                       T.C. Memo. 2007-175



                      UNITED STATES TAX COURT



               WENDELL RAY HOLLOWAY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8779-06L.              Filed July 3, 2007.



     Wendell Ray Holloway, pro se.

     Denise A. DiLoreto and Paul J. Krazeise, Jr., for

respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   This case was commenced in response to a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, sustaining a proposed levy to collect

petitioner’s Federal income taxes for 1999, 2000, and 2001.     (In

the notice of determination, a proposed levy with respect to 2003
                               - 2 -

and 2004 was not sustained.)   The issue for decision is whether

it was an abuse of discretion to sustain the proposed levy.

Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the years in issue.

                            Background

     Petitioner is a self-employed attorney who resided in

Kentucky at the time that his petition was filed.   Petitioner was

married to Tammy S. Holloway (Ms. Holloway or petitioner’s former

spouse) from March 21, 1988, through December 16, 2003.

Petitioner and Ms. Holloway filed joint Federal income tax

returns for 1999, 2000, and 2001.   Petitioner’s joint return

reflected amounts owed of $10,896.72 for 1999, $11,127 for 2000,

and $11,969 for 2001.   The amounts were unpaid, and the taxes

shown on the returns were assessed.

     In 2004, respondent’s Innocent Spouse Unit in Covington,

Kentucky, determined that Ms. Holloway was entitled to relief

under section 6015(f) for the underpayments shown on the joint

returns for 1999, 2000, and 2001.   According to respondent’s

records, notices were sent to petitioner before and after the

decision to grant relief to his former spouse.

     On May 31, 2005, Revenue Officer Sheila Stewart (Stewart)

sent to petitioner a Final Notice–-Notice of Intent to Levy and

Notice of Your Right to a Hearing, listing the amounts that were

owed on petitioner’s tax liabilities for 1999 through 2004 as
                               - 3 -

totaling $81,287.21.   Petitioner requested a section 6330

hearing.   Attached to his request was a document entitled “Notice

of Appeal, Challenge and Objection, Request for Production of

Documents, Demand for Hearing and Judicial Review, and

Counterclaim and Offset and To Dismiss Notice”.    In that

document, petitioner set forth a melange of claims, including

that the Revenue officer had failed to make available to him

payment plans; that the IRS had erroneously granted relief to his

former spouse; that 2003 and 2004 liabilities were not properly

the subject of levy; that petitioner was not liable for penalties

and interest; that petitioner had a counterclaim and offset for

property taken from him when he was a minor; and numerous vague

and unsupported claims of violation of procedural regulations,

due process, and equal protection.     Petitioner requested a face-

to-face hearing close to his residence.    In a letter dated

September 11, 2005, he explained his position that he had sold

cattle herds during 2000 to meet the demands of his former wife,

who started divorce proceedings in 1999.    He stated:   “It is my

understanding that my ex-wife was granted innocent spouse status

about July 2003 even though she is the one that spent all the

money and that is the reason the two cattle herds had to be

sold.”   Petitioner requested that the hearing be delayed because

of his domestic situation and his professional responsibilities.
                               - 4 -

     A hearing was subsequently set for February 9, 2006, by

Settlement Officer Danny L. Williams (Williams).   In a letter

dated January 24, 2006, petitioner requested a delay, and a

hearing was set for March 15, 2006.    Prior to and during the

hearing, petitioner demanded certain information concerning the

grant of relief under section 6015(f) to his former spouse.

Williams sent to petitioner instructions for submitting a Freedom

of Information Act request.   A hearing was conducted on March 15,

2006, and additional documents were sent by petitioner to

Williams after the hearing.   There was no tape-recording or

transcript of the section 6330 hearing conducted by Williams with

petitioner on March 15, 2006, nor was one requested by petitioner

prior to the section 6330 hearing date.    On April 13, 2006, the

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, signed by an Appeals Team Manager, was

sent to petitioner.

     The notice of determination set forth petitioner’s various

claims and accepted only petitioner’s contention with respect to

2003 and 2004.   The notice analyzed petitioner’s financial

information and concluded that an offer-in-compromise was not a

viable collection alternative because he had more than sufficient

equity in his assets to pay his liability in full.    The notice

stated that petitioner had been given notice of and an

opportunity to participate in the action on his former spouse’s
                                   - 5 -

section 6015 claim, that he had not responded, and that he had

admitted receiving the notices but ignored them because

contesting them might affect his child custody battle.     After

discussing each of petitioner’s claims, the notice sustained the

proposed levy action to collect the liabilities owed for 1999,

2000, and 2001.

