Opinion
35534-21L
04-23-2024
TRACIE MICHELE DEJARNETTE-HOLLY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Adam B. Landy Special Trial Judge
This collection review case is before the Court on the Commissioner's Motion for Summary Judgment (Motion), filed June 28, 2023. On October 24, 2023, the Court directed Ms. Holly to file a response, if any, on or before November 22, 2023. To date, Ms. Holly has filed no response. For the reasons stated below, we will grant the Commissioner's Motion.
On June 25, 2019, the Commissioner issued Ms. Holly a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 for tax year 2011. On July 15, 2019, the Commissioner received from Ms. Holly a Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated July 10, 2019. Therein, Ms. Holly requested a collection due process (CDP) hearing and lien withdrawal. Ms. Holly wrote, "[t]he tax return that we filed for 2011 has that we overpaid by $39. Now in 2019 we get a notice we owe $18,136 with no explanation regarding this."
On April 24, 2020, the IRS Independent Office of Appeals (Appeals) issued Ms. Holly a letter scheduling her telephonic CDP hearing. The letter requested that Ms. Holly complete Form 433-A, Collection Information Statement for Wage Earners and Self-Employment Individuals. The letter noted that Ms. Holly could not dispute her underlying liability for 2011 at the CDP hearing because she had previously had an opportunity to dispute a notice of deficiency issued for that year. Further, the letter noted that Ms. Holly's request for lien withdrawal would not be considered.
Ms. Holly was issued a notice of deficiency for the 2011 tax year on April 28, 2014. On July 23, 2014, Ms. Holly filed a petition in this Court with respect to this notice of deficiency, at Docket No. 16839-14S. On March 9, 2015, the Court entered an Order of Dismissal for Lack of Jurisdiction in that case on grounds that Ms. Holly failed to ratify the petition after being directed to do so by the Court.
During the telephonic CDP hearing on May 6, 2020, the settlement officer (SO) discussed the role of Appeals and explained the purpose of the hearing. Ms. Holly did not request a collection alternative or raise issues besides lien withdrawal. Ms. Holly's case was subsequently transferred to a second SO, who reviewed the collection file and IRS records. The second SO determined that the lien should be sustained.
On October 14, 2021, the Commissioner issued Ms. Holly a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code (Notice of Determination) sustaining the notice of federal tax lien for tax year 2011 and noting that Ms. Holly had not established that the lien should be withdrawn, under the provisions of section 6323(j). Ms. Holly subsequently filed the Petition to commence this case, attaching thereto a partial copy of the Notice of Determination. In her Petition, Ms. Holly referenced her 2011 tax return and appeared to challenge her underlying liability for that tax year.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Section 6330 provides that during a CDP hearing a taxpayer may raise relevant issues (e.g., spousal defenses, the appropriateness of the proposed collection action, and possible collection alternatives). See §§ 6320(c) and 6330(c)(2)(A). The Court cannot consider issues that were not properly raised during the CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107, 114 (2007).
Because Ms. Holly had a prior opportunity to challenge her underlying liability for 2011 in a docketed case before this Court, she was precluded from challenging her liability at the CDP hearing. See § 6330(c)(2)(B); Treas. Reg. § 301.6320-1(e)(3), Q & A-E2. Accordingly, the underlying liability is not at issue, and we review the Commissioner's administrative determinations for abuse of discretion. See Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000).
Review of the Commissioner's Motion and accompanying materials show that the Commissioner proceeded as required under section 6330, and nothing submitted by Ms. Holly suggests otherwise. See §§ 6320(c), 6330(c)(3); see also Lunsford v. Commissioner, 117 T.C. 183, 184 (2001). The Commissioner has established that there is no genuine dispute relating to any material fact and that summary judgment in favor of the Commissioner is appropriate. See Rule 121(a)(2); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). Summary judgment is also appropriate, under Rule 121(d), because of Ms. Holly's failure to respond to the Motion. Further in the alternative, the Court would dismiss the case pursuant to Rule 123(b).
Upon due consideration of the Commissioner's Motion and for cause, it is
ORDERED that the Commissioner's Motion for Summary Judgment, filed June 28, 2023, is granted both on its merits and, in the alternative, on the ground that Ms. Holly failed to comply with the Court's Order that she respond to the Motion (see Rule 121(d); see also Rule 123(b)). It is further
ORDERED AND DECIDED that the determinations set forth in the Notice of Determination, dated October 14, 2021, upon which this case is based, are sustained.