                        T.C. Memo. 2010-28



                      UNITED STATES TAX COURT



                   MARTIN AMENT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

                   JANIE AMENT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 10911-07L, 10912-07L.    Filed February 22, 2010.



     A. Lavar Taylor, for petitioners.

     Mindy S. Meigs, for respondent.



                        MEMORANDUM OPINION


     KROUPA, Judge:   These consolidated1 collection review

matters are before the Court in response to Notices of



     1
      These cases have been consolidated for purposes of trial,
briefing, and opinion.
                               - 2 -

Determination Concerning Collection Action(s) Under Section 6320

and/or 63302 (determination notices) pertaining to trust fund

recovery penalties (TFRPs) assessed against petitioners for the

taxable periods ending September 30 and December 31, 2001, March

31, June 30, September 30, and December 31, 2002, and September

30, 2003 (periods at issue).   We must determine whether it was

appropriate for respondent to assess the TFRPs against

petitioners.   We find that the assessments were appropriate.

                            Background

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

The stipulations of fact and their accompanying exhibits are

incorporated by this reference.   Petitioners resided in

California at the time they filed the petitions.

     Petitioner Martin Ament (Mr. Ament) was the president and

chief executive officer of Martin M. Ament Enterprises, Inc.

(MMAE), and his wife, Janie Ament (Mrs. Ament) was vice president

of MMAE.   MMAE manufactured cabinetry and accessories for

telecommunications equipment and data centers.

     MMAE experienced great growth with the technology boom but

began incurring financial troubles in 2001.   MMAE accrued more

than $419,000 of unpaid employment tax liabilities for the

periods at issue.   Respondent thereafter sent petitioners notices



     2
      All section references are to the Internal Revenue Code
unless otherwise indicated.
                                - 3 -

of proposed trust fund recovery penalty (TFRP) assessments

(Letters 1153) with respect to MMAE’s unpaid employment taxes.

The Letters 1153 provided petitioners with an opportunity for a

pre-assessment conference with respondent’s Appeals Office.     MMAE

filed for chapter 11 bankruptcy (bankruptcy) shortly after

issuance of the Letters 1153.

     Petitioners timely filed a written appeal in response to the

Letters 1153.   Petitioners’ counsel participated in a conference

with Appeals Officer Maria E. Magers Roberts (AO Roberts).

Petitioners each signed a waiver extending the limitations period

for assessment of the TFRPs.    AO Roberts and petitioners

subsequently agreed to settle the administrative appeal.     Mr.

Ament agreed to the assessment of the total amount of the TFRPs,

and Mrs. Ament agreed to the assessment of a reduced amount of

TFRPs.   As part of petitioners’ agreement with respondent,

respondent agreed to refrain from collection activity unless MMAE

defaulted on payment under its bankruptcy plan of reorganization

(bankruptcy plan).   The bankruptcy plan required MMAE to pay the

Internal Revenue Service (IRS) a $56,9243 administrative claim, a

$113,013 priority claim, a $317,489 secured claim, and a $40,242

general unsecured claim.

     Respondent assessed the penalties against petitioners

pursuant to the agreement reached in the Appeals conference.


     3
      All amounts are rounded to the nearest dollar.
                                - 4 -

MMAE failed, however, to timely pay all the IRS claims required

by the bankruptcy plan.   Respondent attempted to contact

petitioners regarding those payments by mail and by visiting

their last known address, but petitioners never responded.

Respondent thereafter sent notices of Federal tax lien filings

(lien filings) to petitioners to collect the unpaid TFRPs.

Petitioners timely filed separate requests for a collection due

process (CDP) hearing.    Petitioners claimed that, even though

they had consented to the assessments of the TFRPs in their

agreement with AO Roberts, the assessments should be abated

because respondent had agreed to refrain from collection action

and the lien filings constituted collection action.

     Settlement Officer Wendy Clinger (SO Clinger) held a CDP

hearing with petitioners’ counsel.      Petitioners’ counsel argued

that the lien filings violated the terms of the limitations

period waiver, the terms of the agreements with AO Roberts, and

the terms of the bankruptcy plan.    Petitioners’ counsel did not

dispute petitioners’ liability for the TFRPs and did not propose

any collection alternatives.    SO Clinger reviewed the case

history and verified that respondent had properly assessed the

TFRPs.   SO Clinger also received a memorandum from respondent’s

counsel advising her that MMAE was not fully current on its

bankruptcy plan payments.    Respondent’s counsel nonetheless

recommended that the liens filed against petitioners be withdrawn
                                 - 5 -

to enable petitioners to obtain necessary financing for MMAE’s

operations.    Withdrawing the liens would give petitioners an

opportunity to enable MMAE to make the required bankruptcy plan

payments.

       SO Clinger concurred with counsel’s recommendation and

withdrew the liens filed against petitioners.       SO Clinger

concluded in the determination notices to withdraw the liens, but

declined to abate the assessments of the TFRPs for the periods at

issue.     Respondent sent petitioners determination notices with

respect to the TFRPs at issue.    Petitioners timely filed

petitions contesting SO Clinger’s determination not to abate the

assessments of the TFRPs.

                              Discussion

       We are asked to determine whether respondent must abate the

assessment of the TFRPs against petitioners.      Respondent argues

that we should apply an abuse of discretion standard of review in

reviewing the determination notices.       Petitioners contend that we

should apply a de novo standard in reviewing the determination

notices.    Under either standard, we would reach the same result

on the record in this case.    Accordingly, we need not decide

which standard of review applies.    See Kohn v. Commissioner, T.C.

Memo. 2009-117; see also Green v. Commissioner, T.C. Memo. 2009-

105.
                                - 6 -

     Petitioners argue that SO Clinger should have abated the

assessments of the TFRPs against petitioners on the ground that

the assessments were procedurally defective.    We disagree.    Trust

fund penalties are not subject to the deficiency procedures

provided in sections 6212 and 6213.     Sec. 6671(a); Shaw v. United

States, 331 F.2d 493, 494 (9th Cir. 1964); Moore v. Commissioner,

114 T.C. 171, 175 (2000).   The IRS must mail the taxpayer a

notice (typically done through a Letter 1153) or notify the

taxpayer in person that it intends to assess a trust fund penalty

before the period for assessing the penalty expires.    Sec.

6672(b)(1), (3).

     SO Clinger reviewed the case history and verified that the

assessments were valid.    She confirmed that petitioners received

the required Letters 1153 before they contested the notices in a

pre-assessment conference with AO Roberts.    SO Clinger also

reviewed and considered, among other things, the limitation

period waivers petitioners executed.    Petitioners agreed to the

assessments in their agreements with AO Roberts.    Correspondence

between petitioners and Appeals concerning the execution of the

waivers further substantiates that petitioners agreed to the

assessment of the TFRPs.    SO Clinger concluded that petitioners

received all notices and were accorded all rights to which they

were entitled regarding the assessments.
                                 - 7 -

     Petitioners also argue that the lien filings violated their

agreement with AO Roberts.   The liens were withdrawn.

Withdrawing the liens has no impact on the validity of the

assessments.   Moreover, we note that petitioners provided no

records to SO Clinger to establish that MMAE had made the

bankruptcy plan payments or that MMAE was not in default.      In

fact, SO Clinger reviewed the bankruptcy plan payments and found

that MMAE was indeed delinquent on its payments.      Accordingly, we

affirm SO Clinger’s determination that the assessments at issue

were valid.

     We have considered all arguments made in reaching our

decision, and, to the extent not mentioned, we conclude that they

are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                             Decisions will be entered

                                         for respondent.
