                          T.C. Memo. 2005-83



                       UNITED STATES TAX COURT



                   DUANE E. HUDSPATH, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5865-04L.                  Filed April 11, 2005.



     Duane E. Hudspath, pro se.

     Jeffrey E. Gold, for respondent.



                          MEMORANDUM OPINION


     CHIECHI, Judge:    This case is before the Court on respon-

dent’s motion for summary judgment (respondent’s motion).       We

shall grant respondent’s motion.

                              Background

     The record establishes and/or the parties do not dispute the

following.
                                  -2-

     At the time he filed the petition in this case, petitioner

(petitioner or Mr. Hudspath), who is legally blind and must rely

on others to read to him, resided in Stephens City, Virginia.

     In 1994, petitioner purchased a chiropractic business and

operated it as a sole proprietor.       In the mid-1990s, petitioner

changed the form of the business and formed (1) Stephens City

Chiropractic (SCC), a limited liability company, (2) Fair Hollow

Trust, a domestic trust, and (3) Fair Exit Trust, a foreign

trust.   Petitioner transferred 90 percent of his interest in SCC

to Fair Hollow Trust and retained a 10-percent interest in SCC.

Petitioner subsequently transferred his interest in Fair Hollow

Trust to Fair Exit Trust.

     In August 1996, petitioner formed WIN Enterprise LC (WIN), a

retail sales business.   Petitioner transferred 80 percent of his

interest in WIN to Fair Hollow Trust and retained a 10-percent

interest in WIN.   A third person (Laurie Eakes) owned the remain-

ing 10-percent interest in WIN.

     According to respondent’s records, petitioner was the tax

matters partner for both SCC and WIN.       On March 10, 1999, the

Internal Revenue Service (IRS) sent to petitioner as the tax

matters partner of WIN a notice of beginning of administrative

proceeding.1   On April 14, 2000, the IRS sent by certified mail


     1
      Respondent’s records do not disclose when the IRS sent to
petitioner as the tax matters partner of SCC a notice of begin-
                                                   (continued...)
                               -3-

to petitioner as the tax matters partner of SCC a notice of final

partnership administrative adjustment (FPAA) with respect to the

taxable years 1996 and 1997 of SCC (SCC-FPAA).2    In the SCC-FPAA,

the IRS notified petitioner as the tax matters partner of SCC

that SCC was a sham partnership because Fair Hollow Trust, one of

its partners, was a sham trust and that consequently SCC was

invalid because petitioner was the only partner.

     On April 14, 2000, the IRS sent by certified mail to peti-

tioner as the tax matters partner of WIN an FPAA with respect to

the taxable years 1996 and 1997 of WIN (WIN-FPAA).    In the WIN-

FPAA, the IRS notified petitioner as the tax matters partner of

WIN that Fair Hollow Trust, one of the partners of WIN, was a

sham trust created by petitioner and that consequently Fair

Hollow Trust’s share of the partnership items of WIN was allo-

cated to him.

     On April 14, 2000 (the same date on which the IRS issued the

respective SCC-FPAA and WIN-FPAA to Mr. Hudspath as the tax

matters partner of each entity), the Commissioner sent him a

notice of deficiency for his taxable years 1996 and 1997 (1996


     1
      (...continued)
ning of administrative proceeding.
     2
      The IRS mailed the SCC-FPAA to 5436 Main Street, Stephens
City, Virginia 22655-2829, which is the address for petitioner
listed in the petition in the instant case.
                                -4-

and 1997 notice).   That notice made certain determinations

relating to the adjustments resulting from the IRS’s respective

examinations of SCC and WIN (TEFRA determinations), as well as

certain other unrelated determinations (non-TEFRA determina-

tions).   In response to the 1996 and 1997 notice, on July 14,

2000, Mr. Hudspath filed a petition with the Court, thereby

commencing Hudspath v. Commissioner, docket No. 7901-00 (peti-

tioner’s non-TEFRA case at docket No. 7901-00).

