                         T.C. Memo. 2006-71



                       UNITED STATES TAX COURT



               STEPHEN DARYL ROYAL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5447-05L.             Filed April 11, 2006.



     Stephen Daryl Royal, pro se.

     Bradley C. Plovan, for respondent.



                         MEMORANDUM OPINION


     CHIECHI, Judge:    Petitioner filed the petition in this case

in response to a notice of determination concerning collection

action(s) under section 63201 and/or 6330 (notice of determina-

tion).


     1
      All section references are to the Internal Revenue Code in
effect at all relevant times.
                               - 2 -

     We must decide whether respondent abused respondent’s

discretion in determining to proceed with the collection action

as determined in the notice of determination with respect to

petitioner’s taxable years 1997, 1998, 1999, and 2000.   We hold

that respondent did not abuse respondent’s discretion.

                            Background

     Virtually all of the facts have been stipulated by the

parties and are so found.

     At the time petitioner, who retired as an employee of the

U.S. Government in 2002, filed the petition in this case, his

legal residence was in Baltimore City, Maryland.

     On various dates, respondent assessed petitioner’s Federal

income tax (tax), as well as any additions to tax and interest as

provided by law, for each of his taxable years 1997, 1998, 1999,

and 2000.   (We shall refer to those assessed amounts, as well as

any interest as provided by law accrued after the respective

assessment dates, as petitioner’s unpaid liabilities for 1997,

1998, 1999, and 2000.)   After respondent made the assessments for

petitioner’s taxable year 1997, respondent abated certain as-

sessed amounts of petitioner’s tax, additions to tax, and inter-

est as provided by law for that year.    Thereafter, on different

dates in 2003 and 2004, respondent applied as credits to the

remaining unpaid liability for 1997 certain overpayments from

certain other taxable years of petitioner.   Thereafter, on August
                               - 3 -

9, 2004, respondent debited petitioner’s account for his taxable

year 1997 in the amount of $6 for “FEES AND COLLECTION COSTS”.

On August 16, 2004, respondent credited petitioner’s account for

that year in the amount of $853.74 to reflect a payment that

petitioner made on August 12, 2004.

     Respondent issued to petitioner respective notices of

balance due with respect to petitioner’s unpaid liabilities for

1997, 1998, 1999, and 2000, as required by section 6303.

     On or about July 8, 2004, respondent prepared and filed a

notice of Federal tax lien with respect to petitioner’s unpaid

liabilities for 1997, 1998, 1999, and 2000.

     On July 15, 2004, respondent issued to petitioner a notice

of Federal tax lien filing and your right to a hearing (notice of

lien) with respect to petitioner’s unpaid liabilities for 1997,

1998, 1999, and 2000.   On August 9, 2004, in response to the

notice of lien, petitioner filed Form 12153, Request for a

Collection Due Process Hearing (Form 12153), and requested a

hearing with respondent’s Appeals Office (Appeals Office).

     Respondent’s Appeals officer (Appeals officer) held a

hearing with petitioner.   Petitioner claimed, inter alia, that he

had no assets with which to pay petitioner’s unpaid liabilities

for 1997, 1998, 1999, and 2000 and that he had made certain

payments against certain of those unpaid liabilities but that

respondent did not properly credit such payments.
                               - 4 -

     On February 22, 2005, the Appeals Office issued to peti-

tioner a notice of determination.     The notice of determination

stated in pertinent part:   “The determination of Appeals is that

the filing of the notice of federal tax lien was appropriate and

is sustained.”   An attachment to the notice of determination

stated in pertinent part:

     SUMMARY AND RECOMMENDATION

        *        *      *         *        *       *       *

     The filing of the Notice of Federal Tax Lien was appro-
     priate and is sustained for all of the periods listed
     above [1997, 1998, 1999, and 2000].

        *        *      *         *        *       *       *

     DISCUSSION AND ANALYSIS

     Verification of Legal and Procedural Requirements

     The basic requirements before the IRS may file a notice
     of federal tax lien include providing the taxpayer with
     a notice that the tax is due, and the taxpayer’s ne-
     glect or refusal to pay. The IRS must notify the
     taxpayer of their right to a hearing before Appeals
     after filing the notice of tax lien. With the best
     information available, the requirements of various
     applicable law and administrative procedures have been
     met. The taxpayer was provided an opportunity to
     present any relevant issues regarding the unpaid tax
     and proposed collection action. The Settlement Officer
     named above has had no prior involvement with respect
     to these liabilities.

