                         T.C. Memo. 2005-224



                       UNITED STATES TAX COURT



     LARRY D. CARIFEE AND PAMELA A. CARIFEE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4502-04L.              Filed September 27, 2005.


     Larry D. Carifee and Pamela A. Carifee, pro sese.

     Alvin A. Ohm, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     VASQUEZ, Judge:    Petitioners filed a petition in response to

respondent’s Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (Notice of
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Determination).1   Petitioners allege that they have insufficient

assets to pay their income tax liability for the year 2000.

                         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 they filed

the petition, petitioners resided in Lewisville, Texas.

     On August 20, 2003, respondent mailed to each of the

petitioners, individually, a Final Notice of Intent to Levy and

Notice of Your Right to a Hearing.     By letter dated September 16,

2003, petitioners’ attorney mailed to respondent two Forms 12153,

Request for a Collection Due Process Hearing, one for each

petitioner, which stated that petitioners “have insufficient

income and assets to full pay the outstanding tax liabilities for

2000, [and] they would like to propose either an Installment

Payment Agreement or an Offer in Compromise.”

     On October 6, 2003, respondent’s Collection Division

contacted petitioners’ attorney by telephone concerning the

Requests for a Collection Due Process Hearing (section 6330

hearing).   On December 12, 2003, respondent’s Appeals Office in

Dallas, Texas, wrote petitioners’ attorney concerning the

requests for a section 6330 hearing asking that petitioners


     1
        Unless otherwise indicated, 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.
                                 - 3 -

provide certain items of financial information prior to the

hearing in order for respondent’s Appeals Office to consider

alternative methods of collection.       By letter dated December 22,

2003, respondent’s Dallas Appeals Office notified petitioners’

attorney that the section 6330 hearing was scheduled for January

14, 2004.   By letter dated December 22, 2003, petitioners’

attorney notified respondent that he no longer represented

petitioners.   On January 14, 2004, respondent’s Appeals Office

called petitioners directly to determine whether petitioners

still wanted the hearing held.    Petitioners did not return the

call and did not show up for the hearing.      Moreover, petitioners

did not submit any financial information to the hearing officer

and did not submit an offer in compromise.

     On February 17, 2004, respondent issued to petitioners a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 sustaining the proposed collection

action as petitioners “did not respond to the letters issued

setting conferences” and “No agreement or viable option could be

discussed since they [petitioners] did not show up for the

hearings set or submit anything in writing either.”

                              OPINION

     Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to do so within 10 days after notice

and demand, the Secretary can collect such tax by levy upon
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property belonging to such person.        Pursuant to section 6331(d),

the Secretary is required to give the taxpayer notice of his

intent to levy and within that notice must describe the

administrative review available to the taxpayer, before

proceeding with the levy.    See also sec. 6330(a).

     Section 6330(b) describes the administrative review process,

providing that a taxpayer can request an Appeals hearing with

regard to a levy notice.    At the Appeals hearing, the taxpayer

may raise certain matters set forth in section 6330(c)(2), which

provides, in pertinent part:

          SEC. 6330(c). Matters Considered At Hearing.--In
     the case of any hearing conducted under this section--

                 *    *       *    *       *    *    *

          (2) Issues at Hearing.--

               (A) In General.--The person may raise
          at the hearing any relevant issue relating to
          the unpaid tax or proposed levy, including--

                     (i)    appropriate spousal defenses;

                    (ii) challenges to the appropriateness
               of collection actions; and

                    (iii) offers of collection alternatives,
               which may include the posting of a bond, the
               substitution of other assets, an installment
               agreement, or an offer-in-compromise.

               (B) Underlying Liability.--The person
          may also raise at the hearing challenges to
          the existence or amount of the underlying tax
          liability for any tax period if the person
          did not receive any statutory notice of
          deficiency for such tax liability or did not
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          otherwise have an opportunity to dispute such
          tax liability.

Pursuant to section 6330(d)(1), within 30 days of the issuance of

the notice of determination, the taxpayer may appeal that

determination to this Court if we have jurisdiction over the

underlying tax liability.   Van Es v. Commissioner, 115 T.C. 324,

328 (2000).

     Although section 6330 does not prescribe the standard of

review that the Court is to apply in reviewing the Commissioner’s

administrative determinations, we have stated that, where the

validity of the underlying tax liability is properly at issue,

the Court will review the matter on a de novo basis.   Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 181 (2000).   Where the validity of the underlying tax

liability is not properly at issue, however, the Court will

review the Commissioner’s administrative determination for abuse

of discretion.   Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 181 (2000).

     At the trial and in their petition, petitioners did not

contest their income tax liability for 2000 but made a claim that

they could not pay their tax liability at this time.   We

therefore review respondent’s determination to proceed with the

levy action for an abuse of discretion.

     Petitioners did not assert in the petition any spousal

defenses, any challenges to the appropriateness of the collection
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actions, or any offers of collection alternatives other than an

offer in compromise that was going to be submitted at an

unspecified future date but was never submitted.       See sec.

6330(c)(2)(A).   These issues are now deemed conceded.      Rule

331(b)(4).   Petitioners also did not submit any financial

information to the hearing officer.       Accordingly, we conclude

that respondent did not abuse his discretion by determining to

proceed with collection.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and, to the extent not herein

discussed, we find them to be irrelevant or without merit.

     To reflect the foregoing,

                                              Decision will be

                                         entered for respondent.
