                         T.C. Memo. 2005-257



                       UNITED STATES TAX COURT



               JAMES MURDEN WILCOX, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5444-04L.             Filed November 1, 2005.


     James Murden Wilcox, pro se.

     Marty J. Dama, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     VASQUEZ, Judge:    Petitioner filed a petition in response to

respondent’s Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (Notice of

Determination).1   The sole issue for decision is whether



     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.
                                 - 2 -

respondent’s determination to proceed with collection was an

abuse of discretion.

                           FINDINGS OF FACT

       Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time he filed the

petition, petitioner resided in Dallas, Texas.

       In 1976, petitioner was hit by a car while riding his

bicycle and suffered numerous permanent and irreversible

injuries.    Petitioner was diagnosed in 1998 with a broken back.

       Petitioner was self-employed during 1995, 1996, 1997, and

1998, the years in issue.    Before and after the years in issue,

petitioner was employed full time at Fusch-Serold and Partners.

Since Fusch-Serold and Partners withheld a sufficient amount from

petitioner’s pay, petitioner did not owe any additional amounts

of tax for the years he was employed at Fusch-Serold and

Partners.

       Respondent assessed the following amounts, which are in

dispute:

                                 Additions to Tax
Year    Interest    Sec. 6651(a)(1)   Sec. 6651(a)(2)   Sec. 6654(a)
1995    $4,459.61      $1,630.13           $289.80        $384
1996     6,874.01       2,173.95            676.34         428
1997     5,406.61           0.00            104.74         470
1998       825.40           0.00             91.96          66

       On June 11, 2003, respondent mailed to petitioner a Final

Notice of Intent To Levy for 1995, 1996, 1997, and 1998.    On July
                               - 3 -

10, 2003, petitioner timely filed a Form 12153, Request for a

Collection Due Process Hearing (section 6330 hearing).   In a

letter attached to the Form 12153, petitioner stated:

          I have paid the taxes in question. I can’t afford to
     pay the penalties and interest, because my income is limited
     due to my physical disabilities and limitations (see
     attached). Any further collection of monies by the IRS will
     deprive me of obtaining medical help to cope with my
     physical condition and cause long-term and permanent
     effects.

     As of December 8, 2003, petitioner’s total account balances

for 1995, 1996, 1997, 1998 were $4,459.61, $22,808.61,

$19,061.33, and $3,879.23, respectively.

     A section 6330 hearing was held by telephone on January 20,

2004.   Petitioner did not submit a Form 433-A, Collection

Information Statement, to the hearing officer as requested.

     On February 20, 2004, respondent mailed to petitioner a

Notice of Determination.   In an attachment to the Notice of

Determination, respondent described the section 6330 hearing as

follows:

          During the telephone hearing with you and your
     therapist, we discussed your case. I explained to you that
     you did not meet the reasonable cause criteria for abatement
     of the penalties. Your therapist stated you could not
     complete the Collection Information Statement, Form 433-A,
     due to your medical condition. You cannot concentrate for
     long periods of time. I explained to both of you that the
     form requires your monthly income and expenses. You
     explained to me that you are able to pay your monthly living
     expenses and you are currently employed. Your therapist
     offered to assist you in completing the Form 433-A. You
     refused her assistance. It was explained to you that the
     form had to be completed to determine your ability to pay
     the taxes. You were provided ample time and opportunity to
                                - 4 -

     complete the Form 433-A. You stated you previously file
     [sic] an Offer in Compromise that was rejected because you
     had the ability to full pay the taxes. I referred you to
     the Taxpayer Advocate Office; you stated they would not help
     you. It was explained to you that a Determination Letter
     would be issued sustaining the issuance of the levy.

     In the petition, petitioner states as his reason as to why

he should be entitled to relief:

          In March of 1976, I was in an accident, in which I was
     hit by a car while riding my bicycle. I suffered numerous
     permanent and irreversible injuries. I have been injured,
     handicapped and limited every [sic] since. I certainly
     expect relief from the insurmountable penalty & interest
     charges. * * *

                               OPINION

     Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to do so within 10 days after notice

and demand, the Secretary can collect such tax by levy upon

property belonging to such person.      Pursuant to section 6331(d),

the Secretary is required to give the taxpayer notice of his

intent to levy and within that notice must describe the

administrative review available to the taxpayer, before

proceeding with the levy.    See also sec. 6330(a).

