                    T.C. Summary Opinion 2007-147



                     UNITED STATES TAX COURT



                 PEARLENA WALLACE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7256-06S.               Filed August 23, 2007.



     Pearlena Wallace, pro se.

     Stephen R. Doroghazi, for respondent.



     CARLUZZO, Special Trial Judge:   This section 6330(d)1 case

was heard pursuant to the provisions of section 7463.    Pursuant

to section 7463(b), the decision to be entered is not reviewable

by any other court, and this opinion shall not be treated as

precedent for any other case.



     1
       Section references are to the Internal Revenue Code of
1986, as amended, in effect for the relevant period.
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     In a Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330, dated March 21, 2006, respondent

concluded that it was appropriate to collect by levy petitioner’s

outstanding 1995 Federal income tax liability.

     The issues for decision are:    (1) Whether petitioner’s 1995

Federal income tax liability has been fully paid; and, if not,

(2) whether petitioner is entitled to an abatement of interest

and additions to tax included in that liability.

                             Background

     Some of the facts have been stipulated and are so found.

     Taking into account an extension to file, petitioner’s 1995

Federal income tax return was timely filed.    On that return

petitioner reported an income tax liability of $2,231, all of

which is attributable to the tax on self-employment income, see

sec. 1401, and none of which was paid before the return was

filed.

     According to respondent’s records, only $231 of the

$2,231 tax reported on the return was paid with the return.

Consequently, interest and additions to tax, as well as the tax

reported on the return, were assessed when the return was

processed on November 18, 1996.

     In January 1997 respondent notified petitioner that her

then-outstanding 1995 liability was subject to collection by

levy.    For reasons not entirely clear from the record, but
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perhaps having something to do with petitioner’s health,2 after

correspondence with petitioner in August 1997, collection

activity with respect to petitioner’s 1995 tax liability was

suspended until sometime in 2003.

     In October 2003 respondent contacted petitioner regarding

her 1995 liability, and following a series of contacts and

correspondence, on March 9, 2005, respondent issued a final

notice of intent to levy with respect to that liability.    In

response to that notice, petitioner requested an administrative

hearing.   In her request for the administrative hearing

petitioner stated:

     I disagree with the Notice of Levy for the following
     reasons:
     1. I do not owe taxes for 1995.
     2. I sent the 1995 payment in the amount of $2,231
        along with my tax return to the IRS at Atlanta, GA
        39901, in August 1996.
     3. An Affidavit of 1995 Payment is attached.

The affidavit referenced in her request predates the request and

apparently had been submitted previously to respondent.    In that

affidavit petitioner stated that the $2,231 income tax liability

reported on her 1995 return was fully paid with that return.     A

fair reading of the affidavit suggests that the payment was made

by a check that “was sent in the same envelope as * * * [her]

return.”



     2
       Petitioner was involved in some sort of accident in 1995
that resulted in her being disabled for an unspecified period.
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     Respondent initially scheduled a telephone hearing in

response to petitioner’s request.   Petitioner, however, indicated

that she would prefer a face-to-face hearing.   In order to

accommodate her preference, the place of the hearing was changed

to a location more convenient to petitioner’s residence.   Several

face-to-face hearing dates were scheduled, but petitioner, who at

the time was employed by the Department of Homeland Security and

assigned to assist Hurricane Katrina victims in Mississippi, was

away from home and not available on any of the dates that the

hearings were scheduled.   Ultimately, a telephone hearing was

conducted.

     During the telephone hearing, petitioner took a position

consistent with the position taken in her affidavit and request

for an administrative hearing; i.e., the liability reported on

her 1995 return was fully paid at the time the return was filed.

Petitioner’s entitlement to an abatement of interest or additions

to tax was not considered during the administrative hearing.

     The settlement officer that conducted the administrative

hearing was unwilling to accept petitioner’s uncorroborated claim

that her 1995 tax liability was fully paid.   The settlement

officer asked petitioner to provide a copy of a canceled check or

bank statement evidencing the payment, but petitioner explained

that she could not obtain either because the bank had gone out of

business or merged with a different bank.   In the absence of any
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documentary evidence in support of petitioner’s claim, after

checking whether the payment petitioner claims to have made, or

any portion of it, had been applied (or misapplied) to prior

years, the settlement officer, relying upon the information

contained in respondent’s records, rejected petitioner’s claim

and caused the above-referenced notice of final determination to

be issued.

                            Discussion

     The dispute between the parties is relatively simple.

Petitioner claims that she paid the liability reported on her

1995 return with a check sent to respondent with that return.

Stated in technical terms, petitioner is challenging the

existence of her 1995 tax liability, which, under the

circumstances, she is entitled to do in this proceeding.    See

sec. 6330(c)(2)(B).   Respondent, on the other hand, claims that

only a portion of the liability reported on petitioner’s 1995

return has been paid.   According to respondent, it is appropriate

to collect by levy the unpaid portion of that liability (plus

interest and additions to tax).    If the underlying liability in a

proceeding such as this is properly in dispute, then we review

de novo the Commissioner’s determination to proceed with

collection of that liability.     Davis v. Commissioner, 115 T.C.

35, 39 (2000).
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     Consistent with the approach taken by respondent’s

settlement officer, rational thought suggests that the dispute

between the parties is easily resolved by the production of a

canceled check or other bank record evidencing the amount of the

payment.   In the absence of any such bank records, however, we

are called upon to weigh petitioner’s testimony on the point

against respondent’s records, which if only by implication

petitioner claims to be inaccurate.

     If respondent’s records are inaccurate, the supposed

inaccuracy surfaced in January 1997, only months after

petitioner’s 1995 return was filed.    Then, rather than now, would

have been the time to challenge those records.    A timely

challenge, no doubt, could have been resolved by examination of

the bank records that petitioner now claims cannot be obtained.

     Under the circumstances, we are more persuaded by

respondent’s records than petitioner’s claim that her 1995 tax

liability was fully paid with the filing of her 1995 return.

Furthermore, because petitioner did not claim entitlement to

abatements of interest and additions to tax at the administrative

level, we will not entertain her claims for such relief made for

the first time in this proceeding.     See Miller v. Commissioner,

115 T.C. 582, 589 n.2 (2000), affd. 21 Fed. Appx. 160 (4th Cir.

2001); Bruce v. Commissioner, T.C. Memo. 2007-161; Bourbeau v.
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Commissioner, T.C. Memo. 2003-117; Tabak v. Commissioner, T.C.

Memo. 2003-4.

     We are satisfied that in all other respects respondent has

complied with the procedures contemplated by section 6330, and

petitioner has in no way suggested otherwise.       It follows that

respondent may proceed with collection as proposed in the above-

referenced notice of determination.

     To reflect the foregoing,


                                         Decision will be entered

                                  for respondent.
