1Unless otherwise indicated, all section references are to

the Internal Revenue Code of 1986, as amended, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

T.C. Summary Opinion 2009-33

UNITED STATES TAX COURT

JOEL DELLON AND EVANGELINE DELEON, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 24345-07S. Filed March 12, 2009. 

Joel Dellon and Evangeline Deleon, pro sese.

Chong S. Hong and James A. Whitten 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.1 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. 
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This case arose when petitioners filed a petition seeking

review of respondent’s determination that a notice of Federal tax

lien filed with respect to petitioners’ 2002 and 2003 tax

liabilities would not be withdrawn. At that time petitioners

resided in California. Respondent moved for summary judgment, and

petitioners failed to respond to respondent’s motion. 

Respondent’s motion will be granted. 

Background

Petitioners’ 2002 and 2003 joint Federal income tax returns

were examined, and respondent determined that petitioners were

liable for additional tax in each year. After the issuance of a

notice of deficiency, the additional taxes were assessed on

October 3, 2005. On October 23, 2006, respondent sent petitioners

notification of the filing of a notice of Federal tax lien with

respect to the assessed additional tax liabilities. Petitioners,

on October 26, 2006, requested a hearing, and Appeals Officer Paul

Sivick agreed with petitioner Joel Dellon that the hearing would

be conducted by correspondence. 

On May 31, 2007, petitioner Dellon argued that respondent

should withdraw the lien because petitioners had requested an

installment agreement to pay the outstanding tax liabilities. The

Appeals officer, in a July 16, 2007, letter, explained to

petitioners why respondent had decided not to withdraw the tax

lien. In that letter, the history of the administrative
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proceeding and the hearing was outlined. In effect, petitioners

had sought alternatives to collection such as offers-in-compromise

or installment payments but did not provide complete financial

information. Respondent determined, using the available

information about petitioners’ assets and income, that their

offers and proposed installment payments were less than they were

able to pay. It was also explained that respondent is not legally

prohibited from filing and maintaining a tax lien during the

pendency of an installment agreement. Accordingly, petitioners’

offer and/or installment plan had been rejected. Under those

circumstances, respondent refused to withdraw the lien.

Discussion

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 there is no genuine issue as to any material fact

and 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). There is no genuine issue as 

to any material fact in this case, and summary judgment may be

rendered in respondent’s favor as a matter of law.

Petitioners did not petition respondent’s determination in

the notice of deficiency that additional taxes were due for 2002
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and 2003. Accordingly, petitioners may not question the

underlying tax liabilities. See Giamelli v. Commissioner, 129

T.C. 107 (2007). We review respondent’s determination not to

withdraw the notice of Federal tax lien under an abuse of

discretion standard. See Goza v. Commissioner, 114 T.C. 176

(2000). 

Under section 6330(c)(3) an Appeals officer must take the

following matters into consideration regarding the filing of a

notice of Federal tax lien: (1) Verification of whether the

requirements of applicable law and administrative procedures have

been met; (2) the issues raised by the taxpayer; and (3) whether

the proposed collection action balances the need for the efficient

collection of taxes with the legitimate concern of the taxpayer

that any collection action be no more intrusive than necessary. 

In this case, the Appeals officer considered all of the

section 6320(c) requirements and decided that the notice of tax

lien should not be withdrawn. All arguments petitioners raised

were considered, and collection alternatives were explored and

thoroughly considered. Petitioners were found to have assets or

resources that exceeded the amounts they were willing to pay with

respect to collection alternatives. Under these circumstances, we

hold that there was no abuse of discretion in the determination

not to withdraw the notice of tax lien. Respondent’s motion for

summary judgment will be granted.
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To reflect the foregoing,

An appropriate order and

decision will be entered.