                       T.C. Memo. 2012-33



                 UNITED STATES TAX COURT



 BARBARA ANN DELON AND WELBON DELON, Petitioners v.
   COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 6525-10L.                  Filed February 2, 2012.



Barbara Ann DeLon and Welbon DeLon, pro sese.

David M. McCallum, for respondent.
                                          -2-

             MEMORANDUM FINDINGS OF FACT AND OPINION


      VASQUEZ, Judge: Pursuant to section 6330(d),1 petitioners seek review of

respondent’s determination to proceed with collection of their unpaid 2006 Federal

income tax liability. The issue for decision is whether respondent abused his

discretion by sustaining the proposed collection activity.

                                FINDINGS OF FACT

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

facts and the attached exhibits are incorporated herein by this reference.2 At the

time they filed the petition, petitioners resided in North Carolina.

      During 2006 petitioner Barbara Ann DeLon worked at the North Carolina

Central University Foundation (foundation). Petitioners timely filed their joint

Federal income tax return for 2006. They did not report the income that Ms. DeLon

received from the foundation.3 On August 4, 2008, the Internal Revenue


      1
       Unless otherwise indicated, all section references are to the Internal
Revenue Code.
      2
          Petitioners objected to several of the stipulated facts and attached exhibits.
However, petitioners’ objections relate to the accuracy of the underlying tax
liability, which is not at issue, see infra p. 5, and not to the admissibility of the
evidence.
      3
          The IRS received a Form 1099-MISC, Miscellaneous Income, from the
                                                                   (continued...)
                                          -3-

Service (IRS) issued to petitioners a notice of deficiency in which it determined a

deficiency in their 2006 income tax and an accuracy-related penalty under section

6662(a). Petitioners received the notice of deficiency on August 7, 2008.

Petitioners did not file a petition contesting the deficiency determination.

      On December 15, 2008, the IRS assessed petitioners’ 2006 tax liability.

Petitioners failed to pay the assessed tax liability, and on May 11, 2009, the IRS

issued to petitioners a Final Notice of Intent to Levy and Notice of Your Right to a

Hearing. On June 15, 2009, the IRS received petitioners’ timely filed Form 12153,

Request for a Collection Due Process or Equivalent Hearing (CDP hearing request).

In the CDP hearing request petitioners stated that they disagreed with the levy

because Ms. DeLon’s employer improperly classified her as an independent

contractor and, therefore, the deficiency determination was incorrect.

      On December 29, 2009, Settlement Officer Darla Weatherby of IRS Office of

Appeals (Appeals) sent petitioners a letter scheduling a telephone CDP hearing for

January 21, 2010 at 1 p.m. The letter advised petitioners that Appeals could not

consider whether petitioners owed the amount due if petitioners had received a


      3
       (...continued)
foundation that reported Ms. DeLon earned $93,042 of income. Petitioners disagree
with the amount of income and also argue that the foundation improperly
characterized Ms. DeLon as an independent contractor instead of as an employee.
                                          -4-

notice of deficiency regarding that amount. The letter further stated that in order for

Officer Weatherby to consider collection alternatives, petitioners had to submit a

Form 433-A, Collection Information Statement for Wage Earners and Self-

Employed Individuals, and file all required tax returns.4 Petitioners did not submit

any information to Officer Weatherby, and the scheduled hearing did not take

place.5 On February 13, 2010, the IRS issued to petitioners a Notice of

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

(notice of determination) sustaining the proposed levy.

                                       OPINION

      Section 6330(a) provides that the Secretary shall furnish taxpayers with

written notice of their right to a hearing before any property is levied upon. Section

6330 further provides that the taxpayer may request administrative review of the

matter (in the form of a hearing) within a prescribed 30-day period. Sec. 6330(a)

and (b).




      4
           Petitioners’ 2004, 2005, 2007, and 2008 tax returns had not been filed.
      5
         Officer Weatherby instructed petitioners to call her at the scheduled hearing
time, but she did not receive any call. At some point petitioners attempted to call
Officer Weatherby, but they do not explain why they were unable to reach her.
                                         -5-

      Pursuant to section 6330(c)(2)(A), a taxpayer may raise at the section 6330

hearing any relevant issue with regard to the Commissioner's collection activities,

including spousal defenses, challenges to the appropriateness of the Commissioner’s

intended collection action(s), and alternative means of collection. Sego v.

Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner, 114 T.C. 176,

180 (2000). If a taxpayer received a notice of deficiency for the year in issue or

otherwise had the opportunity to dispute the underlying tax liability, the taxpayer is

precluded from challenging the existence or amount of the underlying tax liability.

Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. at 610-611; Goza v.

Commissioner, 114 T.C. at 182-183.

      Petitioners challenge the existence and amount of their underlying tax liability

for 2006. The IRS issued petitioners a notice of deficiency for 2006. Petitioners

received the notice of deficiency on August 7, 2008. Therefore petitioners are

precluded from challenging the existence or amount of the underlying tax liability.

See sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. at 610-611; Goza v.

Commissioner, 114 T.C. at 182-183.

      Where, as here, the existence and amount of the taxpayer’s underlying tax

liability are not at issue, we review the Commissioner’s determination for abuse of

discretion. Sego v. Commissioner, 114 T.C. at 610; Goza v. Commissioner, 114
                                          -6-

T.C. at 181-182. Petitioners did not request that Officer Weatherby consider

collection alternatives, failed to provide her with the financial information that she

requested or file all required tax returns, and disputed only the underlying tax

liability in their CDP hearing request. Accordingly, respondent did not abuse his

discretion in determining that collection activity should proceed.

      To reflect the foregoing,

                                                             Decision will be entered

                                                      for respondent.
