1 Subsequent section references are to the Internal Revenue

Code, as amended. Rule references are to the Tax Court Rules of

Practice and Procedure.

T.C. Summary Opinion 2005-69

UNITED STATES TAX COURT

DENISE RENEE LINGWALL, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5031-04S. Filed June 2, 2005.

Denise Renee Lingwall, pro se.

John C. Schmittdiel, for respondent.

KROUPA, Judge: This collection review proceeding was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petition was filed.1 The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority. 
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This matter is before the Court on respondent’s Motion for

Summary Judgment, filed pursuant to Rule 121. Respondent

contends that he is entitled to summary judgment that the Office

of Appeals (Appeals Office) did not abuse its discretion in

determining that it was appropriate to file a tax lien against

petitioner with regard to her unpaid Federal income taxes for

1997 and 1998.

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials. See Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “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.” Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving

party bears the burden of proving that there is no genuine issue

of material fact, and factual inferences will be read in a manner

most favorable to the party opposing summary judgment. See 

Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).
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As discussed in detail below, we conclude that there is no

dispute as to a material fact in this case and respondent is

entitled to judgment as a matter of law. Consequently, we shall

grant respondent’s motion.

Background

The record establishes and/or the parties do not dispute the

following. Petitioner resided in Ham Lake, Minnesota, at the

time the petition was filed. Petitioner filed joint Federal

income tax returns with her now former spouse, Curtis J.

Lingwall, for the taxable years 1997 and 1998, on August 16,

1998, and April 20, 1999, respectively. Although both tax

returns reported taxes due, petitioner and her former spouse

failed to remit payment with the returns.

Petitioner subsequently submitted to respondent a request

for relief from joint and several liability on a joint return for

1997 and 1998. Respondent issued to petitioner on August 15,

2001, a Final Notice denying her request for relief for 1997 and

1998. Petitioner did not file with the Court a petition

challenging respondent’s determination. 

Almost 2 years later, on April 17, 2003, respondent issued

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

to a Hearing Under IRC 6320 regarding her unpaid tax liabilities

for 1997 and 1998. On May 16, 2003, petitioner submitted to

respondent a Form 12153, Request for a Collection Due Process
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2 The parties do not dispute that the petition in this case

was timely filed under secs. 6330 and 7502(a).

Hearing under section 6330, in which she asserted that her former

spouse was responsible for the unpaid taxes.

On February 18, 2004, respondent issued to petitioner a

Notice of Determination Concerning Collection Action(s)

(Determination Notice) that acknowledged petitioner asserted in

her collection hearing request that her former spouse was

responsible for the tax liabilities. Respondent explained,

however, that because petitioner had “been through the Innocent

Spouse claim process, you know that both you and your ex-spouse

are separately responsible for the entire amount of the joint

liability.” The Determination Notice also stated that petitioner

failed to raise an appropriate spousal defense. Respondent

determined in the Determination Notice that the filing of the

notice of Federal tax lien was appropriate. 

On March 19, 2004, petitioner filed with the Court a

petition for lien or levy action challenging respondent’s

Determination Notice.2 Petitioner’s sole contention is that she

paid her fair share of the unpaid tax liabilities.

As previously mentioned, respondent filed a Motion for

Summary Judgment. Petitioner filed an objection to respondent’s 

motion on May 5, 2005, repeating her assertion that her former

spouse is responsible for the tax liabilities.
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Discussion

Lien and Levy Actions

Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person when a demand for

the payment of taxes has been made and the person fails to pay

those taxes. Such a lien arises when the Commissioner makes an

assessment. Sec. 6322. The lien imposed under section 6321 is

not valid, however, against any purchaser, holder of a security

interest, mechanic’s lienor, or judgment lien creditor until the

Secretary has filed a notice of Federal tax lien with the

appropriate authorities. Sec. 6323(a); Behling v. Commissioner,

118 T.C. 572, 575 (2002).

Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice of the

filing of a Federal tax lien under section 6323. Such notice

must be provided not more than 5 business days after the day of

the filing of the notice of lien (5-day period). Sec.

