HARDSHIP STATUS ISN'T A COLLECTION ALTERNATIVE IN CDP HEARING.

[3] On September 22, 2000, the IRS filed a Notice of Federal Tax Lien (NFTL) in the amount of $61,466.14 against Bartolomeo, which involved employment taxes assessed pursuant to 26 U.S.C. § 6672, known as "Trust Fund" taxes, for the third quarter of 1995.¹ (Pl's Exh. A). On October 3, 2000, plaintiff requested a collection due process hearing regarding the appropriateness of the NFTL, pursuant to 26 U.S.C. § 6330. (Pl's Exh. B).

[4] On January 8, 2001, Settlement Officer Mark Kennedy (Kennedy) held a collection due process hearing telephonically with plaintiff, who participated in the hearing. (Kennedy Decl. ¶ 7). In his Declaration, Kennedy indicates that during the January 8, 2001 hearing he informed Bartolomeo that 26 U.S.C. § 6330 prohibited her from challenging the tax liability underlying the assessment in a due process hearing. (Id. ¶ 14). He further advised Bartolomeo that if she wished to propose a collection alternative, she must submit a financial statement with verification. (Id. ¶ 16). Bartolomeo, however, stated that she did not believe she could make installment payments or an offer in compromise, but that she would consult with her attorney. (Id. ¶¶ 16-17).

[5] On January 31, 2001, the IRS Appeals Office sent a letter to plaintiff scheduling an in-office hearing for February 27, 2001. (Id. ¶ 18). Bartolomeo's attorney rescheduled the hearing several times, finally leaving a message the day of the last scheduled hearing, canceling, without rescheduling, the hearing. As of April 30, 2001, neither Bartolomeo nor her counsel had responded to the IRS Appeals Office. (Id. ¶¶ 20-21). On May 4, 2001, Ronald W. Albert, Appeals Team Manager for the IRS sent a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 to Bartolomeo, stating that the NFTL filing was appropriate with regards to the Trust Fund tax liability. (Pl's Exh. C).

[6] Kennedy reviewed Bartolomeo's administrative file and verified that she had received notice of the proposed § 6672 assessment in November of 1996, and had exercised her right to have her case considered by the IRS Appeals Office. (Kennedy Decl. ¶ 15). On January 11, 1999, the Appeals office issued a letter sustaining the proposed § 6672 assessment in full. (Def's Exh. H).

[9] Bartolomeo responds that the May 4, 2001 Notice of Determination instructed her that if she wanted to dispute the determination that she was to file a complaint in the appropriate District Court within 30 days; that she is a single mother with limited resources and modest income who deserves hardship consideration; and that the imposition of tax liens upon her does not represent a proper balance between collection efficiency for the IRS and intrusiveness to Bartolomeo because the liability imposed against her is uncollectible.² Finally, Bartolomeo contends that the placement of a lien against her as an alternative to installment payments or an offer in compromise in light of her collectibility and hardship status constituted an abuse of discretion by the IRS Appeals Office.

[11] Bartolomeo presses an argument questioning her liability for taxes based upon her hardship status as a single mother and the uncollectibility of the liability imposed upon her. This argument must fail. As an initial matter, the court notes that Bartolomeo has adduced absolutely no evidence in support of these contentions. Moreover, the undisputed facts in this case establish that Bartolomeo received a notice of the proposed tax assessments in November of 1996, and she exercised her right to have her case considered by the IRS Appeals Office. The Appeals Office issued a letter dated January 11, 1999 fully sustaining the proposed § 6672 assessments. (Kennedy Decl. ¶ 15). Bartolomeo did not file any petition in this court seeking a redetermination of the proposed deficiencies. Consequently, Bartolomeo, as a matter of law, was not entitled to dispute the existence or amount of the underlying tax liabilities in a section 6330 proceeding. Accordingly, Bartolomeo is precluded from contesting the underlying tax liability to this court by the provisions of § 6330(c)(2)(B).

[13] After a careful review of the record, the court concludes that the office of Appeals did not abuse its discretion in permitting the collection action to proceed against Bartolomeo. Bartolomeo contends that the placement of a lien against her as an alternative to installment payments or an offer in compromise in light of her collectibility and hardship status constituted an abuse of discretion by the IRS Appeals Office. These allegations do not state a claim. The purpose of the provision for the consideration of collection alternatives described in §§ 6330(c)(2)(A) and 6330(c)(3)(C) clearly is intended to allow the taxpayer to propose a method of payment that will satisfy the underlying tax liability instead of satisfaction of a tax lien by a levy. Rennie v. I.R.S., 216 F.Supp.2d 1078 (E.D.Cal.2002). In other words, only the least intrusive method that still protects the government's interest in efficient tax collection should be approved. Bartolomeo's allegations do not propose an "alternative" to collection by levy but rather seek to avoid liability altogether.

[14] In fact, Bartolomeo has never offered to pay the underlying tax liability nor provided alternatives to the levy. Bartolomeo's failure to present any alternatives to levy, despite numerous opportunities to do so, greatly diminishes the legitimacy of any concern that the proposed levy is more intrusive than necessary. According to defendants, the Appeals Officer had no alternative but to conclude that the imposition of a levy to collect the outstanding penalties from Bartolomeo was the only method by which payment could be obtained.

[15] Defendants have demonstrated that there is no genuine issue as to any material fact regarding the Appeals Officer's compliance with the requirements of 26 U.S.C. § 6330. Thus, defendants are entitled to judgment as a matter of law.

[16] An order follows.

²Bartolomeo further asserts that factual disputes remain as to whether she provided all of the financial information requested of her by the Appeals Officer and as to why a rescheduled collection due process hearing did not occur. However, Bartolomeo has not provided a scintilla of evidence in support of these bald assertions, and has therefore failed entirely to carry her burden at the summary judgment stage.

1. The motion of defendants, United States of America, Department of the Treasury, Internal Revenue Service and Commissioner of Internal Revenue, for summary judgment pursuant to Fed. R. Civ. P. 56 is granted. The Clerk shall enter judgment in favor of defendants and against plaintiff.

2. The Clerk shall mark this civil action closed.