     Related Issues Presented by the Taxpayer

     A telephonic hearing was held on December 14, 2004.
     You were advised that the decision to file a notice of
     federal tax lien is not based solely on your available
     assets or your ability to pay. Based on the amount of
     your tax liability and your refusal or neglect to pay
     the filing of the notice of federal tax was appropriate
                              - 5 -

     in your case.

     During your conference you stated that payments have
     been made that have not been correctly credited to your
     account. You were to provide proof of payment for
     Appeals to review by December 31, 2004. To date you
     have not provided any information on possible missing
     payments for Appeals to review. Without verification
     of payment Appeals cannot make the determination that
     your account has been satisfied and release the notice
     of federal tax lien. The assessed balances due as
     listed on the notice of federal tax lien were correct
     according to IRS records at the time of lien filing.
     The notice of lien cannot be released until your tax
     liability is paid in full.

     Balancing efficient tax collection with intrusiveness

     IRC section 6320 requires that the Appeals Officer
     balance the need for efficient collection of taxes with
     the legitimate concern that any collection action be no
     more intrusive than necessary. I find that the filing
     of a notice of federal tax lien is not unnecessarily
     intrusive because an assessment was made, you were
     notified of the assessment and there was refusal or
     neglect to pay. The notice of federal tax lien is
     necessary for the efficient collection of the tax
     liability.

                           Discussion

     At trial, petitioner informed the Court that the only basis

on which he is contesting the Federal tax lien filed by respon-

dent with respect to the unpaid liabilities for 1997, 1998, 1999,

and 2000 is that he does not have the ability to pay those

liabilities.2


     2
      At trial, petitioner did not claim that he made payments
toward the unpaid liabilities for 1997, 1998, 1999, and 2000 that
respondent did not properly credit. We conclude that petitioner
has abandoned that claim. We note that although the Court gave
petitioner the opportunity to file a brief in this case, he
                                                   (continued...)
                               - 6 -

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the determination of the Commissioner of Internal Revenue

for abuse of discretion.   Sego v. Commissioner, 114 T.C. 604, 610

(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

     Petitioner’s position is based solely on his alleged inabil-

ity to pay the unpaid liabilities for 1997, 1998, 1999, and 2000.

However, the record does not indicate that petitioner proposed

any collection alternatives to the Appeals officer.3   Nor does

petitioner propose any such alternatives to the Court.   Based

upon our examination of the entire record before us, we find that

respondent did not abuse respondent’s discretion in determining

to proceed with the collection action as determined in the notice

of determination with respect to petitioner’s taxable years




     2
      (...continued)
failed to do so. We thus address only the argument that peti-
tioner advanced at the trial in this case.
     3
      At trial, petitioner acknowledged that he did not submit an
offer in compromise to the Appeals officer. According to
petitioner,

          I didn’t submit an offer in compromise to * * *
          [the Appeals officer], nor did I submit a proposal
          to pay based on my financial situation, which I
          explained to him was pretty much hardship. I am
          again still on limited income. I don’t see where
          I have the extra money to make a payment plan. If
          I set up a payment plan, I will more than likely
          go into default.
                                 - 7 -

1997,4 1998, 1999, and 2000.

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.




     4
      The notice of Federal tax lien that respondent prepared and
filed showed an unpaid liability of $858.74 for petitioner’s
taxable year 1997. That notice was prepared on July 8, 2004,
before respondent (1) debited petitioner’s account for 1997 for
“FEES AND COLLECTION COSTS” of $6 and (2) credited that account
for the $853.74 payment that petitioner made on Aug. 12, 2004.
As of Aug. 16, 2004, petitioner’s account for his taxable year
1997 showed that he had an unpaid liability of $11. That liabil-
ity, as well as any interest as provided by law, is the correct
amount of petitioner’s unpaid liability for 1997.
