                        T.C. Memo. 2004-30



                      UNITED STATES TAX COURT



               STEPHEN MITCHELL DAY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1867-03L.             Filed February 5, 2004.


     Stephen Mitchell Day, pro se.

     William J. Gregg, for respondent.



                        MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:    This case was

commenced in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 63301 (notice of

determination).   The issue for decision is whether respondent



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

abused his discretion in determining that the proposed levy

action should proceed against petitioner’s unpaid Federal income

taxes and related liabilities for 1995 and 1996.2

                             Background

     Some of the facts have been stipulated, and they are so

found.    Petitioner resided in Castleton, Virginia, at the time

the petition was filed.

     Petitioner filed Federal income tax returns for taxable

years 1995 and 1996.    On November 18, 1996, respondent made

assessments against petitioner for an income tax deficiency and

related penalties and interest for the 1995 taxable year.    On

January 5, 1998, respondent made assessments for the 1996 taxable

year.    Respondent then issued petitioner a notice of intent to

levy dated May 21, 2001.

     Petitioner filed a Form 12153, Request for a Collection Due

Process Hearing, which was received by respondent on June 21,

2001.    Petitioner does not dispute the underlying tax liabilities

for 1995 and 1996.    Rather, in his request for a hearing under

section 6330, petitioner noted that the proposed levy “will

result in taxpayer’s income being cut by 50%.”

     In a letter dated January 24, 2002, Settlement Officer Craca

informed petitioner that his hearing under section 6330 was


     2
        According to respondent, petitioner’s outstanding tax
liabilities for 1995 and 1996 were $3,373.62 and $4,442.63,
respectively, as of June 12, 2003.
                               - 3 -

scheduled for February 28, 2002, at the Appeals Office in

Washington, D.C.   In response to petitioner’s request for

collection alternatives, Settlement Officer Craca asked

petitioner to submit income tax returns for taxable years 1997

through 2000 and “A completed Offer in Compromise package for

consideration.”

     At petitioner’s request, the hearing originally scheduled

for February 28, 2002, was continued so as to provide petitioner

an opportunity to prepare and file the requested documents.     In

March 2002, petitioner filed the requested income tax returns,

but he did not file an offer in compromise.

     In a letter dated June 12, 2002, respondent informed

petitioner that his case was being transferred to the Appeals

Office in Houston, Texas (Houston Appeals Office), and that a new

Appeals officer would be assigned his case.   The Houston Appeals

Office, in a letter dated July 17, 2002, requested that

petitioner file an income tax return for the 2001 taxable year

and a form concomitant to an offer in compromise.   A hearing

under section 6330 was scheduled for August 14, 2002, with said

hearing to be conducted via telephone.

     Petitioner did not submit to the Houston Appeals Office

either an offer in compromise or the requested tax return for

2001.   He instead objected to having his case transferred,

because he wanted a face to face hearing under section 6330.
                               - 4 -

     In a letter dated October 28, 2002, Settlement Officer Craca

informed petitioner that his case had been transferred back to

the Appeals Office in Washington, D.C., for resolution.    She

informed him that a hearing under section 6330 was scheduled for

November 21, 2002, and again requested that petitioner submit

both “A completed Offer in Compromise package (Forms 656, 433A

and 433B)” and a 2001 tax return.

     Petitioner, through a representative, requested in a letter

dated November 18, 2002, a continuance of the hearing scheduled

for November 21, 2002.   Petitioner indicated that his tax return

preparer was “in California on vacation until after the

Thanksgiving holidays,” and that said preparer had all the

documentation necessary for petitioner to complete forms

concomitant to an offer in compromise and the requested tax

return.

     In a letter dated November 19, 2002, respondent denied

petitioner’s request to postpone the hearing.   Petitioner renewed

his request on November 20, 2002, citing delay by the Government,

the unavailability of petitioner’s tax return preparer, and a

variety of personal reasons.   Respondent again denied the

request.

     Respondent issued petitioner a notice of determination dated

December 30, 2002.
                               - 5 -

     Petitioner timely filed with this Court a Petition for Lien

or Levy Action Under Code Section 6330(d).   The only relevant

issue raised is whether petitioner was denied an opportunity for

a fair and meaningful hearing under section 6330.3    Petitioner

contends that Settlement Officer Craca was not impartial, based

upon her letter dated November 19, 2002, denying postponement of

the hearing.   Petitioner further contends that Settlement Officer

Craca should have postponed the hearing scheduled for November

21, 2002, to allow the attendance of petitioner’s tax return

preparer and to account for matters in his personal life.4

                             Discussion

     This Court has jurisdiction to review the Commissioner’s

administrative determination under section 6330.     Sec. 6330(d).

Where, as here, the validity of the underlying tax liability is

not at issue, we review such determination for abuse of

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

v. Commissioner, 114 T.C. 176, 183 (2000).


