The opinion
T.C. Memo. 2005-295
UNITED STATES TAX COURT
GLORIA POMERANTZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5218-05L. Filed December 22, 2005.
Richard E. Preston and Suyeun Jacqueline Pyun, for
petitioner.
Jeffrey Gold, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This collection review case is
before the Court on respondent’s Motion For Summary Judgment.1
As explained in detail below, we shall grant respondent’s motion.
1
All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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Background
Gloria Pomerantz (petitioner) is an attorney. Petitioner
timely filed Forms 1040, U.S. Individual Income Tax Return, for
1995 and 1996. Respondent subsequently initiated an examination
of petitioner’s returns for those years.
On November 3, 2003, petitioner executed and submitted to
respondent a Form 2848, Power of Attorney and Declaration of
Representative, appointing Allan Serchay (Mr. Serchay),
identified as a certified public accountant, to act as her
representative with regard to Federal income tax matters for 1995
through 1998. Paragraph 5 of the Form 2848 states:
Acts authorized. The representatives are authorized to
receive and inspect confidential tax information and to
perform any and all acts that I (we) can perform with
respect to the tax matters described on line 3, for example,
the authority to sign any agreements, consents, or other
documents. The authority does not include the power to
receive refund checks (see line 6 below), the power to
substitute another representative, the authority to execute
a request for a tax return, or a consent to disclose tax
information unless specifically added below, or the power to
sign certain returns.
The remainder of paragraph 5 of the Form 2848, which allows a
taxpayer to list specific additions or deletions to the acts that
the representative is authorized to perform, is blank.
On January 30, 2004, Mr. Serchay executed, on petitioner’s
behalf, a Form 4549, Income Tax Examination Changes, consenting
to the immediate assessment and collection of increased taxes,
interest, and fraud penalties for petitioner’s taxable years 1995
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and 1996. Pursuant to that consent, respondent assessed the
following amounts on March 8, 2004:
1995 1996
additional tax $55,639.00 $8,373.00
fraud penalty 41,729.25 6,279.75
interest 78,418.20 9,578.91
On that same date, respondent sent petitioner a notice of
balance due (i.e., a notice and demand for payment).
In the interim, on February 24, 2004, petitioner submitted
to respondent an offer-in-compromise on the basis of doubt as to
collectibility with regard to her tax liabilities for 1995 and
1996. Petitioner offered to pay $10,000 to respondent within 90
days of her offer. Respondent rejected petitioner’s offer-in-
compromise after concluding that she had sufficient equity in her
residence to pay the taxes in dispute.
At some point during the summer of 2004, petitioner executed
a new Form 2848 appointing Alvin Brown (Mr. Brown) to serve as
her representative with regard to her income tax liabilities for
1995 and 1996.
On August 17, 2004, respondent filed a Notice of Federal Tax
Lien at the County Courthouse in Broward County, Florida, with
regard to petitioner’s unpaid liabilities for 1995 and 1996. On
August 24, 2004, respondent mailed to petitioner a Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320 for 1995 and 1996 (the lien notice). In response to the
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lien notice, Mr. Brown submitted to respondent a timely request
for an administrative hearing.
On November 5, 2004, petitioner submitted to respondent Form
433-A, Collection Information Statement for Wage Earners and
Self-Employed Individuals, and Form 433-B, Collection Information
Statement for Business.
On December 8, 2004, Settlement Officer Elsie Stewart of
respondent’s Appeals Office in Plantation, Florida, held a
telephonic conference with Mr. Brown and petitioner regarding
petitioner’s case. Mr. Brown asserted that the assessments for
1995 and 1996 should be abated because they were: (1) Incorrect;
(2) entered without issuance of a statutory notice of deficiency;
and (3) entered after the expiration of the normal 3-year period
of limitations.
On February 18, 2005, respondent’s Appeals Office mailed to
petitioner a Notice Of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330, sustaining the filing
of the notice of Federal tax lien against petitioner.
On March 17, 2005, petitioner timely filed with the Court a
petition challenging respondent’s notice of determination.2
Petitioner alleged in the petition that respondent erred in
determining that she could not challenge the existence or amount
2
At the time that the petition was filed, petitioner
resided in Ft. Lauderdale, Fla.
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of her outstanding liabilities for 1995 and 1996 during the
collection review process.
After filing an answer to the petition, respondent filed a
Motion For Summary Judgment. Petitioner filed an opposition to
respondent’s motion. This matter was called for hearing at the
Court’s November 9, 2005 motions session held in Washington, D.C.
Counsel for both parties appeared at the hearing and offered
argument in respect of respondent’s motion. Following the
hearing, petitioner filed a supplement to her opposition.
