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BEVERLY H. KONN, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.Konn v. Comm'rDocket No. 5050-09L
United States Tax Court 2010 U.S. Tax Ct. LEXIS 58; 2012-2 U.S. Tax Cas. (CCH) P50,445;September 29, 2010, Entered*58For Respondent:Rachael J. Zepeda , Phoenix, AZ.Elizabeth C. Paris, Judge.Elizabeth C. ParisORDER AND DECISION Petitioner filed a motion for summary judgment under
Rule 121 ,BackgroundThe record establishes and/or the parties do not dispute the following.
Petitioner failed to file a Federal income tax return for tax year 2004. On July 23, 2007, respondent sent petitioner a letter indicating that, because he had not received petitioner's 2004 tax return, he prepared a substitute tax return under
section 6020(b) for her 2004 tax year. Based off of that tax return, respondent sent a notice of deficiency for tax *59 year 2004 via certified mail to petitioner's last known address in Arizona on September 4, 2007. Petitioner neither contacted respondent to request a CDP hearing nor filed a petition in this Court to dispute the alleged tax deficiency at that time.On February 18, 2008, respondent assessed a deficiency in the amount of $48,499, a section 6651(a)(1) addition to tax of $10,912 for failure to file, a section 6651 (a) (2) addition to tax of $8,487.32 for failure to pay taxes, a section 6654 addition to tax for failure to pay estimated tax of $1,407.78, and sent a notice and demand for payment to petitioner at the same address.
On June 2, 2008, respondent sent a notice of intent to levy for tax year 2004 to petitioner's same address. Petitioner then filed a timely request with respondent for a collection due process (CDP) hearing on July 1, 2008, where she requested a face-to-face hearing.
On October 15, 2008, a settlement officer (SO) sent to petitioner a letter informing her of a scheduled telephonic CDP hearing on November 18, 2008. In that letter, petitioner was advised that she might not be able to dispute her underlying liability if she had received a notice of deficiency for tax year *60 2004. Petitioner was also advised that she would be allowed a face-to-face hearing only if she provided to respondent in writing the nonfrivolous, substantive issues that she would like to be considered. Petitioner was informed that, to have a face-to-face hearing, she must also qualify for collection alternatives by filing her tax returns for tax years 2006 and 2007 and submitting a Form 433-A, Collection Information Statement.
Petitioner neither filed her delinquent tax returns nor provided collection information, and her request for a face-to-face hearing was denied. Petitioner declined to participate in the telephonic hearing as she insisted on a face-to-face hearing. When respondent inquired what petitioner would offer as substantive evidence during a face-to-face hearing, petitioner offered no substantive arguments regarding her underlying tax liability. Consequently, respondent sent to petitioner a notice of determination sustaining the assessed levy on February 3, 2009. Petitioner, still residing at the same address in Marana, Arizona, then timely filed a petition with this Court, Subsequently, respondent provided petitioner with a statement of income tax changes showing how *61 her 2004 income tax was computed and provided her another opportunity to file a completed 2004 tax return to determine whether all or a portion of the tax liability could be abated. While petitioner did not submit a tax return, she did submit some information to respondent. However, the information petitioner submitted was insufficient to allow respondent to change the assessed tax liability.
Petitioner argues respondent abused his discretion by (1) denying her a face-to-face hearing and (2) denying petitioner the opportunity to challenge the underlying tax liability for tax year 2004. Petitioner has filed a motion for summary judgment and respondent countered by filing a cross motion for summary judgment.
Discussion Summary judgment serves to "expedite litigation and avoid unnecessary and expensive trials."
Fla. Peach Corp, v. Commissioner , 90 T.C. 678">90 T.C. 678Naftel v. Commissioner , 85 T.C. 527">85 T.C. 527The moving party must prove that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. See
FPL Group, Inc. & Subs, v. Commissioner , 115 T.C. 554">115 T.C. 554Bond v. Commissioner , 100 T.C. 32">100 T.C. 32Naftel v. Commissioner, supra .id .Both petitioner and respondent have moved for summary judgment. Because neither party contends that there are any genuine issues of material fact, the Court must evaluate which party is entitled to summary judgment as a matter of law.
Under
section 6331 , if any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax by levy upon all property and rights to property belonging to such person or on which there is a lien provided for such payment of tax. A taxpayer may appeal the filing of a notice of tax levy to the Internal Revenue Service undersection 6330 by requesting an administrative hearing. The taxpayer is additionally afforded the opportunity for judicial review in the Tax Court pursuant tosection 6330(d) . Petitioner seeks review of respondent's determination. Where the validity of the underlying tax liability is properly *63 at issue, the Court will review the matter de novo.Davis v. Commissioner , 115 T.C 35, 39 (2000)Sego v. Commissioner , 114 T.C. 604">114 T.C. 604Goza v. Commissioner , 114 T.C. 176">114 T.C. 176The Court here must review this case for an abuse of discretion. The Court has described the standard by which respondent's determinations in CDP cases are reviewed for an "abuse of discretion," meaning "arbitrary, capricious, clearly unlawful, or without sound basis in fact or law."
