Opinion
12731-19SL
06-23-2021
Rodney Smith, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
Diana L. Leyden, Special Trial Judge
On July 10, 2019, 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 June 6, 2019. The notice of determination sustained a notice of Federal tax lien filing with respect to petitioner's unpaid tax liability for civil penalties under section 6702(a) for 2014 and 2016. This case was calendared for trial at the March 30, 2020, Detroit, Michigan, Trial Session of the Court. By order served on March 12, 2020, the Court notified the parties that due to concerns relating to coronavirus (COVID-19), the trial session scheduled to begin in Detroit, Michigan, on March 30, 2020, was canceled, and the case was assigned to the undersigned.
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 April 5, 2021, respondent filed a Motion For Summary Judgment (motion) under Rule 121. Respondent attached to his motion a declaration by Alicia Howard, Internal Revenue Service (IRS) Office of Appeals (Appeals Office) appeals officer. The Court by order served April 6, 2012, directed petitioner to file a response to the motion by April 30, 2021. By subsequent orders the Court extended the time for petitioner to file a response to June 21, 2021. Petitioner filed a response on June 21, 2021, objecting to respondent's 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.
Upon review of the record on respondent's motion, the Court concludes that there is a genuine dispute as to material facts and that respondent is not entitled to judgment as a matter of law.
Background
The record on respondent's motion establishes the following. Petitioner resided in Michigan at the time the petition in this case was filed with the Court.
The IRS assessed penalties under section 6702(a) against petitioner for filing 2014 and 2016 frivolous returns on May 14, 2018, and April 23, 2018, respectively. The IRS mailed to petitioner at his last known address a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6330 dated October 2, 2018. Petitioner sent to the IRS Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated November 5, 2018, to challenge the filed notice of Federal tax lien with respect to his unpaid tax liabilities for 2014 and 2016. Petitioner checked the box for a withdrawal of the lien and in that box as well as in the "Other" box on Form 12153 wrote "See attached #8 Expansion." However, the exhibits to the declaration of Alicia Howard do not contain a document titled "#8 Expansion". The record does contain an item titled "Completed CDP, Item 8" which the Court understands may be the referenced attachment. Petitioner in that attachment appears to dispute the assessment of the civil penalty under section 6702(a) for both 2014 and 2016.
Petitioner did not check the box to request an equivalent hearing. The record indicates that petitioner's Form 12153 was received by ACS Support Center on November 27, 2018, and contains another notation that indicates that it was received by another part of the IRS noted as Collection Due Process on November 28, 2018. While both of those dates are beyond 35 days from the date of the notice of Federal tax lien respondent has not asserted that petitioner's Form 12153 was filed untimely.
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).
Petitioner in his objection asserts, among other things, that respondent has not provided a copy of petitioner's 2014 or 2016 tax returns with his motion, the returns that the IRS determined were frivolous. Respondent in his motion states the following:
On September 02, 2016 and October 23, 2017 petitioner filed a Form 1040 Federal Individual Income tax returns for years 2014 and 2016 respectively. In addition to claiming zero earned income for the abovementioned tax years, petitioner attached self-prepared Form 4852(s) [footnote omitted] claiming that his payments were falsely characterized as "wages" as he was a worker in the private-sector and not an "Employee" as defined in section 3401(c).
However, respondent has also not provided a copy of the referenced Forms 4852. What petitioner included on his return and the alleged statements on the alleged Forms 4852 are material facts in this matter and petitioner disputes the facts asserted by respondent. Accordingly, the Court concludes that there is a genuine dispute as to material facts and that respondent is not entitled to judgment as a matter of law.
Premises considered, it is
ORDERED that respondent's Motion For Summary Judgment, filed April 5, 2021, is denied without prejudice.