T.C. Summary Opinion 2007-25

UNITED STATES TAX COURT

CHERYL WARD, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16334-05S. Filed February 21, 2007.

Cheryl Ward, pro se.

L. Katrine Shelton, for respondent.

 DEAN, Special Trial Judge: This case was heard pursuant to

the provisions of section 7463. Unless otherwise indicated all

section references are to the Internal Revenue Code in effect for

the years in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure. The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.
- 2 -

This case is before the Court on respondent’s motion for

summary judgment under Rule 121. This proceeding arises from a

petition for judicial review filed in response to a Notice of

Determination Concerning Collection Action(s) Under Section 6320

sent to petitioner.

Background

At the time the petition in this case was filed, petitioner

resided in Oakland, California.

Petitioner filed for 1999 and 2000, Forms 1040, U.S.

Individual Income Tax Return, on February 21, 2001, and on May

14, 2001, respectively. Petitioner failed to pay all of the

taxes reported on the returns. The unpaid taxes, related

penalties, and interest were accordingly assessed. Respondent

did not issue to petitioner a statutory notice of deficiency for

1999 or 2000. 

Respondent subsequently filed a Notice of Federal Tax Lien

(tax lien) with respect to petitioner’s tax liabilities for 1999

and 2000. On July 20, 2004, respondent issued to petitioner a

Notice of Federal Tax Lien Filing and Your Right to a Hearing

Under IRC 6320. Petitioner timely submitted a Form 12153,

Request for a Collection Due Process Hearing.

On the Form 12153, petitioner stated in the explanation that

she did not agree with the tax lien because “I am applying for an

offer in compromise. I am disabled.” Petitioner subsequently
- 3 -

filed a Form 656, Offer in Compromise (OIC), based on promotion

of effective tax administration, for 1999, 2000, 2001, 2002, and

2003. Petitioner offered to settle her outstanding tax

liabilities, totaling approximately $40,000, for $1,000. 

Petitioner’s case was assigned to Appeals Officer Celia

Cleveland (AO Cleveland). AO Cleveland conducted the collection

due process hearing with petitioner and her representative via

numerous telephone conversations and written correspondence. 

During the hearing, petitioner did not challenge the existence or

amount of the underlying tax liability for 1999 or 2000.

Based on the documentation submitted by petitioner, AO

Cleveland determined that petitioner’s OIC did not qualify for

consideration as an offer based on promotion of effective tax

administration. Petitioner did not offer any other collection

alternatives other than the OIC. AO Cleveland reviewed

petitioner’s administrative file and transcripts for the years in

issue, and she verified that all applicable laws and

administrative procedures had been met.

On July 22, 2005, the Appeals Office issued to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 for 1999 and 2000 (notice of determination),

determining that respondent’s filing of the tax lien was proper

and indicating that petitioner’s OIC was rejected. The

attachment to the notice of determination notes that petitioner
- 4 -

failed to submit documentation to establish that she is

permanently and totally disabled.

On August 31, 2005, petitioner filed with the Court a

petition for lien or levy action. The only error assigned in the

petition pertains to petitioner’s challenge of her underlying tax

liabilities.

Respondent asks for summary judgment with respect to the

notice of determination in that petitioner’s failure to challenge

the existence or amount of the underlying tax liabilities for

1999 and 2000 during the collection due process hearing precludes

her from now challenging the underlying tax liabilities. 

Petitioner was ordered to file a response to respondent’s motion,

but no response has been 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
- 5 -

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

fact regarding the collection matters in this case.

Section 6321 imposes a lien in favor of the United States

upon all property and rights to property of a person where there

exists a failure to pay any tax liability after demand for

payment. The lien generally arises when the assessment is made. 

Sec. 6322.

Section 6320 entitles a person to notice of her right to

request a hearing after a notice of lien is filed by the

Commissioner in furtherance of the collection from the person of

unpaid Federal taxes. If one is requested, the administrative

hearing is before the Appeals Office of the Internal Revenue

Service. Sec. 6320(b)(1). The person requesting the hearing may

raise any relevant issue with regard to the Commissioner’s
- 6 -

intended collection activities, including spousal defenses,

challenges to the appropriateness of the Commissioner’s intended

collection action, and alternative means of collection. Secs.

6320(b), (c); 6330(c); see Sego v. Commissioner, 114 T.C. 604,

609 (2000); Goza v. Commissioner, 114 T.C. 176, 180 (2000). 

Section 6330(c)(2)(B) provides that the existence or the

amount of the underlying tax liability can be contested at an

Appeals Office hearing if the person did not receive a notice of

deficiency or did not otherwise have an earlier opportunity to

dispute such tax liability. Sego v. Commissioner, supra; Goza v.

Commissioner, supra at 180-181.

In making a determination, the Appeals officer is required

to take into consideration issues properly raised, the

verification that the requirements of applicable law and

administrative procedures have been met, and whether any proposed

collection action balances the need for efficient collection of

taxes with the legitimate concern of the person that any

collection action is no more intrusive than necessary. Sec.

6330(c)(3). Within 30 days after the Appeals Office issues a

notice of determination, the person may appeal the determination

to the Tax Court, if the Court has jurisdiction over the

underlying tax liability. Sec. 6330(d)(1)(A). The Court has

jurisdiction in this case. 
- 7 -

The disagreements expressed by petitioner for 1999 and 2000

in her petition relate to the deductibility of certain claimed

expenses on Schedules A and C and the applicability of penalties. 

Because petitioner self-assessed her taxes for all years in

issue, no statutory notice of deficiency was issued. See sec.

6201(a)(1). Petitioner therefore could have challenged the

existence or amount of the underlying tax liabilities during the

Appeals Office hearing. Petitioner, however, did not do so, and

she is accordingly precluded from challenging the underlying tax

liabilities in this proceeding. Sec. 301.6320-1(f)(2), Q&A-F5,

Proced. & Admin. Regs.; see Miller v. Commissioner, 115 T.C. 582,

589 n.2 (2000), affd. 21 Fed. Appx. 160 (4th Cir. 2001); see also

sec. 301.6330-1(f)(2), Q&A-F5, Proced. & Admin. Regs.; Magana v.

Commissioner, 118 T.C. 488, 493-494 (2002).

In her petition, petitioner failed to raise a spousal

defense, make a valid challenge to the appropriateness of

respondent’s intended collection action, or offer alternate means

of collection. A petition for review of a collection action must

clearly specify the errors alleged to have been committed in the

notice of determination. Rule 331(b)(4). Any issues not raised

in the assignments of error are deemed to be conceded by

petitioner. Id.; see Goza v. Commissioner, supra at 183; see

also Lunsford v. Commissioner, 117 T.C. 183, 185-186 (2001).
- 8 -

In the absence of a valid issue for review, the Court

concludes that respondent is entitled to judgment as a matter of

law sustaining the notice of determination dated July 22, 2005. 

The Court will grant respondent’s motion for summary judgment.

Reviewed and adopted as the report of the Small Tax Case

Division.

To reflect the foregoing,

An appropriate order and

decision will be entered.