1All Rule references are to the Tax Court Rules of Practice

and Procedure, and all section references are to the Internal

Revenue Code. 

T.C. Memo. 2008-213

UNITED STATES TAX COURT

PAUL L. AND CARYN ANN BRECHT, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 11470-07L. Filed September 15, 2008.

Daniel A. Uribe, for petitioners.

Kim-Khanh Thi Nguyen, for respondent.

MEMORANDUM OPINION

MARVEL, Judge: This matter is before the Court on

respondent’s motion for summary judgment filed under Rule 121.1
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Background

This is an appeal from respondent’s determination upholding

the use of a levy to collect petitioners’ unpaid Federal income

tax liabilities for 2000, 2001, and 2002. Petitioners resided in

California when the petition was filed. 

Respondent determined deficiencies, additions to tax, and

penalties with respect to petitioners’ 1999, 2000, 2001, and 2002

Federal income tax and issued a notice of deficiency for those

years. In response petitioners timely filed a petition with the

Court at docket No. 22876-04 disputing respondent’s

determination. Appeals Officer Kevin Foist (Appeals Officer

Foist) was assigned to review petitioners’ case at docket No.

22876-04. On June 15, 2005, Appeals Officer Foist met with two

of petitioners’ representatives, Robert A. Concolino (Mr.

Concolino) and an unenrolled representative. At the meeting

petitioners’ representatives requested a full abatement of

interest and penalties. Appeals Officer Foist responded that “it

was unlikely that the interest would ever be abated.” 

On August 5, 2005, Appeals Officer Foist sent Mr. Concolino

a letter enclosing a proposed decision document in docket No.

22876-04. The letter stated:

If you owe the Internal Revenue Service, the enclosed

decision document does not include interest. By law,

interest accrues from the due date of the return. If

you wish to stop or reduce interest on part or all of

the taxes, you can submit an advance payment * * *

along with your decision document * * *. The estimated
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2We assume that respondent also assessed petitioners’ 1999

tax liability (including the addition to tax, penalty, and

interest), but we do not have a Form 4340, Certificate of

Assessments, Payments, and Other Specified Matters, for 1999 in

the record.

total amount you owe as of June 30, 2005 is shown in

the enclosed audit statement. 

The letter also enclosed a statement estimating the total

penalties and interest if petitioners paid the deficiencies by

June 30, 2005 (June 30, 2005, statement). 

On August 15, 2005, petitioners signed the proposed decision

document in docket No. 22876-04. On September 26, 2005, the

Court entered the decision in docket No. 22876-04 (stipulated

decision). In the stipulated decision, the Court ordered and

decided that petitioners were liable for Federal income tax

deficiencies, additions to tax, and section 6662 penalties for

1999, 2000, 2001, and 2002. The stipulated decision that the

Court entered contained the following statement: “It is further

stipulated that interest will be assessed as provided by law on

the deficiencies & penalties due from petitioners.” 

On February 27, 2006, respondent assessed the deficiencies,

additions to tax, penalties, and interest for 2000-022 in

accordance with the stipulated decision. On April 11, 2006, Mr.

Concolino sent Appeals Officer Foist a check dated March 13,

2006, for $139,979.80, representing “the total amount as set

forth on the Decision of the United States Tax Court dated
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3The notice does not cover 1999 presumably because

respondent applied petitioners’ payment to satisfy the 1999 tax

liability in full.

September 26, 2005”. The amounts set forth in the stipulated

decision consisted of the tax deficiencies, additions to tax, and

penalties for 1999-2002, but not interest. Appeals Officer Foist

acknowledged receipt of the check. 

On June 17, 2006, respondent sent petitioners a Final Notice

of Intent to Levy and Notice of Your Right to a Hearing (notice)

in which respondent stated his intent to levy to collect

petitioners’ unpaid 2000, 2001, and 2002 tax liabilities.3

Petitioners timely submitted Forms 12153, Request for a

Collection Due Process Hearing, for those years, which stated

only that the “amount due was paid”.

On January 10, 2007, petitioners participated in a face-toface section 6330 hearing with Appeals Officer Teresa Peck

(Appeals Officer Peck). At the hearing petitioners argued only

that they paid the amounts due pursuant to the stipulated 

decision. Petitioners did not propose a collection alternative

or submit any financial information on which Appeals Officer Peck

could have evaluated potential collection alternatives.

