1 Unless otherwise indicated, all section references are to

the Internal Revenue Code as amended, and all Rule references are

to the Tax Court Rules of Practice and Procedure.

T.C. Summary Opinion 2008-106

UNITED STATES TAX COURT

SIGNATURE IMPRESSIONS, INC., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 14885-07S. Filed August 21, 2008.

Glenn Scott Kiker (an officer), for petitioner.

Jennifer K. Martwick, for respondent.

RUWE, Judge: This case was brought pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1 Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and
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this opinion shall not be treated as precedent for any other

case. This case is before the Court on respondent’s motion for

summary judgment filed pursuant to Rule 121.

Background

Petitioner’s principal place of business, at the time of

filing of the petition, was located in Acworth, Georgia.

This collection proceeding involves petitioner’s unpaid

employment tax liabilities for the quarterly tax periods ended

September 30, 2005, December 31, 2005, March 31, 2006, and June

30, 2006. Petitioner filed Form 941, Employer’s Quarterly

Federal Tax Return, and reported employment tax liabilities for

each of the periods in question. Petitioner has not paid these

liabilities.

On or about January 30, 2007, respondent sent to petitioner

a Letter 1058, Final Notice, Notice of Intent to Levy and Notice

of Your Right to a Hearing. The Letter 1058 informed petitioner

that the amounts owed through February 9, 2007, including

penalties and interest, totaled: $1,405.50 for tax period ended

September 30, 2005, $2,558.48 for tax period ended December 31,

2005, $1,768.61 for tax period ended March 31, 2006, and

$1,558.68 for tax period ended June 30, 2006. Petitioner,

through its authorized representative, responded by timely

submitting Form 12153, Request for a Collection Due Process or

Equivalent Hearing (CDP). On Form 12153, petitioner’s authorized
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representative indicated that an installment agreement was the

proposed collection alternative and stated: “WE HAVE JUST BEEN

HIRED TO HANDLE THIS CASE AND HAVE NOT HAD TIME TO COMPLETE A

FINANCIAL STATEMENT. WE WILL PROPOSE AN INSTALLMENT AGREEMENT

AFTER DOING SO.” 

After receipt of petitioner’s Form 12153, respondent’s

settlement officer sent to petitioner, with a copy to its

authorized representative, a letter dated April 13, 2007,

scheduling a telephone conference call for May 9, 2007 at 1 p.m. 

A face-to-face meeting was also offered. The letter advised

petitioner to call respondent’s settlement office within 14 days

from the date of the letter if the scheduled time for the

conference call was not convenient. This letter also advised

petitioner that it had to complete and submit Form 433-B,

Collection Information Statement for Businesses, within 14 days

in order for respondent to consider collection alternatives such

as an installment agreement or an offer-in-compromise. Neither

petitioner nor its authorized representative called respondent’s

settlement officer on the scheduled date, nor did they timely

indicate that the date and/or time was inconvenient. On May 9,

2007, respondent’s settlement officer sent to petitioner, with a

copy to petitioner’s authorized representative, a followup letter

indicating that respondent had not received the information

requested in the April 13, 2007, letter. In the May 9, 2007,
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letter, respondent’s settlement officer advised petitioner that

respondent would make a determination regarding the proposed levy

if petitioner did not provide the requested information within 14

days of the letter.

On May 18, 2007, petitioner’s authorized representative

responded to the May 9, 2007, letter by leaving a message for

respondent’s settlement officer indicating that he had never

received the April 13, 2007, letter and that he had just received

the May 9, 2007, letter. Petitioner’s authorized representative

promised to call respondent’s settlement officer but failed to do

so. Neither petitioner nor its authorized representative

provided any financial information to the settlement officer.

On May 29, 2007, respondent issued to petitioner, with a

copy to petitioner’s authorized representative, a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination), sustaining the proposed

levy action against petitioner.

Petitioner timely filed a petition with this Court

challenging the notice of determination. The petition was signed

by Glenn Scott Kiker, the registered agent and chief executive

officer of Signature Impressions, Inc., and stated the relief

requested and reasons therefor as: 

A financial statement is in the process of being

prepared and an installment agreement will be proposed. 

Unfortunate circumstances resulted in the Power of
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Attorney and the taxpayer not communicating and missing

the appointments set by the Settlement Officer.

