                         T.C. Memo. 2004-267



                       UNITED STATES TAX COURT



               JOE SHELBY GRIFFITH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18161-02L.             Filed November 22, 2004.


     Joe Shelby Griffith, pro se.

     Jeffrey C. Venzie, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Pursuant to section 6330(d),1 petitioner

seeks review of respondent’s determination to proceed with

collection of his 1988 and 1989 tax liabilities.




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time he filed the

petition, petitioner resided in Milmay, New Jersey.

     Petitioner is a habitual nonfiler.     In addition to several

other years, petitioner did not file income tax returns for 1988

or 1989.   In separate notices of deficiency, respondent

determined:   (1) Deficiencies of $8,174 and $1,616 for 1988 and

1989, respectively; (2) additions to tax pursuant to section

6651(a) of $1,646 and $276.25 for 1988 and 1989, respectively;

and an addition to tax pursuant to section 6654(a) of $409.39 for

1988.   Petitioner did not receive the notices of deficiency for

1988 and 1989.   On May 2, 1994, respondent assessed the

aforementioned amounts and interest.

     On or about May 6, 2002, respondent sent petitioner a Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing for 1988 and 1989.   On May 30, 2002, petitioner sent

respondent a Form 12153, Request for a Collection Due Process

Hearing (hearing request).   In the hearing request, petitioner

claimed he was unemployed during 1988 and 1989, he owed no tax

for 1988 and 1989, and that the period of limitations on

collection for 1988 and 1989 had expired.
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     In August 2002, Appeals Officer Judith Hornstein was

assigned to petitioner’s collection case.   Ms. Hornstein sent

petitioner a letter scheduling a hearing for October 8, 2002.

Petitioner did not attend the hearing.

     On October 8, 2002, Ms. Hornstein wrote to petitioner and

again offered him the opportunity to meet with her.   On October

9, 2002, petitioner wrote Ms. Hornstein that because issues of

religion and conscience would not be considered at the hearing he

saw no point in attending the hearing.   On October 23, 2002,

respondent issued petitioner a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 sustaining

the proposed levy.

     In his petition, petitioner contended that the 10-year

period of limitations for collection for 1988 and 1989 had

expired and challenged the deficiencies and additions to tax for

1988 and 1989 on moral and religious grounds.

                              OPINION

     Respondent concedes that petitioner did not receive the

notices of deficiency for 1988 or 1989 and that he is entitled to

contest the underlying tax liability for 1988 and 1989.

Accordingly, we review petitioner’s underlying tax liability for

1988 and 1989.   Goza v. Commissioner, 114 T.C. 176 (2000).     If

the underlying tax liability is properly at issue, we review that

issue on a de novo basis.   Sego v. Commissioner, 114 T.C. 604,
                               - 4 -

610 (2000); Goza v. Commissioner, supra at 181.     We review the

remainder of respondent’s determination for an abuse of

discretion.   Sego v. Commissioner, supra.

     Petitioner challenged the tax and additions to tax on moral

and religious grounds.   This argument is without merit.       Adams v.

Commissioner, 170 F.3d 173 (3d Cir. 1999), affg. 110 T.C. 137

(1998).   Petitioner otherwise conceded that the amounts

determined in the notices of deficiency are correct.

     For the first time at trial, petitioner argued that

respondent did not mail the notices of deficiency to petitioner’s

last known address.   Generally, we do not consider an issue that

is raised for the first time at trial.    See Foil v. Commissioner,

92 T.C. 376, 418 (1989), affd. 920 F.2d 1196 (5th Cir. 1990);

Markwardt v. Commissioner, 64 T.C. 989, 997 (1975).

Additionally, petitioner was aware of this issue before filing an

amendment to petition.   Petitioner, however, chose not to amend

the petition to raise this issue.   Thus, we do not consider it.

     Petitioner also claimed that the period of limitations for

collection for 1988 and 1989 expired.    We disagree.   Tax may be

collected by levy if the levy is made within 10 years after the

assessment of the tax.   Sec. 6502(a)(1).    If a hearing is

requested under section 6330(a)(3)(B), the levy actions which are

the subject of the requested hearing and the running of any

period of limitations under section 6502 are suspended for the
                                 - 5 -

period during which the hearing and appeals thereof are pending.

Sec. 6330(e)(1).

     The deficiencies and additions to tax for 1988 and 1989 were

assessed on May 2, 1994.   These assessments were timely because,

in light of petitioner’s failure to file returns for these years,

pursuant to section 6501(c)(3) respondent could assess the taxes

for 1988 and 1989 at any time.    Respondent sought to levy on

petitioner’s property on or about May 6, 2002--well within the

10-year period of limitations.    On May 30, 2002, the period of

limitations on collection for 1988 and 1989 was suspended by

petitioner’s hearing request.    Sec. 6330(e)(1).     The period of

limitations on collection for 1988 and 1989 remains suspended

during this proceeding.    Id.   Accordingly, the period of

limitations on collection for 1988 and 1989 has not expired.

     Petitioner has failed to raise a spousal defense, 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.       See Rule 331(b)(4).

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
