                        T.C. Memo. 2004-226



                      UNITED STATES TAX COURT



               LEONARD O. PARKER, JR., Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4053-03L.          Filed October 6, 2004.


     Leonard O. Parker, Jr., pro se.

     Hieu C. Nguyen, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Petitioner lived in New Orleans, Louisiana,

when he filed an offer in compromise relating to his 1992-94 tax

years.   Respondent’s Taxpayer Advocate’s Office asked respondent

to place a 45-day hold on collection for those years.     On

February 12, 2003, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320
                                 - 2 -

and/or 63301 in which respondent determined the filing of a tax

lien relating to those tax years was appropriate.

     Petitioner timely requested a hearing under section 6320(b).

Respondent informed petitioner by letter that respondent had

scheduled a conference at respondent’s Appeals Office in Jackson,

Mississippi, to be held 8 days after the date respondent sent the

letter.    In the letter, respondent requested that petitioner

provide, not later than 3 days after the date respondent sent the

letter, any documents he wished to have considered at that

conference.    Jackson, Mississippi, is about 180 miles from New

Orleans.    Respondent has an Appeals Office in New Orleans but did

not schedule the conference there.

     The sole issue for decision is whether respondent was

required to provide petitioner an opportunity for a hearing at

the Appeals Office closest to petitioner’s residence.    We hold

that respondent was.    See Katz v. Commissioner, 115 T.C. 329,

335-336 (2000); sec. 301.6320-1(d)(2), Q&A-D7, Proced. & Admin.

Regs.     We will remand this case to respondent with instructions

to comply with this requirement.

                           FINDINGS OF FACT

     Some of the facts are stipulated and are so found.




     1
        Section references are to the Internal Revenue Code in
effect during the relevant years.
                                 - 3 -

     Petitioner resided in Torrance, California, when he filed

the petition.

A.   Petitioner’s 1992-94 Tax Returns

     Petitioner filed tax returns for 1992-94 in which he

reported income of $37,353 for 1992, $12,265 for 1993, and $8,123

for 1994.   Petitioner paid no tax for those years except for $156

that he paid with his 1994 return.       Respondent assessed the tax

reported on petitioner’s returns for those years.

B.   Filing of the Notice of Federal Tax Lien and the Hold Placed
     on Collection Actions by the Taxpayer Advocate

     In 1999, petitioner filed a Form 656, Offer in Compromise,

for 1992-94 and a request to abate interest and penalties with

respect to 1992-94 with respondent’s New Orleans, Louisiana,

Taxpayer Advocate’s Office.   Petitioner submitted another offer

in compromise and request to abate interest and penalties after

respondent lost his first one.

     On March 21, 2001, respondent’s Automated Collection Service

(ACS) requested that a notice of Federal tax lien be filed

relating to petitioner’s 1992-94 tax years.      On March 29, 2001,

an employee in respondent’s office in New Orleans prepared and

signed a notice of Federal tax lien for petitioner’s 1992-94 tax

years.   On April 5, 2001, respondent filed with the Orleans

Parish Recorder’s Office a notice of Federal tax lien relating to

petitioner’s tax liabilities for tax years 1992-94.      Also on that

day, Ms. Claudis M. Holmes (Holmes), an employee of respondent’s
                                - 4 -

New Orleans Taxpayer Advocate’s Office, told petitioner that a

45-day hold would be placed on all collection actions relating to

petitioner’s 1992-94 tax liabilities pending her resolution of

petitioner’s concerns.   Holmes called respondent’s ACS office on

April 5, 2001, to request that ACS delay collection.   On April

11, 2001, respondent sent petitioner a notice that the Federal

tax lien relating to petitioner’s income tax liabilities for tax

years 1992-94 had been filed.   The lien was recorded on April 17,

2001.

C.   Petitioner’s Request for a Hearing

     On May 13, 2001, petitioner timely filed a Form 12153,

Request for a Collection Due Process Hearing.   Form 12153 directs

taxpayers who receive a Notice of Federal Tax Lien Filing & Your

Right To A Hearing Under IRC 6320 to “Use this form to request a

hearing with the IRS Office of Appeals”.   Petitioner’s request

contained his New Orleans address and telephone number.   In his

hearing request, he alleged that the notice of tax lien filing

was untimely, that an offer in compromise was pending, and that

the Taxpayer Advocate had placed a hold on collection.

