                         T.C. Memo. 2004-285



                       UNITED STATES TAX COURT



                   HOWARD DYSLE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12802-03L.               Filed December 27, 2004.


     Howard Dysle, pro se.

     Huong T. Duong, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Pursuant to section 6330(d),1 petitioner

seeks review of respondent’s determination regarding collection

of his 1996 and 1998 income tax liabilities.




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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                         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.    At the time he filed the

petition, petitioner resided in Capitola, California.

     Petitioner filed two extensions of time to file his 1996

return, and respondent granted extensions of time to file his

1996 return to August 15 and October 15, 1997.     On November 23,

1998, respondent filed a substitute return for petitioner for

1996.   Petitioner’s transcript of account reflects that

petitioner filed a 1996 return on March 24, 1999.

     Petitioner timely filed his 1998 return.     Petitioner listed

a total tax and an amount owed of $508.     Petitioner signed his

1998 return on March 15, 1999.

     On August 23, 1999, respondent assessed for 1996 taxes of

$6,620, a late filing penalty of $1,407.15, an estimated tax

penalty of $330.71, a failure to pay tax penalty of $865.36, and

interest of $1,517.79.

     On April 15, 2001, petitioner signed a Form 1040, U.S.

Individual Income Tax Return, for 1996.     Petitioner submitted the

Form 1040 for 1996 in 2001 and listed a total tax of $4,471.     The

Form 1040 for 1996 submitted in 2001 bears a received stamp dated

April 21, 2001.
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     On December 31, 2001, respondent abated $2,149 in tax for

1996.   Respondent subsequently abated portions of the additions

to tax and interest for 1996 to reflect the revised assessment of

tax of $4,471 (i.e., $6,620 minus $2,149) for 1996.

     On or about June 6, 2002, respondent filed a notice of

Federal tax lien regarding petitioner’s 1996 and 1998 tax years

(notice of lien).   As of the date of the notice of lien,

petitioner’s unpaid balance was $6,584.99 for 1996 and $96.75 for

1998.

     On June 11, 2002, respondent sent petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320 regarding petitioner’s 1996 and 1998 tax years (hearing

notice).

     On June 20, 2002, petitioner timely filed a Form 12153,

Request for a Collection Due Process Hearing, regarding his 1996

and 1998 tax years (hearing request).   In the hearing request,

petitioner stated that he had not been credited with payments he

made to the Internal Revenue Service (IRS).   In a supplemental

Form 12153 submitted to the IRS regarding his 1993 through 2000

tax years, petitioner stated that he did not owe the IRS anything

and that the IRS failed to credit petitioner with payments he

made.
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     On December 16, 2002, respondent mailed petitioner a letter

identifying Settlement Officer Ron Wergin (Mr. Wergin) as

assigned to conduct petitioner’s hearing.

     On January 6, 2003, petitioner telephoned Mr. Wergin.

Petitioner told Mr. Wergin that there were missing payments

(i.e., payments he did not receive credit for), but he was not

sure for which year.   Mr. Wergin asked petitioner to send him the

fronts and backs of canceled checks designated for tax years 1996

and 1998.   Petitioner requested a face-to-face hearing.

     On May 1, 2003, Mr. Wergin telephoned petitioner and asked

him to bring to the face-to-face hearing proof of the missing

payments that petitioner claimed were not applied to his tax

liabilities for 1996 and 1998.

     On May 12, 2003, a face-to-face hearing was held between

petitioner and Mr. Wergin.   At the hearing, petitioner raised the

issues of his underlying tax liability and whether payments had

been properly applied to his account.    Petitioner made a

presentation on payments of tax, excluding interest and

penalties, he alleged he made.    Mr. Wergin provided petitioner

with transcripts of his account for 1994 through 2001.     Mr.

Wergin again asked petitioner to provide copies of the fronts and

backs of canceled checks for the tax years 1996 and 1998 by May

27, 2003.
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       At the hearing, Mr. Wergin offered petitioner the

opportunity to enter into an installment agreement.     Petitioner

declined the offer.    Mr. Wergin gave petitioner a Form 433-A,

Collection Information Statement for Wage Earners and Self-

Employed Individuals, so he could consider whether petitioner

should be placed in currently not collectible status.      Mr. Wergin

asked petitioner to return the Form 433-A by May 27, 2003.

