                                 T.C. Memo. 2012-64



                           UNITED STATES TAX COURT



                MELVIN KENNETH PISETZNER, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21918-11L.                             Filed March 8, 2012.



     Melvin Kenneth Pisetzner, pro se.

     John M. Janusz, for respondent.



                             MEMORANDUM OPINION

     WELLS, Judge: This case is before the Court on respondent’s motion for

summary judgment pursuant to Rule 121.1 We must decide whether respondent’s

     1
         Unless otherwise indicated, section references are to the Internal Revenue
                                                                          (continued...)
                                          -2-

Appeals Office abused its discretion when it upheld respondent’s notice of intent to

levy with respect to petitioner’s liability for his 2008 tax year.

                                      Background

       The facts set forth below are based upon examination of the pleadings,

moving papers, responses, and attachments. Petitioner resided in Tennessee at the

time he filed his petition.

       Petitioner filed his 2008 Federal income tax return but failed to pay the entire

amount of the liability reported on the return. Respondent assessed the tax shown

on petitioner’s return. On August 20, 2010, respondent mailed petitioner a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing. On September 15,

2010, petitioner submitted a Form 12153, Request for a Collection Due Process or

Equivalent Hearing, on which he checked the box indicating that he wanted to

pursue an installment agreement. On April 19, 2011, respondent’s Appeals Office

sent petitioner a letter acknowledging receipt of his Form 12153. On May 3, 2011,

Settlement Officer Cheryl Wakefield mailed petitioner a letter scheduling a

telephone conference for May 25, 2011. On May 23, 2011, petitioner and Ms.

Wakefield spoke on the telephone and agreed to reschedule the telephone

       1
       (...continued)
Code of 1986, as amended, and Rule references are to the Tax Court Rules of
Practice and Procedure.
                                         -3-

conference for June 8, 2011. During the call, Ms. Wakefield told petitioner that he

needed to complete the Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals, and submit the required documentation

before the conference. However, after consulting with his accountant, petitioner

realized that he would not be able to put together the required financial information

by June 8, 2011, because of his accountant’s unavailability. Consequently, on or

about May 31, 2011, he mailed Ms. Wakefield a letter requesting to reschedule the

hearing to a later date. He wrote:

             I found out, after our conversation, that my accountant will be
      unavailable for another two weeks (surgery and recuperation). I clearly need
      help to complete the complex form you sent me.

            I would ask you, once again, to postpone my appointment with you for
      3 more weeks, so that my form and accompanying documents can be
      adequately completed.

Ms. Wakefield agreed to petitioner’s request to postpone the conference, and she

rescheduled it for June 23, 2011.

      However, when petitioner telephoned Ms. Wakefield on June 23, 2011, he

was not able to reach her because she was on emergency leave. On or about August

4, 2011, Ms. Wakefield mailed petitioner a letter explaining her unavailability on

June 23, 2011, and rescheduling the conference for August 17, 2011. She wrote:

“Please be advised that we will make a determination in the Collection Due Process
                                           -4-

hearing you requested by reviewing the Collection administrative file and whatever

information you have already provided. If you would like to provide information for

our consideration, please do so within 13 days (August 17, 2011) from the date on

this letter.” On August 15, 2011, petitioner mailed Ms. Wakefield a letter

requesting to reschedule the conference for after Labor Day because petitioner

planned to be on vacation during the scheduled conference. Ms. Wakefield received

petitioner’s letter on August 19, 2011, and she denied his request to reschedule the

conference. Instead, she reviewed the information in the file and, on the basis of

that information, issued a notice of determination sustaining the proposed collection

action. Petitioner timely filed his petition in this Court.

                                       Discussion

      Summary judgment is intended to expedite litigation and avoid unnecessary

and expensive trials and may be granted where there is no genuine issue of material

fact and a decision may be rendered as a matter of law. Rule 121(a) and (b); Fla.

Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The moving party bears

the burden of proving that there is no genuine issue of material fact, and factual

inferences are viewed in the light most favorable to the nonmoving party.

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d
                                         -5-

965 (7th Cir. 1994). However, the party opposing summary judgment must set forth

specific facts that show a genuine issue of material fact exists and may not rely

merely on allegations or denials in the pleadings. Rule 121(d).

      Petitioner contends that summary judgment is inappropriate because there are

disputed issues of material fact. Although petitioner does not dispute that he failed

to submit a Form 433-A, he contends that the reason he failed to submit a completed

Form 433-A is that Ms. Wakefield never sent him a Form 433-A. However,

petitioner’s contention that Ms. Wakefield never sent him a Form 433-A is

contradicted by his own letter to Ms. Wakefield dated May 31, 2011. In that letter,

he referred to the “complex form” sent to him by Ms. Wakefield and the “form and

accompanying documents” that he needed to submit to her. Accordingly, we

conclude that petitioner did receive the Form 433-A from Ms. Wakefield. Although

he had months to complete the Form 433-A and submit the accompanying

documents, he failed to do so. Because we conclude that there are no disputed

issues of material fact, the instant case is ripe for summary judgment.

