                    T.C. Summary Opinion 2008-118



                        UNITED STATES TAX COURT



     WILLIAM R. WEBER AND KATHLEEN S. WEBER, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 24899-06S.              Filed September 9, 2008.



     William R. Weber, pro se.

     Carol-Lynn E. Moran, for respondent.



     NIMS, Judge:     This case was heard pursuant to the provisions

of section 7463 of the Internal Revenue Code in effect when the

petition was filed.    Pursuant to section 7463(b), the decision to

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

shall not be treated as precedent for any other case.    This case

was commenced in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and 6330 (notice of
                               - 2 -

determination) for unpaid income tax, penalties, and interest for

petitioners’ 1996 tax year.   The sole issue for decision is

whether respondent abused his discretion in determining to

proceed with collection of the tax due with respect to

petitioners’ 1996 tax year.   Unless otherwise indicated, all

section references are to sections of the Internal Revenue Code.

                           Background

     The relevant facts have been stipulated.    At the time of the

petition, petitioners resided in New Jersey.

     On June 27, 2005, separate Final Notices of Intent to Levy

and Notice of Your Right to a Hearing (final notices of intent to

levy) were sent to petitioner William R. Weber and to petitioner

Kathleen S. Weber for liabilities arising under their 1996 and

2003 tax years.   Petitioners had received a notice of deficiency

with respect to the 1996 tax year but had not petitioned the

Court within the statutory 90-day time period.

     On August 2, 2005, petitioners submitted to respondent a

Form 12153, Request for a Collection Due Process Hearing, with

respect to their 1996, 1997, and 2003 tax years.   A conference

with an Appeals officer was held on August 28, 2006.   There were

no discussions of an installment agreement or collection

alternatives with respect to the 1996 tax year at the conference.

     On November 1, 2006, respondent sent petitioners a notice of

determination with respect to their 1996 and 2003 tax years.    In
                               - 3 -

sustaining the final notices of intent to levy, the notice of

determination set forth the legal and procedural requirements for

collection and discussed the issues petitioners raised at the

conference.   It also stated that the Appeals officer found that

the enforcement action was not unnecessarily intrusive because

petitioners had a balance due and “did not make appropriate

arrangements to satisfy the liability”.    It noted that

petitioners had failed to respond to the notice of deficiency

with respect to their 1996 tax year.   While stating that

petitioners could not contest the underlying 1996 liability at

the collection due process conference, it notified petitioners of

their right to seek an audit reconsideration for the 1996 tax

year.

     On December 6, 2006, petitioners timely filed a petition

with this Court based on the notice of determination, in which

they sought redetermination of the deficiency for their 1996 tax

year.   Petitioners asserted that they were eligible for certain

deductions that would either reduce or eliminate the underlying

deficiency.

     Trial was held on March 10, 2008.    At trial, petitioner

William R. Weber acknowledged that he could not contest the

underlying liability for the 1996 tax year because he had failed
                                   - 4 -

to timely petition the Court in response to the notice of

deficiency.   Rather, he requested that he be given time to pursue

an audit reconsideration before the Internal Revenue Service.

                                Discussion

     Petitioners petitioned the Court pursuant to section 6330(d)

challenging respondent’s determination to sustain his final

notices of intent to levy.       Where the underlying tax liability is

at issue, the Court will review the Commissioner’s determination

de novo.   Davis v. Commissioner, 115 T.C. 35, 39 (2000).      Section

6330(c)(2)(B) provides:

          SEC. 6330(c). Matters Considered at Hearing.--In
     the case of any hearing conducted under this section--

                     *      *      *       *   *   *   *

                     (B) Underlying liability.--The
                person may also 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.

     Petitioners do not allege that they did not receive a notice

of deficiency with respect to the 1996 tax year, nor do they

allege that they had no prior opportunity to contest the

deficiency determination.       Because petitioners failed to aver

facts showing that either condition under section 6330(c)(2)(B)

has been met, petitioners’ underlying tax liability is not

properly before the Court.       See Davis v. Commissioner, supra at
                               - 5 -

39.   Because petitioners’ underlying liability is not before the

Court, the Court will review respondent’s determination for abuse

of discretion.   See Sego v. Commissioner, 114 T.C. 604, 610

(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

      Under section 6330(c)(3), when reviewing the Notice of

Intent to Levy the Appeals officer is required to:     (1) Verify

that the legal and procedural requirements for levy have been

met; (2) consider issues presented by the taxpayer; and (3)

balance the need for efficient tax collection with the concern

that any collection action be no more intrusive than necessary.

Petitioners have made no argument that respondent failed to meet

these requirements or otherwise abused his discretion in

sustaining the final notices of intent to levy.     In their

petition and arguments before this Court, petitioners raised only

their underlying tax liability for 1996.     That issue is not

before the Court.   As a result, respondent did not abuse his

discretion in determining to proceed with collection of

petitioners’ 1996 tax liability.   Accordingly,


                                       An appropriate decision

                               will be entered.