     In response to the respective SCC-FPAA and WIN-FPAA, on July

17, 2000, Jimmy C. Chisum (Mr. Chisum) filed a petition with the

Court purportedly on behalf of SCC and WIN, thereby commencing

Stephens City Chiropractic, PLC v. Commissioner, docket No. 7982-

00 (TEFRA case at docket No. 7982-00 or partnership-level pro-

ceeding).   On April 2, 2001, the Tax Court granted the motion of

the Commissioner to dismiss the TEFRA case at docket No. 7982-00

for lack of jurisdiction because Mr. Chisum, the purported

trustee and the purported tax matters partner of SCC and of WIN,

failed to establish his authority to act on behalf of those

respective entities.

     On December 7, 2001, the Court granted the Commissioner’s

motion to dismiss for lack of jurisdiction and to strike peti-

tioner’s non-TEFRA case at docket No. 7901-00 insofar as it

pertained to the TEFRA determinations in the 1996 and 1997 notice

(respondent’s motion).   That was because such notice insofar as

it pertained to such determinations was invalid and prohibited by
                                 -5-

section 62253 because of the partnership-level proceeding (i.e.,

the TEFRA case at docket No. 7982-00).    The Commissioner specifi-

cally reserved in respondent’s motion the right to proceed under

sections 6221 through 6233 in order to deal with flowthrough

computational adjustments resulting from the respective SCC-FPAA

and WIN-FPAA and to issue any affected items notice of defi-

ciency.

     On April 19, 2002, Mr. Hudspath signed, and on April 24,

2002, the Commissioner’s counsel signed, a stipulated decision

document and a stipulation (parties’ stipulation) in petitioner’s

non-TEFRA case at docket No. 7901-00, which they submitted to the

Court.    On April 26, 2002, pursuant to the stipulation of the

parties, the Court entered a decision in petitioner’s non-TEFRA

case at docket No. 7901-00, which stated, inter alia, that there

were overpayments of $716 and $709 for Mr. Hudspath’s taxable

years 1996 and 1997, respectively,4 and that he was not liable

for either 1996 or 1997 for the accuracy-related penalty under

section 6662(a).    The parties’ stipulation in petitioner’s non-

TEFRA case at docket No. 7901-00 provided:

          1. Petitioner reported certain items on his 1996
     and 1997 income tax returns related on his investment


     3
      All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
     4
      The overpayments were the result of increased deductions
for interest expenses paid by Mr. Hudspath on behalf of SCC in
1996 and 1997.
                               -6-

     in WIN Enterprise, LC and Stephens City Chiropractic,
     PLC.

          2. WIN Enterprise, LC and Stephens City
     Chiropractic, PLC are partnerships which are subject to
     the unified partnership audit and litigation procedures
     set forth in I.R.C. §§ 6221 et seq. (the TEFRA partner-
     ship procedures).

          3. For purposes of computing the overpayment in
     this case, petitioner’s partnership items relating to
     WIN Enterprise, LC and Stephens City Chiropractic, PLC
     have been treated as if they were correctly reported on
     petitioner’s income tax returns for the 1996 and 1997
     taxable years and they have not been adjusted as part
     of this docketed proceeding.

          4. The tax treatment of petitioner’s partnership
     items relating to WIN Enterprise, LC and Stephens City
     Chiropractic, PLC will be resolved in a separate part-
     nership proceeding conducted in accordance with the
     TEFRA partnership procedures.

          5. The adjustments necessary to apply the results
     of the TEFRA partnership proceeding described in sub-
     paragraph 4 to petitioner, shall be treated as computa-
     tional adjustments under I.R.C. § 6231(a)(6) and as-
     sessed, credited or refunded accordingly.

