                        T.C. Memo. 2011-168



                      UNITED STATES TAX COURT



                   JAMES BARNES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8219-07L.             Filed July 13, 2011.



     James Barnes, pro se.

     Alisha M. Harper, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


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

response to a Notice of Determination Concerning Collection
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Action(s) Under Section 6320 and/or 6330 (notice of

determination).1   The issues for decision are whether respondent

assessed the correct amount of petitioner’s underlying income tax

liability for 2002 and, if so, whether respondent abused his

discretion in sustaining the notice of intent to levy for

petitioner’s unpaid income tax liability for the 2002 taxable

year.

                         FINDINGS OF FACT

     At the time the petition was filed, petitioner resided in

Kentucky.

     This case was the subject of a previous opinion denying

respondent’s motion for summary judgment, in which we found that

respondent had failed to establish that petitioner’s underlying

income tax liability was not properly in issue.   See Barnes v.

Commissioner, T.C. Memo. 2010-30.   Pursuant to that opinion, this

Court ordered that petitioner’s case be remanded to respondent’s

Office of Appeals for a hearing pursuant to section 6330 at

respondent’s Appeals Office closest to petitioner’s residence.

Following the issuance of the Court’s order, petitioner’s case

was reassigned to one of respondent’s settlement officers for a

supplemental determination.




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
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     On March 19, 2010, the settlement officer received

Substitute U.S. Postal Service Form 3877 confirming that on

November 30, 2004, respondent mailed to petitioner a notice of

deficiency for the 2002 tax year, which was addressed to

petitioner at his last known address.    The settlement officer

also obtained Form 4340, Certificate of Assessments, Payments,

and Other Specified Matters (certified transcript), for

petitioner’s income tax account for the 2002 tax year.    The

certified transcript indicates that respondent prepared a

substitute return for petitioner, assessed tax against

petitioner, and sent all necessary collection notices to

petitioner for the 2002 tax year.   The certified transcript also

reflects that petitioner had $8,280 in Federal income tax

withholding during 2002 from his employment with Progress Rail

Services (Progress) and that petitioner made no other payments

towards his 2002 income tax liability.

     On March 29, 2010, the settlement officer sent to petitioner

a letter scheduling a face-to-face conference at respondent’s

Office of Appeals in Louisville, Kentucky, on April 22, 2010, and

requesting that petitioner provide a completed collection

information statement and signed income tax returns for the

taxable years 2007 and 2008.   On April 9, 2010, the settlement

officer received the March 29 letter in his office as undelivered

mail bearing a notation that petitioner had moved.    Later that
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day the settlement officer sent another letter to petitioner at

his current address to schedule a face-to-face conference at

respondent’s Louisville Office of Appeals on April 22, 2010, and

requesting that petitioner provide collection information and

signed income tax returns for 2007 and 2008.   Petitioner failed

to appear for the meeting.   On August 3, 2010, the settlement

officer sent petitioner, by certified mail, another letter

offering petitioner an opportunity for a face-to-face conference

in respondent’s Louisville Appeals Office on one of three

alternative dates.   The letter also requested that petitioner

provide a collection information statement and signed income tax

returns for the 2007, 2008, and 2009 taxable years.   Petitioner

signed for the August 3 letter on August 6, 2010, indicating its

receipt.

     On September 7, 2010, the settlement officer received from

petitioner a letter, dated September 2, 2010, in which petitioner

stated his preference that the collection due process (CDP)

hearing for his 2002 taxable year be handled via correspondence.

In petitioner’s letter he also identified his current address and

requested information concerning how respondent had determined

petitioner’s income tax liability for 2002.

     On September 8, 2010, the settlement officer sent petitioner

a letter by certified mail explaining that respondent had

prepared a substitute return for petitioner for the 2002 tax year
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(since petitioner failed to file an income tax return) on the

basis of wage information reported by Progress and a taxable

distribution reported by National City Bank of Kentucky (National

City).   Enclosed with the letter were transcripts reflecting all

income received by petitioner during 2002, including the income

from Progress and National City.   The settlement officer allowed

petitioner until September 30, 2010, to provide any additional

information concerning his 2002 income tax liability and any

collection alternatives to be considered.   Petitioner signed for

the letter on September 13, 2010, and failed to offer any

response.   Petitioner did not present any evidence to show that

he had not received the wage income from Progress or the

distribution from National City or that respondent’s

determination of his 2002 income tax liability was incorrect.

     On October 25, 2010, the settlement officer sent to

petitioner a Supplemental Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (supplemental

notice), which sustained respondent’s notice of intent to levy.

The supplemental notice states, in pertinent part:

                     SUMMARY AND DETERMINATION

     The taxpayer requested a hearing with Appeals under the
     provisions of Internal Revenue Code Section 6330 as to
     the appropriateness of the issuance of a Notice of
     Intent to Levy. Appeals initial determination was that
     all legal and procedural requirements had been met, and
     the Issuance of the Notice of Intent to Levy had been
     appropriate. The taxpayer then petitioned the Tax
     Court, and the result was that the case was remanded to
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     Appeals with instructions that the taxpayer be granted
     a face to face hearing at the Appeals office nearest
     his residence for the purpose of disputing the
     underlying liability.

