                         T.C. Memo. 2002-59



                      UNITED STATES TAX COURT



                    GENE C. SMITH, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18639-99L.               Filed February 28, 2002.



     Gene C. Smith, pro se.

     Joanne B. Minsky, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court under section

6330(d).1   We decide herein whether his income tax as assessed by

respondent for 1985, 1986, 1987, and 1988 should be reduced to




     1
       Section references are to the Internal Revenue Code
applicable to the relevant years.
                                - 2 -

take into account additional amounts which petitioner alleges are

deductible in determining that tax.     We hold it should not.

                          FINDINGS OF FACT

     Most facts were stipulated.   We incorporate herein by this

reference the parties’ stipulation of facts and the accompanying

exhibits.   Petitioner resided in DeLand, Florida, when his

petition was filed with the Court.

     Petitioner failed to file timely Federal income tax returns

for 1985, 1986, 1987, and 1988.    He filed returns for those years

on various dates in 1999.

     On March 15, 1999, respondent issued a Notice of Intent to

Levy and Notice of Your Right to a Hearing to petitioner.       On

March 24, 1999, respondent received a properly completed Form

12153, Request for a Collection Due Process Hearing, wherein

petitioner requested a hearing.    In a letter dated May 18, 1999,

petitioner informed the Appeals officer that he believed he did

not “need due process” or otherwise need the hearing.     The

Appeals officer never conducted a face-to-face meeting or

telephone conference with petitioner.

     Respondent issued a Notice of Determination to petitioner on

December 2, 1999.    The determination upheld the prior assessments

and proposed levy.   In pertinent part, the determination found:

     You failed to file your 1985, 1986, 1987, and 1988
     Federal individual income tax returns and substitute
     returns were prepared by the Atlanta Service Center
     based on information obtained from third parties.
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     You failed to petition the Tax Court after statutory
     notices of deficiency were mailed to you.

     The only legal requirements before taking general
     collection enforcement actions are the notice and
     demand, the notice of intent to levy, and the notice of
     right to collection due process hearing. With the best
     information available, it is determined the
     requirements of various applicable law and
     administrative procedures have been met. All legal and
     procedural requirements and the levies proposed were
     appropriate under the circumstances.

                               OPINION

     Where the validity of the underlying tax liability is

properly at issue in an appeal brought under section 6330(d), the

Court will review the taxpayer’s liability under the de novo

standard.   Where the underlying liability is not at issue, the

Court will review the Commissioner’s administrative determination

for abuse of discretion.    Sego v. Commissioner, 114 T.C. 604, 610

(2000).   To determine which standard of review applies, the Court

must decide whether petitioner’s underlying tax liability is at

issue.    A taxpayer may challenge “the existence or amount of the

underlying tax liability for any tax period if the * * *

[taxpayer] 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).

     Petitioner’s sole allegation in his petition is that

respondent’s determination is incorrect in that it fails to

reflect certain deductions.    Petitioner alleged in his opening

statement that the notices of deficiency were not mailed to his
                                - 4 -

last known address and that he did not receive the notices of

deficiency.    Respondent asserts that petitioner’s underlying tax

liability is not before the Court.      Respondent contends that

there is no evidence petitioner did not receive the notices of

deficiency.

     The parties ask the Court to decide primarily whether

petitioner received a notice of deficiency for any of the subject

years.    If he did, he would be precluded from challenging his

underlying tax liability for the related year or years.      We need

not and do not decide that issue.    Assuming arguendo that

petitioner did not receive a notice of deficiency for any of the

subject years and thus was entitled to challenge his underlying

tax liability for each of those years, he has not established

that he is entitled to any of the additional deductions which he

claims.    Petitioner did not provide at trial any evidence, in the

form of either testimony or documentation, to support his claim

to any additional deduction.    In fact, he chose to present no

evidence at all other than by way of the stipulated facts and

exhibits, none of which adequately supports his claim.      Given

that petitioner set forth in his petition no allegation that

respondent abused his discretion, that petitioner has not claimed

that the proposed method of collection is inappropriate, that

petitioner has not offered any alternative means of collection,
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and that petitioner has raised no spousal defenses, we hold for

respondent.   See Lunsford v. Commissioner, 117 T.C. 183 (2001).

     Accordingly,

                                       Decision will be entered

                               for respondent.
