                     T.C. Summary Opinion 2011-31



                        UNITED STATES TAX COURT



                   DELMAR P. THOMPSON, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 18347-09S.             Filed March 16, 2011.



        Delmar P. Thompson, pro se.

        Evan H. Kaploe, for respondent.



     MORRISON, Judge:     This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.     Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and

this opinion shall not be treated as precedent for any other

case.     All section references are to the Internal Revenue Code.
                                 -2-

     Mr. Delmar P. Thompson’s petition challenges a determination

of the Internal Revenue Service (IRS) Appeals Office to sustain a

proposed levy.    He contends that the Appeals officer failed to

telephone him for a scheduled telephone conference that was to

constitute part of the administrative hearing.      We find that the

Appeals Office did not abuse its discretion in sustaining the

levy.

                             Background

     Thompson was a resident of Kansas when he filed his

petition.    Thompson is a trucker.    When he is driving, he is

prohibited from using his cell phone, which is the only telephone

he uses.    In April or May 2008, Thompson filed a Form 1040, U.S.

Individual Income Tax Return, for the 2003 taxable year.      He

reported a tax liability of $11,618 but did not pay the

liability.

     On October 23, 2008, the IRS sent Thompson a notice that it

intended to levy to collect his unpaid 2003 tax liability.

Thompson requested an administrative hearing on Form 12153,

Request for a Collection Due Process or Equivalent Hearing, dated

October 29, 2008.    On the Form 12153, Thompson indicated he

wanted the IRS to consider an installment agreement as an

alternative to collection.    He also indicated that he wanted the
                                  -3-

IRS to withdraw the filing of a lien.1    He listed his cell phone

number as his telephone number.

     On March 16, 2009, the IRS sent Thompson a letter stating

that its Appeals Office had received his request for a hearing.

On May 6, 2009, Settlement Officer Scott Penny wrote a letter to

Thompson on behalf of the Appeals Office stating that he had

scheduled a telephone call with Thompson for 10:30 a.m., May 27,

2009.    The letter said:   “This call will be your primary

opportunity to discuss with me the reasons you disagree with the

collection action and/or to discuss alternatives to the

collection action.”    The letter said that Penny would place the

telephone call by calling Thompson’s cell phone number at the

appointed time.    The letter asked Thompson to notify Penny if the

time was not convenient or if he preferred to have a face-to-face

conference or a correspondence conference.     The letter said that

in order for Penny to consider an installment agreement, Thompson

was required to supply, within 14 days:

     • A completed collection information statement;

     • signed tax returns for 2004, 2005, 2006, 2007, and 2008
     (the letter said that Thompson had not yet filed the
     returns);

     • proof that Thompson had made estimated tax payments for
     2008 and 2009; and

     • Thompson’s proposal to resolve his outstanding liability.


     1
      This request was made by checking a box on Form 12153.    It
appears to have been a mistake.
                                 -4-

     Thompson was at home on May 27, 2009.    According to Penny’s

notes, Penny called Thompson’s cell phone number at 10:30 a.m. on

May 27, 2009, but was unable to reach him.    Penny’s notes

indicate that he heard a recorded message telling him that he had

reached the number for “Moe”.    Unbeknownst to Penny, “Moe” was a

nickname for Thompson.    Consequently, Penny did not leave a

message.   Thompson would later testify that he never received a

call from Penny that day.    Thompson’s telephone bill indicates

that he received a telephone call from someone other than Penny

at 10:30 a.m.    This other incoming call may explain why Thompson

missed Penny’s call and why Thompson’s telephone records do not

reflect a telephone call from Penny at that time.    We believe

that Penny did call Thompson at 10:30 a.m. but did not reach him.

     On May 27, 2009, Penny sent a letter to Thompson stating

that Penny had tried to call him at the scheduled time but had

failed to reach him.    In the letter Penny advised Thompson that

he never received the information he had requested in his May 6,

2009 letter.    The May 27, 2009 letter warned Thompson that the

Appeals Office would make a determination and that if Thompson

wanted to provide any information for the Appeals Office to

consider, he should do so in 14 days; i.e., by June 10, 2009.

