                        T.C. Memo. 2010-260



                     UNITED STATES TAX COURT



                  JASON GOLDITCH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21865-08L.           Filed November 30, 2010.



     Jason Golditch, pro se.

     Christina E. Ciu, for respondent.



                        MEMORANDUM OPINION


     MORRISON, Judge:   Under section 6330(d)(1) of the Internal

Revenue Code of 1986, as amended,1 petitioner Jason Golditch

seeks our review of the determination by the IRS Office of

Appeals to uphold a proposed levy on his assets.   Golditch argues


     1
      All subsequent section references are to the Internal
Revenue Code of 1986, as amended (26 U.S.C.).
                                - 2 -

that the determination was erroneous in two respects.    First, he

argues that the Office of Appeals erred in failing to offer him a

face-to-face meeting.    Second, he argues that the Office of

Appeals erred in refusing to reconsider the amount of his tax

liabilities.    We sustain the determination of the Office of

Appeals.   We also decide that the levy should not be suspended

during the judicial appeal of the determination.

                             Background

     The proposed levy is intended to collect unpaid income-tax

liabilities for 2002, 2003, 2004, and 2005.    Golditch failed to

file federal income-tax returns for the years 2001, 2002, 2003,

2004, and 2005.    On November 30, 2006, the IRS sent a notice of

deficiency to Golditch determining that he was liable for income

taxes for the 2002, 2003, 2004, and 2005 years.    The deficiency

notice was sent to Golditch’s address on White Road in

Watsonville, California.    Golditch received the notice.   See

infra Discussion, part 3.    Golditch did not file a petition in

the Tax Court to contest his tax liabilities for the years 2002

through 2005.

     On July 31, 2007, the IRS sent Golditch a “Notice of Federal

Tax Lien Filing and Your Right to a Hearing Under IRC § 6320”,

notifiying him that it had filed a tax lien to secure his tax
                                - 3 -

liabilities for the tax years 2001 to 2005.2    Golditch timely

requested an administrative hearing regarding the filing of the

lien.    Believing that Golditch’s request for the lien hearing was

late, the IRS did not hold a lien hearing under section 6320

(guaranteeing each taxpayer a right to an administrative hearing

after the filing of a tax lien).    Instead, it held an equivalent

hearing.

     On January 19, 2008, the IRS sent Golditch a “Final Notice

of Intent to Levy and Notice of Your Right to a Hearing”

notifying him that it intended to levy to collect his assessed

tax debts for the 2002, 2003, 2004, and 2005 tax years.    Golditch

timely requested an administrative hearing regarding the proposed

levy.    In this request, dated February 13, 2008, Golditch

asserted that he wished to verify that the IRS had followed

proper procedures; that he did not believe he was liable for the

tax; that he wished to challenge the tax liabilities because he

had not yet had a chance to do so; and that if it could be proven

that he owed the tax, he wished to discuss collection

alternatives.    His request also said:   “It is not my intention to

discuss any issues that the IRS or the Courts has considered to

be frivolous.    If you have considered any of my prior issues that

I’ve raised in the past to be frivolous, I hereby abandon them.”



     2
      The record does not contain information relating to the
issuance of a notice of deficiency for 2001.
                               - 4 -

     The IRS Office of Appeals assigned Golditch’s request for a

pre-levy hearing to Settlement Officer Phillips.   On June 2,

2008, Phillips sent a letter to Golditch informing him that a

telephone conference had been scheduled for July 1, 2008, at

10:30 a.m.   The letter stated that this telephone call would be

Golditch’s primary opportunity to discuss the reasons he

disagreed with the levy and to discuss alternatives.   The letter

advised Golditch that the issues he raised in his request for a

pre-levy hearing were frivolous.   The letter also stated:

     You will be allowed a face-to-face conference on any
     non-frivolous issue; however you will need to provide
     the non-frivolous issue in writing or by calling me
     within 14 days from the date of this letter before a
     face-to-face conference will be scheduled. You must be
     in full compliance with your filing requirements.

The letter also stated that for Phillips to consider alternatives

to the levy such as an installment agreement or an offer-in-

compromise, Golditch needed to file all federal tax returns that

he had not yet filed and complete a collection information

statement.   On July 1, 2008, Phillips sent a letter to Golditch

informing him that she had called him at the scheduled conference

time of 10:30 a.m. that day but was unable to reach him.

Golditch never provided a collection information statement.     Nor

did he file a tax return for 2001, 2002, 2003, 2004, or 2005.

     On July 28, 2008, the IRS Office of Appeals issued a

decision letter regarding the equivalent hearing that it had
                               - 5 -

offered to Golditch after the lien was filed.   It sustained the

lien filing.

