions of entering into that agreement.      Again, we need not

address petitioner’s compliance with the terms of the proposed

installment agreement.    Petitioner did not respond to

respondent’s motion or allege facts that would indicate it was an

abuse of discretion for respondent to refuse to accept the

proposed installment agreement.
                                 - 7 -

     Petitioner, in his petition, generally alleged that he

disagrees with the amount of the tax and that he would like to

pay under an installment agreement.       The petition does not

contain specific assignments of error or any statements of

alleged facts.    See Rule 331(b)(4) and (5).     Petitioner also

failed to set forth facts showing that there is a material or

specific question regarding the amount of his underlying

liability.    In addition, the Appeals officer considered

petitioner for an offer-in-compromise but determined he was not

eligible, and petitioner does not contest that determination.

Petitioner did not contend that the Appeals officer failed to

comply with any other applicable law, and he did not raise any

other relevant issue such as spousal defenses, challenges to the

appropriateness of collection actions, or other collection

alternatives.    Accordingly, there exists no issue of material

fact in this case, and respondent is entitled to summary

judgment.    Respondent is therefore entitled to proceed with

collection activity.

     To reflect the foregoing,


                                         An appropriate order and

                                 decision will be entered for

                                 respondent.
