Valdy Olender, Petitioner

T. . C . Memo . 2008-20 5

UNITED STATES TAX COUR T

VALDY OLENDER, Petitioner v . COMMISSIONER OF INTERNAL'REVENUE, Responden t Docket Nos . l082-06L ,,2l969-06L .

Filed August 28, 2008 .

Valdy Olender , pro-se .

Lauren E . Epstein, for respondent .

MEMORANDUM OPINION .

SWIFT', Judge : These consolidated .matters are before us under Rule 121 on respondent's motion for summary judgment .

Unless otherwise indicated,(cid:127)all section references . are to the Internal Revenue Code, and all Rule references are to the Tax Court Rules of-Practice and Procedure .

SERVED AUG 2 8 2008

Respondent moves for summary judgment as to petitioner' s challenges to respondent's lien filing and proposed levy relatin g to petitioner and his wife ' s outstanding Federal income tax liability for 1999 in the approximate total amount of $20,700 .

Petitioner objects to respondent's motion for summary judgment and-contends that respondent failed to assess petitioner and hi s wife's 1999 Federal income tax liability within the assessmen t period of limitations set out in section 6501 . Petitioner also challenges generally the amount of his and his wife's 1999 Federal income tax liability as determined by respondent . For the reasons stated, we will grant respondent's motion for summary judgment .

The, facts set forth below are established in the pleadings , Background moving papers, responses thereto, and attachments .

In 1999 petitioner and his wife received wages in the approximate total amount of $72,500 .

On April 15, 2000, petitioner . and, his wife filed with respondent a 1999-joint Federal . income tax return reporting zero in wages and zero for their taxable income, which respondent treated as-a valid return for filing purposes .

.

On, November 21, 2001, and after an audit of petitioner and his wife's 1999 Federal income tax, . return, respondent did not charge petitioner and his wife with the above $72,500 in wage income, but respondent did determine°a deficiency in petitioner and his wife's 1999 Federal income tax of $518 . Respondent timely mailed to petitioner and his wife and they- received a notice of deficiency (first notice of deficiency) .for this additional $518 . Neither petitioner nor his wifefiled :a petition in this Court with regard to .thefirs ..t notice of deficiency, and on May 6, 2002, respondent assessed against petitioner and his wife the $518- .

On May 29, 2003, respondent mailed to petitioner and his wife a second notice of deficiency, which they received . In the second notice of deficiency respondent charged petitioner .and his wife with thel$72,°500 in wage income which petitioner and hi s wife had omitted . from'their 1999 joint Federal income tax return ..

(and which respondent had not included in the first notice of deficiency) ., resulting 'in an additional $11,169 deficiency in petitioner and his wife's Federal income taxes for 1999 ., Neither.

petitioner nor his wife filed a petition in this Court : with regard to the second notice of deficiency, and on October '2 2 2003, respondent assessed against petitioner and . his wife t e $11, 169 .

On June 7, 2005, respondent timely mailed to petitioner and his wife a notice of Federal tax lien relating to the October 22, 2003, assessment . On July 5, 2005, petitioner requested a n Appeals Office collection hearing relating thereto connection with this hearing, petitioner did not provide respondent : with the financial ; information which respondent requested . Petitioner did challenge the assessment as untimely .

On December 16 ., 2005, respondent's Appeals Office mailed t o petitioner and his wife a notice of determination sustainin g respondent's lien,filing,against them . On January 13, 2006, petitioner filed with this,Court his petition challenging respondent's determination sustaining respondent's lien filing .

On Febr .ua .ry° :10,{2006,. respondent . timely mailed to petitioner and his wife a final notice of intent to levy relating to the .

October 22, 2003, assessment . . On March 7, 2006, petitioner requested an-Appeals Office hearing relating to, respondent's proposed-levy . In connection with =this hearing, petitioner .

submitted to respondent's Appeals Office limited financial information . -On-September 28, 2006, respondent's Appeals Office mailed to petitioner and his wife a notice of determination sustaining . respondent's proposed levy .

On October 30,,2006,,pet,itioner filed with this Court his, petition challenging respondent's Appeals Office's determination sustaining respondent's levy .

Discussio n Petitioner contends that respondent's October 22, 2003, assessment of petitioner's 1999 Federal income tax liability wa s not made within the assessment period of limitations prescribed t 5 - by section 650-1 . A taxpayer's contention, however, that an .

assessment period of limitations lapsed before the--Commissioner made an assessment against the taxpayer constitutes a challenge to the underlying tax liability . In a .collection case under section 6320 or section 6330, a taxpayer is not permitted to challenge his underlying Federalincome tax"liability if he or she had,a prior opportunity to do so, Hoffman-v . Commissioner , 119 T .C . 140, 145 (2002) ; Hoffenbercr .v . Commissioner , T .C .- Memo .

