Robert A. Wodarczyk - Page 3




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          review under section 6330(d)(1)(A)2 and involves the propriety of           
          respondent’s decision to proceed with collection of income tax              
          petitioner owes for the year 1993.  That determination was                  
          preceded by respondent’s issuance of a notice of intent to levy             
          and of petitioner’s right to a hearing in connection with an                
          assessed balance of income tax for 1993 in the amount of                    
          $8,750.68, including statutory additions to tax.  At the time the           
          petition was filed, petitioner’s legal residence was in Texas.              
               No testimonial evidence was adduced at the hearing.                    
          Respondent contends that there is no genuine issue of material              
          fact and that the notice of determination should be sustained as            
          a matter of law.                                                            
               Before proceeding with the merits of respondent’s motion and           
          the objection thereto, one prominent aspect of the case must                
          first be addressed.  The petition was filed pursuant to                     
          respondent’s issuance of a Notice of Determination Concerning               


               2    Petitioner, through counsel, filed a response to                  
          respondent’s motion for summary judgment, not only objecting to             
          respondent’s motion, but affirmatively alleging:  “The Petitioner           
          moves for summary determination that Respondent’s denial of his             
          allowable transportation cost was arbitrary, capricious and                 
          without reference to administrative rules or law.”  Petitioner’s            
          response was not filed as a motion for summary judgment because             
          it was not cast in the proper form.  At the hearing, the parties            
          agreed that the case could be considered as cross-motions for               
          summary judgment.  On the basis of these representations, we                
          conclude that there are no genuine issues of material fact, and             
          the sole question before the Court is whether, as a matter of               
          law, respondent’s motion should be granted.                                 





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