                        T.C. Memo. 2004-209



                      UNITED STATES TAX COURT



                  ALBERT M. KUN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16979-02L.           Filed September 20, 2004.


     Albert M. Kun, pro se.

     Rebecca S. Duewer and Paul R. Zamolo, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


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

seeks review of respondent’s determination to proceed with the

collection of petitioner’s 1995, 1996, 1997, 1998, and 1999

Federal income tax liabilities.


     1
      All section references are to the Internal Revenue Code in
effect at all relevant times.
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                         FINDINGS OF FACT

     Some of the facts have been stipulated.     We incorporate the

stipulated facts and the accompanying exhibits into our findings

by this reference.   Petitioner resided in San Francisco,

California, when he filed the petition.

     Petitioner timely filed tax returns for 1995 through 1999

but failed to pay the amounts shown as due on the returns.     On

May 3, 2001, respondent sent to petitioner a Notice of Federal

Tax Lien Filing and Your Right to a Hearing Under IRC 6320 for

1995 through 1999.   On June 4, 2001, petitioner mailed to

respondent Form 12153, Request for a Collection Due Process

Hearing, requesting a hearing with respect to all 5 taxable

years.   Petitioner’s Form 12153 stated:    “I believe this bill is

incorrect.   These taxes were never assessed.    I am requesting a

minimum of 60 days extension.”

     On April 22, 2002, petitioner and petitioner’s

representative, Hector Vasquez, attended a hearing with Appeals

Officer Serena Wong.   At the hearing, petitioner contended that

respondent had not assessed the income tax liabilities.

Petitioner also submitted an offer-in-compromise of $1,000 on the

basis of doubt as to collectibility.     Petitioner’s offer-in-

compromise covered his income tax liabilities for 1985 through

2001, which then exceeded $180,000.
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     In addition to Form 656, Offer in Compromise, petitioner

submitted the following completed forms at the hearing:     (1) Form

433-A, Collection Information Statement for Wage Earners and

Self-Employed Individuals, and (2) Form 433-B, Collection

Information Statement for Businesses.   On the Form 433-A,

petitioner indicated that he was an unmarried, self-employed

attorney and had total monthly income and expenses of $2,707 and

$3,302, respectively.   On the Form 433-B, petitioner stated that

he had total monthly business income and expenses of $6,131 and

$3,424, respectively.

     On October 11, 2002, the Appeals Office sent to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 (notice of determination).   In the

notice of determination, the Appeals Office determined the

following:

     1.   All legal and procedural requirements for filing the

notice of Federal tax lien had been met.

     2.   Petitioner’s income tax liabilities were timely

assessed, and the assessments were “properly based on established

law, policy and procedure.”

     3.   Petitioner’s offer-in-compromise was properly rejected,

because petitioner was noncompliant in the payment of both his

income tax liabilities and estimated tax payments, petitioner was

capable of paying more than the amount offered, no exceptional
                               - 4 -

circumstances were present “such that collection of the full

liability will be detrimental to voluntary compliance”, and there

was no evidence that a compromise would encourage future

compliance and promote effective tax administration.

     4.   Petitioner declined to consider an installment

agreement.

     5.   The notice of Federal tax lien filing balanced the need

for efficient collection of taxes with the legitimate concern of

the taxpayer that the collection action be no more intrusive than

necessary.

     On October 30, 2002, petitioner filed a timely petition

contesting respondent’s determination.   Petitioner alleged that

“the Internal Revenue Service abused its discretion in making the

findings and conclusions it did and abused its discretion in

rejecting petitioner’s offer in compromise.”

                              OPINION

     All property and rights to property of a taxpayer become

subject to a lien in favor of the United States on the date a tax

liability is assessed against the taxpayer if the taxpayer fails

to meet the Commissioner’s demand for payment of the tax

liability.   Secs. 6321 and 6322.   Until a notice of Federal tax

lien is filed, a lien is without validity and priority against

certain persons such as judgment lien creditors of the taxpayer.

Sec. 6323(a).   After the Secretary files the notice of Federal
                               - 5 -

tax lien, the Secretary must provide the taxpayer with written

notice of the filing, informing the taxpayer of the right to

request an administrative hearing on the matter.   Sec.

6320(a)(1), (3)(B).   Section 6320(c) requires that the

administrative hearing be conducted pursuant to section 6330(c),

(d), and (e).

     At the hearing, a taxpayer may raise any relevant issue,

including appropriate spousal defenses, challenges to the

appropriateness of the collection action, and collection

alternatives, such as an offer-in-compromise.   Sec.

6330(c)(2)(A).   Additionally, at the hearing, a taxpayer may

contest the existence and amount of the underlying tax liability

if the taxpayer did not receive a notice of deficiency for the

tax in question or did not otherwise have an opportunity to

dispute the tax liability.   Sec. 6330(c)(2)(B); see also Sego v.

Commissioner, 114 T.C. 604, 609 (2000).

     Following the hearing, the Appeals Office is required to

issue a notice of determination regarding the disputed notice of

Federal tax lien.   In so doing, the Appeals Office is required to

take into consideration the verification presented by the

Secretary, the issues raised by the taxpayer, and whether the

proposed collection action appropriately balances the need for

efficient collection of taxes with the taxpayer’s concerns

regarding the intrusiveness of the proposed collection action.
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Sec. 6330(c)(3).    The taxpayer may petition the Tax Court or, in

limited cases, a Federal District Court for judicial review of

the Appeals Office’s determination.     Sec. 6330(d).