     On July 28, 2008, the IRS Office of Appeals determined that

it was appropriate to collect the income-tax liabilities for

2002, 2003, 2004, and 2005 by levy.    The determination contained

this statement:

     The taxpayer does not want to be considered a
     “taxpayer” and feels he has no responsibility to file
     income tax returns or to pay taxes. The taxpayer does
     have a responsibility to file income tax returns and
     pay tax. Furthermore he may not raise the underlying
     tax as an issue in this Collection Due Process hearing
     because he was issued and received a Statutory Notice
     of Deficiency, which provided him with prior
     opportunity to dispute the tax.

Golditch challenged the determination by filing a Tax Court

petition.   At the time that he filed the petition, Golditch lived

in California.

     At some point, the IRS Office of Appeals realized that

Golditch’s request for a lien hearing was timely.   It decided to

conduct a regular section 6320 hearing.   Such a hearing had not

yet taken place as of October 21, 2009, the trial date in the Tax

Court case.

     Before trial, the respondent (whom we refer to here as the

IRS) moved to show cause why its proposed stipulation of facts

should not be accepted as established for the purposes of the

case.   The proposed stipulation of facts, which was attached as

Exhibit A of the motion, contained 36 paragraphs and referred to
                                - 6 -

29 exhibits.    The preamble to the proposed stipulation of facts

contained a proviso that “either party has the right to object to

the admission of any such facts and exhibits in evidence on the

grounds of relevancy and materiality.”    On September 11, 2009,

the Court ordered Golditch to show cause by October 1, 2009, why

the proposed stipulation of facts should not be accepted as

established for purposes of the case.

     On October 5, 2009, the IRS moved to permit levy under

section 6330(e)(2).

     On October 19, 2009, Golditch submitted a motion for leave

to file a late response to the order to show cause dated

September 11, 2009.    He also lodged his response to the order to

show cause.    The Court denied the motion.   It ordered that the

proposed stipulation of facts be accepted as established for the

purposes of this case.3   Of the 29 exhibits that were attached to

the proposed stipulation of facts, the Court admitted 13 of the

exhibits into evidence.    Golditch made relevancy objections to

the remaining 16 exhibits:    1-J, 5-J, 7-R, 8-R, 9-R, 10-R, 11-R,



     3
      The order referred to the proposed stipulation of facts
that was attached as Exhibit A to the IRS’s motion to show cause
why its proposed stipulation of facts should not be accepted as
established for the purposes of the case. At trial, the IRS
lodged a slightly different document with the Court. The
unsigned document was another draft stipulation of facts which
the IRS had unsuccessfully asked Golditch to execute. It
contained 35 paragraphs and referenced 28 exhibits. It is not
signed, and it is not a document reflecting facts deemed
established by Court order. It therefore has no legal effect.
                                - 7 -

14-R, 15-R, 16-R, 17-R, 18-R, 19-R, 23-R, 25-J, and 27-J.

(Golditch was permitted to make relevancy objections to the

exhibits that were attached to the proposed stipulation, even

though the proposed stipulation was deemed established, because

the proposed stipulation expressly reserved each party’s right to

make relevancy objections to the exhibits.)   At trial, Golditch

declined to testify or introduce any documentary evidence.

                              Discussion

1.   Evidentiary Issues.

     Golditch’s objections to the 16 exhibits are of two types.

First, he claims that some exhibits were not part of the

administrative record because they were not created by the

hearing officer.   We overrule this objection.   A document need

not be created by the hearing officer to be part of the

administrative record.   Second, Golditch objects to some of the

exhibits on the grounds that they are related to the lien

proceeding.   He argues that the lien hearing is irrelevant to the

levy hearing.   We overrule this objection.   The lien hearing is

relevant to Golditch’s argument, discussed below, that we should

delay the decision in this case because of the lien hearing.    The

16 exhibits are admissible.

2.   The IRS Office of Appeals Did Not Err in Refusing To Meet
     With Golditch.

     Although section 6330(b)(1) requires the IRS Office of

Appeals to hold a pre-levy “hearing” if one is requested by the
                              - 8 -

taxpayer, the statute does not explain whether the hearing must

include a face-to-face meeting with the taxpayer.   See Katz v.

