Kenneth O. & Althea C. Garcia, Petitioner

T .C . Summary'0pinion 2009-14 1

UNITED STATES TAX COUR T

KENNETH 0 . AND ALTHEA C . GARCIA, Petitioners v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 30831-08S .

Filed September 9, 2009 .

Kenneth 0 . Garcia and Althea C . Garcia, pro sese .

Adam C . Silva , for respondent .

LARO, Judge : This case was heard pursuant . to the provisions of section 7463 of the Internal Revenue Code -ineffect when the petition was filed .' Pursuant to section 7463(b), the decision to be entered-is not reviewable by any other court, an d 'Section references are to the applicable versions of the, Internal Revenue Code . Rule references are to the Tax Court Rules of Practice and Procedure .

SERVED SEP - 9 2009

this opinion shall not be treated as precedent for any othe r case .

Petitioners petitioned the Court under section 6330(d) t o review the determination of the Internal Revenue .-Service Offic e of',Appeals (Appeals) sustaining a proposed levy related to thei r Fcr, .et ..

E ` -2`004-Federal income tax . The petition alleges primarily that the proposed levy is improper because Appeals refused to consider an y 'of-fer-din-compromise by petitioners . This case is currentl y ' before h e Court on respondent's motion to decide by summar y judgment that he is entitled to proceed with collection of ► .: .

. - k ~~T4petityoners' 2004 Federal income tax liability . We agree with the substance of that-motion, and we shall grant it .

Background Petitioners failed to file a Federal income tax return for 2004 . On September 12, 2007, respondent sent to petitioners a notice of deficiency for 2004 . The notice of deficienc y determined a $16,081 deficiency in petitioners' Federal income tax, a $4,604 addition to tax under section 6651(a)(1), and a $3,216 .20 accuracy-related penalty under section 6662(a)j.

Petitioners received the notice of deficiency but did not petition the Court with respect to it . Respondent subsequentl y assessed the deficiency, addition to tax, and accuracy-relate d penalty, plus applicable interest .

I On or about April'14, 2008, respondent notified petitioners that respondent was proposing a levy-to collect their unpaid Federal income tax liability for"2004 and that they could request a hearing with Appeals as to the matter . Petitioners requested the hearing,-stating .that they desired to enter into an offer in compromise for 2004 . Appeals subsequently advised petitioners on August 27,P2008, that it .would consider an offer in compromise only if : (1) Petitioners .filed their 2006 and 2007 Federal income tax returns so as, to be .-in compliance with their tax .

return filing requirements, and= (2) petitioners completed and, timely submitted a Form 433-A, . :Collection,Information Statement for Wage Earners and Self-Employed Individuals, with'appropriate .

attachments to a named officer of :Appeals at her Fresno, California, address-listed on the advice . Included with the advice=was a copy of,Form 433-A 2008, Appeals notified petitioners that it ha d . On October 8, set a telephone conference with them for November 5,,2008, and reminded petitioners that the named officer of Appeals still needed to receive the Form 433-A and other previously requested items to consider any request by them for an offer in compromise .

Included with that notification was another copy of Form 433-A .

On the scheduled date, Appeals conducted- the . telephone hearing with petitioner Kenneth Garcia (Mr . Garcia) . During the hearing ., Mr . Garcia informed Appeals that his accountant was supposed to have rescheduled the hearing for a later date . Appeals noted it had not received from petitioner-either a power of attorney as t o the matter or the requested Form 433-A with attachments .

Garcia asked Appeals for more time to submit the Form 433-A wit h attachments .

Appeals responded that it had twice previousl y requested,that document from petitioners .

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. - j On November 21, 2008, Appeals issued each petitioner a notice of determination sustaining the proposed levy . The determination stated in part that petitioners had filed the requested tax returns but had failed to submit the requested For m 433-A with attachments to the designated Appeals officer-,at the listed address . The determination also stated that petitioners disagreed with their underlying tax liability as shown in , respondent's books but were not allowed to dispute that liability at the hearing because they had had a prior opportunity to do so .

When petitioners petitioned the Court in commencement o f this case, they resided in California . jj Discussion Summary judgment may be granted with respect to any part o f the legal issues in controversy if the records before the Court "show that there is no genuine issue as to any material fact and it that a decision may be rendered as a matter of law ." Rule 121(a ) and (b) ; Craig v . Commissioner , 119 T .C . 252, 259-260 (2002) .

Respondent bears the burden of proving there is no genuine issue 5 - of material-fact, and all facts are interpreted in the light most favorable to petitioners` See Craig V . Commissioner , supra at 260 . However, petitioners must do more than merely allege or deny facts ; they must set forth ",specific facts showing that there is a genuine issue for trial . See Rule 121(d) ; Celotex Corp . v . Catrett , 477 U .S . 317, 324 (1986) . Under this standard, petitioners have failed to raise any genuine issue of material fact,'-and summary judgment is appropriate . I Section 6330 .provides for notice and opportunity for a hearing before the Commissioner may levy upon the property of any person . The person may raise at the hearing any relevant issue relating to the unpaid tax or proposed levy, including challenges to the appropriateness of the collection action and offers o f collection alternatives . The person may challenge the existenc e or amount of the underlying tax liability for the . year only if the person did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the .liability . See sec .

6330(c)(2)(B) ; Sego v . Commissioner , 114 T .C . 604, 609 (2000) .

Once Appeals issues a notice of determination, the person may seek judicial review in this Court . See sec . 6330(d)(1) . Unless the validity of the underlying tax-liability is properly at issue, we review the-determination for abuse of discretion . See Sego v . Commissioner , supra at 609-610 .

N.

6 - Petitioners indicated in their response to respondent's motion that their underlying tax liability is less than that now sought by respondent . The validity of their underlying tax liability, however, is not properly at issue because petitioners previously received a notice of deficiency for 2004 and had an .

opportunity to dispute their tax liability for 2004 at that time .

The mere fact that petitioners' accountant may not have filed with the Court a petition in dispute of the notice of deficiency, as petitioners claim they wanted him to do, is not sufficient for them to prevail on this issue .

Nor do we believe that Appeals abused its discretion when it declined to consider any offer in compromise from petitioners .

Petitioners failed to provide the Form 433-A with attachments to the designated officer of Appeals .at the listed address althoug h Appeals twice asked them to do so . See Olsen v . United States , 414 F .3d 144 (1st Cir . 2005) ; Huntress v . Commissioner , T .C .

Memo . 2009-161 ; McCall v . Commissioner , T .C . Memo . 2009-75, .

Petitioners assert in their response to respondent's motion that they did timely provide . Appeals with the requested form . To that end, .petitioners note, their response includes a completed .Form 433-F, Collection Information Statement, and a U .S . Postal Service receipt showing that they mailed a letter to the Internal Revenue Service on September 5, 2008 . The letter, however, was mailed not to the named Appeals officer at her listed address in Fresno, California, but to an Internal Revenue Service Center at a post office box in Holtsville, New York . Moreover, even if we were to presume favorably to petitioners that the letter actually was the Form 433-F included with the response, that form : (1) I s different than the Form 433-A, a copy of which was provided t o petitioners by Appeals on two occasions, and (2) lacked any o f the referenced attachments .

We sustain the determinations of Appeals that the proposed levy is appropriate . In so doing, we have considered all of petitioners .' contentions and have concluded that those contentions not discussed herein are without merit . To reflect the foregoing, An appropriate order and decision will be entered for respondent .