DocketNumber: No. 15016-04L
Citation Numbers: 2005 T.C. Memo. 161, 90 T.C.M. 1, 2005 Tax Ct. Memo LEXIS 163
Judges: \"Chiechi, Carolyn P.\"
Filed Date: 7/5/2005
Status: Non-Precedential
Modified Date: 4/18/2021
*163 Repondent's motion granted.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment (respondent's motion). We shall grant respondent's motion.
Background
The record establishes and/or the parties do not dispute the following.
Petitioner resided in Metuchen, New Jersey, at the time he filed the petition in this case.
Petitioner and Marion Balice (Ms. Balice) jointly filed a Federal income tax (tax) return for the taxable year 1996 (1996 return). In the 1996 return, petitioner and Ms. Balice reported, inter alia, total income of $ 51,842, taxable income of $ 36,644, total tax of $ 6,710, and tax withheld of $ 8,296 and claimed an overpayment of tax of $ 1,586 and a refund of tax of $ 1,586.
On February 14, 2003, respondent issued to petitioner and Ms. Balice a notice of deficiency (notice) with respect to their taxable year 1996, which they received. In that notice, respondent determined a deficiency in, and an accuracy-related penalty under
Petitioner 2 did not file a petition in the Court with respect to the notice relating to his taxable year 1996.
On July 21, 2003, respondent assessed petitioner's tax, as well as an accuracy-related penalty under
Respondent*165 issued to petitioner the notice and demand for payment required by
On November 6, 2003, respondent issued to petitioner a notice of Federal tax lien filing and your right to a hearing (notice of tax lien) with respect to his taxable year 1996.
On December 9, 2003, in response to the notice of tax lien, petitioner filed a request for a collection due process hearing (petitioner's request for an Appeals Office hearing) and requested a hearing with respondent's Appeals Office (Appeals Office). 3 Petitioner's request for an Appeals Office hearing contained statements, contentions, arguments, and requests that the Court finds to be frivolous and/or groundless. 4
*166 By letter dated May 19, 2004, an Appeals officer with respondent's Appeals Office (Appeals officer) informed petitioner that he had scheduled a telephonic Appeals Office hearing with petitioner on June 9, 2004, at 10 a. m., with respect to the notice of tax lien (scheduled Appeals Office hearing). On June 8, 2004, the day before the scheduled Appeals Office hearing, petitioner and petitioner's authorized representative telephoned the Appeals officer (June 8, 2004 telephone call).
On July 19, 2004, the Appeals Office issued to petitioner a notice of determination concerning collection action(s) under
Based on the available facts Compliance followed the applicable
procedures and the issuance of the Notice of Federal Tax Lien
was proper and appropriate.
An attachment to the notice of determination stated in pertinent part:
Summary and Recommendation
Collection Due Process -- Lien
You submitted a timely Request for a Collection Due Process
Hearing under
*167 a Notice of Federal Tax Lien Filing against a 1040 (Individual
Income tax) liability for the year ending 12/31/96.
Letter 3172, (Notice of Federal Tax Lien Filing) was issued by
the Compliance Division of the Cherry Hill, New Jersey Field
Office on November 6, 2003. Form 12153, (Request for a
Collection Due Process Hearing) was received by Compliance on
December 9, 2003.
Summary of Issues
You have raised no specific issues other than frivolous and
groundless arguments.
Brief Background
Your liability is the result of an audit deficiency. As a result
of an audit it was determined that an additional tax was due to
omitted income related to what was determined to be an abusive
trust.
Your account was subsequently assigned to Compliance for
collection of the unpaid tax. Attempts were made by Compliance
to resolve your liability. As one of its subsequent case actions
Compliance filed a Notice of Federal Tax Lien. You responded by
submitting a Request for a Collection Due Process hearing.
Compliance*168 forwarded your case file along with all supporting
documentation to the Newark, New Jersey Office of Appeals for
consideration where your hearing request was assigned to a
Settlement Officer who had no previous involvement with your
account.
Requirement of Law and Administrative Procedures
Law
neglects or refuses to pay a tax liability after notice and
demand. A review of your account transcript indicates that
Notice and Demand for payment was made on the amount due for the
year ending 12/31/96 and the obligation remained unpaid.
will notify a taxpayer of the filing of a Notice of Lien and of
the Right to a Hearing before the Internal Revenue Service
Office of Appeals with respect to the filing of a Notice of
Federal Tax Lien. Such notification was given to you by
Compliance by the issuance of Letter 3172 by certified mail,
return receipt requested, on November 6, 2003.
*169 In accordance with
opportunity to raise any relevant issue relating to the unpaid
tax or the Notice of Federal Tax Lien at a telephone held on
June 8, 2003.
A review of your account transcript indicates that the
assessment was made on the applicable collection due process
notice period in accordance with
* * * * * * *
Relevant issues presented by the taxpayer
You have raised no specific issues other than frivolous and
groundless arguments.
