                  T.C. Summary Opinion 2008-48



                     UNITED STATES TAX COURT



               CHARLES A. ROBINSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19057-05S.             Filed April 30, 2008.



     Charles A. Robinson, pro se.

     Laura A. Price, for respondent.



     ARMEN, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

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



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

                            Background

     Petitioner Charles A. Robinson did not appear at trial.

Instead, this case was submitted fully stipulated at the trial

session of the Court held at Jacksonville, Florida, on February

5, 2008.   The parties’ agreed facts and accompanying exhibits are

incorporated herein by this reference.   See Rule 122.

     At the time the petition was filed, petitioner resided in

Florida.

     According to the Internal Revenue Service (IRS) case

activity record,2 petitioner and his wife both have health

problems that either restrict or prohibit their employment.    They

also have financial problems, including their outstanding debt to

the IRS.   Despite owing money on “several charge cards” and using

money earmarked for a payment to the IRS to repair home damage

caused by “three hurricanes in 6 weeks”, petitioner claims to

consider his “IRS problems [his] first priority.”




     2
        Although some of the exhibits entered into evidence
discuss petitioner’s outstanding balances from taxable years
2001, 2002, 2003, and 2004, only taxable years 1998 and 1999 are
properly before the Court. See sec. 6330(d). Similarly,
although there are references to petitioner’s failure to honor a
previous installment agreement, that failed agreement is not part
of the current proceedings.
                               - 3 -

     On March 25, 2005, respondent sent petitioner a Final Notice

of Intent to Levy and Notice of Your Right to a Hearing (final

notice) in respect of petitioner’s 1998 and 1999 tax years.

     In response, petitioner timely filed a Form 12153, Request

for a Collection Due Process Hearing, on April 6, 2005.    In that

request, petitioner made clear that he did not dispute the

underlying tax liability but that he wished to discuss an

installment agreement.

     During the negotiation of a potential installment agreement,

respondent determined that petitioner had monthly disposable

income of $1,920.   In contrast, petitioner calculated a monthly

disposable income of $879.   Of some note is the fact that

although respondent alleges that petitioner has stock that could

be sold to fully satisfy his tax debt, petitioner’s only

reference to the stock is a listing of “dividends” received

monthly on his income and expense statement.

     Petitioner proposed paying $180 per month to satisfy his tax

obligations.   Because respondent’s settlement officer determined

petitioner could pay $1,920 per month, she rejected the proposal.

On September 13, 2005, respondent mailed petitioner a Notice of

Determination Concerning Collection Action under Section 6320

and/or 6330 (notice of determination), sustaining the proposed

levy because petitioner did not offer any viable collection

alternative.
                                - 4 -

     Petitioner filed this action in order to have us review

respondent’s determination.

                              Discussion

     Section 6330 generally provides that the Commissioner cannot

proceed with collection by levy until the taxpayer has been given

notice and the opportunity for an administrative review of the

matter (in the form of an Appeals Office hearing) and, if

dissatisfied, with judicial review of the administrative

determination.   See Davis v. Commissioner, 115 T.C. 35, 37

(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000); see also

sec. 6330.    Petitioner has had the benefits of these protections.

     In determining that a proposed levy may proceed, the Appeals

Office is required to take into consideration:   (1) The

verification presented by the Secretary that the requirements of

applicable law and administrative procedures have been met, (2)

the relevant issues raised by the taxpayer, and (3) whether the

proposed levy action appropriately balances the need for

efficient collection of taxes with the taxpayer’s concerns

regarding the intrusiveness of the proposed levy action.    Sec.

6330(c)(3).   The settlement officer did verify that all legal and

procedural requirements had been met, and she reviewed the single

issue raised by the taxpayer: an installment agreement.

     Because there is no dispute as to the underlying liability,

our review is performed under an abuse of discretion standard.
                              - 5 -

See Lunsford v. Commissioner, 117 T.C. 183, 185 (2001); Goza v.

Commissioner, supra at 182; cf. sec. 6330(c)(2)(B).    A settlement

officer abuses her discretion if her determination is exercised

“arbitrarily, capriciously, or without sound basis in fact.”

Mailman v. Commissioner, 91 T.C. 1079, 1084 (1988); see also

Freije v. Commissioner, 125 T.C. 14, 23 (2005).     On the basis of

the record, it was not an abuse of discretion to determine that

petitioner could pay more than he proposed and that the proposed

levy should proceed.

                           Conclusion

     Without the benefit of any testimony from petitioner, we are

unable to ascertain how much petitioner was truly capable of

paying toward his Federal tax obligations for 1998 and 1999.

Fortunately, that is not our charge here.   We are asked only to

decide whether respondent abused his discretion in rejecting

petitioner’s offer and determining that the levy should proceed;

it is clear from the record before us that he did not.

Therefore, we sustain respondent’s determination.

     To reflect our disposition of the disputed issue,


                                        Decision will be entered

                                   for respondent.
