                       T.C. Memo. 2008-99



                      UNITED STATES TAX COURT



                MICHAEL POINDEXTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14979-05L.              Filed April 15, 2008.



     Larry D. Harvey, for petitioner.

     Sara J. Barkley, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     FOLEY, Judge:   The issue for decision is whether respondent

abused his discretion in sustaining the default of petitioner’s

offer-in-compromise and determining to proceed with collection.
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                          FINDINGS OF FACT

     On November 21, 1997, respondent accepted petitioner and his

wife Nancy Poindexter’s joint offer-in-compromise (OIC) relating

to tax years 1990, 1991, 1992, 1993, 1994, and 1995 (original tax

liability).   The OIC required petitioner to file timely all

Federal income tax returns and pay timely all Federal income

taxes due for the 5 years following acceptance of the OIC or

until the OIC was paid in full, whichever was longer.    Petitioner

failed to timely pay his 2000 and 2001 Federal income taxes.    On

October 22, 2003, respondent sent petitioner a letter advising

him of the outstanding balances relating to 2000 and 2001 and

notifying him that failure to pay the balances within 30 days

would result in a default on the OIC and reinstatement of the

original tax liability.   Petitioner, in a letter dated November

22, 2003, requested an additional 6 months to pay the outstanding

balances relating to 2000 and 2001.

     On December 19, 2003, respondent entered petitioner’s

default on the OIC in the system.   On September 9, 2004,

respondent mailed petitioner a Notice of Intent to Levy and Your

Right to a Hearing relating to 1993, 1994, and 1995.    On

September 23, 2004, petitioner timely filed a Form 12153, Request

for a Collection Due Process Hearing.   On December 21, 2004, more
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than a year after the OIC default, petitioner paid the

outstanding balances relating to 2000 and 2001.

     On or about April 26, 2005, a collection due process hearing

(CDP hearing) was held, during which petitioner contended that

collection was improper because the OIC should not have been

defaulted.   On July 14, 2005, respondent issued petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 finding that default of the OIC was

procedurally and legally correct, and that it was proper to

proceed with the levy.

     Petitioner filed his petition with the Court on August 12,

2005, while residing in Colorado.

                              OPINION

     Pursuant to Robinette v. Commissioner, 123 T.C. 85, 93-94

(2004), revd. on other grounds 439 F.3d 455 (8th Cir. 2006), the

underlying tax liabilities are not at issue and we review

respondent’s determination for an abuse of discretion.    To

prevail on an abuse of discretion claim, the taxpayer must show

that the Commissioner’s actions were arbitrary, capricious, or

without sound basis in law or fact.     See Giamelli v.

Commissioner, 129 T.C. 107, 111 (2007); Woodral v. Commissioner,
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112 T.C. 19, 23 (1999).   Section 6330(c)(3)1 provides that in

making a determination, the Appeals officer must verify that the

requirements of applicable law and administrative procedure have

been met, consider the issues raised by the taxpayer, and

consider whether the proposed collection action balances the need

for the efficient collection of taxes with the taxpayer’s

legitimate concern that any collection be no more intrusive than

necessary.    Petitioner contends that the Appeals officer abused

her discretion by sustaining the default of the OIC.    We

disagree.

     The OIC, which was accepted on November 21, 1997, required

petitioner to pay timely all Federal income taxes due for the 5

years following acceptance.    Petitioner failed to pay his 2000

and 2001 taxes in a timely manner and did not respond in a timely

manner to respondent’s letter advising him of the impending OIC

default.    In addition, petitioner did not propose collection

alternatives.    Under these circumstances, the Appeals officer’s

actions were appropriate.    We also note that petitioner asserts

that the Appeals officer abused her discretion by failing to

adhere to certain instructions that petitioner contends were

contained in the Internal Revenue Manual.    The instructions upon



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended.
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which petitioner relies, however, were promulgated several years

after the OIC default.   Thus, we reject petitioner’s contentions

and sustain respondent’s determination.

     Contentions we have not addressed are irrelevant, moot, or

meritless.

                                       Decision will be entered for

                                 respondent.