Discussion
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. See 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(b); Sundstrand 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 will be read in a manner
most favorable to the party opposing summary judgment. See
Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.
Commissioner, 79 T.C. 340, 344 (1982).
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The record reflects that there is no genuine issue as to any
material fact and that respondent is entitled to judgment as a
matter of law.
Federal Tax Lien
Section 6321 imposes a lien in favor of the United States on
all property and rights to property of a person liable for taxes
when a demand for the payment of the person’s taxes has been made
and the person fails to pay those taxes. Such a lien arises when
an assessment is made. Sec. 6322. However, section 6323(a)
requires the Secretary to file a notice of Federal tax lien if
the lien is to be valid against any purchaser, holder of a
security interest, mechanic’s lienor, or judgment lien creditor.
Behling v. Commissioner, 118 T.C. 572, 575 (2002).
Section 6320 provides that the Secretary shall furnish the
person described in section 6321 with written notice of the
filing of a notice of lien under section 6323. Section 6320 also
provides that the person may request administrative review of the
matter in the form of an Appeals Office hearing. Section 6320(c)
provides that the Appeals Office hearing generally shall be
conducted consistent with the procedures set forth in section
6330(c), (d), and (e).
Section 6330(c)(1) imposes on the Appeals Office an
obligation to verify that the requirements of any applicable law
or administrative procedure have been met. Section 6330(c)(2)(A)
provides that the person may raise at the hearing any relevant
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issue relating to the unpaid tax, including appropriate spousal
defenses, challenges to the appropriateness of collection
actions, and offers of collection alternatives. Section
6330(c)(2)(B) provides that the person may also raise at the
hearing challenges to the existence or amount of the underlying
tax liability if the person did not receive a statutory notice of
deficiency for such tax liability or did not otherwise have an
opportunity to dispute such tax liability.
Section 6330(d) provides for judicial review of the
administrative determination in the Tax Court or a Federal
District Court, as may be appropriate.
Petitioner asserts that the Appeals Office erred in denying
her an opportunity to challenge her underlying liabilities for
1995 and 1996 because (1) she did not receive a notice of
deficiency for those years, and (2) she was never given a full
and fair opportunity to contest her liability for additions to
tax for fraud for those years. We disagree.
As previously discussed, section 6330(c)(2)(B) provides that
the person may raise at the hearing challenges to the existence
or amount of the underlying tax liability if the person did not
receive a statutory notice of deficiency for such tax liability
or did not otherwise have an opportunity to dispute such tax
liability. The record in this case reflects that, although
petitioner did not receive a statutory notice of deficiency for
1995 and 1996, she did in fact have a prior opportunity to
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dispute her liability for those years. In particular, Mr.
Serchay, petitioner’s duly appointed representative, executed
Form 4549 consenting to the immediate assessment and collection
of the income taxes, fraud penalties, and interest that
respondent assessed and is attempting to collect from petitioner.
It is well settled that “for purposes of section 6330(c)(2)(B), a
taxpayer who has signed a Form 4549-CG waiving * * * [her] right
to challenge the proposed assessments should be deemed to have
had an opportunity to dispute * * * [her] tax liabilities and is
thereby precluded from challenging those tax liabilities.”
Zapara v. Commissioner, 124 T.C. 223, 228 (2005); see Aguirre v.
Commissioner, 117 T.C. 324, 327 (2001). Under the circumstances,
petitioner is deemed to have had a prior opportunity to dispute
her liabilities for 1995 and 1996 within the meaning of section
6320(c)(2)(B), and, therefore, she is not entitled to challenge
the existence or amount of her liabilities for those years during
the collection review process.3
3
To the extent that petitioner seeks to raise the
affirmative defense of the normal 3-year period of limitations
under sec. 6501(a), we observe that sec. 6501(c) provides an
exception to the period of limitations; i.e., in the case of
fraud, additional tax may be assessed at any time. Regardless,
the pleading of the statute of limitations by petitioner
constitutes a challenge to the underlying tax liability, which
challenge is barred because she is deemed to have had an
opportunity to dispute such tax liability. Hoffman v.
Commissioner, 119 T.C. 140, 145 (2002); Golden v. Commissioner,
T.C. Memo. 2005-170.
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Conclusion
Petitioner has not alleged any irregularity in the
assessment procedure that would raise a question about the
validity of the assessments or the information contained in the
transcript of account. Moreover, petitioner has failed to make a
valid challenge to the appropriateness of respondent’s intended
collection action or offer alternative means of collection.
These issues are now deemed conceded. Rule 331(b)(4). Under the
circumstances, we conclude that respondent is entitled to
judgment as a matter of law sustaining the notice of
determination.
To reflect the foregoing,
An Order granting respondent’s
Motion For Summary Judgment and
Decision will be entered.