T.C. Memo. 2010-95

UNITED STATES TAX COURT

ALEXANDER MITCHELL NETH, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 23160-08L. Filed May 3, 2010.

Alexander Mitchell Neth, pro se.

Matthew Mendizabel, for respondent.

MEMORANDUM OPINION

MORRISON, Judge: In 2007, the respondent (whom we refer to

here as the IRS) notified petitioner Alexander Mitchell Neth that

respondent had filed a federal tax lien against his property. 

The purpose of the lien filing was to collect Neth’s unpaid

income-tax liability for 2000. Neth requested a collection

hearing to contest the filing of the lien. The request for a
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hearing was made on Neth’s behalf by his lawyer, Herman J.

Marino, of Chicago. In the request, Marino gave no reasons for

contesting the filing of the lien. The IRS assigned a hearing

officer to hold the hearing. The hearing officer scheduled a

telephone conference call. He called Marino at the scheduled

time but was unable to reach him. Marino and Neth did not send

the hearing officer any documents explaining why they were

contesting the filing of the lien. The hearing officer sustained

the filing of the lien. To challenge this determination, Neth

filed a petition with the Tax Court. Signing the petition

himself, Neth claimed that Marino’s failure to represent him

before the hearing officer was unauthorized. Neth also claimed

that Marino advised him not to speak with the hearing officer

directly. Neth requested that the Court order the IRS to hold a

second hearing.

The IRS moved for summary judgment. The IRS argued that the

hearing officer did not err in making the determination. The

IRS’s motion was supported by an affidavit and other documents. 

The IRS did not directly address the significance of the unsworn

statements made by Neth in his petition that (1) Marino’s failure

to represent Neth before the hearing officer was unauthorized,

and (2) Marino had told Neth that he should refrain from

contacting the hearing officer directly. We ordered Neth to

respond to the IRS’s motion for summary judgment. Because Neth
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failed to respond, we cannot simply adopt as true the facts that

Neth alleged in his petition. Neth is the opponent of a motion

for summary judgment. He is obliged to submit affidavits or

other documents demonstrating a genuine issue for trial. Rule

121(d), Tax Court Rules of Practice and Procedure (“When a motion

for summary judgment is made and supported as provided in this

Rule, an adverse party may not rest upon the mere allegations or

denials of such party’s pleading, but such party’s response, by

affidavits or as otherwise provided in this Rule, must set forth

specific facts showing that there is a genuine issue for trial. 

If the adverse party does not so respond, then a decision, if

appropriate, may be entered against such party.”).

Applying the abuse-of-discretion standard to the

uncontroverted facts, we hold that the hearing officer did not

err in sustaining the filing of the lien. The hearing officer

adequately considered all the issues that he was required to

address in the hearing. No additional issues were presented by

Neth or Marino for the hearing officer to consider. The

allegations Neth made in his petition are not supported as Rule

121(d), Tax Court Rules of Practice and Procedure, requires and

therefore are inadequate to create a genuine issue for trial. 
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The IRS’s motion for summary judgment will be granted.

An appropriate order and

decision will be entered.