On June 8, 2004 a telephone conference was held with your
Representative, Yourself and the Settlement Office in
attendance. At that conference your representative continued to
raise frivolous arguments and was advised that those arguments
would not be considered within the context of the Collection Due
Process Hearing.
In addition, in accordance with
prohibited from disputing the*170 underlying liability within the
context of a Collection Due Process Hearing because you had a
prior opportunity to do so, which you did not avail yourself of.
Upon the completion of your audit a Statutory Notice of
Deficiency was issued which remained unanswered.
At the same conference you stated that you would like to file an
amended income tax return and was advised to file such return
through the Philadelphia Service Center or through the Office of
Appeals. A date of June 22, 2004 was established to submit the
return.
As of the date of this letter you have not submitted any
information to assist in resolving your account.
* * * * * * *
Does the proposed collection action balance the need for the
efficient collection of taxes with the taxpayer's legitimate
concern that the collection action be no more intrusive than
necessary?
The proposed Lien action balanced the need for the efficient
collection of taxes and is no more intrusive than necessary.
Based on a review*171 of the case activity records and case
transcripts the proposed lien action was necessary in order to
protect the government's interest. Notice and demand was given
and the liability remained unpaid.
Determination
Based on the facts of the case, the collection action taken was
proper and appropriate. Compliance followed the applicable law
and administrative procedures.
It is recommended that your account be reassigned to the
Compliance for further collection action. [Reproduced
literally.]
In response to the notice of determination, petitioner filed a petition with the Court. The petition contained statements, contentions, arguments, and requests that the Court finds to be frivolous and/or groundless. 5
*172 Discussion
The Court may grant summary judgment where there is no genuine issue of material fact and a decision may be rendered as a matter of law.
Although not altogether clear, petitioner may be taking the position that the Court should deny respondent's motion because there is a genuine issue of material fact, viz, whether the June 8, 2004 telephone call constituted petitioner's Appeals Office hearing under
We need not resolve the issue of whether the June 8, 2004 telephone call constituted an Appeals Office hearing under
We conclude that there are no genuine issues of material fact regarding the questions raised in respondent's motion.
Petitioner did not file a petition with the Court with respect to the notice of deficiency that respondent issued to him relating to his taxable year 1996. Where, as is the case here, the validity of the underlying tax liability is not properly placed at issue, the Court will review the determination of the Commissioner of the Internal Revenue for abuse of discretion.
Based upon our examination of the entire record before us, we find that respondent did not abuse respondent's discretion in determining to proceed with the collection action as determined in the notice of determination with respect to petitioner's taxable year 1996.
Although respondent does not ask the Court to impose a penalty on petitioner under
Although we shall not impose a penalty under
We have considered all of petitioner's statements, contentions, arguments, and requests that are not discussed herein, and, to the extent we have not found them to be frivolous and/or groundless, we find them to be without merit and/or irrelevant. 6
*176 On the record before us, we shall grant respondent's motion.
To reflect the foregoing,
An order granting respondent's motion and decision for respondent will be entered.
1. All section references are to the Internal Revenue Code in effect at all relevant times. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. This case involves only petitioner, and not Ms. Balice. For convenience, we shall hereinafter refer only to petitioner, and not to petitioner and Ms. Balice.↩
3. Petitioner did not use Form 12153, Request for a Collection Due Process Hearing.↩
4. Petitioner's request for an Appeals Office hearing contained statements, contentions, arguments, and requests that are similar to the statements, contentions, arguments, and requests contained in the respective Appeals Office hearing requests filed under
5. The frivolous and/or groundless statements, contentions, arguments, and requests in petitioner's petition are similar to the frivolous and/or groundless statements, contentions, arguments, and requests in the respective petitions filed with the Court by certain other taxpayers. See, e.g.,
6. We shall, however, address one of petitioner's arguments in petitioner's response. Petitioner argues in petitioner's response that the Appeals officer did not provide him with the summary record of assessment with respect to petitioner's unpaid liability for 1996. Respondent is not required to provide petitioner with the summary record of assessment. See
While not altogether clear, petitioner may also be arguing that respondent's collection action with respect to petitioner's taxable year 1996 may not be valid because he did not receive certain documentation to which he is entitled under
Thomas W. Roberts v. Commissioner of Internal Revenue , 329 F.3d 1224 ( 2003 )
Sundstrand Corporation v. Commissioner of Internal Revenue , 17 F.3d 965 ( 1994 )
Irwin Koff Darline Ruth Koff v. United States , 3 F.3d 1297 ( 1993 )
Sundstrand Corp. v. Commissioner , 98 T.C. 518 ( 1992 )
Sego v. Commissioner , 114 T.C. 604 ( 2000 )
Lunsford v. Comm'r , 117 T.C. 183 ( 2001 )