                       T.C. Memo. 2002-233



                     UNITED STATES TAX COURT



                  SAMUEL S. LEE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2635-01L.             Filed September 18, 2002.


     Samuel S. Lee, pro se.

     Thomas R. MacKinson, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court under section

6330(d) to review respondent’s determination as to a proposed

levy to collect Federal income taxes for 1991 and 1992.1   We




     1
       Section references are to applicable versions of the
Internal Revenue Code.
                                - 2 -

decide herein whether respondent may proceed with the proposed

levy.    We hold he may.

                           FINDINGS OF FACT

     Most facts were stipulated.    We incorporate by this

reference the parties’ stipulation of facts and the accompanying

exhibits.    We find those facts accordingly.     Petitioner resided

in California when the petition commencing this proceeding was

filed.

     Petitioner failed to file timely 1991 and 1992 Federal

income tax returns.    Respondent prepared substitute returns for

those years and on July 22, 1996, assessed tax, additions to tax,

and interest.    On May 16, 1997, petitioner and his wife filed

joint 1991 and 1992 Federal income tax returns.

Contemporaneously therewith, they also filed a joint 1990 Federal

income tax return claiming a refund of $11,646 for Federal income

tax withheld by one or more employers.2       Respondent accepted all

three returns and abated the prior assessments for 1991 and 1992.


     2
       On June 30, 1997, the Commissioner mailed a letter to
petitioner and his wife requesting documentation such as a 1990
Form W-2, Wage and Tax Statement, or a copy of an earnings
statement with year-to-date totals that would support their claim
that they had Federal income taxes withheld for 1990. On May 5,
1998, the Commissioner delivered to petitioner and his wife a
similar request for that documentation. The Commissioner never
received that documentation from either petitioner or his wife.
On July 12, 1999, the Commissioner acknowledged that petitioner
and his wife had overpaid their 1990 tax by $3,032.80, and
credited that amount to their 1991 tax. (The record does not
indicate the source of the $3,032.80.) Petitioner continues to
claim in this proceeding that his 1990 overpayment was $11,646.
                               - 3 -

     On April 24, 1998, respondent mailed to petitioner notices

of deficiency for 1991 and 1992.   The deficiencies were

attributable to respondent’s determination that petitioner owed

self-employment tax on the income reported on his returns.    As to

1991, the notice determined that petitioner was liable for a

$5,840 deficiency in income tax and a $1,460 addition to tax

under section 6651(a)(1).   As to 1992, the notice determined that

petitioner was liable for a $2,609 deficiency in income tax and a

$652.25 addition to tax under section 6651(a)(1).    Petitioner

received both notices of deficiency, but he did not petition the

Court in response to either notice.

     On February 18, 1999, respondent issued to petitioner a

Notice of Intent to Levy and Notice of Your Right to a Hearing

for taxable years 1991 and 1992.   On or about March 8, 1999,

petitioner requested such a hearing, and the hearing was held on

September 25, 2000.   During the hearing, the Appeals officer

concluded that petitioner had “reasonable cause” for failing to

file timely his 1991 and 1992 returns and agreed to abate the

related additions to tax under section 6651(a)(1).    Petitioner

also argued during the hearing that his liability for 1991 and

1992 should be offset by the refund claimed on his 1990 return.

The Appeals officer refused to consider this argument.

     On February 2, 2001, respondent issued a notice of

determination to petitioner for 1991 and 1992, which abated the
                                - 4 -

additions to tax and sustained the proposed levy to collect the

remainder of liability.

                               OPINION

     In a proceeding commenced under section 6330(d), the Court

applies a de novo standard to redetermine a taxpayer’s underlying

tax liability, when and if at issue, and an abuse of discretion

standard to review certain other administrative determinations of

the Commissioner.    Sego v. Commissioner, 114 T.C. 604, 610

(2000).    Section 6330(c)(2)(B) provides that a taxpayer’s

underlying tax liability may only be at issue if he or she “did

not receive any statutory notice of deficiency for such tax

liability or did not otherwise have an opportunity to dispute

such tax liability.”

     Here, petitioner received notices of deficiency for 1991 and

1992 and had opportunity to dispute his liability for those

years.    His underlying tax liability is therefore not in issue.

Petitioner’s sole argument in this proceeding concerns his right

to offset his tax and interest liability for those years with his

claimed refund for 1990.    By way of an Order dated July 24, 2002,

we dismissed petitioner’s allegations with respect to 1990 as the

credit or refund of any Federal income tax withheld by his or his

wife’s employer for 1990 would be time barred.    Under section

6511(b)(2)(A), as applicable herein, petitioner’s credit or

refund of tax paid for 1990 is limited to the portion of that tax
                              - 5 -

paid within the 3-year period immediately preceding the filing of

his 1990 Federal income tax return.    Under section 6513(b)(1),

any Federal income taxes withheld by petitioner or his wife’s

employer for 1990 are considered paid to the Commissioner by

petitioner or his wife on April 15, 1991.    See also Landry v.

Commissioner, 116 T.C. 60 (2001).     Given that petitioner advances

no other allegation of error as to respondent’s determination,

and that the record does not otherwise disprove the

determination, we sustain respondent’s determination that he may

proceed with the proposed levy.

                                           Decision will be entered

                                      for respondent.