On January 10, 2007, Appeals Officer Peck sent petitioners a

letter explaining that the parties had agreed to the penalties in

the stipulated decision and that the decision contained an

acknowledgment that interest would be assessed. She also
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4Sec. 7481(c) provides generally that a taxpayer may file a

motion in the Court for a redetermination of interest within 1

year after the date the Court’s decision becomes final. 

explained that petitioners could not request a redetermination of

the interest because they did not file a timely motion for

redetermination of interest under section 7481(c).4 On March 27,

2007, Ronald J. Channels (Mr. Channels), on behalf of

petitioners, replied to Appeals Officer Peck that petitioners had

paid the amount stated in the stipulated decision and that

respondent erred in assessing interest on petitioners’ 1999-2002

income tax deficiencies, additions to tax, and penalties. Mr.

Channels requested an explanation of respondent’s interest

calculation. On April 4, 2007, Appeals Officer Peck sent

petitioners a response letter and attached several interest and

penalty detail reports, the June 30, 2005, statement with

handwritten notes, and Notice 746, Information About Your Notice,

Penalty and Interest. 

On April 16, 2007, respondent sent petitioners a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 sustaining respondent’s proposed collection actions

for 2000, 2001, and 2002. On May 22, 2007, petitioners’ petition

was filed. In their petition petitioners challenge only

respondent’s assessment of interest on the 2000-02 income tax

deficiencies, additions to tax, and penalties.
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On April 17, 2008, we issued petitioners a notice setting

their case for trial during the Court’s September 22, 2008, Los

Angeles, California, trial session. On July 23, 2008, respondent

filed the motion for summary judgment. On August 20, 2008,

petitioners filed their response. 

Discussion

I. Summary Judgment

Summary judgment is a procedure designed to expedite

litigation and avoid unnecessary, time-consuming, and expensive

trials. 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 presented “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(a) and

(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). The moving party bears the burden of

establishing that there is no genuine issue of material fact, and

factual inferences will be drawn in a manner most favorable to

the party opposing summary judgment. Dahlstrom v. Commissioner,

85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340,

344 (1982). The nonmoving party, however, cannot rest upon the
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allegations or denials in his pleadings but must “set forth

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

Rule 121(d); Dahlstrom v. Commissioner, supra at 820-821.

II. Section 6330

Section 6330(a) provides that 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 the right to a hearing

before the levy is made. If the person makes a request for a

hearing, a hearing shall be held before an impartial officer or

employee of the Internal Revenue Service Office of Appeals. Sec.

6330(b)(1), (3). At the hearing, a taxpayer may raise any

relevant issue, including appropriate spousal defenses,

challenges to the appropriateness of the collection action, and

collection alternatives. Sec. 6330(c)(2)(A). A taxpayer may

contest the existence or amount of the underlying tax liability

at the hearing if the taxpayer did not receive a notice of

deficiency for the tax liability in question or did not otherwise

have an earlier opportunity to dispute the tax liability. Sec.

6330(c)(2)(B); see also Sego v. Commissioner, 114 T.C. 604, 609

(2000). 

Following a hearing, the Appeals Office must determine

whether the proposed levy action may proceed. The Appeals Office

is required to take into consideration: (1) Verification

presented by the Secretary that the requirements of applicable
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law and administrative procedures have been met, (2) relevant

issues raised by the taxpayer, and (3) whether the proposed levy

action appropriately balances the need for efficient collection

of taxes with a taxpayer’s concerns regarding the intrusiveness

of the proposed levy action. Sec. 6330(c)(3). 

Section 6330(d)(1) grants this Court jurisdiction to review

the determination made by the Appeals Office in connection with

the section 6330 hearing. Where the underlying tax liability is

not in dispute, the Court will review the determination of the

Appeals Office for abuse of discretion. Lunsford v.

Commissioner, 117 T.C. 183, 185 (2001); Sego v. Commissioner,

supra at 610; Goza v. Commissioner, 114 T.C. 176, 182 (2000). An

abuse of discretion occurs if the Appeals Office exercises its

discretion “arbitrarily, capriciously, or without sound basis in

fact or law.” Woodral v. Commissioner, 112 T.C. 19, 23 (1999). 

