T.C. Summary Opinion 2014-72

UNITED STATES TAX COURT

DANNY ALLEN COKER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 26933-12S L. Filed July 16, 2014.

Danny Allen Coker, pro se.

Horace Crump and Thomas Alan Friday, for respondent.

SUMMARY OPINION

LAUBER, Judge: This case was heard pursuant to the provisions of section

7463 of the Internal Revenue Code in effect when the petition was filed. Pur1

All statutory references are to the Internal Revenue Code in effect at all 1

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

Procedure (Rules).
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suant to section 7463(b), the decision to be entered is not reviewable by any other

court, and this opinion shall not be treated as precedent for any other case.

In this collection due process (CDP) case, petitioner seeks review pursuant

to section 6330(d)(1) of the determination by the Internal Revenue Service (IRS or

respondent) to uphold a notice of intent to levy. Respondent has moved for summary judgment under Rule 121, contending that there are no disputed issues of

material fact and that his action in sustaining the proposed levy was proper as a

matter of law. We agree and accordingly will grant the motion.

Background

Petitioner filed a Federal income tax return for 2010 late and failed to pay

the full amount of tax shown as due on the return. The IRS subsequently assessed

the tax against him. On May 28, 2012, in an effort to collect the assessed tax, the

IRS sent petitioner a Final Notice of Intent to Levy and Notice of Your Right to a

Hearing. Petitioner timely submitted Form 12153, Request for a Collection Due

Process or Equivalent Hearing. In his request, petitioner sought a collection

alternative in the form of an installment agreement. 

On August 3, 2012, a settlement officer (SO) from the IRS Appeals Office

sent petitioner a letter informing him that his CDP hearing request had been

received. On August 7, 2012, the SO sent petitioner a letter scheduling a
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telephone CDP hearing for August 23, 2012. The SO informed petitioner that, in

order for her to consider a collection alternative, he needed to provide her with a

copy of a completed Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals, with supporting financial information.

Petitioner provided no documentation and proposed no collection alternative before the scheduled CDP hearing. He failed to participate in that hearing

and did not request that it be rescheduled. The SO called petitioner and left a

voice message asking that he call her back to reschedule the hearing. The SO then

mailed petitioner a “last chance” letter requesting that he submit financial information if he wished the IRS to consider a collection alternative. Petitioner submitted

no information and failed to contact the IRS regarding his case. Accordingly, on

October 15, 2012, the IRS issued petitioner a notice of determination sustaining

the proposed levy. Petitioner timely sought review in this Court.

In his petition, petitioner asserts that he “never received the letters requesting additional information.” The SO sent three letters regarding the scheduling of

the CDP conference to petitioner at a Blue Springs, Mississippi, address (Blue

Springs address), which is the address that petitioner provided on his CDP hearing

request. The SO also mailed the Notice of Determination to that address. The

Court has the Blue Springs address in its files as petitioner’s address.
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On March 27, 2014, respondent filed a motion for summary judgment. The

Court ordered petitioner to file a response to this motion by May 1, 2014. This

order advised petitioner that “under Tax Court Rule 121(d), judgment may be

entered against a party who fails to respond to a motion for summary judgment.”

Petitioner has responded neither to respondent’s motion nor to the Court’s order.

Discussion

A. Summary Judgment and Standard of Review

The purpose of summary judgment is to expedite litigation and avoid costly,

time-consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner, 90

T.C. 678, 681 (1988). Under Rule 121(b), the Court may grant summary judgment

when there is no genuine dispute as to any material fact and a decision may be

rendered as a matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), aff’d, 17 F.3d 965 (7th Cir. 1994). Rule 121(d) provides that where the

moving party properly makes and supports a motion for summary judgment “an

adverse party may not rest upon the mere allegations or denials of such party’s

pleading,” but rather must set forth specific facts, by affidavits or otherwise,

“showing that there is a genuine dispute for trial.”

Where (as here) there is no dispute concerning the underlying tax liability,

the Court reviews the IRS’ determination for abuse of discretion. Goza v.
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Commissioner, 114 T.C. 176, 182 (2000). An abuse of discretion exists when a

determination is arbitrary, capricious, or without sound basis in fact or law. See

Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir.

2006).

