                  T.C. Summary Opinion 2011-69



                      UNITED STATES TAX COURT



               KRISTEN KATHY BLACK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8608-10S.               Filed June 14, 2011.



     Kristen Kathy Black, pro se.

     Nick G. Nilan, for respondent.



     HAINES, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.1   Pursuant to section 7463(b), the

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




     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code as amended.
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this opinion shall not be treated as precedent for any other

case.

     Petitioner filed a petition with this Court in response to a

Notice of Determination concerning Collection Action(s) Under

Sections 6320 and/or 6330 (notice of determination) for 2006.

Pursuant to section 6330(d), petitioner seeks review of

respondent’s determination that respondent’s settlement officer

did not abuse her discretion in sustaining the filing of a notice

of Federal tax lien and denying an installment agreement.

                              Background

        Petitioner maintained her legal residence in the State of

Washington at the time her petition was filed.

        Petitioner filed her 2006 Form 1040, U.S. Individual Income

Tax Return, on August 12, 2008, reporting tax due of $10,228.

Petitioner did not make any payments with her tax return for

2006, and the tax was assessed on September 15, 2008.     Previously

petitioner had requested and received an extension of time to

file her 2007 Form 1040, extending the due date to October 15,

2008.

        Petitioner attempted to resolve her 2006 tax liability

through the use of an installment agreement.     An installment

agreement was entered into on September 10, 2008, but she

defaulted on the agreement and it terminated on March 2, 2009.

On that date, respondent issued a notice of intent to levy for
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2006.   Petitioner did not request a collection due process

hearing with respect to the notice of intent to levy.

     On March 6, 2009, an Internal Revenue Service (IRS) employee

spoke with petitioner about the collection of her outstanding tax

liability.   Petitioner informed the employee that she was not

working and could not pay off the tax liability.    The employee

requested current financial information, but petitioner did not

have the information available at the time of the call.    The

employee mailed petitioner a Form 433-A, Collection Information

Statement for Wage Earners and Self-Employed Individuals, and

advised her to call back no later than March 16, 2009.    The

employee also informed petitioner that respondent had not

received her 2007 tax return.    Petitioner was advised that she

needed to file her 2007 return and was warned of possible lien

and levy enforcement actions.

     Levies were made with respect to petitioner’s 2006 tax

liability on May 22 and July 6, 2009, of $1,152.03 and $495.87,

respectively.   On June 16, 2009, petitioner requested another

installment agreement to resolve her 2006 income tax liability.

She was informed that an installment agreement could not be

granted until the delinquent 2007 return was filed.    A deadline

of July 16, 2009, was set for petitioner to file her delinquent

return.   Petitioner was informed that this date would be the

ultimate deadline to file and was again warned of possible lien
                                - 4 -

and levy enforcement actions.    Respondent did not receive

petitioner’s 2007 return until October 14, 2009, 3 months after

the July 16, 2009, deadline.

     On October 2, 2009, a notice of Federal tax lien was filed

against petitioner with respect to the tax liability for 2006.

On October 6, 2009, respondent issued a Notice of Federal Tax

Lien Filing and Your Right to a Hearing Under IRC 6320 (CDP

notice).    The CDP notice advised petitioner that a notice of

Federal tax lien had been filed and that she could request a

hearing with the IRS Office of Appeals.

     Petitioner filed a Form 12153, Request for a Collection Due

Process or Equivalent Hearing, dated October 20, 2009.    On the

Form 12153, petitioner checked the box for lien withdrawal and

for an installment agreement as a collection alternative.

Enclosed with petitioner’s Form 12153 was a Form 12412,

Operations Assistance Request, from Letitia Sanches of the

Taxpayer Advocate Service, requesting that Ms. Sanches be

contacted if anything additional was required.

     On December 28, 2009, respondent’s settlement officer sent

petitioner a letter scheduling a telephone conference for January

19, 2010.    The letter informed petitioner that withdrawal of the

notice of Federal tax lien could be considered during the hearing

and enclosed a Form 12277, Application for Withdrawal of Filed

Form 668(Y), Notice of Federal Tax Lien.    The letter also advised
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petitioner that in order for the settlement officer to consider

alternative collection methods, petitioner must have filed all

Federal tax returns required to be filed.    In addition, the

letter specifically requested petitioner to provide a completed

Form 433-A and a copy of her 2008 tax return by January 11, 2010,

in order for the settlement officer to consider collection

alternatives.    The settlement officer never requested or received

any additional information from Ms. Sanches regarding

petitioner’s hearing.

     On January 22, 2010, the settlement officer sent a letter to

petitioner informing her that she had not received a telephone

call or any of the requested information for the hearing.    The

letter requested petitioner to provide any information for

consideration within 14 days.

     On February 18, 2010, petitioner faxed a letter to the

settlement officer explaining that she had recently been out of

the country.    The letter informed the settlement officer that

petitioner would call on February 22, 2010, to discuss her case.

The settlement officer did not receive a telephone call or voice

message and did not receive petitioner’s delinquent 2008 tax

return or any of the requested financial information

     On March 11, 2010, respondent’s Office of Appeals issued to

petitioner a notice of determination that sustained the filing of

the notice of Federal tax lien for 2006.    In response to the
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notice of determination, petitioner timely mailed her petition to

this Court on April 9, 2010, and it was filed on April 12, 2010.

