T.C. Memo. 2007-194

UNITED STATES TAX COURT

RAGNHILD ANNE WESTBY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15093-06L. Filed July 19, 2007.

Ragnhild Anne Westby, pro se.

John C. Schmittdiel, for respondent.

MEMORANDUM OPINION

SWIFT, Judge: In this collection case respondent has moved

for summary judgment on the grounds that no timely raised issue

of fact remains, that petitioner should not be allowed now to

raise a new issue of fact, and that respondent should be entitled

to judgment as a matter of law.
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Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect at all relevant times, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

Background

Respondent determined against petitioner tax deficiencies

for 1988 and 1989 in the respective amounts of $59,032 and

$72,150. The tax deficiencies related to petitioner’s income and

expenses from her solo law practice.

In 1996, as a resident of Minnesota, petitioner timely filed

a petition in this Court disputing the above tax deficiencies

that respondent had determined in petitioner’s Federal income

taxes for 1988 and 1989. Westby v. Commissioner, T.C. Memo.

2004-179.

On December 7, 2004, after a trial and opinion, a decision

was entered in the above Tax Court case reflecting major downward

adjustments in the tax deficiencies determined against petitioner

by respondent; namely, the Court redetermined tax deficiencies in

petitioner’s Federal income taxes for 1988 and 1989 of $4,250 

and $2,635, respectively.

On April 8, 2005, respondent assessed the above-redetermined 

and adjusted Federal income tax deficiencies against petitioner.
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On December 15, 2005, respondent mailed to petitioner a

notice of tax lien filing relating to the above assessed tax

deficiencies.

On February 6, 2006, respondent mailed to petitioner a

notice of intent to levy on petitioner’s property to collect the

above-assessed tax deficiencies.

On March 8, 2006, petitioner filed late a request for an

Appeals Office hearing regarding respondent’s December 15, 2005,

notice of tax lien filing, and on March 8, 2006, petitioner 

timely filed a request for an Appeals Office hearing regarding

respondent’s notice of intent to levy.

Pursuant to petitioner’s request for an Appeals Office

collection hearing with regard to both the notice of tax lien

filing and the notice of intent to levy, respondent offered to

conduct with petitioner a consolidated collection hearing via

either a face-to-face meeting or a telephone call.

Petitioner, however, did not respond to the invitation for a

face-to-face meeting or for a telephone call, and respondent’s

Appeals officer concluded the collection hearing. Based on his

review of the administrative file, respondent’s Appeals officer

reached his conclusion regarding the notice of tax lien filing

and the notice of intent to levy.

With regard to the notice of tax lien filing, respondent’s

Appeals officer treated his review of the administrative file and
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of petitioner’s hearing request as an equivalent hearing. With

regard to the notice of intent to levy, respondent’s Appeals

officer treated the hearing as a section 6330 collection hearing. 

On July 6, 2006, respondent’s Appeals Office mailed to

petitioner an adverse decision letter relating to the notice of

tax lien filing and an adverse notice of determination relating

to the notice of intent to levy.

During the above Appeals Office collection hearing

petitioner raised a number of issues, primarily a challenge to

the underlying tax deficiencies that had been redetermined by

this Court. Petitioner complained about the statutory interest

that had accrued during the long period of time from the filing

in August 1992 of petitioner’s 1988 and 1989 Federal income tax

returns to the entry in 2004 of the above Tax Court decision, and

petitioner made a vague claim to her entitlement to a credit for

payments made by her former husband on his Federal income taxes

for 1988 and 1989.

In her petition herein, petitioner challenges only the

correctness of the underlying Federal income tax deficiencies

redetermined by this Court relating to petitioner’s Federal

income tax liabilities for 1988 and 1989. In her petition,

petitioner made no claim for interest abatement.

Petitioner’s petition states only as follows with regard to

the basis for her objection to respondent’s proposed collection

activity:
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The determination of the deficiency is premised upon an

Order which has yet to be issued by the United States Tax

Court and to the best of Petitioner’s knowledge, rests with

the computation unit. The Respondent’s proposed

computations exceed the scope of the Court’s Order regarding

Petitioner’s liability, if any. Moreover, the proceeding to

make a determination as levy either wages or to lien real

property is already pending, as to the initial determination

for the same tax years. Finally, the computation and Order

will impact other tax liabilities which are the subject of

other pending tax liens.

Not until March 8, 2007, in the Court hearing that was held

herein, did petitioner in this case raise any specific issue as

to her entitlement to interest abatement under section 6404(e).

Respondent moves for summary judgment on all issues.

Discussion

Summary judgment may be appropriate where there remains no

genuine issue of fact and where the moving party is entitled to

judgment as a matter of law. Beery v. Commissioner, 122 T.C.

184, 187 (2004). Further, a party may not avoid summary judgment

by mere allegations of fact. Rather, by affidavit and documents,

the opposing party has a duty to “set forth specific facts

showing that there is a genuine issue for trial.” Rule 121(d);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Under section 6330(c)(2)(B) and (c)(4), petitioner in this

collection case is precluded from challenging the underlying tax

deficiencies redetermined by the Court relating to petitioner’s

Federal income taxes for 1988 and 1989. Having already
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challenged those tax deficiencies in a prior Tax Court case,

petitioner cannot now do so in this proceeding. See Sego v.

Commissioner, 114 T.C. 604, 610 (2000).

Because petitioner did not file her request for an Appeals

Office hearing regarding respondent’s December 15, 2005, notice

of tax lien filing until March 8, 2006, and because respondent

properly conducted not a section 6330 collection hearing, but

rather an equivalent hearing and issued to petitioner an adverse

decision letter, no appeal to this Court lies with regard

thereto. Rule 330; Kennedy v. Commissioner, 116 T.C. 255, 261-62

(2001); sec. 301.6320-1(i)(1), Q&A-I5, Proced. & Admin. Regs. 

Petitioner’s failure in her petition to raise specifically

interest abatement and her failure to claim a credit against her

Federal income taxes for payments made to respondent by

petitioner’s former husband constitute petitioner’s abandonment

or concession thereof. Rule 331(b)(4); Lunsford v. Commissioner,

117 T.C. 183, 185-86 (2001).

Further, and alternatively, with regard to any claim for

interest abatement, petitioner is silent as to what action of

respondent would support interest abatement (i.e., petitioner has

failed to allege any error or delay that occurred in this case as 
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1 In 1996, sec. 6404(e) was amended to permit abatement of

interest with respect to “unreasonable” error or delay caused by

ministerial and “managerial” acts of respondent’s employees. 

Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 301(a), 110

Stat. 1457 (1996). This amendment is applicable only for tax

years beginning after July 30, 1996.

2By discussing briefly interest abatement, we in no way

intend to treat petitioner as having made a formal claim for

interest abatement under sec. 6404.

a result of respondent’s performance of a ministerial act

relating to petitioner). See sec. 6404(e)(1)(A).1

Rule 331(b)(4) applies. Therein, it is provided that any

issue not raised in a taxpayer’s petition is to be deemed

conceded. Because petitioner did not raise interest abatement in

her petition, petitioner may not now do so. See Poindexter v.

Commissioner, 122 T.C. 280, 285-286 (2004), affd. 132 Fed.

Appx. 919 (2d Cir. 2005).2

The record herein fully supports respondent’s summary

judgment motion against petitioner, and respondent’s motion will

be granted.

An appropriate order and

decision will be entered.