Because petitioner failed to respond to respondent’s motion for summary

judgment, the Court could enter a decision against him for that reason alone. See

Rule 121(d). We will nevertheless consider the motion on its merits. We

conclude that there are no material facts in dispute and that this case is appropriate

for summary adjudication.

B. Analysis

The only question is whether the IRS properly sustained a levy to collect

petitioner’s liability. We review the record to determine whether: (1) the Appeals

officer properly verified that the requirements of any applicable law or administrative procedure have been met; (2) any issues petitioner raised have merit;

and (3) “any 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).

It is clear from our review of the record that the SO conducted a thorough

review of transcripts of petitioner’s account and verified that the requirements of
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applicable law and administrative procedure were followed. The SO properly

balanced the need for efficient collection of taxes with petitioner’s legitimate

concern that collection action be no more intrusive than necessary. Petitioner did

not raise a valid challenge to the appropriateness of respondent’s intended collection action. These issues are now deemed conceded. See Rule 331(b)(4). 

Petitioner’s request for a CDP hearing included a statement that he intended

to propose an installment agreement. Section 6159 authorizes the IRS to enter

into a written agreement allowing a taxpayer to pay a tax liability in installments if

it concludes that the “agreement will facilitate full or partial collection of such

liability.” The decision to accept or reject installment agreements lies within the

Commissioner’s discretion. See Thompson v. Commissioner, 140 T.C. 173, 179

(2013) (citing Kuretski v. Commissioner, T.C. Memo. 2012-262, at *9, aff’d, __

F.3d __ (D.C. Cir. June 20, 2014)). As a threshold matter, it is not an abuse of

discretion for the SO to decline to consider an installment agreement where the

taxpayer does not place a specific proposal on the table. See McLaine v.

Commissioner, 138 T.C. 228, 243 (2012); Kendricks v. Commissioner, 124 T.C.

69, 79 (2005). Stated otherwise, it is the obligation of the taxpayer, not of the

reviewing officer, to start negotiations regarding a collection alternative by

making a specific proposal. Petitioner never made such a proposal. 
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Further, petitioner neglected to furnish Form 433-A and the underlying

financial information requested by the SO. As a prerequisite for consideration of

an installment agreement, it is incumbent on the taxpayer to provide requested

financial information that will enable the IRS to make an informed evaluation of

his ability to pay. See, e.g., secs. 6159, 7122; Kindred v. Commissioner, 454 F.3d

688, 697 (7th Cir. 2006); Olsen v. United States, 414 F.3d 144, 151 (1st Cir.

2005); Murphy v. Commissioner, 125 T.C. at 315. We have held that no abuse of

discretion occurs when an SO is unable to consider collection alternatives because

of a taxpayer’s failure to provide financial information. See, e.g., Lance v.

Commissioner, T.C. Memo. 2009-129; Schwersensky v. Commissioner, T.C.

Memo. 2006-178. We likewise find no abuse of discretion here.

Petitioner argues that he failed to provide the requested financial information because he “never received the letters requesting additional information.”

The SO sent three separate letters to petitioner regarding the scheduling of the

CDP conference and left, at a minimum, one voice message for him. These letters

were addressed to petitioner at the Blue Springs address, which is the same address to which the SO mailed the Notice of Determination. It is clear that petitioner received the Notice of Determination because he attached a copy of it to his

petition. He has provided no explanation--besides the general allegation in his
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pleading--as to why he received that notice but none of the letters mailed to the

same address shortly before. Contrary to our Rules, petitioner has “rest[ed] upon

the mere allegations” of his pleading. See Rule 121(d). As we were presented

with no contrary evidence, we find no genuine dispute as to any material fact on

this point. 

In any event, petitioner does not explain why he failed to return the SO’s

phone call. Regardless of whether petitioner received the letters (which we

believe that he did), he was instructed to call the SO back by phone. Because

petitioner failed to respond to the IRS motion for summary judgment, we are left

without any specific facts showing that there is a genuine issue for trial on that, or

any other, point. See Rule 121(d). We therefore find that petitioner was aware of

his responsibility to provide financial information to the SO but neglected to do

so. Finding no abuse of discretion in any respect, we will grant summary

judgment for respondent and affirm the proposed collection action. To reflect the

foregoing,

An appropriate order and decision

will be entered.