                         T.C. Memo. 2008-281



                       UNITED STATES TAX COURT



            ROBERT AND VIENNA LESHIN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17709-06L.               Filed December 15, 2008.



     Jeffrey D. Moffatt, for petitioners.

     Michael W. Tan, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


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

seek review of respondent’s determination to proceed with

collection of their unpaid 2001 income tax liability.    The issue




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code.
                               - 2 -

for decision is whether respondent may proceed with collection of

the above-mentioned unpaid income tax liability.

                         FINDINGS OF FACT

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

The stipulation of facts, the supplemental stipulation of facts,

and the attached exhibits are incorporated herein by this

reference.   At the time they filed the petition, petitioners

resided in California.

     On December 14, 2005, respondent filed a Notice of Federal

Tax Lien (NFTL) regarding petitioners’ 2001 tax year.   On

December 16, 2005, respondent mailed to petitioners a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320 regarding 2001.

     Petitioners timely submitted a Form 12153, Request for a

Collection Due Process Hearing, regarding 2001 to respondent.

     On or about April 6, 2006, respondent received Form 656,

Offer in Compromise (OIC), from petitioners.   Petitioners offered

to pay $70,000 to satisfy their total outstanding tax liabilities

of approximately $225,115 for 1999 through 2004.2   As of the date

of the notice of determination, petitioners’ income tax liability

for 2001 was approximately $36,480.




     2
        On the Form 656, petitioners listed the tax years as 1991
to 2005. However, petitioners had a zero balance for 1991
through 1998 and for 2005.
                                 - 3 -

     Attached to the OIC was Form 433-A, Collection Information

Statement for Wage Earners and Self-Employed Individuals.       The

information provided on the Form 433-A was incomplete.       For

example, petitioners did not list the current value of a 2004

Chevrolet, petitioners listed no monthly income even though they

indicated they were self-employed, and petitioners indicated that

they received income from stocks but did not submit any

documentation related to such income (i.e., listing the amount of

dividends received).3

     Respondent’s settlement officer wrote petitioners’ counsel

requesting additional information.       Additionally, on April 18,

2006, respondent’s settlement officer requested a Form 433-B,

Collection Information Statement for Businesses, regarding

petitioners’ hay sales business.    Petitioners failed to provide

any information on their business during the section 6330

hearing.

     During 1999 through 2005 petitioners sold stocks and bonds

with a value of over $500,000.    However, they did not use these

proceeds to pay their outstanding tax liabilities for those

years.

     Based on the incomplete information provided by petitioners,

respondent determined their monthly future income potential was


     3
        Form 433-A states on the face of the form that
attachments are required as proof of self-employment income and
other income.
                                - 4 -

$4,386 ($11,086 in monthly income less $6,700 for reasonable

expenses).    Petitioners’ present value of future income was

$210,528 ($4,386 per month x 48 months).    This amount alone

resulted in a reasonable collection potential (RCP) well in

excess of the amount owed for 2001--$36,480.4

     Until July 14, 2006, respondent’s settlement officer

provided petitioners with several opportunities to dispute any

and all aspects of her RCP calculations.    Petitioners’ counsel

did not contest respondent’s RCP calculation until two weeks

after the July 14, 2006, deadline.

     On August 16, 2006, respondent issued the notice of

determination to petitioners and sustained the filing of the

NFTL.    Respondent concluded that petitioners’ RCP exceeded the

$70,000 offered in the OIC.    Accordingly, the settlement officer

rejected petitioners’ OIC.

                               OPINION

     Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice (i.e., the

hearing notice) of the filing of a notice of lien under section

6323.    Section 6320 further provides that the taxpayer may

request administrative review of the matter (in the form of a

hearing) within a 30-day period.    The hearing generally shall be


     4
        Furthermore, this amount alone is close to petitioners’
total outstanding tax liabilities of approximately $225,115 for
1999 through 2004.
                                - 5 -

conducted consistent with the procedures set forth in section

6330(c), (d), and (e).    Sec. 6320(c).

     Pursuant to section 6330(c)(2)(A), a taxpayer may raise at

the section 6330 hearing any relevant issue with regard to the

Commissioner’s collection activities, including spousal defenses,

challenges to the appropriateness of the Commissioner’s intended

collection action, and alternative means of collection.       Sego v.

Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner, 114

T.C. 176, 180 (2000).

     The only issue raised by petitioners at the section 6330

hearing was an OIC as a collection alternative.      Accordingly,

because the validity of the underlying tax liability is not at

issue, we review the Commissioner’s determination for abuse of

discretion.    Sego v. Commissioner, supra at 610.

     The information petitioners provided on the Form 433-A was

incomplete.    Petitioners failed to submit a Form 433-B as

requested by the settlement officer.      Petitioners’ RCP

substantially exceeded the amount of their tax liability for

2001.    Additionally, during 1999 through 2005 petitioners sold

stocks and bonds with a value of $586,797 but did not use the

proceeds to pay their outstanding tax liabilities for these

years.

     We conclude that respondent did not abuse his discretion

when he sustained the filing of the NFTL.      In reaching all of our
                                 - 6 -

holdings herein, we have considered all arguments made by the

parties, and to the extent not mentioned above, we find them to

be irrelevant or without merit.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