          6. To the extent that the computation of peti-
     tioner’s tax liability which properly reflects the tax
     treatment of the partnership items relating to WIN
     Enterprise, LC and Stephens City Chiropractic, PLC, as
     determined in the TEFRA partnership proceeding de-
     scribed in subparagraph 4, would also result in a
     change in petitioner’s tax liability attributable to
     nonpartnership items, as previously determined in this
     docketed proceeding, such change may be treated as a
     computational adjustment under I.R.C. § 6231(a)(6) and
     assessed, credited or refunded accordingly.

     At the time the parties executed the parties’ stipulation in

petitioner’s non-TEFRA case at docket No. 7901-00, the Court had

already dismissed for lack of jurisdiction the TEFRA case at
                               -7-

docket No. 7982-00 (i.e., the partnership-level proceeding).

     On June 3, 2002, the IRS sent a written notice to Mr.

Hudspath (June 3, 2002 notice) in which the IRS notified him,

inter alia, that there were certain adjustments set forth in the

respective SCC-FPAA and WIN-FPAA that the IRS made during the

examinations by the IRS of the respective taxable years 1996 and

1997 of SCC and WIN and that were the subject of the partnership-

level proceeding (the TEFRA case at docket No. 7982-00),5 which

affected petitioner’s taxable years 1996 and 1997.   The June 3,

2002 notice indicated that, as a result of such adjustments,

there were flowthrough computational adjustments resulting in

increases in (1) petitioner’s income of $18,347 and $21,123 for

his taxable years 1996 and 1997, respectively, and (2) his

Federal income tax (tax) of $2,754 and $3,165 for such respective

years.

     On or about June 25, 2002, the IRS assessed against peti-

tioner (1) additional tax of $2,754 and interest of $1,057.36 for

his taxable year 1996 and (2) additional tax of $3,165 and

interest of $954.60 for his taxable year 1997.   Those assessments

were attributable to the flowthrough computational adjustments

resulting from the respective SCC-FPAA and WIN-FPAA that are

described in the preceding paragraph.


     5
      On Apr. 2, 2001, the Court dismissed the partnership-level
proceeding for lack of jurisdiction.
                                -8-

     On June 25, 2002, the IRS sent a notice of balance due with

respect to the above-described assessments.

     On June 21, 2002, the Commissioner sent to Mr. Hudspath an

affected items notice of deficiency (affected items notice) in

which the Commissioner determined that there were respective

increases in Mr. Hudspath’s income for 1996 and 1997 attributable

to flowthrough adjustments from the respective SCC-FPAA and WIN-

FPAA.   In the affected items notice, the Commissioner determined

deficiencies in Mr. Hudspath’s tax for his taxable years 1996 and

1997 of $2,739 and $4,044, respectively, and an accuracy-related

penalty under section 6662(a) for his taxable year 1996 of

$955.40.

     In response to the affected items notice, on September 16,

2002, Mr. Hudspath filed a petition with the Court, thereby

commencing Hudspath v. Commissioner, docket No. 14741-02 (peti-

tioner’s TEFRA-related case at docket No. 14741-02 or peti-

tioner’s affected items proceeding).   In that case, petitioner

made the same type of argument that he is advancing in the

instant case, viz., the Commissioner made material misrepresenta-

tions with respect to the parties’ stipulation in petitioner’s

non-TEFRA case at docket No. 7901-00 in that that stipulation

stated that “The tax treatment of petitioner’s partnership items

relating to * * * [WIN and SCC] will be resolved in a separate

partnership proceeding conducted in accordance with the TEFRA
                                  -9-

partnership procedures.”    (Emphasis added.)   Consequently,

according to Mr. Hudspath, the Court should not sustain the

determinations in the affected items notice.     Hudspath v. Commis-

sioner, T.C. Memo. 2004-75.

     The Court rejected Mr. Hudspath’s position in petitioner’s

affected items proceeding (petitioner’s TEFRA-related case at

docket No. 14741-02) and sustained the determinations in the

affected items notice that there were additional deficiencies in

petitioner’s tax of $2,739 and $4,044 for 1996 and 1997, respec-

tively, but did not sustain the determination in that notice that

petitioner is liable for 1996 for the accuracy-related penalty

under section 6662(a).     Id.