       On May 27, 2003, petitioner faxed Mr. Wergin a letter

discussing three $500 checks petitioner claimed to have mailed to

the IRS between January 1995 and sometime in 1996 and a

handwritten ledger with amounts petitioner claimed were taxes due

and tax paid for 1993 through 2000.     Petitioner had already

provided the ledger to Mr. Wergin at the hearing.

       That same day, Mr. Wergin called petitioner to advise him

that he was closing his case, but petitioner could still submit

proof of missing payments for 1996 and 1998 to IRS Compliance.

Petitioner stated that he identified all of his payments in the

transcripts for 1994 through 2001 that Mr. Wergin provided to

him.

       On July 7, 2003, respondent issued a Notice of Determination

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

petitioner regarding his 1996 and 1998 tax years (notice of

determination).    As of the date of the notice of determination,
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petitioner did not submit proof of missing payments for 1996 and

1998 or a completed Form 433-A to Mr. Wergin.

     In the notice of determination, respondent determined that

the notice of lien was appropriate, balanced the need for

efficient collection with the legitimate concerns of the

taxpayer, and was no more intrusive than necessary.   In an

attachment to the notice of determination, Mr. Wergin stated:

(1) He considered only matters related to 1996 and 1998 as

petitioner received a hearing notice only for those two years;

(2) he verified that all requirements of any applicable law or

administrative procedure had been met; (3) he reviewed

petitioner’s underlying liability for 1996; (4) he reviewed

whether payments were properly credited to petitioner’s account;

(5) he provided petitioner official transcripts of his 1996 and

1998 tax years; (6) he offered petitioner an installment

agreement to pay the outstanding balance that petitioner

declined; (7) he told petitioner he might be eligible for

uncollectible status given petitioner’s statements about his

finances; (8) he provided petitioner a Form 433-A, but petitioner

did not return the Form 433-A; and (9) he gave petitioner

additional time after the hearing to provide proof, including

canceled checks, but petitioner did not submit this information

to him.
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                               OPINION

     Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice (i.e., the

hearing notice) of the filing of a notice of lien under section

6323.   Section 6320 further provides that the taxpayer may

request administrative review of the matter (in the form of a

hearing) within a 30-day period.   The hearing generally shall be

conducted consistent with the procedures set forth in section

6330(c), (d), and (e).   Sec. 6320(c).

     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, 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 statutory notice

of deficiency for the years 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, supra at 610-611; Goza v. Commissioner, supra at

182-183.

     When the Commissioner issues a determination regarding a

disputed collection action, section 6330(d) permits a taxpayer to
                                - 8 -

seek judicial review with the Tax Court or a U.S. District Court,

as is appropriate.    If the underlying tax liability is properly

at issue, we review that issue de novo.    Sego v. Commissioner,

supra at 610; Goza v. Commissioner, supra at 181.    If the

validity of the underlying tax liability is not at issue, we

review the Commissioner’s determination for an abuse of

discretion.   Sego v. Commissioner, supra at 610.

     Petitioner did not receive a statutory notice of deficiency

for 1996 or 1998.    Respondent ultimately assessed petitioner’s

1996 and 1998 tax based on the returns for 1996 and 1998

petitioner submitted to the IRS.    Petitioner raised the issue of

his underlying liability for 1996 at the hearing.    Accordingly,

petitioner’s underlying liability for 1996 is properly before the

Court, and we review that issue de novo. See Montgomery v.

Commissioner, 122 T.C. 1 (2004); Sego v. Commissioner, supra;

Goza v. Commissioner, supra.

     In the hearing request and a supplemental Form 12153,

petitioner stated that he had not been credited with payments he

made to the IRS.    We review de novo respondent’s determination

regarding the amount unpaid after application of credits to which

petitioner is entitled.    Boyd v. Commissioner, 117 T.C. 127, 131

(2001) (where the issue is “the amount of tax owed that remains

unpaid” we review respondent’s determination de novo as this is a
                               - 9 -

challenge to the validity of the underlying tax liability);

Landry v. Commissioner, 116 T.C. 60, 62 (2001).

Timely Filing for 1996

     Petitioner claims that he timely filed his 1996 return.

