JOHN COUGHENOUR, Chief Judge District
This matter comes before the Court on defendant's motion for summary judgment (Dkt No 21) The Court has considered the papers submitted by the parties and determined that oral argument is not necessary For the following reasons, defendant's motion for summary judgment is hereby GRANTED
In both his complaint and response to the instant motion, plaintiff makes clear that he seeks to challenge the tax liability underlying the levy action initiated by defendant in 2002 That is, he disputes that he is a responsible person personally liable to pay a trust fund recovery penalty with respect to unpaid employment taxes owed by now-defunct Olympus Mortgage Corporation Plaintiff admittedly received statutory notice of this proposed penalty in February 1995 The notice letter states, "You also have the right to appeal or protest this action, and you may also have the right to a delay before we collect the money You may request either of these within 60 days from the date of this letter (90 days if this letter is addressed to you outside the United States) The instructions below explain how to make the request" Several years later, in March 2002, plaintiff received defendant's "Notice of Intent to Levy and Notice of Your Right to a Hearing" He immediately requested a collection due process hearing to address the levy action In this litigation, plaintiff appeals defendant's adverse determination following the May 2002 collection due process hearing See 26 U.S.C. § 6330 (d)(1)(B) (2003)
Defendant now moves for summary judgment Defendant argues that plaintiff may not challenge his underlying tax liability in this action — an appeal from an adverse determination following a collection due process hearing — because he previously had the opportunity to do so Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law Fed.R.Civ.P. 56(c) (2003) In determining whether a genuine issue of material fact exists, the court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)
At a collection due process hearing, a taxpayer may raise any relevant issue, including spousal defenses to collection, challenges to the appropriateness of the intended collection action, and alternative means of collection 26 U.S.C. § 6330 (c)(2)(A) However, if the taxpayer previously received statutory notice of deficiency for the tax liability or otherwise had the opportunity to dispute the liability, the taxpayer may not challenge the underlying tax deficiency at the collection due process hearing See 26 U.S.C. § 6213, 6330(c)(2)(B), Van Fossen v. Commissioner of Internal Revenue, 79 T C M (CCH) 2049 (2000). aff'd 87 A F T R 2d 2001-1092 (9th Cir. 2001) When the taxpayer does so, the action must be dismissed for failure to state a claim upon which relief can be granted Van Fossen, 79 T C M (CCH) 2049
It is undisputed that plaintiff received the February 1995 statutory notice letter Plaintiff does not assert that he appealed the proposed trust fund recovery penalty — the underlying tax liability — as outlined in the notice letter Rather, plaintiff represents that he took the notice letter to attorney John Haggerty, who was performing other legal work on behalf of Olympus Mortgage Corporation Plaintiff further states
[Mr Haggerty] contacted the IRS, Everett, WA They put him in contact with the Washington, D C office of IRS. He told me he had supplied D C by letter, documents, etc of the Mallard Lawsuit and also the claim to the bonding company for the conversion of funds He also advised IRS, I was not in control of bill paying or payroll and the unusual problems of the lawsuit and the theft which were beyond anyone's control He further advised him [sic] that in his opinion, I was not responsible for taxes of the company During the next 2-3 years we heard nothing from the IRS.
Absent from plaintiffs declaration is any assertion or evidence that Mr Haggerty actually appealed the proposed trust fund recovery penalty Moreover, under penalty of perjury, Internal Revenue Service Appeals Officer Tim Paul states that "IRS's records did not indicate that Mr White took advantage of the appeals rights addressed in the 1153 letter. Furthermore, in my investigation, I did not find, nor did Mr White provide, any documentary evidence to substantiate Mr White's claim that he settled his underlying tax liability in bankruptcy" Plaintiff also discusses that Mr Haggerty advised him to file for bankruptcy However, a letter attached by plaintiff, drafted by Mr Haggerty, confirms defendant's position that the bankruptcy proceeding was dismissed before any resolution on the merits
Although plaintiffs declaration suggests he may have suffered from ineffective legal representation, that issue is not properly before the Court and does not constitute grounds to disregard clear statutory requirements in the context of this action.
In sum, there is no genuine issue of material fact with respect to whether plaintiff previously had the opportunity to dispute the underlying tax liability. He did Because plaintiff's claim in this action is premised solely on a challenge to the validity of his underlying tax liability, he is precluded, as a matter of law, from challenging that liability in the context of a collection due process hearing appeal before this Court Therefore, the Court GRANTS defendant's motion for summary judgment The clerk is directed to enter judgment accordingly
SO ORDERED