                          T.C. Memo. 2002-96



                        UNITED STATES TAX COURT



                  KARL PAUL VOSSBRINCK, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent




        Docket No. 612-01L.               Filed April 9, 2002.



        Karl Paul Vossbrinck, pro se.

        John Aletta, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION

     GERBER, Judge:     On December 14, 2000, respondent issued a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 advising petitioner of respondent’s

intention to proceed with a proposed levy to collect petitioner’s

outstanding income tax liabilities for 1991, 1992, 1993, and

1994.     A petition was filed on January 12, 2001, in which
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petitioner alleged that he was not afforded a fair hearing and/or

that he was denied due process.    Petitioner had requested time

within which to seek a private letter ruling as to whether he was

an employee or self-employed.    Respondent’s Appeals Officer

Richard Geltzer (the Appeals officer) agreed to permit additional

time and after approximately 6 months the Appeals officer was

advised that an examination had resulted in a decision that

petitioner was an employee.    Petitioner claims that respondent’s

Appeals officer refused to allow him additional time within which

to seek a private letter ruling on the question of his employment

status.   Instead of obtaining a private letter ruling during the

6-month period, petitioner sought an audit examination of his

employment status.    We consider whether respondent’s

determination to proceed with collection, under those

circumstances, was an abuse of respondent’s discretion.

                          FINDINGS OF FACT

     At the time of the filing of his petition, petitioner

resided in Southbury, Connecticut.      During the taxable years 1991

through 1994, petitioner provided computer consulting services to

various entities.    For the 1991, 1992, and 1993 tax years,

petitioner filed returns reporting income from wages with Forms

W-2 (Wage and Tax Statement) attached which reflected the

withholding of tax from petitioner’s wages.     Petitioner’s 1991,

1992, and 1993 returns reflected tax due of $1,562, $2,677 and
                               - 3 -

$8,751, respectively.   For 1994, petitioner filed a return

reflecting income from wages resulting in a $17,364 income tax

liability, $10,159 of which was paid by means of income tax

withholding.

     Respondent assessed on the unpaid income tax liability

reported by petitioner for 1991 through 1994.   Subsequently,

respondent determined, by means of a statutory notice of

deficiency, that petitioner had an income tax deficiency for

1993.   In connection with that notice, petitioner did not file a

petition with this Court, and respondent assessed the deficiency.

In March 1999, respondent notified petitioner of the intent to

levy with respect to all 4 taxable years.   That notification also

advised petitioner of his right to a hearing.

     During April 1999, petitioner submitted a written request

for a Collection Due Process Hearing.   The Appeals officer

contacted petitioner by telephone to arrange for a hearing.

Petitioner did not request a face-to-face hearing.    Instead,

petitioner advised that he needed additional time to seek an

administrative alternative to collection.   The alternative was to

have his employment status changed from employee to self-employed

(independent contractor) for each of the tax years.    If

petitioner was successful in that pursuit, he believed that his

tax liability would have either been reduced or eliminated.      In

particular, petitioner advised that he wanted time to obtain a
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private letter ruling to the effect that petitioner was self-

employed during the years in question.   The Appeals officer

agreed to “stay” the collection process while petitioner sought a

ruling.   Approximately 1 week later, the Appeals officer received

a copy of petitioner’s request for a private letter ruling.    The

Appeals officer assumed that petitioner had submitted the

original of the request for a private letter ruling to the

appropriate Internal Revenue Service (IRS) ruling branch.

     The Appeals officer heard nothing further from or about

petitioner until November 2000, when he received notification

from within the IRS that an examination of petitioner’s

employment status had been conducted and resulted in the

conclusion that petitioner was an employee during the years in

question.   That determination had been made by respondent’s

specialized examination group in Vermont that considers whether

taxpayers are employees or independent contractors.   It was at

that time (more than 6 months after his telephone conversation

with petitioner) that the Appeals officer discovered that

petitioner had not sought a private letter ruling, but had

instead submitted a request for examination of his status.     After

receiving the notification during December 2000, the Appeals

officer caused the issuance of the notice of determination to

proceed with the levy, from which petitioner appealed to this

Court.
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     For more than 1 year after the December 2000 issuance of the

determination and the filing of the petition, petitioner did

nothing about seeking a private letter ruling.    Moreover,

petitioner has alleged that he submitted his request for a ruling

about 8 days prior to the time of the scheduled trial of this

case (March 4, 2002).

                             OPINION

     The question we consider is whether, under the circumstances

of this case, respondent abused his discretion by not allowing

petitioner additional time to seek a private letter ruling.    The

obverse of that question is whether the amount of time respondent

afforded petitioner to seek collection alternatives was

reasonable.

     Section 6330 provides that, upon request and in the

circumstances described therein, a taxpayer has a right to a

“fair hearing”.   Sec. 6330(b).    A “fair hearing” consists of the

following elements:   (1) An impartial officer will conduct the

hearing; (2) the conducting officer will receive verification

from the Secretary that the requirements of applicable law and

administrative procedure have been met; (3) certain issues may be

heard such as spousal defenses and offers-in-compromise; and (4)

a challenge to the underlying liability may only be raised if the

taxpayer did not receive a statutory notice of deficiency or

receive an opportunity to dispute such liability.    Sec. 6330(c).
                               - 6 -

     Petitioner’s only request of the Appeals officer was for a

delay while he pursued the collection alternative of seeking a

private letter ruling on his employment status for the years

subject to the enforced collection.    Petitioner was afforded

additional time, but, instead of seeking a ruling, he applied to

respondent’s examination division, which found him to be an

employee.1   Collection was delayed for at least 6 months while

petitioner sought the administrative resolution of his

outstanding tax liabilities.   Petitioner contends that respondent

abused his discretion by not allowing him an additional stay to

seek a ruling.

     Respondent did not impede petitioner in seeking an

alternative to collection.   Instead, respondent’s Appeals Officer

waited until he received notification that petitioner’s attempt



     1
       Petitioner, at trial, stated that someone in respondent’s
office had told him to seek an examination instead of a private
letter ruling. Petitioner, however, was unable to provide the
name of the person who might have given him that advice. It is
petitioner’s belief that respondent’s examination personnel do
not have as much latitude in deciding employment status and that
he would have been successful in seeking a private letter ruling
because the individuals who consider rulings have a broader
spectrum of matter they can consider in the process. Petitioner
contends that he is entitled to extra time before collection is
permitted, because it was respondent’s “error” to send him to the
wrong place for relief. Petitioner has not shown a sufficient
factual predicate for his argument. Even if petitioner had shown
that he had received the alleged advice from someone in
respondent’s office, petitioner was not forced to seek one type
of relief rather than another. It was his choice to seek an
examination of his employment status, rather than seeking a
ruling during the time allotted.
                                 - 7 -

to administratively resolve his employment status had resulted in

the decision that the status for the years under consideration

were unchanged and hence that the liabilities remained

outstanding and collectible.   We note that although petitioner

was advised of the decision that the examination personnel had

decided that his employment status was that of employee during

November 2000, and of respondent’s determination to proceed with

collection during December 2000, petitioner did not begin the

process of seeking the private letter ruling until more than

1 year later (about 8 days before trial).       Under these

circumstances, we find that petitioner was given a full and fair

opportunity to seek an alternative resolution of his tax

liabilities.

     To reflect the foregoing,

                                         An appropriate decision will

                                 be entered permitting respondent to

                                 proceed with collection.