Petitioners’ only argument throughout the section 6330

hearing process was directed to the interest assessed in

connection with the 2000-02 income tax deficiencies, additions to

tax, and penalties. Petitioners allege in their petition that

with regard to interest the respondent “failed to correctly apply

* * * the Internal Revenue Code in his determination to assess

the liability against the taxpayer”, and they allege in their

Forms 12153 only that the “amount due was paid”. 
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5Sec. 7481(c)(2)(A)(ii) requires the taxpayer to have “paid

the entire amount of the deficiency plus interest” for the Tax

Court to have overpayment jurisdiction regarding interest. 

Petitioners clearly did not satisfy this requirement.

6Sec. 6404(e) was amended by the Taxpayer Bill of Rights 2,

Pub. L. 104-168, sec. 301, 110 Stat. 1457 (1996), to permit the

Secretary to abate interest with respect to an “unreasonable”

error or delay resulting from managerial and ministerial acts. 

The amendment applies to interest accruing with respect to

deficiencies or payments for tax years beginning after July 30,

1996. Id.

We generally lack jurisdiction to determine the

appropriateness of the interest computed under section 6601,

except in two circumstances. Urbano v. Commissioner, 122 T.C.

384, 390 (2004). First, under section 7481(c), the Court may

redetermine an overpayment of interest if the taxpayer files a

motion with the Court within 1 year after the date a decision of

the Court becomes final. Id. Petitioners did not timely move

the Court for a redetermination of interest under section 7481(c)

or satisfy the section 7481(c) requirements.5 Second, we may

review the Commissioner’s denial of an abatement of interest

under section 6404(h). Id. Section 6404(e) authorizes the

Secretary to abate the assessment of interest attributable to an

unreasonable error or delay by the Internal Revenue Service in

performing a ministerial or managerial act.6 Although the Court

has jurisdiction to review the Appeals officer’s determination

regarding interest if a taxpayer requests an abatement of

interest in a section 6330 hearing, Katz v. Commissioner, 115
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T.C. 329, 340-341 (2000), we will not consider an issue regarding

abatement of interest if it was not properly raised at the

section 6330 hearing and/or considered in the notice of

determination, Magana v. Commissioner, 118 T.C. 488, 493-494

(2002). 

In their objection to respondent’s motion for summary

judgment, petitioners argue that they are entitled to an

abatement of interest under section 6404(e)(1). Although

petitioners and the Appeals officer apparently discussed the

appropriateness of the assessed interest as well as a general

request by petitioners to abate interest during the section 6330

hearing, petitioners do not allege that they actually made a

claim for abatement under section 6404(e) or that they presented

any information during the section 6330 hearing to support a

section 6404(e) abatement claim. Moreover, there is no

indication in the administrative record submitted with

respondent’s motion that petitioners presented any information to

the Appeals officer during the section 6330 hearing to establish

that they were entitled to abatement under section 6404(e), and

petitioners do not allege to the contrary in their objection to

respondent’s motion. We conclude, therefore, that petitioners

have failed to support their interest abatement request with

sufficient specificity to preserve the issue for Court review. 
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7In their objection to respondent’s motion, petitioners

allege only that the Internal Revenue Service (IRS) failed to

provide them with a specific payoff amount after the stipulated

decision was entered and that the IRS waited approximately 2

months after petitioners made their $139,979.80 payment to

attempt to collect interest. Even if we treat petitioners’

request as a sec. 6404 abatement claim and we accept these

statements as true for purposes of the summary judgment motion,

they are insufficient to support a claim for abatement under sec.

6404(e)(1), which authorizes an abatement of interest

attributable to an unreasonable error or delay by an officer or

employee of the IRS in performing a ministerial or managerial

act. 

See Poindexter v. Commissioner, 122 T.C. 280, 284-286 (2004),

affd. 132 Fed. Appx. 919 (2d Cir. 2005).7 

The undisputed facts establish that during the section 6330

hearing process petitioners did not propose a collection

alternative or otherwise submit any financial information from

which Appeals Officer Peck could have evaluated potential

collection alternatives. The undisputed facts also establish

that, after reviewing the administrative record and determining

that the requirements of section 6330 had been satisfied, the

Appeals officer reasonably concluded that the collection action

could proceed. We find no abuse of discretion in her

determination.
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We conclude on the record before us that there is no genuine

issue of material fact requiring a trial, and we hold that

respondent is entitled to the entry of a decision sustaining the

proposed levy as a matter of law. 

An appropriate order and

decision will be entered.