                         T.C. Memo. 2003-20



                       UNITED STATES TAX COURT



             AUGUSTIN BOLSOVER JOMBO, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 980-02L.                  Filed January 22, 2003.


     Augustin Bolsover Jombo, pro se.

     Bradley C. Plovan, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     CHIECHI, Judge:    The petition in this case was filed in

response to a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of determina-

tion).

                           FINDINGS OF FACT

     Most of the facts have been stipulated and are so found.
                                - 2 -

       At the time petitioner filed the petition in this case, he

resided in East Sussex, England.

       On November 25, 1997, respondent mailed to petitioner a

notice of deficiency (November 25, 1997 notice) with respect to

his taxable years 1993 and 1994, which he received.    On February

9, 1998, petitioner filed a petition in the Court with respect to

the November 25, 1997 notice.    (We shall refer to the case that

petitioner commenced on February 9, 1998, with respect to the

November 25, 1997 notice relating to his taxable years 1993 and

1994 as the case at docket No. 2446-98.)    The Court set the case

at docket No. 2446-98 for trial on December 14, 1998, in Balti-

more, Maryland.    The Court continued the trial in that case until

April 12, 1999, and set the place of that trial in Washington,

D.C.

       On April 12, 1999, the Court called the case at docket No.

2446-98 for trial in Washington, D.C.    Neither petitioner nor any

authorized representative of petitioner appeared at that trial.

Respondent orally moved to dismiss the case at docket No. 2446-98

for lack of prosecution.

       On April 12, 1999, the Court entered an Order of Dismissal

and Decision (April 12, 1999 Order of Dismissal and Decision)

with respect to the case at docket No. 2446-98.    In that Order,

the Court (1) granted respondent’s oral motion to dismiss the

case at docket No. 2446-98 for lack of prosecution and
                               - 3 -

(2) decided that there were due from petitioner for his taxable

years 1993 and 1994 deficiencies in his Federal income tax (tax)

in the respective amounts of $108,542 and $121,983 and additions

to such tax in the respective amounts of $21,708 and $24,397.

     On April 13, 1999, the Court granted petitioner until June

11, 1999, within which to file a motion to vacate the April 12,

1999 Order of Dismissal and Decision in the case at docket No.

2446-98.   That was because petitioner had telephoned the Clerk of

the Court and indicated that he had not received until April 11,

1999, the Order setting the case at docket No. 2446-98 for trial

on April 12, 1999, in Washington, D.C.

     On June 8, 1999, petitioner filed a motion to vacate the

April 12, 1999 Order of Dismissal and Decision.   On July 9, 1999,

the Court denied that motion to vacate.

     On September 29, 1998, respondent mailed to petitioner a

notice of deficiency (September 29, 1998 notice) with respect to

his taxable year 1995, which he received.   In the September 29,

1998 notice, respondent determined a deficiency in, and an

addition to, petitioner’s tax for his taxable year 1995 in the

respective amounts of $432,990 and $21,581.   Petitioner did not

file a petition in the Court with respect to the September 29,

1998 notice relating to his taxable year 1995.

     On September 22, 2000, respondent filed a notice of Federal

tax lien with the Recorder of Deeds in Washington, D.C., with
                               - 4 -

respect to petitioner’s taxable years 1993, 1994, and 1995.     That

notice stated, inter alia, “We have made a demand for payment of

this liability, but it remains unpaid.”

     On September 22, 2000, respondent issued to petitioner a

notice informing him that respondent had filed a Federal tax lien

with respect to his taxable years 1993, 1994, and 1995 and that

he had a right to a hearing (Appeals Office hearing) with respon-

dent’s Appeals Office with respect to that lien.

     On October 19, 2000, petitioner filed Form 12153, Request

for a Collection Due Process Hearing (Form 12153).   Petitioner

indicated in that form that he did not agree with the filing by

respondent of a Federal tax lien with respect to his taxable

years 1993, 1994, and 1995.   In support of that position, peti-

tioner stated in Form 12153 that his “Tax liability is yet to be

established-concerning my diplomatic status / a greencard holder

who stayed less than 31 days in the US. (2) Other matters faxed

to IRS officer.”

     On November 29, 2001, respondent’s Appeals Office held an

Appeals Office hearing with petitioner.   On December 27, 2001,

the Appeals Office mailed to petitioner a notice of determination

with respect to his taxable years 1993, 1994, and 1995.   The

notice stated in pertinent part:

     Applicable law and administrative procedures

     With the best information available, the requirements
     of various applicable laws or administrative procedures
                         - 5 -

have been met, and the actions taken or proposed by
Revenue Officer Sterling were appropriate under the
circumstances.