     On or about April 19, 2003, respondent issued to petitioner

a final notice of intent to levy and notice of your right to a

hearing (notice of intent to levy) with respect to petitioner’s

respective unpaid liabilities for his taxable years 1996 and 1997

that were attributable to flowthrough computational adjustments

resulting from the respective SCC-FPAA and WIN-FPAA (petitioner’s

respective unpaid liabilities for 1996 and 1997), which had been

the subject of the partnership-level proceeding (the TEFRA case

at docket No. 7982-00) that the Court dismissed for lack of

jurisdiction on April 2, 2001.6


     6
      The notice of intent to levy did not include the respective
deficiencies of $2,739 and $4,044 for petitioner’s taxable years
                                                   (continued...)
                              -10-

     On or about May 9, 2003, in response to the notice of intent

to levy, petitioner filed Form 12153, Request for a Collection

Due Process Hearing (petitioner’s Form 12153), and requested a

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

Petitioner attached a document to petitioner’s Form 12153 (peti-

tioner’s attachment to Form 12153), in which he claimed that the

notice of deficiency for 1996 and 1997 was “facially void” and

advanced other statements, contentions, and arguments that the

Court finds to be frivolous and/or groundless.

     On October 21, 2003, an Appeals Office settlement officer

(settlement officer) sent petitioner a letter (October 21, 2003

letter) acknowledging receipt of petitioner’s Form 12153.    That

letter stated in pertinent part:

     Based on my review of the case, the assessments which
     are currently outstanding for collection (as referenced
     on Letter 1058 mentioned above), were TEFRA flow-
     through adjustments from two TEFRA entities: Winn
     [sic] Enterprises, LC and Stephens City Chiropractic,
     PLC.

     There are additional PROPOSED assessments, resulting
     from affected items from the TEFRA entities. These
     proposed assessments were explained in a Notice of
     Deficiency which I can see you have petitioned to Tax
     Court. However, please do not confuse the two issues.
     The amounts addressed on Letter 1058, for the tax years
     1996 and 1997, do not include these additional PROPOSED
     assessments. Included are only the amounts for which


     6
      (...continued)
1996 and 1997 that the Court sustained in petitioner’s affected
items proceeding. Hudspath v. Commissioner, T.C. Memo. 2004-75.
Consequently, the assessments with respect to those respective
deficiencies are not at issue in the instant case.
                               -11-

     you have already been determined to be liable.

     Therefore, the scope of this collection due process
     hearing will focus only on a proposed collection alter-
     native to the proposed levy action on the 1996 and 1997
     balances referenced in Letter 1058. As a collection
     alternative to the lien or levy action proposed, you
     may request consideration of either an Offer in Compro-
     mise or an Installment Agreement; however, you MUST
     provide Form 433A (Collection Information Statement for
     Individuals) or Form 433B (Collection Information
     Statement for Businesses), and/or Form 656 (Offer in
     Compromise package), AT THE TIME OF YOUR SCHEDULED
     HEARING. Furthermore, neither collection alternative
     will be considered if you are not in filing compliance
     at the time of your Appeals conference.

     In response to the October 21, 2003 letter, petitioner sent

the settlement officer a letter dated November 4, 2003 (November

4, 2003 letter).   In the November 4, 2003 letter, petitioner,

inter alia, informed respondent that he needed to reschedule the

hearing with the settlement officer because of his disability and

that he would be bringing a stenographer to record that hearing.

     Petitioner also sent respondent a letter dated November 14,

2003 (November 14, 2003 letter).   In the November 14, 2003

letter, petitioner stated in pertinent part:

          After our telephone conversations of November 10
     and November 13 [2003], you have convinced me of the
     benefit to me of setting up an installment plan with
     you, rather than waiting to deal with a collections
     officer.

