Opinion
11654-20SL
03-30-2022
Donald Joseph Juvet, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden, Special Trial Judge
On September 11, 2020, petitioner timely filed a petition in this case. Petitioner seeks review of a Notice of Determination Concerning Collection Actions under Section 6320 or 6330 of the Internal Revenue Code (notice of determination), dated August 5, 2020. The notice of determination sustained notices of Federal tax lien filings with respect to petitioner's unpaid tax liabilities for 2010, 2011, 2012, and 2015.
Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended, in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On October 15, 2021, respondent filed a motion for summary judgment (motion) under Rule 121. Respondent attached to his motion in support of the motion a declaration by Nchekube Onyima, respondent's attorney assigned to the case. Respondent did not attach to his motion in support of the motion any declarations from the Internal Revenue Service (IRS) Appeals Officers assigned to the case. The Court by order served January 28, 2022, directed petitioner to file a response to the motion. Petitioner has not filed a response to the motion
The Court uses the term "IRS" to refer to administrative actions taken outside of these proceedings. The Court uses the term "respondent" to refer to the Commissioner of Internal Revenue, who is the head of the IRS and is respondent in this case, and to refer to actions taken in connection with this case.
Petitioner resided in California at the time the petition in this case was filed with the Court.
Upon review of the record on respondent's motion, the Court concludes that there is a genuine issue of material fact and thus, respondent is not entitled to judgment as a matter of law.
Background
The record on respondent's motion establishes and the parties do not dispute the following.
The IRS issued a Notice of Federal Tax Lien and Your Right to A Hearing Under IRC 6320 dated July 2, 2019, with respect to petitioner's 2010, 2011 and 2012 tax liabilities. The IRS also issued a Notice of Federal Tax Lien and Your Right to A Hearing Under IRC 6320 dated July 2, 2019, with respect to petitioner's and his wife's 2015 tax liability. The notices of Federal tax lien advised petitioner of his right to request a collection due process (CDP) hearing on or before August 9, 2019. However, 35 days from the date of the notices of Federal tax lien is August 6, 2019.
Discussion
Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Florida Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Either party may move for summary judgment upon all or any part of the legal issues in controversy. Rule 121(a). The Court may grant summary judgment only "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits or declarations, if any, show that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law." Rule 121(a) and (b); see Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
Respondent, as the moving party, bears the burden of proving that no genuine dispute exists as to any material fact and that respondent is entitled to judgment as a matter of law. See FPL Grp., Inc. v. Commissioner, 115 T.C. 554, 559 (2000); Bond v. Commissioner, 100 T.C. 32, 36 (1993); Naftel v. Commissioner, 85 T.C. at 529. In deciding whether to grant summary judgment, the factual materials and inferences drawn from them must be considered in the light most favorable to the nonmoving party. FPL Grp., Inc. v. Commissioner, 115 T.C. at 559; Bond v. Commissioner, 100 T.C. at 36; Naftel v. Commissioner, 85 T.C. at 529. The party opposing summary judgment must set forth specific facts which show that a question of genuine material fact exists and may not rely merely on allegations or denials in the pleadings. Rule 121(d); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Grant Creek Water Works, Ltd. v. Commissioner, 91 T.C. 322, 325 (1988); King v. Commissioner, 87 T.C. 1213, 1217 (1986).
Respondent asserts in his motion that petitioner submitted a Form 12153, Request for a Collection Due Process or Equivalent Hearing, to challenge the filed notices of Federal tax lien with respect to his unpaid tax liabilities for 2010, 2011, 2012, and 2015. However, the record before us does not include the complete Form 12153. Instead, attached as Exhibit H to the declaration of Nchekube Onyima, is the first page of the Form 12153 and a letter that bears the type-written name of petitioner and a scrawl which the Court cannot make out as a signature. Further, even assuming as respondent asserts that the Form 12153 was postmarked on August 8, 2019, that date appears to be later than 35 days from the date of the notices of Federal tax lien. Respondent asserts in his motion that petitioner's Form 12153, Request for a Collection Due Process or Equivalent Hearing, challenging the filed notices of Federal tax lien with respect to petitioner's unpaid tax liabilities for 2010, 2011, 2012, and 2015 bore a postmark dated August 8, 2019. However, the record before us does not include the complete Form 12153 nor evidence of a postmark. Further, the Court questions that the attorney who provided the declaration had personal knowledge of the postmark. Instead, attached as Exhibit H to the declaration of Nchekube Onyima, is the first page of the Form 12153 and a letter that bears the type-written name of petitioner and a scrawl which the Court cannot make out as a signature. Further, August 8, 2019, the date that respondent asserts is the date the Form 12153 was postmarked, appears to be later than 35 days from the date of the notices of Federal tax lien. See I.R.C. § 6320(a)(3)(B). Therefore, there is a dispute as to the material fact that respondent verified that the Form 12153 was timely filed.
Premises considered, it is
ORDERED that respondent's motion for summary judgment, filed October 15, 2021, is denied without prejudice.