T.C. Memo. 2010-213

UNITED STATES TAX COURT

JOHN K. TAYLOR, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18466-09L. Filed September 30, 2010.

John K. Taylor, pro se.

Aely K. Ullrich, for respondent.

MEMORANDUM OPINION

KROUPA, Judge: This matter is before the Court on

respondent’s motion for partial summary judgment filed pursuant

to Rule 121(a).1 Respondent contends there is no dispute as to

1All Rule references are to the Tax Court Rules of Practice

and Procedure, and all section references are to the Internal

Revenue Code, unless otherwise indicated.
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any material fact with respect to this collection review matter

and that respondent’s Notices of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330

(determination notices) pertaining to trust fund recovery

penalties (TFRPs) assessed against petitioner for the taxable

periods ending December 2004, March 2005, June 2005, September

2005, December 2005 and June 2006 (periods at issue) should be

sustained. We shall grant respondent’s motion for partial

summary judgment, and, because we dismissed or the parties have

conceded all other issues, we shall enter a decision for

respondent.2

Background

We recite uncontested facts reflected in the petition,

respondent’s motion for partial summary judgment and in the

exhibits attached to these documents. Petitioner resided in

Woodland Hills, California at the time he filed the petition.

Petitioner was the secretary, treasurer, chief executive

officer and chief financial officer of Lynnco Enterprises, Inc.

(Lynnco), a design services and employee leasing business. 

Petitioner also was a 50-percent owner, chief executive officer,

vice president, secretary, treasurer and chief financial officer

2Respondent filed a motion to dismiss on grounds of mootness

for the taxable period ending December 2006. We granted that

motion and do not consider that taxable period in this opinion.
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of Wizard Art Glass, Inc. (Wizard), a business that made glass

shields and metal rails used in restaurants. 

The Internal Revenue Service (IRS) determined that Lynnco

failed to pay $38,6843 in employment taxes for the taxable period

ending December 2004 and Wizard failed to pay $106,503 in

employment taxes for the taxable periods ending December 2004,

March 2005, June 2005, September 2005, December 2005, March 2006

and June 2006. The IRS found petitioner liable as a responsible

person for Wizard’s and Lynnco’s employment taxes and issued two

Letters 1153, Trust Funds Recovery Penalty Letters (TFRP

Letters), proposing to assess TFRPs against petitioner. 

Petitioner timely filed written appeals in response to the TFRP

Letters. Respondent’s Appeals Office made final administrative

determinations upholding the proposed TFRP assessments.4

Respondent thereafter made assessments against petitioner for the

periods at issue.

Respondent issued petitioner separate Final Notice of Intent

to Levy and Notice of Your Right to a Hearing letters (levy

notices) for the TFRPs attributable to Lynnco’s and Wizard’s

employment tax liabilities. Petitioner timely requested

collection due process (CDP) hearings regarding both levy

3All monetary amounts are rounded to the nearest dollar.

4The Appeals Office considered the TFRPs relating to Wizard

and Lynnco in separate hearings. 
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notices. Petitioner argued that the assessed amount in the levy

notice for Lynnco was inaccurate, but he did not challenge the

amount in the levy notice for Wizard. Petitioner asked in both

CDP hearing requests that the Appeals Office consider an

installment agreement as a collection alternative.

Settlement Officer Sharon Lavenberg (SO Lavenberg) was

assigned both CDP hearings. SO Lavenberg mailed petitioner a

letter scheduling a telephone conference for both hearings and

stating that petitioner should contact her within two weeks if he

preferred a face-to-face conference. SO Lavenberg also asked

that petitioner submit complete financial information (both

individually and on behalf of his business)5 and provide copies

of signed Federal income tax returns for 2006, 2007 and 2008 if

he wanted SO Lavenberg to consider an installment agreement or

any other collection alternatives. 

Petitioner called SO Lavenberg the day before the scheduled

telephone conference to notify her that he had a family emergency

and needed to reschedule the conference. SO Lavenberg obliged

yet reminded petitioner that he needed to submit the requested

financial information and tax returns to have collection

5Individuals report financial information on a Form 433-A,

Collection Information Statement for Wage Earners and SelfEmployed Individuals, and businesses report financial information

on a Form 433-B, Collection Information Statement for Businesses.
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alternatives considered. Thereafter petitioner failed to answer

the telephone for the rescheduled conference with SO Lavenberg. 

Petitioner never presented any argument to contest the

underlying liability for Lynnco. Moreover, he failed to provide

the necessary information for SO Lavenberg to consider an

installment agreement or any other collection alternative. SO

Lavenberg sent petitioner a “last chance” letter and gave him two

weeks to respond. Petitioner did not respond until one day

before the “last chance” letter deadline. Petitioner faxed SO

Lavenberg a letter asking for a 3-week extension to provide the

requested documentation. SO Lavenberg denied petitioner an

extension because he had neglected to provide any financial

information whether complete or not and had submitted no tax

returns to SO Lavenberg despite several requests to do so. SO

Lavenberg reviewed the material in petitioner’s file and the

arguments petitioner presented and determined to sustain the

proposed levy for both Lynnco and Wizard. SO Lavenberg sent

petitioner separate determination notices sustaining respondent’s

collection action with respect to the TFRPs.

Petitioner timely filed a petition with this Court seeking

relief from respondent’s determination notices. Petitioner does

not challenge the underlying liability. He contends, however,

that he should have been afforded an installment agreement or an

offer in compromise to settle the debts. Respondent moved for
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partial summary judgment on the ground that SO Lavenberg did not

abuse her discretion by failing to consider collection

alternatives. Petitioner failed to file a response or objection

to respondent’s motion.

