                  T.C. Summary Opinion 2002-38



                     UNITED STATES TAX COURT



               RUBIN WHITFIELD, JR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6573-01S.             Filed April 8, 2002.


     Rubin Whitfield, Jr., pro se.

     Marty J. Dama, for respondent.



     COUVILLION, Special Trial Judge: This case was heard

pursuant to section 7463 in effect when the petition was filed.1

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.   Petitioner

petitioned for review under section 6330(d) of a determination by

respondent's Appeals Office that respondent's action to collect


     1
          Unless otherwise indicated, section references
hereafter are to the Internal Revenue Code as amended.
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by levy Federal income taxes owing by petitioner for the year

1990 should proceed.     That determination was preceded by

respondent's issuance to petitioner of a notice of intent to levy

and of petitioner's right to a hearing in connection with an

assessed balance of income taxes for 1990 of $486.77 and

statutory additions of $2,142.20.

     Some of the facts were stipulated.     Those facts, with the

exhibits annexed thereto, are so found and are made part hereof.

At the time the petition for review was filed, petitioner was a

legal resident of Italy, Texas.

     A notice of deficiency was issued to petitioner for 1990,

and respondent's determinations in that notice were never

judicially challenged or litigated by petitioner.     Petitioner

was, in due course, assessed for the amounts determined in the

notice of deficiency.2

     In his petition for review, petitioner alleges that he had

previously entered into an agreement with a representative of

respondent to the effect that, if he made the equivalent of

monthly payments over a 12-month period totaling $1,296, his



     2
          The notice of deficiency was not offered into evidence
at trial. It appears that petitioner had not filed a tax return
for 1990; however, after the notice of deficiency was issued,
petitioner filed a return that mirrored the determinations in the
notice of deficiency. In his petition and at the hearing,
petitioner did not allege or contend that he never received the
notice of deficiency.
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account would be considered paid in full, and all penalties and

interest would be abated.   No written evidence or documentation

of such an agreement was presented at trial.        However, there was

offered into evidence respondent's taxpayer account record of

petitioner, which reflected the following credits and payments on

petitioner's account for 1990:


     Withholding credit: 4/15/91               $  675.00
     Payment by levy: 3/11/97                   1,555.95
     Payment: 5/16/97                             281.00
     Payment: 6/23/97                             324.00
     Payment: 7/21/97                             500.00
     Payment: 8/22/97                             300.00
       Total                                   $3,635.95


These payments, however, did not totally satisfy petitioner's

liability, for which respondent issued the notice of intent to

levy for collection of the balance of the assessment, penalties,

and interest due by petitioner.

     Pursuant to petitioner's request, a hearing was conducted by

respondent's Appeals Office.   A Summary and Recommendation of the

hearing was offered into evidence at trial.        That Summary and

Recommendation states that petitioner's claim that he had a

settlement agreement (described above) was considered; however,

petitioner's claim to the existence of such an agreement was

dismissed for the reason "There is no evidence in the file that

supports the Taxpayer's assertion."      The Summary and

Recommendation further states that, during the hearing, there was
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a discussion of possible payment alternatives and, following the

hearing, the Appeals Office twice sent forms to be completed and

returned by petitioner that would set forth petitioner's

proposals for alternative payments.    Petitioner never followed

through with the process, whereupon respondent's Appeals Office

concluded that petitioner was not entitled to relief.

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

any tax neglects or refuses to pay such tax within 10 days of

notice and demand for payment, the Secretary may collect such tax

by levy upon the taxpayer's property.    Section 6330 generally

provides that the Secretary cannot proceed with the collection of

taxes by way of a levy until the taxpayer has been given notice

and an opportunity for administrative review in the form of an

Appeals Office hearing.   Section 6330(c) provides for an Appeals

Office due process hearing to address collection issues

including, among other things not pertinent here, alternative

means of collection.   The determination of the Appeals Office may

be reviewed judicially upon the timely filing of a petition in

this Court or in an appropriate United States District Court.

When the validity of the underlying tax liability is not at

issue, such as in this case, this Court reviews the Appeals

Office determination for abuse of discretion and does not review

the determination on a de novo basis.    Goza v. Commissioner, 114

T.C. 176, 181-182 (2000).
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     The record here does not support a finding that there was an

abuse of discretion by respondent's Appeals Office in denying

relief to petitioner.   Petitioner's claim that he had an

agreement for an installment payment method with an abatement by

respondent of a portion of the deficiency, interest, and

penalties was not established.    Moreover, the Appeals Office

considered that contention and determined there was no basis for

petitioner's claim.   Nothing was presented by petitioner to the

Court that would establish an abuse of discretion by the Appeals

Office in reaching this conclusion.       Petitioner was offered two

opportunities by the Appeals Office to submit proposals for

alternative means of collection by respondent.       Petitioner did

not submit any alternative collection methods for consideration

by respondent.   Again, there was no abuse of discretion by the

Appeals Office in its determination that the levy should proceed.

Accordingly, the notice of determination by the Appeals Office

will be sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                              Decision will be entered

                                         for respondent.
