IRS MAY PROCEED WITH COLLECTION BY LEVY.

Diane L. Worland, for respondent.

[2] Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted with respect to all or any part of the legal issues in controversy "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law." Rule 121(a) and (b);¹Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences are drawn in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982).

[4] On February 18, 1997, respondent sent petitioner a notice of deficiency determining an income tax deficiency plus additions to tax under sections 6651 and 6654 for 1994 and 1995. Petitioner returned the notice to respondent with the words "Acceptance Refused For Cause Without Dishonor" handwritten thereon and did not petition this Court with respect to the notice. Respondent assessed the unpaid tax, additions to tax, and interest for 1995 on July 14, 1997, and sent petitioner a Statutory Notice of Balance Due on the same date.

[5] On August 27, 1999, respondent sent petitioner a notice of deficiency, determining income tax deficiencies and additions to tax under sections 6651(a)(1) and (2), and 6654 for 1996 and 1997. Petitioner returned the notice to respondent with the words "Acceptance Refused for Cause Without Dishonor" handwritten thereon and did not petition this Court with respect to the notice. Respondent assessed the unpaid tax, additions to tax, and interest for 1996 and 1997 on February 7, 2000, and sent petitioner a Statutory Notice of Balance Due on the same date.

[6] On November 20, 2000, respondent sent petitioner a Letter 1058, Final Notice -Notice of Intent to Levy and Notice of Your Right to a Hearing, with respect to petitioner's tax liabilities for 1995, 1996, and 1997. On December 18, 2000, petitioner submitted to respondent a Form 12153, Request for a Collection Due Process Hearing, covering the years in the Letter 1058. On the Form 12153, petitioner alleged that the proposed levy was invalid for the following reasons:

[8] On November 21, 2001, respondent issued a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of determination) with respect to the unpaid liabilities for 1995, 1996, and 1997. The notice of determination determined that all applicable laws and administrative procedures had been met. As to petitioner's allegation that he had not received an "assessment certificate", the notice of determination noted that copies of the certified transcripts had been mailed to petitioner on July 25, 2001. The notice of determination concluded that the proposed levy properly balanced efficient collection with any concerns regarding the intrusiveness of the action and that respondent could proceed with collection.

[9] On December 21, 2001, petitioner filed a petition in the instant case. Therein, petitioner renews his claim that there was no assessment certificate included with the Notice of Intent to Levy and that the absence of such a certificate has deprived him of a meaningful hearing. Respondent has conceded in his answer that no certificate of assessment was included with the Notice of Intent to Levy.

[11] Section 6330 generally provides that the Secretary cannot proceed with collection by levy on any property of any person until the person has been given notice and the opportunity for an administrative review of the matter (in the form of an Appeals Office hearing) and, if dissatisfied, with judicial review of the administrative determination. Davis v. Commissioner, 115 T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000). Where the underlying tax liability is not at issue, the Court will review the Appeals officer's determination for abuse of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000).

[12] In the instant case, it is undisputed that petitioner received notices of deficiency with respect to the underlying tax liabilities for 1995, 1996, and 1997 for which collection is sought. Therefore, we need only decide whether the Appeals officer abused her discretion in determining that collection may proceed.

[13] The only issue raised by petitioner in his request for a hearing and in the petition is his allegation that the Notice of Intent to Levy sent to him by respondent did not include an assessment certificate in compliance with section 301.6203-1, Proced. & Admin. Regs. Petitioner alleges that this failure by respondent has denied him an opportunity for a meaningful hearing. In his response to respondent's motion for summary judgment, petitioner renews this claim, arguing that it constitutes a genuine issue of material fact. Respondent admits that no assessment certificate was included with the Notice of Intent to Levy; accordingly, no issue of fact arises. Respondent further points out, however, that copies of Forms 4340 covering 1995, 1996, and 1997 were mailed to petitioner on July 25, 2001.

[14] Petitioner's argument that the failure to provide assessment certificates with the Notice of Intent to Levy invalidates the levy or otherwise deprives him of rights to which he is entitled has no merit. There is no requirement that a certificate of assessment be provided with a levy notification. Sections 6330 and 6331, which establish requirements for information to be included with a notice of levy, make no mention of an assessment certificate or other proof of assessment as an item of information to be so included. Respondent treated petitioner's reference in his hearing request to his rights under section 301.6203-1, Proced. & Admin. Regs., as constituting a request for a copy of the record of assessment for the liabilities sought to be collected. Respondent provided Forms 4340 in response thereto on July 25, 2001. Thus, there is no showing of any violation of petitioner's rights under section 6203. Further, petitioner was offered a hearing through either a face-to-face meeting or by means of correspondence and did not avail himself of either opportunity.

[15] As no material fact is disputed and the only argument raised by petitioner in this proceeding is unavailing, respondent is entitled to judgment as a matter of law, and we so hold. We shall therefore grant respondent's motion for summary judgment. To reflect the foregoing,

[16] An appropriate order and decision will be entered.

²The facts hereinafter are established in the record and/or undisputed.