IRC Section 6321 provides a statutory lien when a
taxpayer neglects or refuses to pay a tax liability
after notice and demand. Transcripts of your accounts
show the Service Center issued these notices; the
obligation remains unpaid.

   *       *       *       *       *       *       *

While the law imposes no further requirements prior to
the filing of a notice of federal tax lien, IRM
5.12.1.3 requires that reasonable efforts be made to
contact you before filing of the notice of Federal tax
lien. Notices were sent attempting contact with you.

IRC 6320, as enacted by RRA ‘98, imposed Due Process
provisions effective January 19, 1999. Internal
Revenue Service is required to give notice to you in
writing within five days after the filing of a notice
of Federal tax lien of your rights to request a hearing
with Appeals if the request is made during the thirty
days following the end of the five-day notification
period. These constraints were made in this appeal.

This Settlement Officer has had no prior involvement
with respect to these liabilities.

Relevant issues raised by the taxpayer

You were given the opportunity to raise any relevant
issues relating to the unpaid tax or the proposed
collection action per IRC Section 6330. You believe
you do not owe the tax, because you were not a landed
immigrant at the time you won the lottery. You feel
the pending court decision on a later year will prove
that you are not liable for the tax. If you are found
to owe the tax, you will make arrangements to pay at
that time.

Balancing efficient collection and intrusiveness

IRC Section 6330 requires that the Settlement Officer
consider whether any collection action balances the
need for efficient collection of taxes with the
legitimate concern that any collection action be no
                               - 6 -

     more intrusive than necessary. The file indicates that
     the legal requirements pursuant to filing a lien were
     met and that there was no improper action in such
     filing. You had no challenge to the appropriateness of
     the collection action, except your assertion that you
     do not owe the tax. Since the Tax Court and Appeals
     have previously determined that the tax is owed, the
     filing of the notice of Federal tax lien is appropriate
     to protect the Government’s interest.

                              OPINION

     As we understand petitioner’s position, he is challenging

the respective underlying tax liabilities for his taxable years

1993, 1994, and 1995.1   With respect to petitioner’s taxable

years 1993 and 1994, petitioner received a notice of deficiency,

filed a petition with respect to that notice, thereby commencing

the case at docket No. 2446-98, and did not appear at the trial

in that case which the Court had set for trial on April 12, 1999,

in Washington, D.C.   As a consequence, the Court granted respon-

dent’s oral motion to dismiss for lack of prosecution in the case

at docket No. 2446-98 and entered an Order of Dismissal and

Decision against petitioner in that case.   Thereafter, the Court

denied petitioner’s motion to vacate that Order.   With respect to

petitioner’s taxable year 1995, petitioner received a notice of


     1
      Specifically, petitioner argues that he has shown in an-
other case that he commenced in the Court with respect to his
taxable year 1996 that he is not liable for tax not only for that
year, but also for 1993, 1994, and 1995. We note that after the
trial in the instant case the Court issued an Opinion with
respect to petitioner’s taxable year 1996 in the other case on
which petitioner is relying, in which we sustained respondent’s
determinations with respect to that year. See Jombo v. Commis-
sioner, T.C. Memo. 2002-273.
                                 - 7 -

deficiency, but he did not file a petition with respect to that

notice.   On the instant record, we find that petitioner may not

challenge the underlying tax liability for any of his taxable

years 1993, 1994, or 1995.     See sec. 6330(c)(2)(B).2

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the determination of the Commissioner of Internal Revenue

for abuse of discretion.3    Sego v. Commissioner, 114 T.C. 604,

610 (2000); Goza v. Commissioner, 114 T.C. 176, 182 (2000).

     In support of his position that respondent may not proceed

with the collection action as determined in the notice of deter-

mination with respect to his taxable years 1993, 1994, and 1995,

petitioner argues that respondent did not comply with the collec-

tion procedures set forth in the Code.     On the instant record, we

find that respondent complied with the applicable collection

procedures.   See sec. 6320.

     Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining to proceed with the collection action as determined

in the notice of determination with respect to petitioner’s


     2
      All section references are to the Internal Revenue Code
(Code) in effect at all relevant times.
     3
      Assuming arguendo that petitioner had properly placed at
issue the validity of the respective underlying tax liabilities
for his taxable years 1993, 1994, and 1995, on the record before
us, we find that such liabilities are valid.
                                 - 8 -

taxable years 1993, 1994, and 1995.       We further find on that

record that respondent may proceed with the collection action as

determined in that notice with respect to those years.

     We have considered all of petitioner’s arguments and conten-

tions that are not discussed herein, and we find them to be

without merit and/or irrelevant.

     To reflect the foregoing,

                                         Decision will be entered for

                                 respondent.