     Thompson testified that on May 28, 2009, the day after the

telephone conference was scheduled to take place, he called

Penny.   He testified that Penny’s voice mail message said that
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Penny was out of the office.   But Thompson’s telephone records do

not indicate that he called Penny on May 28, 2009.    Thus, we do

not believe that Thompson called Penny on that day.

     Thompson’s telephone records indicate that he called Penny

on June 1, 2009, and that the conversation lasted two minutes.

Between May 5 and June 4, 2009, no other telephone calls between

Thompson and Penny appear on Thompson’s telephone records.

     As his notes indicate, Penny received a voicemail message

from Thompson on June 9, 2009, complaining that Penny had never

contacted Thompson.   Penny called Thompson back but again reached

the voicemail of “Moe”.   Penny did not leave a message.

     As Penny’s notes indicate, he received another voicemail

message from Thompson on June 11, 2009.   He responded by leaving

a voicemail asking Thompson to contact him at 8:30 a.m. on June

12, 2009.   Penny did not receive a call from Thompson at 8:30

a.m. on June 12, 2009.

     Thompson testified that at some point he spoke to Penny over

the telephone and that Penny told him he could no longer discuss

the case.   Thompson did not remember when this conversation took

place.

     On June 24, 2009, the Appeals Office issued a determination

concerning the levy hearing.   The determination stated that an

installment agreement was not considered because Thompson had not

filed income tax returns for the tax years 2004 through 2008.
                                -6-

Thompson filed a petition with the Court to challenge the

determination.   His petition said:

     Did not receive call for the over the phone appeals
     hearing on date and time which was set. I was home all
     day and did not receive a call. I called Mr. Scott
     Penny the next day and received a message he was out of
     office for a few days, so I left him a message.
     Several days later he returned my call stating he had
     called and he could not discuss the issue with me any
     longer.

                            Discussion

     The determination of the IRS Appeals Office is reviewed by

this Court for abuse of discretion where, as here, the amount of

the underlying liability is not at issue.    Hoyle v. Commissioner,

131 T.C. 197, 200 (2008).   The issue in this case is whether the

Appeals Office held a hearing with Thompson.    Section 6330(a)(1)

provides that a person who receives a notice of an impending IRS

levy is entitled to request a “hearing”.    Section 6330(b)(1)

provides that if a hearing is requested, “such hearing shall be

held by the Internal Revenue Service Office of Appeals.”

Thompson has testified essentially that the Appeals Office failed

to call him at the time scheduled for a prearranged telephone

conference that was to constitute part of the hearing and that

thereafter the Appeals Office refused to speak to him.    We

believe it is more likely than not that Penny did call Thompson

on the time and day arranged for the telephone call.    Despite

some efforts by both men to reach each other over the next few

days, they failed to have a telephone conversation.    Under the
                                 -7-

circumstances, this was Thompson’s fault.      He was unavailable at

the appointed time on May 27, 2009, and he did not immediately

call Penny when that time passed.      Thompson did not call Penny

the next day, despite Thompson’s testimony that he did so.      Nor

did Thompson call Penny on June 12, 2009, as instructed by

Penny’s voicemail message left on June 11, 2009.      A difficult man

to reach by telephone, Thompson did not attempt to communicate

with Penny in writing.   As to Thompson’s testimony that Penny

refused to speak with Thompson about his case, we believe that

any such refusal took place only after Thompson had a reasonable

opportunity to have an earlier telephone conversation with Penny.

Under the circumstances, the Appeals Office afforded Thompson the

hearing required by the statute.    See Dinino v. Commissioner,

T.C. Memo. 2009-284, slip op. at 17.2

     To reflect the foregoing,


                                            Decision will be entered

                                       for respondent.




     2
      Thompson does not complain about the Appeals Office’s
refusal to consider an installment agreement. Because Thompson
never filed his tax returns as the Appeals Office requested, the
refusal of the Appeals Office to consider an installment
agreement was not an abuse of discretion. See Taylor v.
Commissioner, T.C. Memo. 2010-213.