Section 6651(a)(1) imposes an addition to tax for failure to file

a return on the date prescribed (determined with regard to any

extension of time for filing), unless the taxpayer can establish

that such failure is due to reasonable cause and not due to

willful neglect.

     Petitioner claimed that he filed his original 1996 return

around August 1997.   Petitioner testified that he filed three tax

returns for 1996, but that he no longer had any copies of the

returns he filed for 1996.   Petitioner testified that he did not

mail his return via certified mail.

     The Court is not required to accept petitioner’s

unsubstantiated testimony.   See Wood v. Commissioner, 338 F.2d

602, 605 (9th Cir. 1964), affg. 41 T.C. 593 (1964).   We found

petitioner’s testimony to be general, vague, conclusory, and/or

questionable in certain material respects.   Under the

circumstances presented here, we are not required to, and

generally do not, rely on petitioner’s testimony to conclude that

he timely filed his 1996 return.   See Lerch v. Commissioner, 877

F.2d 624, 631-632 (7th Cir. 1989), affg. T.C. Memo. 1987-295;

Geiger v. Commissioner, 440 F.2d 688, 689-690 (9th Cir. 1971),
                              - 10 -

affg. per curiam T.C. Memo. 1969-159; Tokarski v. Commissioner,

87 T.C. 74, 77 (1986).

     Additionally, petitioner’s testimony regarding the 1996

return that he claims to have mailed in August 1997 suggests that

this return was never received by respondent.   Petitioner

testified that a $500 check he included with the 1996 return he

claimed to have mailed in August 1997 was never cashed or

returned to him.   Furthermore, shortly before trial, in a filing

with the Court, petitioner averred that his original return for

1996 was dated April 19, 1999, and was mailed to the IRS on or

about April 20, 1999.

     Petitioner did not call his accountant, who prepared his

1996 return, as a witness.   We infer that the accountant’s

testimony would not have been favorable to petitioner.   Wichita

Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946),

affd. 162 F.2d 513 (10th Cir. 1947).

     We conclude petitioner did not timely file his 1996 return.

Petitioner offered no evidence that his failure to timely file

was due to reasonable cause and not due to willful neglect.    We

conclude that petitioner is liable for an addition to tax

pursuant to section 6651(a)(1).

Checks Allegedly Not Applied to Petitioner’s Account

     Petitioner claims that certain checks he submitted to the

IRS were not credited to his account.   Respondent argues that
                               - 11 -

this is a new issue that was not raised at the hearing, and

therefore it is not subject to review by the Court pursuant to

Magana v. Commissioner, 118 T.C. 488 (2002).   We disagree.

Petitioner raised this issue at the hearing, and it is properly

before the Court.

     Petitioner presented no documentary evidence to support his

testimony that he submitted to the IRS the alleged checks that he

claims were not applied to his account.2   The Court is not

required to accept petitioner’s unsubstantiated testimony.    See

Wood v. Commissioner, supra.   As stated supra, we found

petitioner’s testimony to be general, vague, conclusory, and/or

questionable in certain material respects.   Under the

circumstances presented here, we are not required to, and

generally do not, rely on petitioner’s testimony to conclude that

he submitted any of these three checks to respondent or that

respondent failed to apply these amounts to petitioner’s account.

See Lerch v. Commissioner, supra; Geiger v. Commissioner, supra;

Tokarski v. Commissioner, supra.



     2
        Petitioner attached to his posttrial brief documents to
support his claim that payments were not appropriately applied to
his account. Evidence must be submitted at trial; documents
attached to briefs and statements therein are not evidence. Rule
143(b); Lombard v. Commissioner, T.C. Memo. 1994-154 n.3, affd.
without published opinion 57 F.3d 1066 (4th Cir. 1995); Wicker v.
Commissioner, T.C. Memo. 1993-431 n.15, affd. without published
opinion 50 F.3d 12 (8th Cir. 1995). Accordingly, we disregard
these documents in reaching our decision.
                             - 12 -

     Petitioner has failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.   See Rule 331(b)(4).

     We conclude that respondent correctly determined to sustain

the notice of lien.

     To reflect the foregoing,


                                         Decision will be entered

                                   for respondent.
