Opinion
12823-20L
03-24-2023
Marlin E. Overton, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Maurice B. Foley Judge
On August 3, 2022, the Court filed respondent's Motion for Summary Judgment. The Court, on August 4, 2022, ordered petitioner to file any objection on or before September 2, 2022. No objection has been filed. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On August 27, 2019, respondent issued petitioner a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 relating to 2012, 2013, 2014, 2015, and 2016. In a timely filed request for a Collection Due Process (CDP) hearing dated September 30, 2019, petitioner stated that he could not pay the liability due and requested collection alternatives (i.e., an offer in compromise and an installment agreement). Respondent, on November 4, 2019, sent petitioner a letter informing him that his CDP request was received and requesting that petitioner complete Form 656-B, Offer in Compromise, and Form 433-F, Collection Information Statement. On December 6, 2019, petitioner sent respondent a completed Form 433-F.
In a letter dated May 13, 2020, respondent informed petitioner that his telephonic CDP hearing was scheduled for June 9, 2020, asked petitioner whether he planned to challenge the underlying tax liability, proposed an $806 monthly installment payment, and requested that petitioner respond within 7 days. Respondent also requested that petitioner send a completed Form 656, Offer in Compromise, a completed Form 433-A, Collection Information Statement, and substantiation of income and expenses within 14 days. Petitioner did not contact respondent about the proposed installment agreement and respondent did not receive any of the requested forms or verification.
On June 9, 2020, petitioner did not participate in the telephonic hearing. Respondent, in a letter dated June 9, 2020, noted that petitioner missed the telephonic hearing, requested that petitioner send completed Forms 433-A and 656, and informed petitioner that a determination would be made using only information petitioner provided. Petitioner did not reply.
Respondent, on September 29, 2020, issued petitioner a notice of determination sustaining the lien. On November 2, 2020, petitioner timely filed his petition with the Court. The Court, on November 18, 2020, ordered petitioner to file an amended petition on or before February 16, 2021. On February 22, 2021, the Court filed petitioner's First Amended Petition. Petitioner disputed Notices of Deficiency and Determination relating to 2013 through 2019, contested the underlying liability relating to 2012, and contended that respondent abused his discretion by not allowing any collection alternatives.
On April 16, 2021, the Court filed respondent's Motion to Dismiss for Lack of Jurisdiction as to Alleged Notice of Deficiency for Years 2013 Through Present and as to Alleged Notice of Determination Concerning Collection Action for Years 2017 Through Present and To Strike. The Court issued an Order granting respondent's motion in full on June 6, 2022. The Court, on June 15, 2022, filed respondent's Answer to Amended Petition, addressing only the remaining Notice of Determination relating to 2013 through 2016.
Section 6330 provides that during a CDP hearing a taxpayer may raise relevant issues such as spousal defenses, the appropriateness of the proposed collection action, and possible collection alternatives. See section 6330(c)(2)(A). The Court cannot consider issues that were not raised during a CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107, 114 (2007). Because petitioner failed to participate in his telephonic hearing the underlying liability is not at issue. See section 6330(c)(2)(B); Giamelli, 129 T.C. at 113-14. Accordingly, we review the Commissioner's administrative determinations for abuse of discretion. See Pough v. Commissioner, 135 T.C. 344, 351 (2010); Goza v. Commissioner, 114 T.C. 176, 182 (2000).
Petitioner did not participate in his telephonic hearing, failed to provide the requested financial information, and thus was not eligible for collection alternatives. See McClaine v. Commissioner, 138 T.C. 228, 243 (2012); Pough, 135 T.C. at 351. The Appeals officer met the requirements of section 6330(c) and respondent did not abuse his discretion. See Nestor v. Commissioner, 118 T.C. 162, 166 (2002); Lunsford v. Commissioner, 117 T.C. 183, 187-88 (2001). Respondent has established that there is no genuine dispute of material fact and that he is entitled to judgment as a matter of law. See Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). Accordingly, pursuant to Rule 121, summary judgment in favor of respondent is appropriate. Upon due consideration of the foregoing, it is:
ORDERED that respondent's Motion for Summary Judgment, filed August 3, 2022, is granted. It is further
ORDERED AND DECIDED that respondent may proceed with the collection action as determined in the Notice of Determination relating to 2013, 2014, 2015, and 2016.