                        T.C. Memo. 2004-17



                      UNITED STATES TAX COURT



              JOHN HUNTZ LEINEWEBER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12161-01L.             Filed January 26, 2004.



     John Huntz Leineweber, pro se.

     Daniel J. Parent, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GERBER, Judge:   Petitioner, under section 6330(d),1

petitioned this Court seeking a review of respondent’s

determination to proceed with a proposed levy to collect



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year under
consideration.
                                - 2 -

petitioner’s unpaid Federal income taxes for 1997.      The issues

for our consideration are:    (1) Whether petitioner was granted an

opportunity for a hearing within the meaning of section 6330; and

(2) whether respondent’s determination to proceed with the

proposed collection activity was an abuse of discretion.

     A trial was held at San Francisco, California, and

petitioner provided testimony and argument.

                          FINDINGS OF FACT2

     Petitioner resided in Sacramento, California, at the time he

filed the petition in this case.    Petitioner filed his 1997

Federal income tax return on October 2, 1998.      On the return,

petitioner claimed an overpayment of $6,104.      Respondent applied

the claimed overpayment to petitioner’s unpaid tax liability for

1987.    Respondent later discovered that petitioner had failed to

report $6,022 of interest income for 1997.      On February 9, 2000,

respondent mailed a statutory notice of deficiency to petitioner

with respect to his 1997 tax year.      In the notice, respondent

determined a $2,198 income tax deficiency and a $220 addition to

tax under section 6651(a)(1).    Petitioner received the notice but

did not file a petition with this Court to contest respondent’s

deficiency determination.    Respondent assessed the additional

tax, penalty and interest on July 10, 2000.



     2
         The parties’ stipulation of facts is incorporated by
this reference.
                               - 3 -

     On February 9, 2001, respondent issued a Form 1058, Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing.   Petitioner timely submitted Form 12153, Request for a

Collection Due Process Hearing (administrative hearing).

Petitioner did not dispute his liability for the 1997 tax

deficiency.   Instead, he disputed his responsibility to make

payment because he believed that the 1997 overpayment should have

been used to satisfy the 1997 income tax deficiency rather than

offset against his 1987 tax liability.

     Specifically, petitioner claimed respondent erred in

applying the 1997 overpayment to his 1987 tax liability.

Petitioner mistakenly believed the collection period for his 1987

liability had expired in May 1997; however, the period did not in

fact expire until July 8, 2001.   Under this erroneous belief,

petitioner claimed the 1997 overpayment should have been applied

to the 1997 tax liability.

     In addition to requesting a hearing, petitioner requested

the assistance of the Taxpayer Advocate and his congressional

representatives in resolving this matter.   The Taxpayer Advocate

conducted an investigation and determined the Commissioner was

correct in applying the 1997 credits to petitioner’s 1987

account.   The Taxpayer Advocate verified that the 1987 collection

period expired on July 8, 2001, and could see no reason to issue

a refund from the 1987 account.
                               - 4 -

     In response to petitioner’s request for an administrative

hearing, the Appeals officer assigned to petitioner’s case

contacted petitioner by telephone on June 11, 2001.   During this

telephone conversation, the Appeals officer asked petitioner to

schedule a conference date for a face-to-face, in-person, or

telephone conference.   Petitioner stated that he wanted his

congressional liaison present at the meeting and the Appeals

officer expressed doubt as to the liaison’s attending as that was

not the standard practice.   The Appeals officer further explained

that typically petitioner and the Appeals officer were expected

to attempt to resolve the case.   Upon resolution, the Appeals

officer would notify the congressional liaison of the resolution.

At this point, petitioner took the Appeals officer’s number and

stated he would call him at a later time.

     On June 12, 2001, the Appeals officer received a call from

petitioner’s congressional liaison concerning petitioner’s case.

The Appeals officer then telephoned petitioner and left a

recorded message asking petitioner to call him to schedule an

appointment.   No further communication occurred until August

2001.