     Per the courts order [sic], Appeals offered the
     taxpayer a second supplemental Collection Due Process
     hearing at the Appeals Office in Louisville, Kentucky.
     The taxpayer opted to instead conduct the hearing via
     correspondence. In the exchange of correspondence, the
     Settlement Officer explained the basis for the tax
     assessment. The taxpayer, however, did not provide any
     information or evidence to show the liability was not
     correct. Therefore, Appeals determination remains that
     the legal and procedural requirements have been met,
     the assessment of the liability is sustained, and the
     issuance of the Notice of Intent to Levy was
     appropriate.

     On January 24, 2011, the case was called for trial.    At

trial petitioner chose not to testify and failed to present any

evidence disputing respondent’s determination of his underlying

income tax liability or the proposed collection action.    The

Court ordered the parties to file posttrial memoranda on or

before March 21, 2011.   On April 20, 2011, the Court received a

letter from petitioner explaining that he would not comply with

this Court’s order to submit a legal brief because it would

“provide some semblance of justification for the existence of

this case, which * * * [he was] unwilling to do.”

                              OPINION

     In a section 6330 proceeding the Court reviews issues

concerning a taxpayer’s underlying tax liability on a de novo

basis.   Goza v. Commissioner, 114 T.C. 176, 181 (2000).

Petitioner has the burden of proof regarding his underlying tax
                                - 7 -

liability.   See Rule 142(a); Smith v. Commissioner, T.C. Memo.

2008-229.    Petitioner made no specific arguments and presented no

evidence to bring into doubt the correctness of the underlying

tax liability as calculated by respondent.   We therefore uphold

respondent’s determination of petitioner’s 2002 tax liability.

     The Court reviews administrative determinations by

respondent’s Office of Appeals regarding nonliability issues for

abuse of discretion.    Hoyle v. Commissioner, 131 T.C. 197, 200

(2008); Goza v. Commissioner, supra.    The determination of an

Appeals officer must take into consideration:   (1) The

verification that the requirements of applicable law and

administrative procedure have been met; (2) issues raised by the

taxpayer; and (3) whether any proposed collection action balances

the need for the efficient collection of taxes with the

legitimate concern of the person that any collection be no more

intrusive than necessary.   Sec. 6330(c)(3); see also Hoyle v.

Commissioner, supra; Lunsford v. Commissioner, 117 T.C. 183, 184

(2001).

     In the amended petition, petitioner made unsupported claims

that respondent:   Did not meet all applicable requirements during

petitioner’s CDP hearing; did not provide petitioner a fair and

impartial hearing; did not provide petitioner with requested

documents or files; did not allow petitioner to dispute his

underlying tax liability; did not allow petitioner to dispute any
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discrepancies; did not inform petitioner of his rights; and did

not provide petitioner any evidence supporting respondent’s

underlying tax claim.

     Pursuant to our prior opinion this case was remanded to

respondent’s Office of Appeals for further consideration.   The

settlement officer then offered petitioner the opportunity for a

face-to-face conference in Louisville, Kentucky (the Appeals

Office closest to petitioner’s residence).   After repeatedly

requesting a face-to-face hearing and disputing respondent’s

determination not to grant him a face-to-face hearing, petitioner

elected to conduct the remanded CDP hearing by correspondence.

     The settlement officer informed petitioner how respondent

had determined petitioner’s assessed deficiency for 2002 and

provided petitioner with documentation supporting respondent’s

determination.   The settlement officer also offered petitioner

the opportunity to provide information concerning petitioner’s

unpaid tax liability and any potential collection alternatives.

Petitioner failed to provide the settlement officer with any such

information.   On the basis of the information the settlement

officer reviewed during his consideration of petitioner’s CDP

hearing request, petitioner’s failure to dispute the income

information he was provided with in connection with the

underlying tax liability, and petitioner’s failure to qualify for

collection alternatives, the settlement officer sent to
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petitioner a supplemental notice sustaining respondent’s notice

of intent to levy.

     The settlement officer fully responded to petitioner’s

challenges to the proposed collection action during his

consideration of petitioner’s CDP hearing request.   When

petitioner questioned how respondent had determined his 2002 tax

liability, the settlement officer sent petitioner a letter

explaining the income information Progress and National City

submitted to respondent, and provided petitioner with

transcripts.   Furthermore, the settlement officer verified that a

notice of deficiency was mailed to petitioner at his last known

address and that the assessment was properly made.   The

settlement officer also verified that the notice and demand for

payment letter was mailed to petitioner at his last known

address.

     The settlement officer reviewed the available financial

information regarding petitioner and concluded that collection by

levy was appropriate.   We find that the settlement officer

complied with the requirements of section 6330(c)(3) by

responding to the relevant issues petitioner raised and verifying

that the requirements of applicable law and administrative

procedure had been met.   At trial petitioner offered no evidence

to show that the settlement officer abused his discretion.
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     On the basis of the foregoing, we hold that the settlement

officer did not abuse his discretion in sustaining the notice of

intent to levy.

      To reflect the foregoing,


                                        Decision will be entered

                                   for respondent.
