Broderick v. Comm'r

T.C. Memo. 2008-2
UNITED STATES TAX COURT
GLENN BRODERICK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13849-05L. Filed January 2, 2008.
Glenn Broderick, pro se.
Patricia A. Komor, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: This matter is before the Court on
respondent’s motion for summary judgment, filed pursuant to Rule
121,1 and to impose a penalty under section 6673. In this
1
Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code.
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opinion, we shall treat respondent’s motion as a motion for
summary judgment only, and we decide only whether respondent is
entitled to summary judgment under Rule 121.2
Background
This is an appeal from respondent’s determination upholding
the filing of a Federal tax lien against petitioner for unpaid
income tax liabilities for the years 1995, 1996, and 1997. When
his petition was filed, petitioner showed his address as c/o 4108
E. Indian School Road, Phoenix, Arizona 85018.
Petitioner did not file Federal income tax returns for 1995,
1996, or 1997. Respondent sent petitioner a notice of deficiency
for 1995-97, and petitioner filed a petition for redetermination.
See Broderick v. Commissioner, docket No. 10847-00. On April 10,
2002, we dismissed docket No. 10847-00 because of petitioner’s
failure to properly prosecute the case. On or about August 23,
2002, petitioner appealed the decision to the U.S. Court of
Appeals for the Ninth Circuit. On May 16, 2003, the Court of
Appeals affirmed our decision. Broderick v. Commissioner, 63
Fed. Appx. 374 (9th Cir. 2003).
On October 7, 2002, respondent assessed petitioner’s Federal
income tax liabilities, including interest, for 1995-97.
Respondent subsequently mailed to petitioner a Notice of Federal
Tax Lien Filing and Notice of Your Right to a Hearing, dated
2
We deny respondent’s request for a penalty under sec. 6673.
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September 23, 2003. On October 27, 2003, petitioner, through an
authorized representative, submitted a Form 12153, Request for a
Collection Due Process Hearing. Petitioner included with Form
12153 a five-page statement containing several arguments and
demands that were frivolous and groundless.
The settlement officer assigned to petitioner’s hearing
request mailed a letter to petitioner dated December 29, 2003,
advising him that a telephone hearing would be held on January
15, 2004. The letter also requested that petitioner file a
collection information statement and all unfiled returns. The
letter stated that if petitioner did not provide the requested
information, the settlement officer would make a determination
based on the information in the file.
On January 15, 2004, the settlement officer received a
letter from John Turner (Mr. Turner) on behalf of petitioner.
The letter stated that petitioner’s previous representative had
been enjoined from dealing with the Internal Revenue Service
(IRS), and it requested a postponement of the hearing to permit
Mr. Turner to provide a power of attorney. In response to this
request, the settlement officer rescheduled the hearing for
January 20, 2004.
Mr. Turner did not contact the settlement officer or file a
power of attorney by January 20, 2004. Consequently, the
settlement officer mailed a letter to petitioner on January 20,
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2004, in which he stated that petitioner’s arguments were without
merit, that petitioner had not filed the requested returns, and
that the settlement officer did not have petitioner’s phone
number or a power of attorney from Mr. Turner. The settlement
officer gave petitioner 10 days to contact him and provide
additional information regarding petitioner’s case.
On January 21, 2004, Mr. Turner submitted a power of
attorney and requested that the hearing be rescheduled. The
settlement officer rescheduled the hearing for January 26, 2004,
and a telephone hearing was held on that date. Neither
petitioner nor his representative provided the collection
information statement or the returns that the settlement officer
had requested, and they did not offer any information regarding
petitioner’s plans to pay the liabilities at the hearing. Mr.
Turner asked for additional time to submit the information, and
the settlement officer gave him until the end of the day to do so
or the settlement officer would sustain the lien and close the
hearing.
On January 27, 2004, Mr. Turner sent a fax to the settlement
officer that contained a declaration signed by petitioner. The
declaration stated that petitioner had not received the notices
of assessment.
On January 29, 2004, respondent mailed to petitioner a
Notice of Determination Concerning Collection Action(s) Under
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Section 6320 and/or 6330. In the notice, respondent concluded
that all of the requirements for proceeding with collection had
been met and that petitioner had not provided a valid reason why
the lien should be withdrawn. The notice advised petitioner that
he had to file a petition in the United States Tax Court if he
wanted to dispute respondent’s determination.
On March 1, 2004, petitioner filed a complaint for review of
the determination in the United States District Court for the
District of Arizona. The case was dismissed on June 20, 2005,
for lack of jurisdiction.