     On August 21, 2001, the Appeals officer again telephoned

petitioner and offered the date of September 3, 2001.   Petitioner

noted that September 3 was the Labor Day holiday.   The Appeals

officer then offered alternative dates of September 4 or 5.
                                - 5 -

Petitioner stated he could not access his calendar on his

computer and would have to get back to the Appeals officer with a

date.

     After not hearing from petitioner, the Appeals officer

telephoned him again on August 28, 2001.     During this

conversation the Appeals officer indicated that he was scheduling

a conference for September 5, 2001.     Petitioner stated that he

refused to confirm that date.   Petitioner did not give a reason

for refusing to confirm, nor did he offer alternative dates.     On

this same day, the Appeals officer contacted the Taxpayer

Advocate who stated she would not attend any hearing and that

Appeals should proceed with the September 5, 2001, hearing.     The

Taxpayer Advocate also contacted petitioner by telephone on

August 28, 2001, and told him that he needed to work with the

Appeals officer to resolve the 1997 dispute.

     The Appeals officer, after consulting with his manager,

wrote a letter, dated August 28, 2001, to petitioner, informing

him that a conference was scheduled for 9:30 a.m. on September 5,

2001.   In the letter, the Appeals officer indicated, “I reminded

you of the date this morning and you said that you didn’t confirm

it but didn’t offer an alternative date.     I will proceed with a

correspondence hearing, if you don’t appear for the 9-5-01

hearing I have offered.   I will make my decision from the

information in the administrative file.”
                                - 6 -

     Upon receiving the Appeals officer’s letter, petitioner did

not telephone the Appeals officer, but instead wrote a letter to

the Taxpayer Advocate, dated August 30, 2001, and sent a copy to

the Appeals officer.    The letter was essentially a record of

petitioner’s contacts with the Internal Revenue Service regarding

his 1997 tax liability.    At the end of this letter, petitioner

stated that the earliest he could meet with anyone would be

September 17, 2001, as he was seeking work and his schedule was

full.   The Appeals officer’s copy of petitioner’s August 30,

2001, letter did not reach the Appeals officer until the

afternoon of September 5, 2001, which was after the 9:30 a.m.

time scheduled for the hearing that day.

     When petitioner did not appear for the scheduled hearing,

the Appeals officer held a correspondence hearing.    As a result

of this hearing, the Appeals officer determined the proposed levy

was legally and procedurally correct.    That same day, the Appeals

officer sent petitioner a letter, dated September 5, 2001,

notifying him of the result of the hearing.    Attached to this

letter was a transcript of petitioner’s 1997 tax liability.      The

Appeals officer also stated in the letter that petitioner had not

proposed any collection alternatives, so the Appeals Office would

be issuing a determination letter and petitioner should call if

he had any questions.
                               - 7 -

     Petitioner did not attempt to call the Appeals Office or to

schedule a conference in response to the September 5, 2001,

letter.   Further, petitioner did not attempt to raise any

collection alternatives.   As a result, on September 14, 2001,

respondent’s Appeals Office issued a Notice of Determination

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

(notice of determination) in which the proposed levy was

determined to be appropriate to collect petitioner’s unpaid tax

for 1997.   Petitioner timely appealed to this Court for review of

respondent’s determination.

                              OPINION

     The issues we consider arise from respondent’s determination

to proceed with collection under section 6330.    Specifically we

must decide (1) whether petitioner was granted an opportunity for

a hearing within the meaning of section 6330; and (2) whether

respondent’s determination to proceed with the proposed

collection activity was an abuse of discretion.

     Before the Commissioner may proceed to levy on a taxpayer’s

property or right to property, the taxpayer must be notified, in

writing of the Commissioner’s intent and of the taxpayer’s right

to a hearing.   Secs. 6330(a), 6331(d).   Section 6330 provides

that, upon request and in the circumstances described therein, a

taxpayer has a right to a hearing which consists of the following

elements:   (1) An impartial officer will conduct the hearing; (2)
                                - 8 -

the conducting officer will receive verification from the

Secretary that the requirements of applicable law and

administrative procedure have been met; (3) certain issues may be

heard such as spousal defenses and offers-in-compromise; and (4)

a challenge to the underlying liability may be raised if the

taxpayer did not receive a statutory notice of deficiency or

otherwise receive an opportunity to dispute the liability.     Sec.