      If the taxpayer files a timely petition for judicial review,

the applicable standard of review depends on whether the

underlying tax liability is at issue.     Where the underlying tax

liability is properly at issue, the Court reviews any

determination regarding the underlying tax liability de novo.

Sego v. Commissioner, supra at 610.     The Court reviews other

administrative determinations regarding the notice of Federal tax

lien for abuse of discretion.    Id.

      In the present case, petitioner has not received a notice of

deficiency or otherwise had an opportunity to dispute his income

tax liabilities for 1995 through 1999.     Consequently,

petitioner’s underlying tax liabilities are properly at issue,

and we review any challenge to the underlying tax liabilities de

novo.   See sec. 6330(c)(2)(B); Montgomery v. Commissioner, 122

T.C. 1, 9 (2004).

A.   Petitioner’s Challenge to the Underlying Tax Liabilities

      In challenging the underlying tax liabilities, petitioner

solely contends that “The taxes in question were not due because

they were never assessed.”   Petitioner does not allege any

specific irregularity in the assessment procedure.
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       An Appeals officer may rely on a computer transcript or Form

4340, Certificate of Assessments, Payments, and Other Specified

Matters, to verify that a valid assessment was made.     Nestor v.

Commissioner, 118 T.C. 162, 166 (2002); Schaper v. Commissioner,

T.C. Memo. 2002-203; Schroeder v. Commissioner, T.C. Memo. 2002-

190.    After reviewing the computer transcripts of petitioner’s

account, Appeals Officer Wong concluded that “Assessments for all

years appear correct and based on established law, policy and

procedure.”     The record contains no credible evidence to

contradict Appeals Officer Wong’s conclusion.     Accordingly, we

conclude that respondent properly assessed petitioner’s income

tax liabilities.

B.   Petitioner’s Challenge to Respondent’s Determination To
     Proceed With the Collection Action

       1.   Copies of Form 4340

       Petitioner asserts that, at the hearing, Appeals Officer

Wong should have made available to petitioner a copy of Form

4340, Certificate of Assessments, for each of the taxable years

at issue and should have discussed the Forms 4340 with him.     We

disagree.     Although section 6203 provides that “Upon request of

the taxpayer, the Secretary shall furnish the taxpayer a copy of

the record of the assessment”, section 6330(c)(1) does not

require that the Appeals officer give to the taxpayer a copy of

the record of assessment at or before the hearing.     See Nestor v.

Commissioner, supra at 166-167.     Even if petitioner had requested
                               - 8 -

copies of the Forms 4340,2 Appeals Officer Wong’s failure to give

them to petitioner at the hearing is not an abuse of her

discretion.   See id.

     2.   Petitioner’s Offer-in-Compromise

     Petitioner further asserts that it was an abuse of

discretion for Appeals Officer Wong to reject his offer-in-

compromise.   According to petitioner, Appeals Officer Wong (1)

failed to apply Internal Revenue Manual section “5.15.1.4.3" for

evaluating petitioner’s Forms 433-A and 433-B and (2) failed “to

make a finding of net income” for purposes of an installment

agreement.

     In his filings with the Court, petitioner did not explain

his contention regarding the Internal Revenue Manual and offered

no evidence in support of his position that Appeals Officer Wong

did not properly evaluate his collection information.   Upon

review of the record, it is clear that Appeals Officer Wong

carefully considered petitioner’s collection information and, on

the basis of that information, determined that petitioner’s




     2
      There is no evidence, and petitioner did not allege, that
he ever requested copies of the Forms 4340 from the Appeals
officer at or before the hearing.
                               - 9 -

offer-in-compromise should be rejected for several reasons3 in

addition to petitioner’s ability to pay.

      In arguing that the rejection of his offer-in-compromise was

an abuse of discretion, petitioner also contends that Appeals

Officer Wong failed to make a finding of net income for purposes

of an installment agreement.   Petitioner has not directed us to,

and we are not aware of, any such requirement for purposes of

rejecting an offer-in-compromise.   Moreover, when Appeals Officer

Wong presented to petitioner the opportunity to consider an

installment agreement, petitioner declined to do so.   Appeals

Officer Wong’s rejection of petitioner’s offer-in-compromise was

not an abuse of discretion.

C.   Conclusion

     We have considered the remaining arguments of both parties

for results contrary to those discussed herein and, to the extent

not discussed above, conclude those arguments are irrelevant,

moot, or without merit.4   We shall sustain respondent’s


     3
      In addition to determining that the amount of petitioner’s
offer-in-compromise was inadequate, Appeals Officer Wong rejected
petitioner’s offer-in-compromise because petitioner had a 17-year
history of noncompliance with the Federal income tax laws; had
not paid his 2000, 2001, or 2002 Federal income tax liability;
and had not made required estimated tax payments as of the date
of his hearing. See Londono v. Commissioner, T.C. Memo. 2003-99
(taxpayer’s history of noncompliance was basis for rejecting
offer-in-compromise).
     4
      In his posttrial memorandum of law, petitioner argued that
he was denied due process when this Court granted respondent’s
                                                   (continued...)
                             - 10 -

determination that the notice of Federal tax lien filing was an

appropriate enforcement action with respect to petitioner’s 1995,

1996, 1997, 1998, and 1999 income tax liabilities.

     To reflect the foregoing,


                                        Decision will be entered

                                   for respondent.




     4
      (...continued)
two motions to quash subpoenas and denied petitioner’s motion for
a continuance, but petitioner did not file any motion for
reconsideration. We decline to reconsider our rulings on the
motions, which were explained in detail on the record before
trial.
