                  T.C. Summary Opinion 2004-128



                     UNITED STATES TAX COURT



                PAUL BRYAN BARRETT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16542-03S.          Filed September 16, 2004.



     Paul Bryan Barrett, pro se.

     Timothy R. Maher, for respondent.


     POWELL, Special Trial Judge:    This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.




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

     This is a so-called collection case brought pursuant to

section 6330(d).   The issue is whether petitioner may raise in

this proceeding a challenge to the correctness of an underlying

tax deficiency.    Petitioner resided in Pompano, Florida, when the

petition was filed.

                            Background

     The basic facts are not in dispute.   During 1995 and 1996,

petitioner was in the construction business as a sole

proprietorship reporting income and deductions on Schedule C,

Profit or Loss From Business.   On his 1995 Federal income tax

return petitioner claimed and received a refund of $971.

Respondent audited petitioner’s 1995 return and proposed to

disallow, inter alia, deductions for wages paid to employees of

petitioner’s company.   It appears that the primary reason for the

disallowance of the deductions was that either the names or the

Social Security numbers of the alleged employees were false.

Rather than dispute the proposed adjustment, petitioner signed a

Form 4549-CG, Income Tax Examination Changes, dated March 31,

1997.   Form 4549-CG, provides, in part

     Consent to Assessment and Collection - I do not wish to
     exercise my appeal rights with the Internal Revenue Service
     or to contest in the United States Tax Court the findings in
     this report. Therefore, I give my consent to the immediate
     assessment and collection of any increase in tax * * *.
                                - 3 -

     Respondent assessed an additional tax of $13,629.    By letter

dated, October 10, 1997, petitioner sought to establish that the

amount of disallowed wages was incorrect.   During the so-called

audit reconsideration process, petitioner supplied virtually

identical notarized statements containing the names of four of

the alleged employees.   By letter dated July 30, 2001, petitioner

was informed that the Social Security numbers were either missing

or invalid.   Petitioner was requested to submit “either their

correct social security numbers or cancelled checks showing the

amount you paid to them.”   Petitioner supplied further names and

Social Security numbers (but apparently no cancelled checks),

and, as a result, respondent abated $1,637 of the prior

assessment based on the examination.

     Petitioner filed his 1996 Federal income tax return that

showed a balance due of $306.   Petitioner admits that he owes the

amount shown on that return.

     Respondent filed a lien pursuant to sections 6321 and 6323

and issued a notice of lien filing to petitioner pursuant to

section 6320.   Petitioner timely requested a hearing contending

only that the amount of the 1995 deficiency was incorrect.   On

September 5, 2003, respondent denied relief on the ground that

petitioner had waived his right to challenge the collection of

his 1995 tax liability because he had signed Form 4549-CG

consenting to the assessment and collection.   Petitioner filed a
                                - 4 -

timely petition seeking review of that determination under

section 6330(d)(1).

                             Discussion

     Section 6320(a)(1) provides that respondent shall notify in

writing the taxpayer against whom a lien arises or is filed.

Under section 6320(b), the taxpayer may request a hearing before

an impartial Appeals Officer.   Section 6320(c) provides that

“subsections (c), (d) (other than paragraph (2)(B) thereof), and

(e) of section 6330 shall apply” to a hearing under section 6320.

Relevant here, section 6330(c)(2)(B) provides that a taxpayer may

raise at the hearing

     challenges to the existence or amount of the underlying tax
     liability for any tax period if the person did not receive
     any statutory notice of deficiency for such tax liability or
     did not otherwise have an opportunity to dispute such tax
     liability.

The issue here is whether section 6330(c)(2)(B) precludes

petitioner from raising the correctness of the underlying tax

liability for 1995 in a hearing under section 6320(b).   As we

have pointed out, section 6320(c) incorporates the restriction

contained in section 6330(c)(2)(B).

     This case is controlled by Aguirre v. Commissioner, 117 T.C.

324 (2001).    As here, in Aguirre petitioners executed a Form 4549

containing the identical language set forth above and requested a

hearing solely to dispute the correctness of their underlying tax

liabilities.   We held that petitioners had waived their right to
                                 - 5 -

review the underlying tax liabilities.       We see no reason to

reiterate Aguirre here.2

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.




     2
        Petitioner contends that the revenue agent conducting the
audit misled him. The language on Form 4549-CG, Income Tax
Examination Changes, is quite clear, and we have great difficulty
in understanding the reason that petitioner claims that he was
misled.