On July 25, 2005, petitioner filed in the Tax Court a
petition for lien or levy action. On March 22, 2006, respondent
filed a motion for summary judgment and to impose a penalty under
section 6673. Petitioner filed a response in opposition to the
motion in which he alleges, in pertinent part, that a motion for
summary judgment is an improper procedure for disposing of a case
in which the reviewing court was required to conduct a review on
the administrative record. Specifically, petitioner contends
that respondent’s summary judgment motion should be denied
because “it is an inappropriate procedure for disposition of a
record review judicial review of an agency decision.”
Subsequently, petitioner submitted an affidavit that was filed on
June 26, 2006, as a supplement to his response in opposition to
respondent’s motion. Neither petitioner’s opposition nor his
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affidavit supplementing his opposition disputed any of the
material facts alleged in respondent’s summary judgment motion
and supporting materials.
On April 17, 2006, a hearing was held on respondent’s
motion. Petitioner did not appear.
Discussion
A. Summary Disposition
Summary judgment is a procedure designed to expedite
litigation and avoid unnecessary, time-consuming, and expensive
trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681
(1988). Summary judgment may be granted with respect to all or
any part of the legal issues presented “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.” Rule 121(a) and
(b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
Commissioner, 90 T.C. 753, 754 (1988). The moving party bears
the burden of proving that there is no genuine issue of material
fact, and factual inferences will be read in a manner most
favorable to the party opposing summary judgment. Dahlstrom v.
Commissioner, 85 T.C. 812, 821 (1985). The facts material to the
Court’s disposition of the motion for summary judgment are stated
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solely for purposes of deciding the motion and are not findings
of fact for this case. See Sundstrand Corp. v. Commissioner,
supra at 520.
Petitioner makes a novel but flawed contention in his effort
to withstand summary disposition. He argues that, because this
case involves only a record review, the use of summary
disposition is inappropriate and improper. He cites Olenhouse v.
CCC, 42 F.3d 1560, 1579-1580 (10th Cir. 1994), as support for his
argument.
In Olenhouse, various wheat producers had sued the
Agricultural Stabilization and Conservation Service (ASCS)
challenging ASCS’s decision to award reduced deficiency payments
for the producers’ wheat under a Federal price support program.
The producers claimed, among other things, that the ASCS’s action
was arbitrary and capricious in that it was the product of an
inadequate administrative appeals process and not supported by
substantial evidence in the administrative record. Id. at 1564.
The producers had filed an administrative appeal and received an
adverse determination, which they appealed to the State ASCS
committee and then to the Deputy Administrator, State and County
Operations (DASCO). Throughout the appeal process, the producers
unsuccessfully attempted to obtain information regarding the
basis for the reductions imposed on them and the way the
reductions were calculated. Without making any findings of fact
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or articulating a reasoned basis for its decision, DASCO found
“no justification” for relief. The District Court, in its
capacity as a reviewing court under the Administrative Procedure
Act (APA), summarily affirmed the ASCS’s determination. In so
doing, the District Court relied solely on counsel’s
representations and other materials attached to the ASCS’s motion
to affirm and did not actually examine the administrative record
or conduct the thorough review required by the APA. Id. at 1565.
The Court of Appeals concluded under the circumstances that the
District Court “employed neither the procedure nor the standard
of review required when agency action is challenged on appeal to
a district court in this circuit.” Id.
The facts of Olenhouse are distinguishable from the facts of
this case. Olenhouse involved a review of an agency
determination that was subject to the APA. Although the District
Court was obligated under the APA to conduct a detailed and
thorough review of the administrative record and the parties’
arguments regarding it, the Court of Appeals concluded that the
District Court did not do so. Over the objections of the
aggrieved party, the District Court relied on the agency’s
representations regarding the record, without conducting the kind
of independent and detailed review that the APA required. After
concluding that the District Court was required to do more than
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simply rely on the agency’s representations and that the court
failed to do so, the Court of Appeals reversed.
In contrast to the above, this case involves the review of a
determination to proceed with collection by the IRS.
Administrative hearings under sections 6320 (dealing with liens)
and 6330 (dealing with levies) must be conducted in accordance
with section 6330(c). After the IRS issues its notice of
determination following the administrative hearing, a taxpayer
has the right to a judicial review of the determination. Sec.
6330(d). A taxpayer may petition this Court to review the
determination, and our review is subject to the provisions of
section 6330.
