T.C. Summary Opinion 2008-9

UNITED STATES TAX COURT

JULIET HESS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 14444-06S. Filed January 29, 2008.

Juliet Hess, pro se.

Frederic J. Fernandez, for respondent.

GERBER, Judge: This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed. Pursuant 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 case respondent determined that he was

entitled to proceed with collection of an assessed tax liability,
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the period under

consideration, and Rule references are to the Tax Court’s Rules

of Practice and Procedure, unless otherwise indicated. 

and petitioner, by filing a petition with this Court, contested

that determination. Petitioner’s only allegation of error

questioned the merits of the underlying tax liability. 

Respondent, relying on section 6330(c)(2)(B),1 moved for summary

judgment on the ground that petitioner is precluded from

contesting the merits of the underlying tax liability because she

received a notice of deficiency and failed to contest

respondent’s determination.

Background

Petitioner, filed a 2002 Federal income tax return with an

address in Wisconsin, reported as her address. Respondent sent,

by certified mail, a statutory notice of deficiency to petitioner

at the above address determining an income tax deficiency for 

2002. Petitioner failed to petition this Court within the

prescribed time, and respondent assessed the 2002 income tax

deficiency. 

Respondent sent petitioner a Form Letter 1058, Final Notice-

-Notice of Intent to Levy and Notice of Your Right To a Hearing,

dated April 12, 2006. On April 19, 2006, respondent received

petitioner’s Form 12153, Request for a Collection Due Process

Hearing. After additional correspondence, petitioner and the
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2 We note that respondent used the address shown on

petitioner’s 2002 return on all correspondence and notices sent

to petitioner. 

Appeals officer engaged in a discussion wherein petitioner sought

to contest the underlying tax liability. The Appeals officer

advised petitioner that she was not entitled to contest the 

underlying tax liability because she had received a notice of

deficiency for 2002. 

Subsequently, petitioner was provided with a letter

explaining her collection alternatives, and she thereafter

submitted an offer-in-compromise raising doubt as to the

underlying tax liability. Respondent mailed petitioner a Notice

of Determination Concerning Collection Action Under Section 

6330, dated July 12, 2006, advising that he intended to proceed

with collection because petitioner was not entitled to contest

the underlying tax liability in the context of a collection due

process proceeding under section 6320 or 6330.2 

Discussion

The only question we consider, in the context of this

collection case, is whether petitioner is entitled to challenge

the underlying tax liability. Respondent moved for summary

judgment, contending that as a matter of law petitioner is not

entitled to challenge the underlying 2002 tax liability. 

Petitioner has challenged only the merits of the underlying tax
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liability. Although she raised one collection alternative, an

offer-in-compromise, it was with respect to doubt as to

liability, i.e., questioning the underlying tax liability, and

not doubt as to collectibility. 

 Summary judgment is intended to expedite litigation and to

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

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

granted with respect to a legal issue, if there is “no genuine

issue as to any material fact and * * * a decision may be

rendered as a matter of law.” Rule 121(a) and (b); Craig v.

Commissioner, 119 T.C. 252, 259-260 (2002); Sundstrand Corp. v.

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

Cir. 1994). There is no disagreement as to any material fact,

and therefore this matter is ripe for summary judgment.

Section 6330(c)(2)(A) prescribes the issues that may be

raised by a taxpayer before the Appeals Office, including spousal

defenses to collection, challenges to the appropriateness of the

Commissioner’s intended collection action, and offers of

alternative means of collection. Section 6330(c)(2)(B) provides

that the Appeals hearing is not a forum for a taxpayer to contest

the existence or amount of the underlying tax unless the taxpayer

did not receive a notice of deficiency for the tax in question or

did not otherwise have an earlier opportunity to dispute the tax

liability.
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3 The Court inquired about whether respondent and petitioner

were precluded from considering an offer in compromise or some

other remedial approach to resolve petitioner’s underlying 2002

tax liability outside of the sections 6320 and 6330 collection

proceeding. The Court was advised that no such prohibition

existed and that the parties were attempting to resolve this

matter. 

Respondent has adduced sufficient documentation showing that

the notice of deficiency for petitioner’s 2002 tax year was

mailed, by certified mail, to her correct address. Petitioner

has not argued or shown that she did not receive or was unaware

of the notice of deficiency. Under the circumstances, petitioner

is statutorily precluded from challenging the merits of her 2002

tax liability in the context of this collection proceeding.3

Respondent’s motion for summary judgment will be granted.

To reflect the foregoing,

An appropriate order and decision

will be entered.