                               Discussion

     Petitioner requested and received a hearing under section

6330.   Section 6330(c)(2) provides:

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

                    *    *     *    *      *   *   *

                  (2) Issues at hearing.--

                       (A) In general.–-The person may raise at
                  the hearing any relevant issue relating to
                  the unpaid tax or the proposed levy,
                  including--

                             (i) appropriate spousal defenses;

                             (ii) challenges to the
                        appropriateness of collection actions;
                        and

                             (iii) offers of collection
                        alternatives, which may include the
                        posting of a bond, the substitution of
                        other assets, an installment agreement,
                        or an offer-in-compromise.

                       (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
                                 - 6 -

                  otherwise have an opportunity to dispute such
                  tax liability.

Petitioner’s liabilities were self-reported and arguably the

subject of challenge at the hearing.     See Montgomery v.

Commissioner, 122 T.C. 1, 8 (2004).      However, at no time has

petitioner raised a viable challenge to the amounts assessed

against him.   His arguments boil down to a claim that the

Internal Revenue Service (IRS) is precluded from collecting

interest and penalties because of procedural errors.     Although he

broadly alleges issues as to the amounts of tax, he has not

identified or proven any errors as to the assessed amounts.

     Petitioner’s primary contention, which permeates several

different claims of violation of “due process”, is that the IRS

erroneously granted section 6015(f) relief to his former spouse.

Petitioner claims that he is entitled to raise this issue under

section 6330(c)(2)(A)(i).    He argues that his wife and her

demands during divorce proceedings caused the unpaid liabilities

and that he did not receive adequate notice before she was

granted relief.    He did not, however, present any persuasive or

admissible evidence in support of those claims.

     In the petition in this case, in numerous meritless motions,

and in his posttrial briefs, petitioner has merely repeated his

broad unsupported assertions that he has been denied due process

of law and that the IRS has not proceeded properly.     Despite the

opportunity to testify at trial, petitioner declined to do so,
                               - 7 -

preferring instead to submit this case on the stipulation and his

written arguments.

     Respondent, on the other hand, filed a motion for summary

judgment based on a declaration of Williams “setting out the

relevant documents contained in the administrative file from the

CDP hearing”.   Respondent contends that:

          Testimony and/or evidence outside of the
     administrative record may be admissible if the
     administrative record does not completely disclose all
     of the factors considered by the agency or if there is
     a dispute over what happened during the hearing
     process. Murphy v. Commissioner, 125 T.C. 301 (2005)
     (new evidence regarding an irregularity in the conduct
     of a hearing or some defect in the record may be
     presented at trial, even if the record rule is
     applicable). See also Robinette, 439 F.3d, at 461 (“Of
     course, where a record created in informal proceedings
     does not adequately disclose the basis for the agency’s
     decision, then it may be appropriate for the reviewing
     court to receive evidence concerning what happened
     during the agency proceedings.” (citation omitted)).
     The administrative record in this case, however, not
     only completely discloses all of the factors that
     respondent’s settlement officer considered in making
     his determination, but also confirms that he did not
     omit any relevant factor required to make such
     determination, and petitioner has failed to allege
     material facts or otherwise make a prima facie showing
     that any exceptions to the record rule apply.

Respondent also alleged:

          On February 10, 2005, petitioner met with
     respondent’s Revenue Officer Sheila Stewart in
     respondent’s Owensboro, Kentucky office to discuss
     petitioner’s unpaid income tax liabilities. During
     that meeting, petitioner told Revenue Officer Stewart
     that he had received the prior correspondence sent to
     him by respondent’s Innocent Spouse Unit in Cincinnati,
     Ohio, regarding the innocent spouse relief claim filed
     by Tammy S. Holloway and that he did not contest or
     otherwise dispute such claim by her because he feared
                                - 8 -

     that it may affect the disposition of his child custody
     dispute with her in their pending divorce action.
     Declaration Exhibit Y.

