                        T.C. Memo. 2002-116



                      UNITED STATES TAX COURT



                 BRAD L. BARNHILL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6994-01L.              Filed May 13, 2002.



     Brad L. Barnhill, pro se.

     Edward J. Laubach, Jr., for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GERBER, Judge:   Petitioner appeals respondent’s

determination to proceed with collection of a 1996 tax liability

comprising $11,172.81 in income tax and a $532.76 section
                                - 2 -

66821 penalty.   After the petition was filed, respondent moved to

dismiss the section 6682 penalty for lack of this Court’s

jurisdiction.    The issues for our consideration are as follows:

(1) Whether we have jurisdiction over the portion of the petition

that relates to the section 6682 penalty, and (2) whether

respondent’s determination to proceed with collection of

petitioner’s assessed income tax for 1996 was an abuse of

discretion.

                           FINDINGS OF FACT

     Petitioner, who resided in Bethel Park, Pennsylvania, at the

time his petition was filed, did not file a 1996 Federal income

tax return.   Respondent examined petitioner’s 1996 tax year by

means of correspondence.    In response to respondent’s

correspondence, petitioner protested the deficiency and requested

an interview.

     On December 15, 1997, respondent mailed petitioner a

statutory notice determining an $11,172.81 income tax deficiency

for 1996.   Petitioner sent a letter to this Court concerning the

deficiency notice.   Petitioner’s letter was filed as a petition,

and he was notified that to perfect it, he had to provide

additional information and pay a $60 filing fee.    In response,

petitioner sent a letter to this Court stating that no deficiency



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code.
                                - 3 -

existed.   Petitioner did not amend the petition or pay the filing

fee, and his 1996 tax case was dismissed on May 20, 1998.      After

the dismissal, respondent assessed the income tax deficiency

against petitioner.    In addition to that assessment, during 1997,

respondent assessed a $532.76 penalty under section 6682 in

connection with petitioner’s 1996 tax year.

     On July 27, 2000, respondent issued to petitioner a Final

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

under section 6330.    In response to this notice, petitioner

requested a section 6330 hearing, which occurred during spring

2001.   On May 2, 2001, petitioner was sent a Notice of

Determination Concerning Collection Action(s) under section

6320/6330.   This notice informed petitioner of the following:

(1) His right to appeal to this Court, (2) the determination that

a levy was the appropriate collection tool, (3) the Internal

Revenue Service’s belief that petitioner’s position at the

hearing was frivolous and had no basis in law, and (4) that all

procedures and administrative requirements had been met.

     On May 31, 2001, petitioner filed a Petition for Lien or

Levy Action Under Code Section 6330(d).    On July 23, 2001,

respondent filed a motion to dismiss the petition for lack of

jurisdiction insofar as it relates to the section 6682 penalty.

                               OPINION

     We must decide:   (1) Whether to dismiss for lack of

jurisdiction with respect to the penalty assessed petitioner
                                - 4 -

under section 6682; and (2) whether respondent’s determination to

proceed with collection of petitioner’s assessed income tax

liability was an abuse of discretion.

I.    Motion To Dismiss for Lack of Jurisdiction

       During 1997, respondent assessed a $532.76 penalty under

section 6682 on the basis that petitioner provided false

information with respect to withholding for 1996.    Respondent

moved to dismiss the petition for lack of jurisdiction insofar as

it seeks review of this penalty.    Respondent contends that this

Court does not have jurisdiction over a section 6682 penalty.

       Section 6682(c) provides that deficiency procedures “shall

not apply in respect to the assessment or collection of any

penalty imposed by * * * [this section].”    See Castillo v.

Commissioner, 84 T.C. 405, 411 (1985).2   Accordingly, we lack

jurisdiction over petitioner’s claim with respect to the section

6682 penalty.

II.    Abuse of Discretion

       The petition in this case was filed under section 6330.

Petitioner alleged numerous claims including, but not limited to,

claims of procedural and substantive defects in both the

assessment of his income tax deficiency for 1996 and the section


       2
       See also Van Es v. Commissioner, 115 T.C. 324 (2000)
(holding, in a sec. 6330 case, that the Tax Court lacked
jurisdiction over a sec. 6702 penalty for the filing of a
frivolous return and granted the Commissioner’s motion to dismiss
for lack of jurisdiction).
                                    - 5 -

6330 hearing.       In particular, petitioner argues that he was not

afforded a “fair hearing” because he did not receive a Form 4340,

Certificate of Assessments and Payments, and was deprived of his

right to subpoena documents and witnesses and confront witnesses.