See sec. 6330(d)(1); sec. 301.6330-1(f), Proced. & Admin. Regs.

Petitioner does not dispute the underlying tax liability for

2006.

                             Discussion

I.     Standard of Review

       Because the underlying tax liability is not at issue, this

Court’s review under section 6330 is for abuse of discretion.

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

Commissioner, 114 T.C. 176, 182 (2000).    This standard requires

the Court to decide whether the settlement officer’s denial of

petitioner’s requests to withdraw the Federal tax lien and

consider an installment agreement was arbitrary, capricious, or

without sound basis in fact or law.    See Woodral v. Commissioner,

112 T.C. 19, 23 (1999); Keller v. Commissioner, T.C. Memo. 2006-

166, affd. in part 568 F.3d 710 (9th Cir. 2009); Fowler v.

Commissioner, T.C. Memo. 2004-163.

II.    Withdrawal of Notice of Federal Tax Lien

       The Federal Government obtains a lien against “all property

and rights to property, whether real or personal” of any person

liable for Federal taxes upon demand for payment and failure to

pay.    Sec. 6321; Iannone v. Commissioner, 122 T.C. 287, 293

(2004).    The lien arises automatically on the date of assessment
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and continues until the tax liability is satisfied or the statute

of limitations bars enforcement of the lien.   Id.    The notice of

Federal tax lien is filed with the appropriate State office or

other government office in order to validate the lien against any

purchaser, holder of a security interest, mechanic’s lienor, or

judgment lien creditor.   See sec. 6323(a); Lindsay v.

Commissioner, T.C. Memo. 2001-285, affd. 56 Fed. Appx. 800 (9th

Cir. 2003).

     Section 6323(j)(1) provides in pertinent part:

          SEC. 6323(j). Withdrawal of Notice in Certain
     Circumstances.--

               (1) In general.--The Secretary may withdraw a
          notice of a lien filed under this section * * * if the
          Secretary determines that--

                    (A) the filing of such notice was premature
               or otherwise not in accordance with
               administrative procedures of the Secretary,

                    (B) the taxpayer has entered into an
               agreement under section 6159 to satisfy the
               tax liability for which the lien was imposed
               by means of installment payments, unless such
               agreement provides otherwise,

                    (C) the withdrawal of such notice will
               facilitate the collection of the tax
               liability, or

                    (D) with the consent of the taxpayer or
               the National Taxpayer Advocate, the
               withdrawal of such notice would be in the
               best interests of the taxpayer (as determined
               by the National Taxpayer Advocate) and the
               United States.
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An income tax liability was assessed against petitioner for 2006

on September 15, 2008.   Respondent issued a notice of levy on

March 2, 2009, to which petitioner did not respond.   A notice of

Federal tax lien was filed on October 2, 2009.   Filing of the tax

lien took place after assessment and notice and demand, and at

each step petitioner was properly notified.   Therefore, the

notice of Federal tax lien was not filed prematurely.

     Entering into an installment agreement does not preclude the

filing of a Federal tax lien, nor is the Commissioner required to

withdraw a Federal tax lien after an installment agreement has

become effective.   See Crisan v. Commissioner, T.C. Memo. 2007-

67; Ramirez v. Commissioner, T.C. Memo. 2005-179; Stein v.

Commissioner, T.C. Memo. 2004-124.    There is no evidence

suggesting that the filing of the notice of Federal tax lien

would impair petitioner’s ability to pay her outstanding

liabilities.

     Section 6323(j)(1) is permissive.   The Commissioner “may”

withdraw a Federal tax lien pursuant to section 6323(j)(1), but

the settlement officer’s denial of petitioner’s request to have

the Federal tax lien withdrawn was not arbitrary, capricious, or

without sound basis in fact or law.   On the facts presented, this

Court holds that the settlement officer did not abuse her

discretion in sustaining the filing of the notice of Federal tax
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lien.    See Crisan v. Commissioner, supra; Ramirez v.

Commissioner, supra; Stein v. Commissioner, supra.

III. Installment Agreement

     Generally, a taxpayer must be in compliance with all filing

requirements and must provide requested financial information

before an installment agreement may be considered.2      See Giamelli

v. Commissioner, 129 T.C. 107, 111 (2007); Orum v. Commissioner,

123 T.C. 1, 13 (2004), affd. 412 F.3d 819 (7th Cir. 2005).

Petitioner has not shown that the filing requirements for all

required tax returns have been met, nor has she provided the

financial information necessary to support the granting of an

installment agreement.   The settlement officer’s denial of an

installment agreement was not arbitrary, capricious, or without

sound basis in fact or law.   Therefore, the settlement officer

did not abuse her discretion.

     In reaching these holdings, the Court has considered all

arguments made and, to the extent not mentioned, concludes that

they are moot, irrelevant, or without merit.




     2
      Collection alternatives may be considered where a taxpayer
alleges that collection of the liability would create undue
hardship. Sec. 6343(a)(1)(D); Vinatieri v. Commissioner, 133
T.C. 392, 401 (2009). A taxpayer must submit complete and
current financial data to the Commissioner to prove undue
hardship. Vinatieri v. Commissioner, supra at 398. Petitioner
has not submitted complete and current financial data to
respondent.
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To reflect the foregoing,


                                  Decision will be entered

                             for respondent.