6330(c).

     Petitioner received written notice of respondent’s intent to

levy and petitioner’s right to a hearing.    In response,

petitioner timely filed his request for an administrative

hearing.   An experienced Appeals officer was assigned to

petitioner’s case.    The Appeals officer had no prior involvement

with respect to petitioner’s unpaid tax.    This satisfies the

first element of petitioner’s right to a hearing with an

impartial officer.    The second through fourth elements are

usually satisfied at the time of the hearing.

     Petitioner claims he was not afforded the opportunity for a

hearing.   The record, however, indicates that respondent provided

petitioner with ample opportunities, but that petitioner declined

such opportunities.    On several occasions, petitioner was

telephonically contacted by the Appeals officer to schedule a

conference.   Petitioner would not agree to any suggested dates

for a hearing and did not offer any alternative dates.      When the
                               - 9 -

Appeals officer decided to set a date, petitioner refused to

confirm that date and, again, did not offer an alternative date.

     The Appeals officer mailed, and petitioner received,

written notice that a hearing was scheduled for September 5,

2001.   The notice informed petitioner that if he did not attend

the hearing, the hearing would proceed without him.   Accordingly,

the determination would be based on information in the

administrative file.   After receiving this letter, petitioner did

not attempt to contact the Appeals officer or reschedule the

hearing.

     Instead, petitioner wrote a letter to the Taxpayer Advocate

relating a history of his contacts with the Internal Revenue

Service.   Toward the end of the letter petitioner mentioned that

he had a full schedule until September 17, 2001, but did not

propose an alternate date or time to meet.   Petitioner sent a

copy of this letter to the Appeals officer; however it did not

reach the Appeals officer until after the time of the scheduled

hearing.

     In determining whether petitioner received an opportunity

for a hearing, the Administrative and Procedural Regulations are

instructive.   They provide:

           Q-D7. If a taxpayer wants a face-to-face CDP
     hearing, where will it be held?

            A-D7. The taxpayer must be offered an
           opportunity for a hearing at the Appeals
           office closest to taxpayer’s residence, * *
                              - 10 -

          *. If that is not satisfactory to the
          taxpayer, the taxpayer will be given an
          opportunity for a hearing by correspondence
          or by telephone. If that is not satisfactory
          to the taxpayer, the Appeals officer * * *
          will review the taxpayer’s request for a CDP
          hearing, the case file, any other written
          communications from the taxpayer * * * and
          any notes of any oral communications with the
          taxpayer or the taxpayer’s representative.
          Under such circumstances, review of those
          documents will constitute the CDP hearing for
          the purposes of section 6330(b). [Sec.
          301.6330-1(d)(2) Q-D7, A-D7, Proced. & Admin.
          Regs.]

     Petitioner had requested a face-to-face hearing, insisting

that the Taxpayer Advocate be present as well as his

congressional liaison.   Petitioner was offered a hearing on

several occasions; however, none of the offers were satisfactory

to petitioner.   It was not the responsibility of the Appeals

officer to arrange for petitioner’s congressional liaison and

Taxpayer Advocate to be present.   Moreover, the Appeals officer

could not make any arrangements without petitioner agreeing to a

hearing date.

     Petitioner received notice that if he did not appear at the

September 5, 2001, hearing, the Appeals officer would make a

determination based on the administrative file.   When petitioner

refused to confirm a date and did not appear for the hearing, it

was appropriate for the Appeals officer to presume that

petitioner did not intend to have a face-to-face hearing of the

type normally offered by the Appeals Office.   Petitioner has not
                                  - 11 -

shown that he is entitled to have the Taxpayer Advocate and/or

his congressional liaison present at a hearing under section

6330.

     Accordingly, it was not an abuse of discretion for the

Appeals officer to proceed with a hearing based on the

administrative file and prior telephone conversations with

petitioner.     Under these circumstances, the Appeals officer’s

review of these documents constituted the administrative hearing

for purposes of section 6330(b).      Sec. 301.6330-1(d)(2)(A-D7),

Proced. & Admin. Regs.

