                  T.C. Summary Opinion 2006-59



                      UNITED STATES TAX COURT



                 SEDRICK CELESTIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6229-05S.            Filed April 19, 2006.


     Sedrick Celestin, pro se.

     Kim Nguyen, for respondent.



     DEAN, Special Trial Judge: This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code of 1986, as amended.   The decision to be entered is

not reviewable by any other court, and this opinion should not be

cited as authority.
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     The petition in this case was filed in response to a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330.   Pursuant to sections 6320(c) and 6330(d),

petitioner seeks review of respondent’s filing of a notice of

Federal tax lien for his tax liabilities for 1997 and 1998.     The

issue for decision is whether respondent’s collection action was

an abuse of his discretion.

                              Background

     The stipulated exhibits and the exhibits received into

evidence are incorporated herein by reference.    At the time the

petition in this case was filed, petitioner resided in Corona,

California.

     Petitioner signed a stipulated decision in Sedrick Celestin

and Marie M. Paul, docket No. 8355-00, entered by this Court on

October 23, 2001.   On February 4, 2002, respondent assessed the

deficiency of $44,545 and an accuracy-related penalty of $3,847

for 1997, as agreed in the stipulated decision.   Petitioner filed

for bankruptcy in April of 2002.

                              Discussion

     Section 6320 entitles a taxpayer to notice of his right to

request a hearing with the Internal Revenue Service (IRS) Office

of Appeals after a notice of lien is filed by the Commissioner in

furtherance of the collection of unpaid Federal taxes.   The

taxpayer requesting the hearing may raise any relevant issue with
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regard to the Commissioner’s intended collection activities,

including spousal defenses, challenges to the appropriateness of

the Commissioner’s intended collection action, and alternative

means of collection.    Secs. 6320(b) and (c), 6330(c); see Sego v.

Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner, 114

T.C. 176, 180 (2000).

     The taxpayer may raise challenges “to the existence or

amount of the underlying tax liability”, however, only if he “did

not receive any statutory notice of deficiency for such tax

liability or did not otherwise have an opportunity to dispute

such tax liability.”    Sec. 6330(c)(2)(B).

     Where the validity of the tax liability is not properly part

of the appeal, the taxpayer may challenge the determination of

the Appeals officer for abuse of discretion.    Sego v.

Commissioner, supra at 609-610; Goza v. Commissioner, supra at

181-182.

     The only issues raised by petitioner at the section 6330

hearing were:   (1) That petitioner did not understand the nature

of the decision document he signed in his deficiency proceeding

for 1997 in this Court;1 and (2) whether petitioner’s tax

liability for 1997 was discharged in bankruptcy.   At trial,


     1
      Because petitioner did not pursue the issue at trial, the
Court considers petitioner to have conceded the issue of his
unilateral mistake. Bradley v. Commissioner, 100 T.C. 367, 370
(1993); Sunstrand Corp. v. Commissioner, 96 T.C. 226, 344 (1991);
Rybak v. Commissioner, 91 T.C. 524, 566 n.19 (1988).
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petitioner’s memory of the prior Tax Court proceeding vanished

completely, and he questioned the authenticity of the decision

document though, incongruously, not his signature.    But his

primary argument was that the tax for 1997 was discharged in

bankruptcy or should be so treated because, he alleged, an

Internal Revenue Service (IRS) representative advised him that

filing for bankruptcy would relieve him of the tax.    He argues

that the IRS representative misled him.

     Because petitioner’s income tax liability was assessed

within 240 days before the date of the filing of the bankruptcy

petition, it was not dischargeable.    See 11 U.S.C. secs.

523(a)(1)(A), 507(a)(8)(A)(ii) (2000).    As petitioner’s tax debt

is of a kind specified in 11 U.S.C. section 523(a)(1)(A), it is

not discharged whether or not a proof of claim is filed or

allowed.    11 U.S.C. 523(a)(1)(A)(2000); Swanson v. Commissioner,

121 T.C. 111, 128 (2003).   Petitioner’s discharge argument is

without merit.

     Petitioner’s argument that he was misled by an IRS

representative into filing for bankruptcy is essentially one of

estoppel.   This Court has held that it will apply the doctrine of

equitable estoppel against the Government with the utmost caution

and restraint.   Kronish v. Commissioner, 90 T.C. 684, 695 (1988)

(citing Boulez v. Commissioner, 76 T.C. 209, 214-215 (1981),

affd. 810 F.2d 209 (D.C. Cir. 1987)); see Cavanaugh v.
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Commissioner, T.C. Memo. 1991-407, affd. without published

opinion 986 F.2d 1426 (10th Cir. 1993).   Estoppel claims against

the Government involving misstatements of law or faulty advice by

Government agents are generally rejected on one of two grounds:

either the claimant’s reliance on the agent’s misstatement is not

sufficiently detrimental, or the misdeed itself is not

sufficiently egregious.   Burdett v. Commissioner, T.C. Memo.

1992-576.   The instant claim is lacking in both respects.

Petitioner has failed to allege sufficient detrimental reliance

on the alleged misstatement of respondent’s representative.

     Detrimental reliance is a primary element of an estoppel

claim.   Heckler v. Community Health Services, 467 U.S. 51 (1984).

In Heckler, the Court held that the plaintiff, in relying on the

agent’s advice, “lost no rights but merely was induced to do

something which could be corrected at a later time.”     Id. at 62.

Here, petitioner lost no rights.    His position would be the same

as it is now had he not filed for bankruptcy; he would be liable

for the tax assessed for 1997.

     In addition, it is generally held that a misstatement of law

by a Government agent, by itself, is not sufficient to support a

claim of estoppel.   See Schweiker v. Hansen, 450 U.S. 785 (1981);

see also Henry v. United States, 870 F.2d 634, 637 (Fed. Cir.

1989) (erroneous advice of IRS agent not sufficient misconduct to

estop IRS from raising statute of limitations where advice caused
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taxpayer to file claim after limitations period had run); Burdett

v. Commissioner, supra.   Clearly, if respondent’s representative

advised petitioner that filing for bankruptcy would enable him to

have the deficiency assessment for 1997 discharged, it was an

erroneous statement of law, insufficient to support a claim of

estoppel.

                            Conclusion

     The filing of a Notice of Federal Tax Lien was not an abuse

of discretion by respondent.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                         Decision will be entered

                                   for respondent.
