Janie M. Dixon and Joseph Dixon, Jr. v. Commissioner ( 2003 )

T.C. Summary Opinion 2003-149UNITED STATES TAX COURT
JANIE M. DIXON AND JOSEPH DIXON, JR., Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3356-03S. Filed October 10, 2003.
Michael S. McNair, for petitioners.
Alan Friday, for respondent.
WHERRY, Judge: This case is before the Court on
respondent’s motion for partial summary judgment under Rule 121.1
The petition was filed pursuant to the provisions of section
7463. The decision to be entered is not reviewable by any other
court, and this opinion should not be cited as authority. The
instant proceeding arises from a petition for judicial review
1
Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, and Rule references
are to the Tax Court Rules of Practice and Procedure.
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filed in response to: (1) Separate Notices of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
sent to petitioner Janie M. Dixon (Ms. Dixon) and to petitioner
Joseph Dixon, Jr. (Mr. Dixon); and (2) a Notice of Determination
Concerning Your Request for Relief from Joint and Several
Liability Under Section 6015 sent to Ms. Dixon. Respondent moves
for partial summary judgment with respect to collection issues
other than Ms. Dixon’s request for spousal relief. The section
6015 claim will be dealt with separately at a later date.
Background
On January 7, 2000, respondent issued to petitioners a
notice of deficiency for the taxable year 1997. The notice
reflected a deficiency of $13,230 and an accuracy-related penalty
under section 6662 of $2,646. The notice was sent by U.S.
certified mail to petitioners at 1628 Gilda Circle, Mobile,
Alabama 36618-1842281. Petitioners did not file a petition with
the Tax Court in response to the notice of deficiency, and
respondent assessed the deficiency, penalty, and $2,921.22
interest on May 29, 2000.
On December 29, 2000, respondent filed a Notice of Federal
Tax Lien with the Judge of Probate, Mobile County, Alabama,
listing petitioners’ income tax liabilities for 1997. The unpaid
balance was shown as $18,797.22. Thereafter, on January 4, 2001,
respondent sent to petitioners a Notice of Federal Tax Lien
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Filing and Your Right to a Hearing Under IRC 6320 regarding the
just-described lien. Petitioners returned to respondent a Form
12153, Request for a Collection Due Process Hearing, signed by
both petitioners and dated January 30, 2001. Petitioners on the
Form 12153 supplied the following explanation of their
disagreement with the lien: “The wrong SS# was filed in 1997.
Joseph did not make[,] work, or receive any money from any
employer. We contacted the IRS several time [sic] to try & get
this corrected. We even contacted the employer once we found out
about this. Nothing was resolved.”
Additionally, the record contains a handwritten statement
dated February 3, 2001, signed by Ms. Dixon, and apparently
provided to respondent. Therein, Ms. Dixon further details
circumstances surrounding an allegedly mistaken Form W-2, Wage
and Tax Statement, and asserts: “When I filed my taxes for the
year 1997 I knew absolutely nothing about any taxes or wages in
my husband [sic] name. * * * I donot [sic] think that I should be
held accountable for some thing [sic] I had no knowledge about.”
After a telephone conference conducted on October 17, 2002,
respondent on January 27, 2003, issued the above-mentioned
Notices of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 and Notice of Determination Concerning
Your Request for Relief from Joint and Several Liability Under
Section 6015. These notices sustained the filing of the notice
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of Federal tax lien and denied relief to Ms. Dixon under section
6015(b), (c), or (f).
Petitioners’ petition challenging these notices was filed
with the Tax Court on March 3, 2003, and reflected an address for
Ms. Dixon at 1628 Gilda Circle, Mobile, Alabama 36618, and for
Mr. Dixon at 559 Sweeney Lane, Mobile, Alabama 36617. The
petition contains two counts. Count one states:
Petitioners disagree with the determination
concerning requests for relief from joint and several
liability under Section 6015, dated January 27, 2003,
on grounds that the taxpayer was unaware of any
unreported income as her husband and her father-in-law
handled all of the details of the income in question.
Count two reads:
Petitioners disagree with the determination
concerning collection actions under Sections 6320
and/or 6330 in that there was no unreported non-
employee compensation as set forth in the determination
as this was not money earned by either of the
Petitioners.
Respondent then filed the subject motion for partial summary
judgment on September 5, 2003. Respondent asks for summary
judgment with respect to the propriety of the Notices of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 in that “petitioners’ receipt of the statutory notice
of deficiency precludes challenging the underlying tax liability
for the taxable year 1997, the only error assigned in the
petition as to the collection due process issue.” Petitioners
were ordered to file any response to respondent’s motion on or
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before September 24, 2003. No such response was received by the
Court.
Discussion
Rule 121(a) allows a party to move “for a summary
adjudication in the moving party’s favor upon all or any part of
the legal issues in controversy.” Rule 121(b) directs that a
decision on such a motion shall be rendered “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.”
The moving party bears the burden of demonstrating that no
genuine issue of material fact exists and that he or she is
entitled to judgment as a matter of law. Sundstrand Corp. v.
Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th
Cir. 1994). Facts are viewed in the light most favorable to the
nonmoving party. Id. However, where a motion for summary
judgment has been properly made and supported by the moving
party, the opposing party may not rest upon mere allegations or
denials contained in that party’s pleadings but must by
affidavits or otherwise set forth specific facts showing that
there is a genuine issue for trial. Rule 121(d). The Court has
considered the pleadings and other materials in the record and
concludes that there is no genuine justiciable issue of material
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fact regarding the collection matters, other than Ms. Dixon’s
request for spousal relief, in this case.
I. Collection Actions--General Rules
Section 6321 imposes a lien in favor of the United States
upon all property and rights to property of a taxpayer where
there exists a failure to pay any tax liability after demand for
payment. The lien generally arises at the time assessment is
made. Sec. 6322. Section 6323, however, provides that such lien
shall not be valid against any purchaser, holder of a security
interest, mechanic’s lienor, or judgment lien creditor until the
Secretary files a notice of lien with the appropriate public
officials.
Section 6320 then sets forth procedures applicable to afford
protections for taxpayers in lien situations. Section 6320(a)(1)
establishes the requirement that the Secretary notify in writing
the person described in section 6321 of the filing of a notice of
lien under section 6323. This notice required by section 6320
must be sent not more than 5 business days after the notice of
tax lien is filed and must advise the taxpayer of the opportunity
for administrative review of the matter in the form of a hearing
before the Internal Revenue Service Office of Appeals. Sec.
6320(a)(2) and (3). Section 6320(b) and (c) grants a taxpayer,
who so requests, the right to a fair hearing before an impartial
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Appeals officer, generally to be conducted in accordance with the
procedures described in section 6330(c), (d), and (e).
Section 6330(c) addresses the matters to be considered at
the hearing:
SEC. 6330(c). Matters Considered at Hearing.--In
the case of any hearing conducted under this section--
(1) Requirement of investigation.--The
appeals officer shall at the hearing obtain
verification from the Secretary that the
requirements of any applicable law or
administrative procedure have been met.
(2) Issues at hearing.--
(A) In general.--The person may raise at
the hearing any relevant issue relating to
the unpaid tax or the proposed levy,
including--
(i) appropriate spousal defenses;
(ii) challenges to the
appropriateness of collection actions;
and
(iii) offers of collection
alternatives, which may include the
posting of a bond, the substitution of
other assets, an installment agreement,
or an offer-in-compromise.
(B) Underlying liability.--The person
may also raise at the hearing challenges to
the existence or amount of the underlying tax
liability for any tax period if the person
did not receive any statutory notice of
deficiency for such tax liability or did not
otherwise have an opportunity to dispute such
tax liability.
Once the Appeals officer has issued a determination
regarding the disputed collection action, section 6330(d) allows
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the taxpayer to seek judicial review in the Tax Court or a U.S.
District Court. In considering whether taxpayers are entitled to
any relief from the Commissioner’s determination, this Court has
established the following standard of review:
where the validity of the underlying tax liability is
properly at issue, the Court will review the matter on
a de novo basis. However, where the validity of the
underlying tax liability is not properly at issue, the
Court will review the Commissioner’s administrative
determination for abuse of discretion. [Sego v.
Commissioner, 114 T.C. 604, 610 (2000).]
II. Analysis
As to the case at bar, the sole contention advanced by
petitioners in their pleadings with respect to the Notices of
Determination Concerning Collection Action(s) pertains to their
underlying liability for the 1997 year. Specifically, the
question of whether petitioners received unreported income would
affect the amount of taxes owed for 1997. Petitioners, however,
were previously issued a statutory notice of deficiency for 1997
but failed to institute a case in this Court. They have at no
time alleged that they did not receive the deficiency notice, and
respondent’s records do not show that the notice was returned as
unclaimed or undeliverable. Accordingly, section 6330(c)(2)(B)
precludes petitioners from disputing the unreported income issue
and their corresponding liability in the instant proceeding.
With respect to matters subject to review in collection
proceedings for abuse of discretion, the spousal claim advanced
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by Ms. Dixon, set forth separately in petitioners’ pleadings,
will as indicated above be dealt with separately at a later date.
Otherwise, petitioners have not raised any challenges to the
appropriateness of the collection action or any collection
alternatives. As this Court has noted in earlier cases, Rule
331(b)(4) states that a petition for review of a collection
action shall contain clear and concise assignments of each and
every error alleged to have been committed in the notice of
determination and that any issue not raised in the assignments of
error shall be deemed conceded. See Goza v. Commissioner, 114
T.C. 176, 183 (2000); see also Lunsford v. Commissioner, 117 T.C.
183, 185-186 (2001).
The Court will grant respondent’s motion for partial summary
judgment. Accordingly, except to the extent of any relief from
joint and several liability afforded to Ms. Dixon through future
proceedings, the decision ultimately entered in this case will
reflect that respondent may proceed with collection of
petitioners’ tax liabilities.
To reflect the foregoing,
An appropriate order
granting respondent’s motion
for partial summary judgment
will be issued.