          I will only enter into such an agreement with the
     documented understanding that I do not think I owe this
     money; I am simply making this agreement as a conve-
     nience to myself. I intend to pursue violation of due
     process and fraud on the court in this specific matter
     with subsequent court actions.
                                 -12-

          In order to protect my rights in this matter, I
     must be able to bring a stenographer to the meeting so
     there is a third party, written record of the proceed-
     ing. * * *

     On December 18, 2003, the settlement officer held a hearing

with petitioner that the settlement officer audiotaped and that

petitioner’s stenographer recorded.     During that hearing, the

settlement officer explained the collection process to peti-

tioner, and petitioner submitted to the settlement officer Form

433D, Installment Agreement.

     On February 9, 2004, the Appeals Office issued to petitioner

a notice of determination concerning collection action(s) under

section 6320 and/or 6330 (notice of determination).     The notice

of determination stated in pertinent part:

     Summary of Determination

     The taxpayer voluntarily entered into a streamline
     installment agreement for $130.00/month payable on the
     26th of each month. The taxpayer paid his first in-
     stallment payment and also the one-time user fee of
     $43.00. Enforced collection action will not occur
     while this agreement is in place. * * *

     An attachment to the notice of determination stated in

pertinent part:

                      SUMMARY AND RECOMMENDATION

        *         *       *       *       *        *      *

     The taxpayer’s attachment to Form 12153 states, in
     summary, that: “1.) the Notices of Deficiency for 1996
     and 1997 are facially void; 2.) there was a failure to
     generate an assessment list for the assessments for
     1996 and 1997; 3.) there was a failure of the Commis-
     sioner to certify and transmit the assessment list for
                         -13-

the 1996 and 1997 assessments; 4.) there was a failure
to record the assessments for the 1996 and 1997 assess-
ments; 5.) there was a failure to provide record of
assessment for the 1996 and 1997 assessments; and
6.) there was a failure to send Notices of Assessment
for the 1996 and 1997 tax assessments.”

After multiple telephone contacts, and an in-office
recorded conference, the taxpayer voluntarily entered
into an Installment Agreement for $130.00/month payable
on the 26th of each month. The taxpayer has made his
first installment payment and has also paid the one-
time user fee of $43.00. Placement of the taxpayer’s
account into installment agreement status will prevent
enforced collection action from occurring; therefore,
the issued Notice of Intent to Levy has become moot.
The taxpayer is aware that a Notice of Federal Tax Lien
may be filed if the agreement defaults, and is also
aware that interest will continue to accrue until the
balances due are paid in full.

  BRIEF BACKGROUND OF COLLECTION DUE PROCESS HEARING

On October 21, 2003, a conference letter was issued to
the taxpayer scheduling the conference requested for
November 13, 2003, at 1:30 p.m. This letter presented
the taxpayer with an overview of how the liability
arose, and also defined for the taxpayer the scope of
the actual Collection Due Process conference.

The taxpayer responded via phone and mail correspon-
dence that the conference would need to be rescheduled
for a later time. The taxpayer is legally blind and
needed the additional time to make preparations for a
conference--to include orchestrating travel accommoda-
tions and having someone read him all correspondence.

On 11/13/2003 and again on 11/20/2003, detailed phone
conferences were held with the taxpayer. Appeals
learned the taxpayer’s position appeared to be that
even though he acknowledged signing the Decision docu-
ment (as referenced in detail above), he was never
advised how that would translate in terms of actual
assessment amount.

Appeals explained the Collection Process for the tax-
payer. Streamline Installment Agreement criteria were
explained to the taxpayer in detail. He qualifies for
                         -14-

an installment agreement for $130.00/month, payable on
the 26th of each month. The taxpayer understands that
interest will continue to accrue on the balances owed
until the amounts are paid in full. The taxpayer also
understands that a Notice of Federal Tax Lien may be
filed if the agreement defaults. The taxpayer verbally
agreed to these terms, and was provided Form 433D,
Installment Agreement for review. However, the tax-
payer still desired an in-office conference to be
recorded via court stenographer.