     Petitioner became a permanent resident of Southern

California later in 2001.2




     2
       This finding is based on the trial record, rather than the
administrative record. We are not limited to review of the
administrative record in deciding cases brought under sec. 6330.
Robinette v. Commissioner, 123 T.C. 85, 95 (2004) (Court
reviewed).
                               - 5 -

     Appeals Officer Suzanne L. Magee (Magee) sent a letter dated

March 19, 2002, to petitioner’s New Orleans address, informing

petitioner that she had scheduled a conference on March 27, 2002

(i.e., 8 days after she sent the letter), in respondent’s

Jackson, Mississippi, Appeals Office.   Jackson, Mississippi, is

about 180 miles from New Orleans.   Magee wrote in part:

     I have scheduled the conference you requested on this
     case for the date and time shown above. Please let me
     know within 5 days from the date of this letter whether
     this is convenient. If you wish to discuss this by
     telephone rather than coming to my office, please
     notify me at the above number.

     Our meeting will be informal and you may present facts,
     arguments, and legal authority to support your
     position. If you plan to present or discuss new
     material, please send me copies at least five days
     before our meeting. You should prepare statements of
     fact as affidavits, or sign them under penalties of
     perjury.

     Assuming normal time for mail delivery, Magee’s schedule

gave petitioner little or no time to submit materials.     Magee

requested that petitioner provide any documents to be considered

at the hearing in Jackson not later than 3 days after the date

Magee sent the letter.   Magee did not tell petitioner (nor did

petitioner realize) that the proposed conference was the hearing

under section 6320(b) petitioner had requested when he submitted

the Form 12153.

     Petitioner received Magee’s March 19, 2002, letter on March

25, 2002, 2 days before the date Magee had chosen for the

conference.   Also on March 25, 2002, petitioner faxed a response
                               - 6 -

to Magee stating that he was unable to attend or adequately

prepare for the conference in Jackson, and that Magee’s deadline

for sending affidavits and documents in advance of the conference

had already passed.   He stated that he “will be available for the

conference via telephone”, but he did not waive his right under

section 301.6320-1(d)(2), Q&A-D7, Proced. & Admin. Regs., to have

a hearing at respondent’s office.

D.   The March 27, 2002, Telephone Call and Events Leading to
     Respondent’s Determination

     Petitioner and Magee spoke by telephone on March 27, 2002.

During the telephone call, petitioner said, inter alia, that the

notice of Federal tax lien had been filed prematurely and that

the Taxpayer Advocate’s Office had placed a hold on collection

actions.

     Petitioner wrote letters and sent faxes to Magee and other

employees of respondent between March 27 and May 2, 2002.

Petitioner asked that respondent provide him with copies of

respondent’s records relating to his offers in compromise,

requests for abatement of interest and penalties, and requests

for assistance from the Taxpayer Advocate’s Office, and he told

Magee that the amount that respondent sought to collect for 1992-

94 was incorrect because respondent had not applied a credit from

a later year to those years.
                                 - 7 -

E.   Respondent’s Notice of Determination

     On February 12, 2003, respondent issued to petitioner a

Notice of Determination Concerning Collection Action(s) in which

respondent determined that the filing of the tax lien for 1992-94

was appropriate.

     Petitioner timely filed a petition.    In the petition,

petitioner disputed the underlying tax liabilities for 1992 and

1994 on the grounds that respondent had not applied a credit from

a later year to those years and contended that respondent

recorded the tax lien despite the fact that the Taxpayer Advocate

had placed a 45-day hold on collection 12 days earlier.3

                                OPINION

1.   Respondent’s Contentions

     Respondent contends that (a) respondent was not required to

provide petitioner an opportunity for a hearing at the Appeals

Office closest to petitioner’s residence, and (b) petitioner

waived any right to a hearing because petitioner had a telephone

conference with Magee in lieu of attending the conference at

Jackson, Mississippi.