     Further, we have held that a face-to-face meeting is not

required.     Katz v. Commissioner, 115 T.C. 329 (2000).     Recently,

we decided a factually similar case, wherein a taxpayer claimed

he was denied a hearing under section 6330.        Mann v.

Commissioner, T.C. Memo. 2002-48.      In that case, the Appeals

officer scheduled a hearing and provided the taxpayer with

written notice of the hearing.      Id.    The taxpayer received the

notice, but did not attend the hearing and did not attempt to

reschedule the hearing.     Id.   We held in that case that the

taxpayer had been granted an opportunity for a hearing.        Id.

        The circumstances we consider here are less compelling for

petitioner than those in Mann v. Commissioner, supra.        In that

case, the taxpayer was given one notice of the meeting and his

failure to appear was not equated with a failure to give him an
                              - 12 -

opportunity for a hearing.   Here, petitioner was given numerous

opportunities to establish a date for a section 6330 hearing, and

he declined on each occasion without offering an alternative

date.   Finally, when a specific date was set, petitioner failed

to appear or provide the Appeals Office with a reasonable or

timely alternative.   Accordingly, we hold that petitioner was

granted an opportunity for a hearing in accordance with section

6330.

     Concerning the tax year under consideration, petitioner

received a statutory notice of deficiency and had an opportunity

to petition this Court.   Petitioner did not file a petition with

respect to the notice of deficiency, nor does petitioner dispute

the existence or the amount of the underlying tax liability.

Rather, petitioner argues that the collection period for his 1987

liability had expired in May 1997.     Petitioner, under this

belief, claims the 1997 overpayment was incorrectly applied to

his 1987 tax liability.   Petitioner’s contention, however, is

erroneous.

     Petitioner filed his 1987 Federal income tax return in

November 1988.   Within 3 years of that date, on July 8, 1991,

respondent assessed petitioner’s income tax deficiency for 1987.

See sec. 6501(a).   Under section 6502, a tax liability may be

collected by levy or proceedings begun within 10 years after the

assessment.   The Taxpayer Advocate, therefore, was correct in
                                - 13 -

determining that the 1987 collection period did not expire until

July 8, 2001.    Accordingly, using the 1997 overpayment as an

offset to satisfy petitioner’s 1987 tax liability was proper.

     What remains for our decision is whether respondent’s

determination to proceed with collection was an abuse of

discretion.    Sec. 6330(d).   The Appeals officer considered

petitioner’s argument that the 1997 overpayment should have been

used to satisfy petitioner’s 1997 income tax deficiency instead

of its use as an offset to satisfy petitioner’s 1987 tax

liability.    Section 6402 allows the Secretary to credit the

amount of an overpayment against any liability in respect of an

internal revenue tax on the part of the person who made the

overpayment.    Such offset does not preclude the Internal Revenue

Service from making a later determination or assessment with

regard to the overpayment year.     Owens v. Commissioner, 50 T.C.

577, 583 (1968); Clark v. Commissioner, 158 F.2d 851 (6th Cir.

1946).

     The Appeals officer verified that respondent had complied

with all legal and procedural requirements pertaining to the

proposed levy.    Petitioner did not challenge the appropriateness

of the intended method of collection or offer a collection

alternative.    Also, petitioner did not raise any other defenses

to collection.    Consequently, the Appeals officer determined the

proposed levy was legally and procedurally correct.     Petitioner
                             - 14 -

received the notice of determination with an attached transcript

of his 1997 tax liability.

     Accordingly, we hold there was no abuse of discretion in

respondent’s determination to proceed with collection of

petitioner’s 1997 tax liability.    We have considered all of

petitioner’s arguments, and to the extent that they are not

mentioned herein, we find them to be moot, irrelevant, or without

merit.

     To reflect the foregoing,

                                      Decision will be entered

                                 permitting respondent to proceed

                                 with collection.