     Section 6330(b) describes the administrative review process,

providing that a taxpayer can request an Appeals hearing with

regard to a levy notice.    At the Appeals hearing, the taxpayer

may raise certain matters set forth in section 6330(c)(2), which

provides, in pertinent part:
                                - 5 -

          SEC. 6330(c). Matters Considered at Hearing.--In
     the case of any hearing conducted under this section--

                 *    *     *    *      *   *   *

          (2) Issues at hearing.--

               (A) In general.--The person may raise
          at the hearing any relevant issue relating to
          the unpaid tax or proposed levy, including--

                    (i) appropriate spousal
               defenses;

                    (ii) challenges to the
               appropriateness of collection
               actions; and

                    (iii) offers of collection
               alternatives, which may include the
               posting of a bond, the substitution
               of other assets, an installment
               agreement, or an offer-in-
               compromise.

               (B) Underlying liability.--The person
          may also raise at the hearing challenges to
          the existence or amount of the underlying tax
          liability for any tax period if the person
          did not receive any statutory notice of
          deficiency for such tax liability or did not
          otherwise have an opportunity to dispute such
          tax liability.

     Pursuant to section 6330(d)(1), within 30 days of the

issuance of the notice of determination, the taxpayer may appeal

that determination to this Court if we have jurisdiction over the

underlying tax liability.   Van Es v. Commissioner, 115 T.C. 324,

328 (2000).

     Although section 6330 does not prescribe the standard of

review that the Court is to apply in reviewing the Commissioner’s
                                - 6 -

administrative determinations, we have stated that, where the

validity of the underlying tax liability is properly at issue,

the Court will review the matter de novo.    Sego v. Commissioner,

114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181

(2000).    Where the validity of the underlying tax liability is

not properly at issue, however, the Court will review the

Commissioner’s administrative determination for abuse of

discretion.    Sego v. Commissioner, supra; Goza v. Commissioner,

supra.    The term “underlying tax liability” in section 6330(d)(1)

includes any amounts allegedly owed by a taxpayer pursuant to the

tax laws.    Katz v. Commissioner, 115 T.C. 329 (2000).   This

includes the tax deficiency, additions to tax, and interest.       Id.

As petitioner does not dispute the validity of the underlying tax

liability, we review respondent’s determination for an abuse of

discretion.

     Petitioner’s claim regarding his inability to pay bears upon

issues such as collection alternatives or the appropriateness of

the collection action that the Court reviews for abuse of

discretion.    An action constitutes abuse of discretion where it

is arbitrary, capricious, or without sound basis in fact or law.

Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

     The record reflects no abuse of discretion by respondent.

We have found that in the face of allegations of undue hardship,

a taxpayer must submit complete and current financial data to
                               - 7 -

enable the Commissioner to evaluate a taxpayer’s qualification

for collection alternatives or other relief.     Picchiottino v.

Commissioner, T.C. Memo. 2004-231.

     Petitioner had completed a Form 433-A and had turned it into

a revenue officer in 1998.   Petitioner contends that respondent’s

Appeals officer failed to consider petitioner’s entire history as

she would not look at the 1998 form.    Petitioner alleges that he

should not have to complete another Form 433-A as the Appeals

officer should have the 1998 form.     However, the form completed

in 1998 does not represent current financial information, and as

petitioner did not give respondent current financial information,

it cannot be said that respondent acted arbitrarily or

capriciously in determining to proceed with collection.      See id.;

Newstat v. Commissioner, T.C. Memo. 2004-208.

     Petitioner also did not assert in the petition any spousal

defenses, any challenges to the appropriateness of the collection

actions, or any offers of collection alternatives other than an

offer-in-compromise that was going to be submitted at an

unspecified future date but was never submitted.    See sec.

6330(c)(2)(A).   The issues not raised in the pleadings are now

deemed conceded.   Rule 331(b)(4).   Therefore, we sustain

respondent’s determination regarding the proposed collection

action.
                            - 8 -

To reflect the foregoing,

                                         Decision will be

                                    entered for respondent.