2008-139 n .4 ; see also Boyd v . Commissioner , 117 T .C . .127, 13-0 .- (2001) ; MacElvain v . Commissioner , T :C ." .Memo . 2000-320 .

Upon receipt of respondent's first and second-notices o f deficiency petitioner had the opportunity to challenge his wife's joint 199 .9 Federal income tax liability . -Petitioner did~not,file a petition in this Court within the 90-day period prescribed by section 6213(a) : . Petitioner is now barred .in this-case from challenging his and his wife's joint Federal income- .tax liability for 1999 and from raising any issue as-to the timeliness of respondent's-assessment .

Generally under section 6501 the Commissioner,has 3 years from the time a taxpayer files a Federal income tax return t o assess a-deficiency . Petitioners' joint 1999 Federal income tax return--which respondent treated as a valid-return- was .filed April 15, 2000, and the 3-year period for assessment would have expired on April 15, 2003 .

Section 6503(a)(1), however, provides that the running o f the 3-year assessment period of. limitations under section 6501 will "be'suspended for the period during which the Secretary-is LL prohibited from making the assessment * * * and for 60 days thereafter", and section 6213(a) provides-that after the Commissioner mails a notice of deficiency to .a taxpayer, no assessment of the tax deficiency- shall be made during the 90-day period during which the taxpayer may file a petition in this Court .

Accordingly, under section 6213(a),respondent was barred from making,-any assessment for each of the .90-day periods immediately .following respondent's mailing to petitioner of the first and the second-notices of deficiency, . dated November 21, 2001, and May 29, 2003 ; ., respectively . Thus under section 6503, the running of the 3-year assessment period of limitations . was suspended for 180 days plus an additional 120 days . Respondent's two notices of .deficiency resulted in a . total 300-day extension in the assessment period of limitations running, .against .

respondent and in favor of petitioner and his wife relating to their 1999 Federal income taxes .

.

This 300-day extension established a lapse,date for the assessment period of limitations that is-applicable to this case of February 9, 2004 .1 Respondent's October 22, 2003, assessment - 7 falls well within this extended period of limitations .

Petitioner raises-several other vague grounds for challenging respondent's . Appeals'Office's determination ' sustaining respondent's lien- filing"and proposed levy .

Petitioner contends that he .did :not .receive fair Appeals Offic e hearings and that he was deni-ed an installment plan-for paymen t of his Federal income taxes ..

Summary judgment is proper where there remains no genuine issue of material fact and=where the moving party is entitled-to, judgment as a matter of law .

Beery v . Commissioner , 122 T .C .

184, 187 (2004) . In a collection-action where the taxpayer's : ta x liability is not at issue, we review the appropriateness of the Commissioner's determination for abuse of discretion .

Sego v .

Commissioner , 114 T .C . 604, 609-610 (2000) ; Goza v . Commissioner , 114 T .C . 176, 182 (2000) .

In connection with petitioner's first Appeals Office hearing, petitioner failed to submit financial information an d 'Apr . 15, 2000, plus 3 years plus 300 days fell on Feb . 9 , 2004 .

2We note that where a taxpayer raises a reasonable dispute regarding an item of income which a .third-party payor reported to the Commissioner on an information -return and where the taxpayer fully cooperates with the Commissioner, the burden of production as to the income-shifts to the Commissioner . Sec . 6201(d) . Petitioner, however, has not raised any such dispute and would be precluded from doing so under sec . 633,0(c)(2)(B), and sec . 6201(d) presents no barrier to our granting summary judgment .

- 8 failed to request collection alternatives . In connection with petitioner's first and second Appeals office hearings, petitioner has not alleged any specific facts showing there is a .genuine issue as to whether . respondent',s Appeals-Office abused its .

discretion in,sustaining .respondent's lien filing and proposed levy action ., See Rule 121(d) ; Celotex Corp . v . Catre .tt , 477 U .S .

317, 322-323 (1986) .

On the record before us and as a matter .'of law we conclude that respondent's Appeals Office's determination sustaining respondent's lien filing and proposed levys was not,,-an abuse of discretion .

For the reasons stated, we shall grant respondent's motion for summary judgment .

An appropriate order and decisions will be entered .