     3
        As we indicated earlier, petitioner does not challenge
the existence or amount of the underlying tax liabilities for
1995 and 1996. Moreover, petitioner concedes that respondent
satisfied the verification requirement under sec. 6330(c)(1).
     4
        Petitioner also complains of delays by respondent. While
this may be an issue of concern in other cases, any delay by
respondent in the present case actually afforded petitioner ample
opportunity to effect his expressed desire to submit a collection
alternative. Petitioner cannot, on the one hand, complain about
not having enough time to prepare and file an offer in
compromise, and, on the other hand, complain about delays by
respondent that had no effect on petitioner’s ability to prepare
and file such offer.
                                   - 6 -

     Under section 6330, a taxpayer is entitled to notice and an

opportunity for a hearing before certain lien and levy actions

are taken by the Commissioner in the process of collecting unpaid

Federal taxes.    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” consists of the

following four elements:    (1) An impartial officer will conduct

the hearing; (2) certain issues may be heard such as an offer-in-

compromise; (3) the conducting officer will receive verification

from the Secretary that the requirements of applicable law and

administrative procedure have been met; and (4) a challenge to

the underlying tax liability may be raised only if the taxpayer

did not receive a statutory notice of deficiency or receive an

opportunity to dispute such liability.     Sec. 6330(b) and (c); see

Lunsford v. Commissioner, 117 T.C. 183, 183-184 (2001);

Vossbrinck v. Commissioner, T.C. Memo. 2002-96.

     In the present case, the last two elements are not in

dispute.   With respect to the first element, section 6330(b)(3)

provides in relevant part:    “The hearing * * * shall be conducted

by an officer or employee who has had no prior involvement with

respect to the unpaid tax * * * before the first hearing under

[section 6330]”.    Construing the language of section 6330(b)(3)

and the regulation thereunder, we have held that an Appeals

officer is impartial if he or she “did not participate in, and
                               - 7 -

was not involved in, any previous Appeals Office hearing”

concerning the taxpayer’s tax and tax periods that are the

subject of the current section 6330 proceeding.   Harrell v.

Commissioner, T.C. Memo. 2003-271; sec. 301.6330-1(d)(2), Q&A-D4,

Proced. & Admin. Regs.   Based upon the record in the present

case, we conclude that Settlement Officer Craca was impartial.

     With respect to the second element, that certain issues be

heard, in Neugebauer v. Commissioner, T.C. Memo. 2003-292, the

taxpayer requested that he be allowed to satisfy his outstanding

liability through an offer-in-compromise.   However, he failed to

submit a properly completed Form 656, Offer in Compromise, and

the required financial information for the consideration of his

request.   Accordingly, in Neugebauer v. Commissioner, supra, we

granted the Commissioner’s motion for summary judgment and

sustained the Commissioner’s determination regarding the proposed

levy as a permissible exercise of discretion.

     In Vossbrinck v. Commissioner, supra, the taxpayer alleged

that he was denied a “fair hearing” under section 6330 because

the Commissioner declined to postpone the hearing for a second

time to allow taxpayer to seek a private letter ruling.   We found

the taxpayer’s allegation to be without merit because the

Commissioner had postponed the hearing once before at taxpayer’s

request, and the taxpayer did not submit a request for such a

ruling until 8 days before trial and not before issuance of the
                               - 8 -

notice of determination in that case.    Accordingly, we held that

the taxpayer in Vossbrinck was given a full and fair opportunity

to seek an alternative resolution of his tax liabilities.

     The hearing under section 6330 need not be conducted face to

face.   See Lunsford v. Commissioner, supra at 183; Armstrong v.

Commissioner, T.C. Memo. 2002-224.     But where a taxpayer is not

afforded a proper opportunity for an Appeals hearing, the Court

can remand the case to the Appeals Office to hold a hearing if we

“believe that it is either necessary or productive”.     Lunsford v.

Commissioner, supra at 189; Moore v. Commissioner, T.C. Memo.

2003-1; Bartschi v. Commissioner, T.C. Memo. 2002-268.

     The facts in the present case are similar to those in

Neugebauer and Vossbrinck.   Petitioner’s hearing under section

6330 was twice postponed at petitioner’s request.    Respondent

initially invited petitioner to submit an offer in compromise as

early as January 24, 2002, but respondent’s invitations went

unheeded.   Respondent initially requested as early as July 17,

2002, that petitioner file a Federal income tax return for 2001,

but respondent’s request also went unheeded.    Indeed, petitioner

has had almost a full year to submit his offer in compromise

before the notice of determination was issued on December 30,

2002.   There is no evidence that petitioner was prepared to file

an offer in compromise, even at the time of trial.    Based upon

the record, we conclude that petitioner was afforded a proper

opportunity for a hearing under section 6330 and that respondent
                                 - 9 -

did not abuse his discretion with respect to any of the matters

in issue.

     For the reasons discussed above, respondent’s determination

to proceed by levy with the collection of petitioner’s

outstanding liabilities for 1995 and 1996 should be sustained,

and we so hold.   We have considered all of petitioner’s arguments

and contentions that are not discussed herein relating to whether

respondent may proceed with collection with respect to

petitioner’s outstanding liabilities for 1995 and 1996, and we

find those arguments and contentions to be without merit and/or

irrelevant.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