Ewing v. Commissioner , 122 T.C. 32">122 T.C. 32439 F.3d 1009">439 F.3d 1009 (9th Cir. 2006); see alsoWoodral v. Commissioner , 112 T.C. 19">112 T.C. 19Treas. Reg. § 301.6320-1 (f) (2), Q & A.F3 . An issue is not properly raised if the taxpayer fails to present appeals any evidence with respect to that issue after being given a reasonable opportunity to do so.Id .Challenging the Underlying Liabilities Section 6330(c)(2)(B) *64 provides that at a CDP hearing, a person may only challenge the existence and amount of the underlying tax liabilities if (1) they did not receive a statutory notice of deficiency for that tax year or (2) they did not otherwise have an opportunity to contest it.Sec. 6330(c)(2)(B) . Following the CDP hearing, IRS appeals must issue a notice of determination to the taxpayers indicating whether the proposed levy action may proceed.Marlow v. Commissioner , T.C. Memo 2010-113">T.C. Memo 2010-113Sec. 6330(c)(1) and(3) .The receipt of a notice of deficiency is presumed unless the petitioner can prove to the contrary. "There is a strong presumption in the law that a properly addressed letter will be delivered, or offered for delivery, to the addressee."
Bailey v. Commissioner , T.C. Memo 2005-241">T.C. Memo 2005-241Zenco Engineering Corp. v. Commissioner , 75 T.C. 318">75 T.C. 318673 F.2d 1332">673 F.2d 1332 (7th Cir. 1981));Sego v. Commissioner , 114 T.C. 604">114 T.C. 604Casey v. Commissioner , T.C. Memo 2009-131">T.C. Memo 2009-131Id . A taxpayer's self-serving claim that a notice of deficiency was not received, standing alone, generally is not sufficient to rebut the presumption of official regularity.Sego v. Commissioner, supra at 611Figler v. Commissioner , T.C. Memo 2005-230">T.C. Memo 2005-230Petitioner was provided numerous opportunities to challenge her underlying tax liability for the tax year 2004. A telephonic due process hearing constitutes a prior opportunity to challenge the underlying tax liability within the meaning of
section 6330 .Living Care of Utica, Inc. v. United States , 411 F.3d 621">411 F.3d 621A taxpayer has no right to a face-to-face CDP hearing.
Granger v. Commissioner , T.C. Memo 2009-258">T.C. Memo 2009-258citing O'Meara v. Waters , 464 F. Supp. 2d 474">464 F. Supp. 2d 474Turner v. United States , 372 F. Supp. 2d 1053">372 F. Supp. 2d 1053Lindberg v. Commissioner , T.C. Memo 2010-67">T.C. Memo 2010-67Moline v. Commissioner , 363 Fed. Appx. 675">363 Fed. Appx. 675T.C. Memo 2009-110">T.C. Memo 2009-110 ;Rice v. Commissioner , T.C. Memo 2009-169">T.C. Memo 2009-169Summers v. Commissioner , T.C. Memo 2006-219">T.C. Memo 2006-219Respondent's determination to sustain the levy was not an abuse of discretion. Petitioner had numerous opportunities to challenge the underlying tax liability for tax year 2004. After a number of chances, petitioner failed to comply with the SO's requests for information and tax returns in order to render *69 her eligible for collection alternatives and a face-to-face hearing. The SO balanced the need for efficient collection of taxes with the taxpayer's concerns that any collection alternative be no more intrusive than necessary. Because petitioner failed to provide respondent with the necessary information to qualify for a collection alternative, respondent had other way to collect the outstanding taxes. Therefore, the Court finds that respondent did not abuse his discretion by sustaining the levy assessment.
Premises considered, it is
ORDERED that petitioner's motion for summary judgment is DENIED. It is further
ORDERED that respondent's cross motion for summary judgment is GRANTED. It is further
ORDERED AND DECIDED that respondent may proceed with collection action as determined in the Notice of Determination Concerning Collection Action dated February 3, 2009, for tax year 2004.
/s/ Elizabeth C. Paris Judge ENTERED : SEP 29, 2010Footnotes
1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. The Court notes that the notice of deficiency was sent on Sept. 4, 2007, to the same address where petitioner received the notice and demand for payment, notice of intent to levy, and notice of determination. This address is also the same address at which petitioner was living when she filed a petition in case number 16191-08S for tax year 2003 filed on June 27, 2008, and case number 24315-08 for tax year 2006 filed on September 29, 2008.
3. In addition to tax year 2004, petitioner had not filed her tax returns for 2006 and 2007 by the date of the hearing. By filing her delinquent 2006 and 2007 tax returns and submitting a Form 433-A, petitioner would have been in compliance with the tax laws and may have qualified for collection alternatives which would have provided her the opportunity to challenge the underlying liability at a face-to-face hearing. The record also reflects that the SO gave petitioner a chance to submit her 2004 tax return to substantiate her tax positions and determine if any of her tax liability could be abated.↩
Document Info
Docket Number： Docket No. 5050-09L
Citation Numbers： 2010 U.S. Tax Ct. LEXIS 58
Judges： "Elizabeth C. Paris"
Filed Date： 9/29/2010
Precedential Status： Non-Precedential
Modified Date： 11/21/2020