Opinion
6431-23L
04-02-2024
NICOLET SELL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Maurice B. Foley Judge
On January 12, 2024, the Court filed respondent's Motion for Summary Judgment. The Court, on January 17, 2024, ordered petitioner to file any objection on or before February 7, 2024. No objection has been filed. Unless otherwise indicated, section references are to the Internal Revenue Code in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On June 28, 2021, respondent issued petitioner a statutory notice of deficiency relating to 2018 in which respondent determined an income tax deficiency and a substantial tax understatement penalty pursuant to section 6662. Petitioner did not petition this Court in response to the notice of deficiency, and, on November 29, 2021, respondent assessed the deficiency and the penalty.
On September 16, 2022, respondent issued petitioner a Final Notice of Intent to Levy and Notice of Your Rights to a Hearing, relating to 2017 and 2018. In a timely filed Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated October 11, 2022, petitioner did not offer any collection alternatives, but she did contest her underlying tax liability relating to 2018.
In a letter dated January 6, 2023, respondent's settlement officer notified petitioner that her telephonic collection due process (CDP) hearing was scheduled for February 2, 2023. The settlement officer requested that petitioner complete Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals (Form 433-A); provide signed copies of tax returns for 2019, 2020, and 2021; and submit information about her income and expenses by January 27, 2023, so that the settlement officer could consider potential collection alternatives. The letter also informed petitioner that she could not contest the underlying liability relating to 2018.
Petitioner failed to call or otherwise appear for the scheduled CDP hearing and did not submit the requested documentation. In a letter dated February 3, 2023, the settlement officer offered petitioner 14 days to provide Form 433-A and reschedule her CDP hearing. In a subsequent letter dated March 3, 2023, the settlement officer gave petitioner an additional 14 days to respond to her previous letters because petitioner lived in a declared disaster zone.
Petitioner did not contact the settlement officer or provide any of the requested information. Respondent, on March 29, 2023, issued petitioner a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330, (notice of determination) sustaining the levy. On April 27, 2023, petitioner, while residing in California, timely filed her Petition with the Court contending that she was not provided a CDP hearing and that she did not owe any additional tax. The Court, on June 14, 2023, filed respondent's timely Answer.
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 I.R.C. § 6330(c)(2)(A). A taxpayer may dispute the underlying liability during the CDP hearing if the taxpayer did not receive a notice of deficiency or otherwise have an opportunity to dispute such liability. See I.R.C. § 6330(c)(2)(B). 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 her telephonic CDP hearing, the underlying liability relating to 2017 is not at issue. See I.R.C. § 6330(c)(2)(B); Giamelli, 129 T.C. at 113-14. In addition, petitioner is precluded from challenging her underlying liability relating to 2018 because she received a notice of deficiency for such tax liability and decided not to petition the Court. Accordingly, the underlying liability is not at issue, and 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 propose a collection alternative or provide the requested financial documentation. See McClaine v. Commissioner, 138 T.C. 228, 243 (2012). The settlement officer has met all 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, 190 (2001). Respondent has established that there is no genuine dispute relating to any 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 on January 12, 2024, 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 2017 and 2018.