                          T.C. Memo. 2003-1



                       UNITED STATES TAX COURT



                 CAROL LEE MOORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7556-01L.               Filed January 2, 2003.


     Carol Lee Moore, pro se.

     Kevin M. Murphy, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     VASQUEZ, Judge:   The petition in this case was filed in

response to a Notice of Determination Concerning Collection

Action Under Section 6320 (notice of determination).1    Pursuant

to section 6330(d), petitioner seeks review of respondent’s

filing of a notice of lien under section 6323.


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                                 - 2 -

                          FINDINGS OF FACT

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

The stipulation of facts, with accompanying exhibits, is

incorporated herein by this reference.    At the time she filed her

petition, petitioner resided in Liverpool, New York.

     On April 12, 1994, respondent sent petitioner a notice of

deficiency determining a deficiency of $2,333 and a penalty under

section 6662(a) of $467 for 1992.    Respondent determined that

petitioner did not qualify for a filing status of “head of

household”, was not allowed certain dependency exemptions, and

did not qualify for the earned income credit (EIC).    Petitioner

received the notice of deficiency but did not file a petition

with the Court.   Instead, on June 27, 1994, petitioner sent

respondent a letter enclosing additional information and the

notice of deficiency.   Petitioner also contacted the Taxpayer

Advocate Office regarding her 1992 tax return; as a result,

respondent reduced petitioner’s 1992 deficiency to $1,361 by

allowing petitioner the EIC.2

     On July 31, 2000, respondent sent petitioner a Notice of

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

6320.    On August 21, 2000, respondent received petitioner’s

timely Request for a Collection Due Process Hearing.    In the

request, petitioner explained:    “I do not owe this tax.   Have


     2
         As of Feb. 13, 2002, petitioner owed $2,130.47.
                                - 3 -

repeatedly proven that EIC, dependents and head of household are

valid claims.”    (Emphasis in original.)

     On March 9, 2001, respondent sent petitioner a letter

scheduling the hearing with an Appeals officer on March 20, 2001

in Syracuse, New York.    In response to petitioner’s request to

reschedule the hearing, the Appeals officer sent petitioner a

letter on March 16, 2001, rescheduling the hearing to March 22,

2001, in Syracuse, New York.    Petitioner did not appear at the

hearing.   On March 22, 2001, the Appeals officer sent petitioner

a letter notifying her that if she did not contact him within 14

days, he would close the file with respect to the hearing

request.   On April 9, 2001, in response to a telephone message

left by petitioner, the Appeals officer left a telephone message

with petitioner requesting that she call him regarding

rescheduling the hearing.    Petitioner did not return the

telephone call.

     On May 9, 2001, respondent sent petitioner a notice of

determination.    In the notice of determination, respondent

stated:

          Appeals has determined that the notice of lien filed
     for this tax period properly balances the need for efficient
     collection of the tax with your concerns over the
     intrusiveness of the collection action. You have not raised
     an issue concerning the underlying liability that can be
     considered in a due process hearing and have not made a
     payment proposal.
                               - 4 -

     On June 11, 2001, petitioner filed a Petition for Lien or

Levy Action Under Code Section 6320(c) or 6330(d).   On August 30,

2001, petitioner filed an Amended Petition for Lien or Levy

Action Under Code Section 6320(c) or 6330(d).

                              OPINION

     In the amended petition, petitioner argues that (1)

respondent denied her right to a “Due Process Hearing under IRC

6320" alleging that respondent ignored petitioner’s telephone

calls to reschedule the hearing; and (2) she is entitled to a

filing status as “Head of Household” because she sent proofs of

eligibility to respondent.   Respondent contends that (1)

petitioner was afforded the opportunity for a hearing but waived

that right when she failed to cooperate; and (2) under section

6330(c)(2)(B), petitioner is precluded from challenging her 1992

liability because she received a notice of deficiency for 1992.

     Section 6321 provides that, if any person liable to pay any

tax neglects or refuses to do so after demand, the amount shall

be a lien in favor of the United States upon all property and

rights to property, whether real or personal, belonging to such

person.   Pursuant to section 6323, the Commissioner generally is

required to file a Notice of Federal Tax Lien with the

appropriate State office for the lien to be valid against certain

third parties.
                                 - 5 -

     After the Commissioner files a notice of lien, section

6320(a)(1) requires the Commissioner to provide notice to the

taxpayer of such filing.   Additionally, under section

6320(a)(3)(B) and (b), the Commissioner must provide the taxpayer

with notice of and an opportunity for an administrative review of

the lien filing; i.e., a hearing.     Section 6320(b)(1) requires

that the Appeals Office conduct the hearing.     Section 6320(c)

incorporates section 6330(c) and certain parts of section

6330(d), which describe the procedural rules that apply to the

hearing and the judicial review thereof.

     At the 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
                               - 6 -

           notice of deficiency for such tax liability or did not
           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).

I.   Hearing Request

     The question arises whether this Court should remand the

case to the Appeals Office to hold the hearing because petitioner

alleges that a hearing was not properly held.    In Lunsford v.

Commissioner, 117 T.C. 183 (2001), the Court declined to remand

the case to the Appeals Office to hold a hearing to consider the

taxpayer’s arguments because we did not “believe that it is

either necessary or productive”.   Id. at 189.   The same reasoning

is true here.   As discussed below, petitioner’s only dispute

involved her underlying tax liability, which is not properly at

issue.   We, therefore, consider it neither necessary nor

productive to remand this case to the Appeals Office to hold a

hearing.

     Further, the Court agrees with respondent that petitioner

was granted the opportunity for a hearing.   The Appeals officer

set a hearing date, rescheduled it, and, when petitioner failed

to appear, offered to reschedule it a second time pursuant to

petitioner’s request.   Petitioner did not avail herself of the
                                  - 7 -

opportunities for a hearing nor respond to the Appeals officer’s

telephone call regarding the second rescheduling of the hearing.

II.   Underlying Liability

      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.       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).

      In her request for a hearing, petitioner only argued issues

that involved the underlying tax liability:     Filing status,

exemptions, and EIC.    Petitioner cannot dispute the existence or

the amount of the underlying tax liability because petitioner

received a notice of deficiency.     Sec. 6330(c)(2)(B).

      Additionally, petitioner did not assert in the petition any

spousal defenses, any challenges to the appropriateness of the

collection actions, or any offers of collection alternatives.

See sec. 6330(c)(2)(A).      There is no basis in the record for the
                                 - 8 -

Court to conclude that respondent abused his discretion with

respect to any of these matters.3

     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,

                                              An appropriate order and

                                         decision will be entered.




     3
        Our holding that respondent did not abuse his discretion
renders moot respondent’s motion to dismiss for failure to
properly prosecute filed on July 23, 2002. We therefore deny
respondent’s motion.
