Opinion
11689-20SL
01-27-2022
JAROLD D. BUCKRIDGE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Kathleen Kerrigan Judge
This case was called from the calendar during the remote Trial Session of the Court in Kansas City, Missouri, on January 24, 2022. There was no appearance by or on behalf of petitioner. Respondent was heard on respondent's motion for summary judgment filed November 29, 2021, which was set for hearing on January 24, 2022.
The petition in this case was filed in response to a Notice of Determination Concerning Collection Action(s) under Section 6320 and/or 6330 dated August 12, 2020, upholding a proposed levy collection action for unpaid tax liabilities for 2016 and 2017 (years at issue). Unless otherwise indicated, all statutory references are to the Internal Revenue Code, title 26 U.S.C, in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Petitioner resided in Missouri when he timely filed his petition. On July 14, 2019, respondent sent petitioner a notice of intent to levy and notice of your right to hearing for the years in issue. On August 19, 2019, petitioners sent a Form 12153, Request for a Collection Due Process or Equivalent Hearing, on which he checked "installment agreement," "offer in compromise," and "I cannot pay balance."
A settlement officer was assigned, and a collection due process hearing was held on May 14, 2020. Petitioner did not raise his underlying liability for the years in issue. The settlement officer requested a completed Form 433A, Collection Information Statement. The settlement officer also explained that petitioner should be compliant with his estimated tax payments for 2020 by July 2020. By August 12, 2020, petitioner was not compliant with his estimated taxes and had not completed his Form 433A. The settlement officer verified that the requirements of applicable law and procedure had been followed.
Summary judgment may be granted where the pleadings and other materials 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(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). The burden is on the moving party (in this case, respondent) to demonstrate that there is no genuine dispute as to any material fact and that he or she is entitled to judgment as matter of law. FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74-75 (2001).
Petitioner has failed to show that there is a genuine issue for trial. Rule 121(d). Consequently, we conclude that there is no dispute as to any material fact and that a decision may be rendered as a matter of law.
Section 6330 requires the Secretary to furnish a person notice and opportunity for a hearing before an impartial officer or employee of the Internal Revenue Service Independent Office of Appeals (Appeals) before levying on the person's property. The person may challenge the existence or the amount of the underlying tax liability for any period only if the person did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the liability. § 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 609 (2000).
Following a hearing, the Appeals officer must determine whether proceeding with the proposed levy action is appropriate. In making that determination, the Appeals officer is required to take into consideration: (1) whether the requirements of any applicable law or administrative procedure have been met; (2) any issues appropriately 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. § 6330(c)(3); see also Lunsford v. Commissioner, 117 T.C. 183, 184 (2001). Where, as here, the taxpayer does not challenge the underlying liability our review is for abuse of discretion. Sego v. Commissioner, 114 T.C. at 610. An abuse of discretion occurs if Appeals exercises its discretion "arbitrarily, capriciously, or without sound basis in fact or law". Woodral v. Commissioner, 112 T.C. 19, 23 (1999). The Court does not conduct an independent review and substitute its judgment for that of the settlement officer. Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff'd, 469 F.3d 27 (1st Cir. 2006).
The settlement officer did not abuse her discretion because petitioner failed to provide requested financial information and to be compliant with respect to estimated tax payments for 2020. See Pough v. Commissioner, 135 T.C. 344, 351 (2010).
Upon due consideration, and for cause more fulling appearing in the transcript of the proceeding, it is
ORDERED that respondent's motion for summary judgment, dated November 29, 2021 is granted. It is further
ORDERED and DECIDED that respondent's notice of determination dated August 12, 2020, upon which this case is based, is sustained.