                        T.C. Memo. 2002-208



                      UNITED STATES TAX COURT



                THEODORE A. PRIDE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10273-01L.             Filed August 16, 2002.



     Theodore A. Pride, pro se.

     Russell K. Stewart, for respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   Respondent sent to petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 after conducting a hearing under section 6330.    The

hearing was conducted at petitioner’s request in response to a

Notice of Federal Tax Lien Filing and Your Right to a Hearing

Under I.R.C. 6320 for 1980, 1981, and 1982.     Petitioner contends
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that the Internal Revenue Service (IRS) collected moneys from

third parties who had assets belonging to his professional

corporation and that excess collections were or should have been

applied to his personal tax liabilities.   Unless otherwise

indicated, all section references are to the Internal Revenue

Code in effect for the years in issue.

                              Background

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner resided in Philadelphia, Pennsylvania, at the time

that he filed his petition.

     On or about November 7, 1989, petitioner stipulated to a

decision in this Court for his taxable years 1978 through 1983 as

follows:

          ORDERED and DECIDED: That there are deficiencies
     in income tax due from the petitioner for the taxable
     years 1978, 1979, 1980, 1981 and 1982 in the amounts of
     $978.00, $535.00, $6,323.00, $4,775.00 and $4,592.00,
     respectively;

     The decision also provided that there was an addition to tax

due from petitioner for 1981 under section 6651(a)(1) in the

amount of $1,411.   As of the time that the notice of lien

involved in this case was filed, the deficiencies for 1978 and

1979 had been paid.   The balances due from petitioner for 1980,

1981, and 1982 were $15,853.85, $14,267.46, and $9,422.95,

respectively.
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     Petitioner operated a dental practice as a professional

corporation.   From 1983 through 1995, the corporation was liable

for Federal employment taxes and corporate income taxes.

Petitioner filed returns for the corporation, but he did not pay

the tax liabilities.   After the taxes were assessed,

approximately $275,000 was collected by levy upon assets of the

corporation in the possession of third parties.

     Petitioner’s corporation filed a refund suit in the U.S.

District Court for the Eastern District of Pennsylvania, docket

No. 97-0762, contending that the excess of the moneys collected

by levies on corporate assets should have been applied to his

personal income tax liabilities or should be refunded.    The

District Court appointed a certified public accountant as a

“Special Master” to meet with the accountants for both parties in

an attempt to determine the correct amounts of assessment of

interest and penalties and payments with respect to the

corporation’s tax liabilities.    In a Memorandum Opinion and Order

filed January 18, 2001, the District Court concluded that only

$331.50 was available to have been applied to petitioner’s

personal income tax liabilities.    The District Court concluded

that the IRS properly accounted for all payments made by the

third parties, applying the payments first to the oldest

liabilities of the corporation, and that penalties and interest

had appropriately accrued on the balances remaining.
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     At his hearing before the Appeals officer, petitioner was

presented with literal transcripts of his tax accounts for the

years in issue.   Petitioner argued that he had paid the

liability, but the Appeals officer concluded that there was no

record of any payments that were not reflected on the account.

                            Discussion

     In support of his argument, petitioner presented lists of

checks issued by Blue Shield that purportedly represent payments

applied to his tax liabilities for 1978, 1979, 1986, 1987, and

1991.   Because the checks totaled more than the amount that he

believes was owing for 1979, petitioner argues that the excess

should have been applied to his account for the years in issue.

There is no evidence authenticating the lists of checks.

     Petitioner represents that the same lists of checks were

presented in the District Court litigation.   The District Court

concluded that no excess of payments on petitioner’s

corporation’s liabilities remained for application to

petitioner’s personal income tax liabilities, with the exception

of $331.50.   Whether that amount was applied to the years in

issue or to the earlier years is not clear from the record.     In

any event, the records presented by petitioner do not show any

balances that should have been and were not applied to the years

in issue.
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     At trial, petitioner also questioned why a prior lien

against his property filed in December 1990 was released against

his deceased spouse on August 30, 1999.       Although this issue had

not been raised at the hearing before the Appeals officer,

respondent subsequently provided petitioner with transcripts of

the liability of his deceased spouse, reflecting assessments of

the same amounts of liabilities for 1978 through 1982 as had been

determined against petitioner and unpaid balances for 1980

through 1982 in the same amounts as those involved in this

proceeding.   There is no indication that the lien was released as

a result of payments made by petitioner’s spouse.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