Commissioner, 115 T.C. 329, 335 (2000) (holding that a similar

provision, section 6320(b), does not address the issue of whether

the hearing must be face-to-face).    Guidance is found in section

301.6330-1(d)(2), Q&A-D7, Proced. & Admin. Regs., which provides:

     Except as provided in A-D8 of this paragraph (d)(2), a
     taxpayer who presents in the CDP hearing request relevant,
     non-frivolous reasons for disagreement with the proposed
     levy will ordinarily be offered an opportunity for a face-
     to-face conference at the Appeals office closest to
     taxpayer’s residence. * * *

Also, section 301.6330-1(d)(2), Q&A-D8, Proced. & Admin. Regs.,

provides:

     A face-to-face CDP conference concerning a taxpayer’s
     underlying liability will not be granted if the request
     for a hearing or other taxpayer communication indicates
     that the taxpayer wishes only to raise irrelevant or
     frivolous issues concerning that liability. A face-to-
     face CDP conference concerning a collection
     alternative, such as an installment agreement or an
     offer to compromise liability, will not be granted
     unless other taxpayers would be eligible for the
     alternative under similar circumstances. For example,
     because the IRS does not consider offers to compromise
     from taxpayers who have not filed required returns or
     have not made certain required deposits of tax, as set
     forth in Form 656, “Offer in Compromise,” no face-to-
     face conference will be granted to a taxpayer who
     wishes to make an offer to compromise but has not
     fulfilled those obligations. * * * In all cases, a
     taxpayer will be given an opportunity to demonstrate
     eligibility for a collection alternative and to become
     eligible for a collection alternative, in order to
     obtain a face-to-face conference. * * *
                                - 9 -

In summary, the regulation states a general rule that a face-to-

face meeting is ordinarily offered if the taxpayer’s request for

a hearing contains relevant, nonfrivolous reasons for the

hearing.   Two exceptions to the general rule are expressed.

First, no face-to-face meeting will be provided to determine the

amount of the tax liability if communications with the taxpayer

(including but not limited to the hearing request) show that the

taxpayer wishes to raise only issues that are irrelevant or

frivolous.   Second, no face-to-face meeting will be provided to

consider a collection alternative for which the taxpayer does not

qualify.

     The starting point for applying the regulation is the text

of the request for a hearing.   In his request, Golditch expressed

a desire for three things:   (1) to make sure the IRS had met all

procedural requirements, (2) to contest his tax liabilities, and

(3) to discuss alternative collection methods.    All of these

matters are within the scope of the statutorily prescribed

subject matter for the hearing.   Sec. 6330(c).   However, as we

explain below, none of the three matters required a face-to-face

meeting.
                               - 10 -

     a.     Golditch’s Request That IRS Office of Appeals Perform
            Mandatory Verification of Legal Requirements Did Not
            Require a Face-to-Face Meeting.

     Golditch requested the pre-levy hearing, in part, to verify

that the IRS had complied with all procedures.    Section

6330(c)(1) provides that “The appeals officer shall at the

hearing obtain verification from the Secretary that the

requirements of any applicable law or administrative procedure

have been met.”    This verification is mandatory.   Unlike the

requirement that the Office of Appeals consider certain issues

raised by the taxpayer (a requirement contained in section

6330(c)(3)(B)), the verification requirement of section

6330(c)(1) does not depend on which issues are presented by the

taxpayer.    See, e.g., Hoyle v. Commissioner, 131 T.C. 197, 202-03

(2008) (holding that, because verification is mandatory, “this

Court will review the Appeals officer’s verification under

section 6330(c)(1) without regard to whether the taxpayer raised

it at the Appeals hearing”).    Thus, a face-to-face meeting with

the taxpayer is not necessary for the Office of Appeals to obtain

verification that the IRS has met the legal and procedural

requirements.    Section 6330(b)(1) does not require a face-to-face

meeting merely to obtain the verification.
                               - 11 -

     b.   Golditch’s Request To Contest the Amount of His Tax
          Liabilities Did Not Require a Face-to-Face Meeting.

     The second reason that Golditch requested the hearing was to

contest his tax liabilities.    We find it more likely than not

that Golditch’s communications with Phillips indicated that his

challenge to his tax liabilities, including his challenge to

penalties, was based on frivolous arguments.    We base this

finding on the June 2, 2008, letter from Phillips, in which

Phillips explained that Golditch’s position was that he did not

“want to be considered a ‘taxpayer’ and feels he has no

responsibility to file income tax returns or to pay taxes.”4

(Although Golditch’s request for a hearing dated February 13,

2008 purported to abandon any frivolous arguments, this blanket

disavowal does not cancel out the effect of prior frivolous

communications because there is no evidence that Golditch

asserted any nonfrivolous arguments.)    Phillips did not err in

refusing a face-to-face meeting to discuss the amounts of

Golditch’s tax liabilities.    Phillips was merely following


     4
      Two other pieces of evidence relate to the frivolous nature
of Golditch’s communications with the IRS. First, Golditch
failed to respond to Phillips’ request that he submit
nonfrivolous issues to her within 14 days in order to qualify for
a face-to-face hearing. Second, Golditch wrote a letter to the
IRS in 2005 claiming that, as a U.S. citizen, he was exempt from
the federal income tax. Even without considering these two
pieces of evidence, we are satisfied that Golditch’s
communications with the IRS demonstrated that he wished only to
raise irrelevant or frivolous issues regarding his tax
liabilities.
                                - 12 -