     3
       Congress contemplated the withdrawal of a Federal tax lien
in appropriate circumstances, such as after the involvement of
the Taxpayer Advocate. See sec. 6323(j)(1)(D).
                                - 8 -

2.   Whether Respondent Was Required To Offer a Hearing in
     Respondent’s Appeals Office Closest to Petitioner’s
     Residence

     Respondent contends that, in the Form 12153, petitioner did

not request a hearing at one of respondent’s Appeals Offices.      We

disagree.   The fact that Magee offered petitioner an opportunity

for a conference at one of respondent’s Appeals Offices suggests

that respondent believed (as did petitioner) that petitioner had

requested a hearing at respondent’s Appeals Office.   If we

sustain respondent’s contention that a request for a hearing on

Form 12153 is not a request for a hearing at an Appeals Office,

Form 12153 would become a trap for the unwary because there is

nothing on Form 12153 informing taxpayers of their right under

section 6320 and the accompanying regulations to request a

hearing at an Appeals Office.

     Respondent contends that respondent is not required to

provide a hearing at one of respondent’s Appeals Offices.

Respondent cites section 301.6320-1(d)(2), Q&A-D6, Proced. &

Admin. Regs.4   Respondent, however, overlooks section 301.6320-


     4
        Sec. 301.6320-1(d)(2), Q&A-D6, Proced. & Admin. Regs.,
provides:

     CDP hearings are * * * informal in nature and do not
     require the Appeals officer or employee and the
     taxpayer, or the taxpayer’s representative, to hold a
     face-to-face meeting. A CDP hearing may, but is not
     required to, consist of a face-to-face meeting, one or
     more written or oral communications between an Appeals
     officer or employee and the taxpayer or the taxpayer's
                                                   (continued...)
                                - 9 -

1(d)(2), Q&A-D7, Proced. & Admin. Regs., which provides that, if

a taxpayer receives notice that a lien or levy has been filed and

requests a hearing at respondent’s Appeals Office, the taxpayer

must be offered an opportunity for a hearing at the Appeals

Office closest to the taxpayer’s residence.   See Katz v.

Commissioner, 115 T.C. at 335-336; sec. 301.6320-1(d)(2), Q&A-D7,

Proced. & Admin. Regs.

     We conclude that petitioner requested a hearing by filing

Form 12153.   Respondent was required to provide him with an

opportunity for a hearing at the Appeals Office closest to his

residence.    Katz v. Commissioner, supra; sec. 301.6320-1(d)(2),

Q&A-D7, Proced. & Admin. Regs.5

3.   Whether Petitioner Was Provided an Opportunity for a Hearing
     at the Appeals Office Closest to His Residence

     Petitioner lived in New Orleans when he requested a hearing

under section 6320(b).   Respondent had an Appeals Office in New

Orleans at all times relevant to this case.   Respondent did not




     4
      (...continued)
     representative, or some combination thereof. * * *
     5
        Sec. 301.6320-1(d)(2), Q&A-D7, Proced. & Admin. Regs.,
provides:

     Q-D7. If a taxpayer wants a face-to-face CDP hearing, where
will it be held?

     A-D7. The taxpayer must be offered an opportunity for a
hearing at the Appeals Office closest to taxpayer’s residence * * *
                               - 10 -

provide petitioner an opportunity for a hearing at the Appeals

Office closest to his residence.

4.   Whether Petitioner Waived His Right to a Hearing at
     Respondent’s Appeals Office

     Respondent contends that petitioner waived his right to a

hearing at respondent’s Appeals Office by agreeing to hold a

telephone conference and by failing to specifically request that

the hearing be at the Appeals Office.   We disagree.   Petitioner

did not explicitly or implicitly waive his right to a hearing at

respondent’s Appeals Office.

     In appropriate circumstances, we may remand a case to the

Appeals Office for further investigation and consideration of the

taxpayer’s contentions.   See Lunsford v. Commissioner, 117 T.C.

183, 189 (2001).   We will remand this case with instructions to

respondent to offer petitioner a hearing at the Appeals Office

closest to petitioner’s current residence in Southern California.

     To reflect the foregoing,

                                              An appropriate

                                         order will be issued.