On or about February 29, 2008, counsel for respondent asked his

Appeals Office to give Mr. Kiker another opportunity for a

conference with respondent’s settlement officer since the

settlement officer’s case activity notes indicated that

petitioner had not received the May 9, 2007, letter. On March 3,

2008, respondent’s settlement officer called Mr. Kiker. During

the course of the call, Mr. Kiker indicated that petitioner was

no longer generating income. Mr. Kiker did not offer any

collection alternatives or provide any financial information. 

Finally, Mr. Kiker indicated that petitioner was no longer

interested in an appeal or in going to Tax Court, but wanted a

few days to consider it further. On March 6, 2008, Mr. Kiker

called respondent’s settlement officer and left a voice mail

message indicating that he wanted to leave the docketed case

open. At no time prior to or during the pendency of this

proceeding has petitioner proposed any collection alternatives or

submitted the requested financial information to respondent.

On March 19, 2008, approximately 2 weeks after the

conference call with Mr. Kiker, respondent issued to petitioner a

Supplemental Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 informing petitioner

that the proposed levy was sustained.
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On April 22, 2008, respondent filed with the Court a motion

for summary judgment asserting that no genuine issue of material

fact remains for trial. By orders dated April 25 and June 3,

2008, the Court directed petitioner to file a written response to

respondent’s motion for summary judgment. No response has been

received by or on behalf of petitioner.

Discussion

Summary judgment is intended to expedite litigation and

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

Commissioner, 90 T.C. 678, 681 (1988). The Court may grant

summary judgment where 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); see also Sundstrand Corp. v. Commissioner,

98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994);

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 are read in a manner

most favorable to the party opposing summary judgment. Dahlstrom

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

Commissioner, 79 T.C. 340, 344 (1982), and Espinoza v.

Commissioner, 78 T.C. 412, 416 (1982)); Naftel v. Commissioner,

supra at 529. When a motion for summary judgment is made and

properly supported, the adverse party may not rest upon mere

allegations or denials of the pleadings but must set forth
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specific facts showing that there is a genuine issue for trial. 

Rule 121(d). The motion, however, must be granted “if the Court

is satisfied that no real factual controversy is present so that

the remedy can serve ‘its salutary purpose in avoiding a useless,

expensive and time consuming trial where there is no genuine,

material fact issue to be tried.’” Casanova Co. v. Commissioner,

87 T.C. 214, 217 (1986) (quoting Lyons v. Bd. of Educ., 523 F.2d

340, 347 (8th Cir. 1975)).

Section 6330(a)(1) provides:

SEC. 6330. NOTICE AND OPPORTUNITY FOR HEARING BEFORE

LEVY.

(a) Requirement of Notice Before Levy.--

(1) In general.–-No levy may be made

on any property or right to property of any

person unless the Secretary has notified such

person in writing of their right to a hearing

under this section before such levy is made.

* * *

If a person makes a valid request for a hearing, a hearing shall

be held before an impartial officer or employee of the IRS Office

of Appeals. Sec. 6330(b)(1), (3). In general, a person may

raise at the hearing any relevant issues relating to the unpaid

tax or the proposed levy, including: Appropriate spousal

defenses; challenges to the appropriateness of collection

actions; and offers of collection alternatives. Sec.

6330(c)(2)(A). Congress granted this Court jurisdiction to
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review the determination made by the Appeals Office in connection

with a CDP hearing. Sec. 6330(d)(1).

As previously indicated, petitioner has failed to respond to

respondent’s motion for summary judgment. Where, as here, the

validity of the unpaid employment tax liabilities is not properly

placed at issue, the Court will review the Commissioner’s

administrative determination for abuse of discretion. Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 182 (2000). Because petitioner failed to respond to

respondent’s motion for summary judgment, we review the motion

and supporting affidavit and exhibits to decide whether to grant

the motion. See Shere v. Commissioner, T.C. Memo. 2008-8. 

This Court’s Rules require petitioner to specify the facts

upon which it relies for relief. See Rule 331(b). The only

relief sought in the petition is an installment agreement. The

previously stated undisputed facts establish that petitioner was

given multiple opportunities to participate in a CDP hearing. 

When respondent’s settlement officer contacted petitioner’s

representative to offer him a CDP hearing to raise any relevant

issues, Mr. Kiker did not request any collection alternatives on

behalf of petitioner. 

On the basis of our examination of the entire record before

us we find that respondent did not abuse his discretion, and we

shall grant respondent’s motion for summary judgment.
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To reflect the foregoing,

An appropriate order and

decision will be entered.