      Where the underlying tax liability is not in issue, we review the determination

of the Appeals Office for abuse of discretion. See Sego v. Commissioner, 114 T.C.

604, 610 (2000). In reviewing for abuse of discretion, we will reject the

determination of the Appeals Office only if the determination was arbitrary,
                                          -6-

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

125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006). Petitioner does not

dispute his underlying liability. Consequently, we review the determination of the

Appeals Office for abuse of discretion.

      Where, as in the instant case, we review the Appeals Office’s determination

to sustain the collection action for abuse of discretion, we review the reasoning

underlying that determination to decide whether it was arbitrary, capricious, or

without sound basis in fact or law. We do not substitute our judgment for that of the

Appeals Office, and we do not decide independently whether we believe the levy

should be withdrawn. See id.

      Section 6330(a) provides that the Commissioner shall furnish taxpayers with

written notice of their right to a hearing before any property is levied upon. Section

6330 further provides that the taxpayer may request administrative review of the

matter (in the form of a hearing) within a prescribed 30-day period. Sec. 6330(a)

and (b). If the taxpayer requests such a hearing, the Appeals Office must verify that

the requirements of any applicable law or administrative procedure have been met.

Sec. 6330(c)(1). The Appeals Office must also determine whether the proposed

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
                                          -7-

than necessary. Sec. 6330(c)(3). Finally, the Appeals Office must consider any

issues raised by the taxpayer at the hearing, including appropriate spousal defenses,

challenges to the appropriateness of collection actions, and offers of collection

alternatives such as an installment agreement. Sec. 6330(c)(2) and (3). A proper

hearing may occur by telephone or by correspondence under certain circumstances.

See Katz v. Commissioner, 115 T.C. 329, 337-338 (2000); sec. 301.6330-1(d)(2),

Q&A-D6, Proced. & Admin. Regs.

      Petitioner appears to contend that Ms. Wakefield abused her discretion by

refusing to reschedule the August 17, 2011, telephone conference. Ms. Wakefield

had agreed to reschedule petitioner’s telephone conference several times. Despite

Ms. Wakefield’s warning in her August 4, 2011, letter that she would proceed with

her review of petitioner’s case on the basis of the administrative file if petitioner

failed to contact her at the scheduled time on August 17, 2011, petitioner failed to

contact her at the scheduled time. His written request to reschedule the telephone

conference was not timely. As we explained in Roman v. Commissioner, T.C.

Memo. 2004-20: “The statute only requires that a taxpayer be given a reasonable

chance to be heard prior to the issuance of a notice of determination.” We conclude

that petitioner was given a reasonable chance to be heard and that Ms. Wakefield

did not prematurely conclude the hearing. Moreover, as we explained in Huntress v.
                                          -8-

Commissioner, T.C. Memo. 2009-161, the purpose of the hearing is to consider the

taxpayer’s collection alternative so that where the Appeals Office’s denial of a

taxpayer’s request for a face-to-face hearing did not impede the adequate

consideration of a collection alternative, it could not constitute an abuse of

discretion.

        Respondent contends that the determination of the Appeals Office should be

sustained because petitioners failed to provide the required information. We have

consistently held that it is not an abuse of discretion for the Appeals Office to reject

collection alternatives and sustain the proposed collection action on the basis of the

taxpayer’s failure to submit requested financial information. See Huntress v.

Commissioner, T.C. Memo. 2009-161; Prater v. Commissioner, T.C. Memo. 2007-

241; Chandler v. Commissioner, T.C. Memo. 2005-99. In doing so, the Appeals

Office is following the requirements of section 301.6330-1(e)(1), Proced. & Admin.

Regs.

        Petitioner failed to submit the Form 433-A and supporting documents despite

having months to do so. On the basis of the undisputed facts, we conclude that the

determination of the Appeals Office to sustain the collection action was not

arbitrary, capricious, or without sound basis in fact or law. Accordingly, we
                                        -9-

will grant respondent’s motion and sustain the determination of respondent’s

Appeals Office to proceed with the proposed collection action.

      In reaching these holdings, we have considered all the parties’ arguments,

and, to the extent not addressed herein, we conclude that they are moot, irrelevant,

or without merit.

      To reflect the foregoing,


                                              An appropriate order and decision will

                                       be entered for respondent.