In regard to the 1996 tax liability, respondent argues that

petitioner’s contentions that he did not receive a “fair” hearing

are either irrelevant or refuted by the transcript of

petitioner’s account.        As explained later in this opinion, we

conclude that there was no abuse of discretion.

        A.    Verification of Petitioner’s Account

        Petitioner contends that he was not shown a Form 4340 at his

hearing before Appeals.        We note that petitioner also contended

that he did not receive a statutory notice of deficiency.        Upon

further inquiry at trial, however, it became apparent that he had

received a notice of deficiency.3       Accordingly, we approach with

caution petitioner’s contention that he was not shown a Form

4340.




        3
               PETITIONER: There is no evidence of a notice
             of deficiency being issued. * * *

               THE COURT:   Well, did you receive a notice of
             deficiency?

               PETITIONER: I received something that told me
             it was a 90-day letter.

               THE COURT:   That is a notice of deficiency.
                                   - 6 -

     Section 6330 provides that, upon request and in the

circumstances described therein, a taxpayer has a right to a

“fair hearing”.    Sec. 6330(b).    A “fair hearing” requires, inter

alia, that the conducting officer receive verification from the

Secretary that the requirements of applicable law and

administrative procedure have been met.       Sec. 6330(c).   In

satisfying this requirement, the Secretary may use a Form 4340.

Lunsford v. Commissioner, 117 T.C. 183, 187-188 (2001).

     One week before trial, respondent provided petitioner with a

transcript of petitioner’s account.        A transcript of a taxpayer’s

account and a Form 4340 contain the same information, insofar as

pertinent here.    A transcript contains transaction codes, whereas

a Form 4340 contains a conversion of the codes into descriptive

terms.    At trial, petitioner exhibited his understanding of the

transaction codes.    Accordingly, the transcript provided

petitioner with the same information as a Form 4340 and satisfies

the requirement that he be provided with a verification of his

account.    See Nestor v. Commissioner, 118 T.C. 162 (2002); Kuglin

v. Commissioner, T.C. Memo. 2002-51.

     B.    The Right To Subpoena Documents and Witnesses, Etc.

     Petitioner argues that section 6330, as written, does not

provide for a “fair hearing”.      Petitioner argues that a “fair

hearing” must include the right to subpoena documents and

witnesses, confront witnesses, submit evidence, etc.       We hold
                               - 7 -

that a “fair hearing” under section 6330 does not require the

formalities requested by petitioner.

     The right to subpoena documents and witnesses, confront

witnesses, etc., is essential only in a formal adjudication;

i.e., an “adjudication required by statute to be determined on

the record after opportunity for an agency hearing”.   5 U.S.C.

sec. 554 (2000) (Administrative Procedure Act (APA) sec. 554).

We have already held that section 6330 hearings are not formal

adjudications.   Katz v. Commissioner, 115 T.C. 329, 337-339

(2000); Davis v. Commissioner, 115 T.C. 35, 41-42 (2000).     In

doing so we have explained that Congress, in establishing a

section 6330 hearing, did not indicate it wished to deviate from

the informal Appeals process already provided for under section

601.106(c), Statement of Procedural Rules.   Katz v. Commissioner,

supra; Davis v. Commissioner, supra.

     Petitioner contends that the requirements set forth under

5 U.S.C. sec. 556 (APA sec. 556) apply to a section 6330 hearing.

APA section 556 provides for the right of a party to “present his

case or defense by oral or documentary evidence, to submit

rebuttal evidence, and to conduct such cross-examinations as may

be required for a full and true disclosure of the facts.”

Petitioner, however, has extracted this language out of the

context.   In order for APA section 556 to apply, the hearing must

be a formal adjudication.   See APA sec. 554; Lunsford v.
                                 - 8 -

Commissioner, 117 T.C. 159 (2002).       As already explained, the

hearing before Appeals is intended to be informal.

     In addition, a recent regulation provides that “The formal

hearing procedures required under the Administrative Procedure

Act, 5 U.S.C. sec. 551, et. seq. do not apply to       * * * [section

6330 hearings]”.    Sec. 301.6330-1(d), A-D6, Proced. & Admin.

Regs.    This regulation also provides that a face-to-face

interview is not required at a section 6330 hearing and that a

taxpayer does not have the right to subpoena and examine

witnesses.    Sec. 301.6330-1(d), Proced. & Admin. Regs.

Accordingly, we hold that respondent did not abuse his discretion

in determining to proceed with the proposed collection action in

this case.

     Petitioner set forth other contentions on brief and at

trial.    To the extent not herein discussed, petitioner’s

contentions have been rendered moot by our holding or are without

merit.

     To reflect the foregoing,

                                         An appropriate order and

                                 decision will be entered.
