                       T.C. Memo. 2002-100



                     UNITED STATES TAX COURT



                LAUREN C. JACKSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12329-01L.             Filed April 15, 2002.


     Thomas R. Ceraso, for petitioner.

     Frank A. Falvo and Kathleen Duignan, for respondent.



                       MEMORANDUM OPINION


     ARMEN, Special Trial Judge:    This matter is before the Court

on respondent’s Motion To Dismiss For Failure To State A Claim

Upon Which Relief Can Be Granted.     As explained in detail below,

we shall grant respondent’s motion.
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Background

     On January 6, 1999, respondent sent petitioner a notice of

deficiency.   In the notice, respondent determined a deficiency in

petitioner’s Federal income tax for the taxable 1996 year in the

amount of $2,838.

     On January 9, 1999, petitioner received the aforementioned

notice of deficiency.   However, petitioner never commenced an

action for redetermination in this Court.

     On March 12, 2001, respondent sent petitioner a Final

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

Hearing in respect of petitioner’s outstanding liability for

1996.   Thereafter, on March 29, 2001, respondent received from

petitioner a Form 12153, Request for a Collection Due Process

Hearing.   In the Form 12153, the only reason given by petitioner

why she disagreed with respondent’s proposed collection action

was “disagree with assessed balance”.

     Petitioner’s request for a hearing was assigned to

respondent’s Appeals Office in Pittsburgh, Pennsylvania.   During

the course of the administrative proceeding, petitioner raised no

issue other than her underlying tax liability for the assessed

deficiency.   The Appeals officer advised petitioner of the

limitation set forth in section 6330(c)(2)(B) on challenging her
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underlying liability.1   Nevertheless, on or about June 13, 2001,

the Appeals officer advised petitioner that he would postpone

issuing a notice of determination in order to allow her to submit

a request to respondent’s Examination Division for audit

reconsideration of her 1996 tax liability.   However, petitioner

apparently failed to do so, and, on August 31, 2001, the Appeals

Office issued its Notice of Determination sustaining respondent’s

proposed collection action.

     On October 1, 2001, petitioner filed with the Court a

Petition for Lien or Levy Action seeking review of respondent’s

notice of determination.2   The only issue raised in the petition

is a challenge to petitioner’s underlying tax liability.

     As previously stated, respondent filed a Motion To Dismiss

For Failure To State A Claim Upon Which Relief Can Be Granted.

Respondent contends that petitioner is barred by section

6330(c)(2)(B) from challenging the existence or amount of her tax

liability in this collection review proceeding because she

received a notice of deficiency.

     Petitioner filed a Response, objecting to respondent’s

motion.   In her Response, petitioner alleges that she “never had


     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.
     2
        At the time that the petition was filed, petitioner
resided in Pittsburgh, Pa.
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the opportunity to dispute the tax liability”.   Thereafter,

respondent’s motion was called for hearing at the Court's motions

session in Washington, D.C.   Although petitioner did not appear

at the hearing, she filed a written statement pursuant to Rule

50(c) in which she continues to allege that she “never had the

opportunity to dispute the tax liability”.

Discussion

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

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy on the person’s property.   Section

6331(d) provides that at least 30 days before enforcing

collection by way of a levy on the person's property, the

Secretary is obliged to provide the person with a final notice of

intent to levy, including notice of the administrative appeals

available to the person.

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by way of a levy until the person has

been given notice and the opportunity for an administrative

review of the matter (in the form of an Appeals Office hearing)

and, if dissatisfied, the person may obtain judicial review of

the administrative determination.   See Davis v. Commissioner, 115

T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179

(2000).
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     Section 6330(c) prescribes the matters that a person may

raise at an Appeals Office hearing.     In sum, section 6330(c)

provides that a person may raise collection issues such as

spousal defenses, the appropriateness of the Commissioner's

intended collection action, and possible alternative means of

collection.   Section 6330(c)(2)(B) provides that the existence

and amount of the underlying tax liability can be contested at an

Appeals Office hearing only if the person did not receive a

notice of deficiency for the taxes in question or did not

otherwise have an earlier opportunity to dispute the tax

liability.    See Sego v. Commissioner, 114 T.C. 604, 609 (2000);

Goza v. Commissioner, supra.    Section 6330(d) provides for

judicial review of the administrative determination in the Tax

Court or a Federal District Court, as may be appropriate.

     Petitioner admits that on January 6, 1999, respondent sent

her a notice of deficiency for the taxable year 1996.     Petitioner

also admits that she received the notice of deficiency 3 days

later on January 9, 1999.   Petitioner does not explain why she

could not have filed a petition for redetermination with this

Court if she, in fact, disputed respondent’s deficiency

determination.   See sec. 6213(a).   We therefore reject her

allegation that she “never had the opportunity to dispute the tax

liability”.
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     Under the circumstances, section 6330(c)(2)(B) bars

petitioner from challenging the existence or the amount of her

underlying tax liability for 1996 in this collection review

proceeding.   See Goza v. Commissioner, supra.

     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.   Rule 331(b)(4).    In the

absence of a justiciable issue for review, we conclude that

petitioner has failed to state a claim for relief, and we shall

therefore grant respondent’s motion to dismiss.

     Finally, we mention section 6673(a)(1).     That section

authorizes the Tax Court to require a taxpayer to pay to the

United States a penalty not in excess of $25,000 whenever it

appears that proceedings have been instituted or maintained by

the taxpayer primarily for delay or that the taxpayer's position

in such proceeding is frivolous or groundless.     The Court has

indicated its willingness to impose such penalties in collection

review cases.   Pierson v. Commissioner, 115 T.C. 576 (2000);

Yacksyzn v. Commissioner, T.C. Memo. 2002-99 (imposing a penalty

in the amount of $1,000); Watson v. Commissioner, T.C. Memo.

2001-213 (imposing a penalty in the amount of $1,500).

     In the present case, petitioner did not challenge the

constitutionality of the Federal income tax or make the type of
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frivolous or groundless arguments that we commonly encounter in

tax protester cases; however, we fail to comprehend on what basis

petitioner prosecuted this case given her admission that she

actually received the January 6, 1999, notice of deficiency 3

days after it was issued.   One might therefore wonder whether

petitioner instituted this case primarily for delay.     Under the

circumstances, however, we shall give petitioner the benefit of

the doubt, and we shall not impose a penalty on her pursuant to

section 6673(a)(1).

     In order to give effect to the foregoing,



                                       An appropriate order granting

                               respondent's motion and decision

                               will be entered.