The declaration of Williams was attached to respondent’s motion,

but there was no declaration from Stewart.    Exhibit Y was an

unsigned printout of a “case history” of petitioner and

Ms. Holloway.   Because petitioner disputed the completeness of

the administrative record and the factual assertions made,

including his alleged admissions to Stewart concerning his

receipt of notice of the claims of Ms. Holloway, respondent’s

motion for summary judgment was denied.    Respondent did not call

any witnesses at trial.

     Although respondent repeats in the briefs the allegations of

statements made to Stewart and claims that those statements are

admissions and exceptions to the hearsay rule, there is no

evidence that petitioner made the statements to Stewart.

Petitioner denies making the statements, though not under oath.

Thus, there is no admissible evidence in the record as to whether

the statements were made or not made.    For the reasons explained

below, we conclude that the disputed admissions are irrelevant to

our decision.

     Respondent also argues that we are bound by the

administrative record in this case, notwithstanding petitioner’s

disputes about omissions from and inadequacy of the

administrative record.    Because no testimony was offered at
                                - 9 -

trial, we do not need to consider whether testimony in addition

to the administrative record may be considered.    The stipulation

includes documents that were not included in the administrative

record in this case, and respondent has maintained a relevance

objection to those documents.    Because we agree with respondent’s

relevance objection, we need not address respondent’s contention

that we are limited to the administrative record.

     Married taxpayers who elect to file a joint Federal income

tax return are jointly and severally liable for the entire tax

due for the year of the return.    Sec. 6013(d)(3).   A spouse (a

requesting spouse) may seek relief from joint and several

liability by following the procedures established in section

6015.   If the disputed liability involves nonpayment of taxes

shown on a joint return, the only relief available is under

section 6015(f).    See Washington v. Commissioner, 120 T.C. 137,

146-147 (2003).    Thus, the relief pursued by and granted to

Ms. Holloway was relief under section 6015(f).

     Under the circumstances of this case, petitioner is fully

responsible for the unpaid amounts, whether or not Ms. Holloway

is also responsible.    Petitioner has provided neither reason nor

authority supporting his assertion that relief given to

Ms. Holloway should preclude the proposed levy against his assets

or that his claim is the type of “spousal defense” contemplated

under section 6330.    Neither he nor the Court has the ability to
                                - 10 -

require the IRS to collect unpaid amounts from her rather than

from him.    Cf. Baranowicz v. Commissioner, 432 F.3d 972 (9th Cir.

2005); Kovitch v. Commissioner, 128 T.C. 108 (2007); Maier v.

Commissioner, 119 T.C. 267 (2002), affd. 360 F.3d 361 (2d Cir.

2004); Miller v. Commissioner, 115 T.C. 582, 586-588 (2000),

affd. 21 Fed. Appx. 160 (4th Cir. 2001).

     Petitioner contends that the failure to record the hearing

and the failure to have certain documents in the form of

admissible evidence make the determination “null, void, and

unenforceable”; that the assignment of his hearing to a

Settlement Officer rather than an Appeals Officer and the

issuance of the notice of determination signed by an Appeals Team

Manager were denials of due process and render the notice

“unenforceable”; and that certain IRS employees were not

competent to take the steps reflected in the administrative

record.     Although petitioner had the option, under section 7521,

to request in advance that the hearing be recorded, he has

stipulated that he did not make such a request.    Despite his

rhetoric, petitioner has not shown any requirement of law that

was not followed by the persons involved.    He has not

acknowledged or distinguished law contrary to his contentions.

See, e.g., Living Care Alternatives of Utica, Inc. v. United

States, 411 F.3d 621, 624 (6th Cir. 2005); Cox v. Commissioner,
                              - 11 -

126 T.C. 237, 246-248 (2006); Elmore v. Commissioner, T.C. Memo

2003-123.

     Petitioner has not addressed his financial circumstances

that were determined in the notice to preclude alternative means

of collection.   He raises new issues, such as claims that certain

assets are exempt, only in his reply brief, and therefore those

issues will not be considered.   Again his arguments are not

supported by evidence or authority.    We need not and will not

address all of them.   The abuse of discretion standard requires

the Court to decide whether the challenged determination was

arbitrary, capricious, or without sound basis in fact or law.

See Woodral v. Commissioner, 112 T.C. 19, 23 (1999).    After

considering petitioner’s lengthy submissions and the lack of

evidentiary or legal support for his claims, we conclude that he

has shown neither error nor abuse of discretion in the notice of

determination.


                                           Decision will be entered

                                      for respondent.