Discussion

We are asked to decide whether summary judgment is

appropriate. Summary judgment is intended to expedite litigation

and avoid unnecessary and expensive trials. See, e.g., FPL

Group, Inc. & Subs. v. Commissioner, 116 T.C. 73, 74 (2001). A

motion for partial summary judgment will be granted if the

pleadings, answers to interrogatories, depositions, admissions

and 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. See Rule

121(b); Elec. Arts, Inc. v. Commissioner, 118 T.C. 226, 238

(2002). The moving party has the burden of proving that no

genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. See, e.g., Rauenhorst v.

Commissioner, 119 T.C. 157, 162 (2002). We grant summary

judgment cautiously and sparingly and only after carefully

ascertaining that the moving party has met all requirements for

summary adjudication. See Associated Press v. United States, 326

U.S. 1, 6 (1945).
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Petitioner does not contest the underlying liabilities for

the TFRPs assessed against him for the periods at issue. Nor

does he challenge the validity of the levy notices respondent

filed for those taxable periods. Rather, petitioner disputes

only respondent’s decision not to consider a collection

alternative. Thus, the Court reviews respondent’s determination

for abuse of discretion. See Sego v. Commissioner, 114 T.C. 604,

610 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000). In

doing so, we must decide whether respondent exercised his

discretion arbitrarily, capriciously or without sound basis in

fact or law. See Woodral v. Commissioner, 112 T.C. 19, 23

(1999). 

Petitioner asserts in the petition that SO Lavenberg should

have provided him with either an installment agreement or an

offer in compromise. We note that petitioner asked in his CDP

hearing request that SO Lavenberg consider an installment

agreement in lieu of enforced collection action. Petitioner

never proposed an offer in compromise during the hearing. In

this regard, we generally consider only arguments, issues and

other matters that were raised at the collection hearing or

otherwise brought to the attention of the Appeals Office. See

Living Care Alternatives of Utica, Inc. v. United States, 411

F.3d 621, 625 (6th Cir. 2005); Magana v. Commissioner, 118 T.C.

488, 493 (2002). It would be anomalous and improper for us to
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conclude that SO Lavenberg abused her discretion in failing to

consider an offer in compromise when petitioner did not raise the

issue or bring it to SO Lavenberg’s attention. See Magana v.

Commissioner, supra. Accordingly, we consider only whether SO

Lavenberg abused her discretion by not considering petitioner’s

request for an installment agreement. 

A taxpayer may raise collection alternatives in a CDP

hearing request that may include an installment agreement. Sec.

6330(c)(2)(A)(iii). The Secretary may enter into an installment

agreement to satisfy the taxpayer’s outstanding tax liabilities

in appropriate circumstances. Sec. 6159(a). A taxpayer’s

eligibility for an installment agreement is based on the

taxpayer’s current financial condition. Maselli v. Commissioner,

T.C. Memo. 2010-19. See generally Internal Revenue Manual (IRM)

pt. 5.14.1.3 (Sept. 26, 2008). The taxpayer must therefore

provide specific financial information, including a proposed

monthly payment or other periodic payment amount, when requesting

an installment agreement. IRM pt. 5.14.1.3(4) (Sept. 26, 2008). 

The record reflects that petitioner did not submit a

proposed installment agreement and failed to provide SO Lavenberg

with the requested financial information. We have repeatedly and

consistently held that a settlement officer may sustain a

collection action where the taxpayer has failed to provide

requested information that would have permitted consideration of
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collection alternatives. See Long v. Commissioner, T.C. Memo.

2010-7; Huntress v. Commissioner, T.C. Memo. 2009-161; Nelson v.

Commissioner, T.C. Memo. 2009-108. SO Lavenberg informed

petitioner that he needed to submit the requisite financial

information and needed to provide signed tax returns if he wanted

her to consider an installment agreement. SO Lavenberg

thereafter gave petitioner several chances to provide the

requested financial information and be heard before issuing the

determination notices. Petitioner failed to submit the

appropriate financial information and tax returns, and then he

presented a dilatory request for an extension one day before the

deadline specified in the “last chance” letter. See Roman v.

Commissioner, T.C. Memo. 2004-20. It was not an abuse of

discretion for SO Lavenberg to reject an installment agreement

when petitioner failed to present financial information regarding

his ability to pay. See Maselli v. Commissioner, supra. 

Petitioner has not presented any evidence or persuasive

argument to convince us that SO Lavenberg abused her discretion. 

The record demonstrates that SO Lavenberg verified all applicable

law and administrative procedures were followed in this matter. 

See sec. 6330(c)(1). 

Petitioner has not set forth specific facts showing that

there is a genuine issue for trial. Accordingly, we find and

hold that SO Lavenberg did not abuse her discretion in
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determining that respondent may proceed with the collection

action. We shall therefore grant respondent’s motion for partial

summary judgment.

Moreover, because the parties have conceded all remaining

issues, we shall enter a decision for respondent. Courts have

the inherent authority to issue orders they deem necessary and

prudent to achieve the orderly and expeditious disposition of

their cases. See Roadway Express, Inc. v. Piper, 447 U.S. 752,

764-765 (1980); Link v. Wabash R.R. Co., 370 U.S. 626, 629-632

(1962); Williams v. Commissioner, 92 T.C. 920, 932-933 (1989).

We have considered all arguments made in reaching our

decision, and, to the extent not mentioned, we conclude that they

are moot, irrelevant, or without merit. 

To reflect the foregoing,

An appropriate order and 

decision will be entered for 

respondent.