The judicial review that we are required to conduct in
section 6320/6330 cases focuses on the determination made by the
IRS. Unless the underlying tax liability of the taxpayer that is
the subject of the proceeding is properly at issue, we review the
IRS’s determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000).
It is now well established that a motion for summary
judgment may be used to resolve cases brought under sections 6320
and 6330 in appropriate circumstances. Deutsch v. Commissioner,
478 F.3d 450 (2d Cir. 2007), affg. T.C. Memo. 2006-27; Speltz v.
Commissioner, 454 F.3d 782 (8th Cir. 2006), affg. 124 T.C. 165
(2005); Kindred v. Commissioner, 454 F.3d 688 (7th Cir. 2006);
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Hobbs v. Commissioner, 110 Fed. Appx. 36 (9th Cir. 2004); Le Doux
v. Commissioner, 102 Fed. Appx. 641 (10th Cir. 2004); Minion v.
Commissioner, 79 Fed. Appx. 172 (6th Cir. 2003); Jones v.
Commissioner, 338 F.3d 463 (5th Cir. 2003); Roberts v.
Commissioner, 329 F.3d 1224 (11th Cir. 2003), affg. 118 T.C. 365
(2002). Summary disposition under Rule 121 permits this Court to
decide a case without the necessity of a trial if there is no
genuine issue as to any material fact and if the Court determines
that a decision may be rendered as a matter of law. Rule 121(b).
Summary disposition on the administrative record developed before
the IRS during the administrative hearing under section 6330(c)
is entirely appropriate if we conclude that the requirements of
Rule 121(b) are met. We review the administrative record
submitted in connection with the motion for summary judgment, and
we may grant summary disposition only if we conclude that there
is no material issue of fact that prevents the entry of a summary
disposition and would require a trial.
For the reasons that follow, we conclude that we may dispose
of this case by way of summary disposition pursuant to Rule 121.
B. Respondent’s Determination Regarding Collection
We turn now to the merits of respondent’s summary judgment
motion in this section 6330 proceeding.
This is an action seeking judicial review under section 6320
of respondent’s determination to file a Federal tax lien to
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secure the payment of petitioner’s unpaid Federal income tax
liabilities for 1995, 1996, and 1997. Respondent’s determination
was made following an administrative hearing, which respondent
was required to conduct in accordance with the provisions of
section 6330(c). Sec. 6320(c).
Section 6330(c) requires the presiding officer who conducts
the administrative hearing to satisfy several requirements. At
the hearing, the presiding officer must obtain verification from
the Secretary that the requirements of any applicable law or
administrative procedure have been met. Sec. 6330(c)(1). In
addition, in reaching his or her determination, the presiding
officer must consider any relevant issue that the taxpayer raised
at the hearing relating to the unpaid tax or the proposed
collection action and, if appropriate, must consider the
underlying tax liability. Sec. 6330(c)(3). Finally, the
presiding officer must determine whether the proposed collection
action balances the need for the efficient collection of taxes
with the legitimate concern of the person that any collection
action be no more intrusive than necessary. Sec. 6330(c)(3)(C).
The notice of determination and related materials that
respondent submitted with his summary judgment motion confirm
that the presiding officer performed the review required by
section 6330(c). The administrative record in this case shows
that the presiding officer properly determined that petitioner
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had received a notice of deficiency for each of the years at
issue and that, consequently, petitioner could not challenge the
underlying tax liabilities. Sec. 6330(c)(2)(B); Goza v.
Commissioner, 114 T.C. 176, 183 (2000). The administrative
record also demonstrates that the presiding officer obtained the
required verification that applicable legal and administrative
procedures had been met and considered the issues raised by
petitioner during the hearing process, even though the arguments
were not relevant and were frivolous attempts to disrupt the
collection process.3 Finally, the Appeals officer conducted an
appropriate analysis as required by section 6330(c)(3)(C).
Petitioner did not show that there is a genuine issue as to
any of the material facts in this case, nor did petitioner raise
any issue of law that would preclude the entry of a summary
disposition under Rule 121. We shall grant respondent’s motion
for summary judgment.
To reflect the foregoing,
An appropriate order and
decision will be entered.
3
Petitioner alleged that (1) the notices of deficiency were
void, (2) that there was a failure to generate an assessment
list, (3) that the Commissioner failed to certify and transmit an
assessment list, (4) that the Commissioner failed to record the
assessment, (5) that the Commissioner failed to provide record of
assessment at petitioner’s request, and (6) that the Commissioner
failed to send a notice of assessment.