6320(a)(2). Section 6320 further provides that the person may

request administrative review of the matter (in the form of an

Appeals Office hearing) within 30 days beginning on the day after

the 5-day period. Section 6320(c) provides that the Appeals

Office hearing generally shall be conducted consistent with the

procedures set forth in section 6330(c), (d), and (e).
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Section 6330(c)(2) outlines the issues that a person may

raise at an administrative hearing. Those issues include

appropriate spousal defenses, challenges to the appropriateness

of the Commissioner's intended collection action, and possible

alternative means of collection. Section 6330(c)(4) bars a

person from raising at an administrative hearing an issue that

was raised and considered at a previous administrative or

judicial proceeding if the person seeking to raise the issue

“participated meaningfully” in such hearing or proceeding. 

Section 6330(d) provides for judicial review of the

administrative determination in the Tax Court or Federal district

court, as appropriate.

Claims for Relief From Joint and Several Liability

Section 6013(d)(3) provides that if a husband and wife make

a joint Federal income tax return, “the tax shall be computed on

the aggregate income and the liability with respect to the tax

shall be joint and several.” Section 6015(a) provides, however, 

that, notwithstanding section 6013(d)(3), an individual who has

made a joint return may elect to seek relief from joint and

several liability on such return.

Congress vested this Court with jurisdiction to review a

taxpayer’s election to claim relief from joint and several

liability on a joint return under varying circumstances. See

King v. Commissioner, 115 T.C. 118, 121-122 (2000); Corson v.
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Commissioner, 114 T.C. 354, 363-364 (2000). As relevant in this

case, a person may file a so-called stand alone petition seeking

relief from joint and several liability on a joint return in

response to the Commissioner’s final notice disallowing a claim

for relief. See sec. 6015(e)(1); Mora v. Commissioner, 117 T.C.

279 (2001). Such a petition must be filed within 90 days of the

date that the Commissioner mailed the final notice disallowing

relief. Sec. 6015(e)(1)(A).

Analysis

The record in this case reflects that respondent issued a

final notice to petitioner disallowing her claim for relief from

joint and several liability for 1997 and 1998 in August 2001. 

Petitioner did not file, however, a petition with the Court

challenging respondent’s determination. Petitioner does not

allege that the final notice was not mailed to her correct

address. In any event, the 90-day period in which petitioner

could have invoked this Court’s jurisdiction under section

6015(e) has long since expired.

Under the circumstances, we conclude that the Appeals Office

correctly determined that section 6330(c)(4) barred petitioner

from attempting to resurrect her claim for relief under section

6015 during her collection review hearing initiated under section
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3 See sec. 301.6320-1(e)(2), Proced. & Admin. Regs. (“A 

taxpayer may raise any appropriate spousal defenses at a CDP

hearing unless the Commissioner has already made a final

determination as to spousal defenses in a statutory notice of

deficiency or final determination letter.”)

6320.3 Simply put, petitioner participated in an earlier

administrative proceeding in which respondent determined that she

was not entitled to relief under section 6015. Respondent issued

a final written notice of determination to petitioner explaining

her right to obtain judicial review of respondent’s determination

in the Tax Court. Petitioner failed to avail herself of that

opportunity, however. Moreover, petitioner has not offered any

argument that she did not “meaningfully” participate in the

earlier section 6015 administrative proceeding within the meaning

of section 6330(c)(4). Consistent with the foregoing, we hold

that petitioner is barred by section 6330(c)(4) from attempting

to raise her claim for relief under section 6015 in this

proceeding. 

Petitioner has failed to raise any other valid challenge to

respondent’s collection action. There being no other valid issue

for consideration, we shall grant respondent’s Motion for Summary

Judgment.

To reflect the foregoing,

An appropriate order and

decision will be entered granting

respondent’s motion for summary

judgment.