section 301.6330-1(d)(2), Q&A-D8, Proced. & Admin. Regs., which

provides that “A face-to-face CDP conference concerning a

taxpayer’s underlying liability will not be granted if the

request for a hearing or other taxpayer communication indicates

that the taxpayer wishes only to raise irrelevant or frivolous

issues concerning that liability.”

     c.     Golditch’s Request for Collection Alternatives Did Not
            Require a Face-to-Face Meeting.

     The third reason Golditch requested the hearing was to

discuss collection alternatives.     But Golditch failed to show

that he met the requirements for being considered for collection

alternatives.     First, he did not submit a collection information

form.     Second, he failed to file his tax returns.   Under the

regulation, Golditch was not entitled to a face-to-face hearing

regarding collection alternatives.       See id.

3.   The Office of Appeals Did Not Err in Declining to
     Redetermine Golditch’s Tax Liabilities.

     A taxpayer may contest the underlying tax liability at a

pre-levy hearing, but only 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).     Golditch claimed in his brief that he did

not receive the statutory notice of deficiency, but he declined

to testify at trial.     The trial record establishes that Golditch

received the statutory notice of deficiency.       A certified mail
                               - 13 -

list, with an official U.S. Post Office stamp, showed that the

statutory notice of deficiency was given by the IRS to the U.S.

Postal Service.    The address to which the IRS directed the notice

was the same address used by the IRS for all correspondence to

Golditch related to the notice of intent to levy, the notice of

federal tax lien, and other notices.    The IRS had verified

Golditch’s address in various telephone conversations with him

from 2004 through 2008.   The IRS had no record that Golditch had

notified the IRS of a change of address.    Golditch did not

present any evidence, in the form of either documents or

testimony, that he did not receive the statutory notice of

deficiency.   The preponderance of the evidence shows that

Golditch received the statutory notice of deficiency.    See Sego

v. Commissioner, 114 T.C. 604, 611 (2000) (applying

preponderance-of-the-evidence standard).    Golditch was therefore

not entitled to raise the issue of the amounts of his tax

liabilities before the Office of Appeals.    The Office of Appeals

did not err in declining to consider the amounts of Golditch’s

tax liabilities.

4.   The Decision in This Case Should Not Be Delayed.

     Golditch argues on brief that the Court should delay the

issuance of a decision in this case because of the lien hearing.

Golditch believes that if this Court sustains the determination

of the Office of Appeals with respect to the levy, he will be
                              - 14 -

unable to appeal the determination of the Office of Appeals with

respect to the lien.   Golditch misconstrues section 6330(b)(2),

which provides that “A person shall be entitled to only one

hearing under this section with respect to the taxable period”.

The phrase “one hearing under this section” refers to a hearing

under section 6330, meaning a pre-levy hearing.    Thus, section

6330(b)(2) bars a taxpayer from having a hearing each time the

taxpayer faces the prospect of a new levy for the same taxable

period.   It does not prevent a taxpayer from having one hearing

to discuss a prospective levy and a second hearing to discuss a

lien filing.5

5.   The Levy Should Not Be Suspended During Golditch’s Judicial
     Appeal of the Pre-Levy Determination of the IRS Office of
     Appeals.

     A taxpayer’s request for a pre-levy hearing automatically

suspends the levy process.   Sec. 6330(e)(1).   The suspension

ordinarily continues during the judicial appeal of the pre-levy

determination of the Office of Appeals.   However, the suspension

does not apply while a judicial appeal is pending if (1) a court

determines that the IRS has shown good cause why the levy should

not be suspended, and (2) the underlying tax liability is not at

issue in the appeal.   Sec. 6330(e)(2).   We find that the IRS has

shown good cause that the levy should not be suspended.    We


     5
      Sec. 6320(b)(4) provides that the lien hearing will be held
in conjunction with the levy hearing “To the extent practicable”
only.
                                - 15 -

believe that Golditch used the pre-levy appeal process to delay

the IRS’s collection efforts, not to raise legitimate issues.

Golditch’s underlying tax liabilities are not at issue in the

appeal, as we explained supra part 3.    The IRS’s motion to permit

levy will be granted.

     To reflect this opinion,


                                          An appropriate order and

                                     decision will be entered.