An in-office conference, audio taped by Appeals, as
well as recorded via court stenographer, was held on
December 18, 2003 at 10:30 a.m. At this conference,
the taxpayer supplied the signed Form 433D, Installment
Agreement, agreeing to the terms as detailed above. He
also provided his first installment payment as well as
the one-time user fee of $43.00. He was provided with
the opportunity to raise any and all other issues of
concern to him. Again, the underlying liability issue
was raised, and the IRS’ position, as stipulated in the
Decision document from Hudspath v. Commissioner (U.S.
Tax Court Docket No. 7901-00), was reiterated to the
taxpayer.

The taxpayer again acknowledged receiving IRS
worksheets, but did not realize that he could have
disputed the amounts as determined by the IRS. The
taxpayer was advised during the Appeals conference that
if he possessed substantive information that would
change the actual amounts of the computations (i.e.
proof of a math error made on the part of the IRS,
etc.), that he could potentially pursue a request for
abatement. Mr. Hudspath advised he possessed no such
information. He does not believe there should be any
assessments at all.

The taxpayer advised that he would be petitioning Tax
Court to challenge the underlying liability even fur-
ther. However, he would not be raising the issue of
achieving a collection alternative, because he is in
agreement with the terms of his signed Form 433D.

            BRIEF BACKGROUND OF ASSESSMENT

The outstanding liabilities for 1996 and 1997 are the
result of TEFRA flow-through adjustments from two TEFRA
entities: WINN [sic] ENTERPRISES, LC., and STEPHENS
                          -15-

CITY CHIROPRACTIC, PLC. In a Decision document from
Hudspath v. Commissioner (US Tax Court, Docket No.
7901-00), agreed to and signed by both the taxpayer,
and the IRS, entered April 26, 2002 into the US Tax
Court record, the following items were stipulated:

     1.)   Petitioner reported certain items on his 1996
           and 1997 income tax returns related on his
           investment in WIN Enterprises, LC and
           Stephens City Chiropractic, PLC.

     2.)   WIN Enterprises, LC and Stephens City
           Chiropractic, PLC are partnerships which are
           subject to the unified audit and litigation
           procedures set forth in I.R.C. §§6221 et seq
           (the TEFRA partnership procedures).

     3.)   For purposes of computing the overpayment in
           this case, petitioner’s partnership items
           relating to WIN Enterprise, LC and Stephens
           City [Chiropractic], PLC have been treated as
           if they were correctly reported on
           petitioner’s income tax returns for the 1996
           and 1997 taxable years and they have not been
           adjusted as part of this docketed proceeding.

     4.)   The tax treatment of petitioner’s partnership
           items relating to WIN Enterprise, LC and
           Stephens City [Chiropractic], PLC will be
           resolved in a separate partnership proceeding
           conducted in accordance with the TEFRA part-
           nership procedures.

     5.)   The adjustments necessary to apply the re-
           sults of the TEFRA partnership proceeding
           described in subparagraph 4 to petitioner,
           shall be treated as computational adjustments
           under I.R.C. § 6231(a)(6) and assessed, cred-
           ited or refunded accordingly.

     6.)   To the extent that the computation of peti-
           tioner’s tax liability which properly re-
           flects the tax treatment of the partnership
           items relating to WIN Enterprise, LC and
           Stephens City Chiropractic, PLC, as deter-
           mined in the TEFRA partnership proceeding
           described in subparagraph 4, would also re-
           sult in a change in petitioner’s tax liabil-
                           -16-

            ity attributable to nonpartnership items, as
            previously determined in this docketed pro-
            ceeding, such change may be treated as a
            computational adjustment under I.R.C.
            §§ 6231(a)(6) and assessed, credited or re-
            funded accordingly.
       (Hudspath v. Commissioner, US Tax Court Docket No.
       7901-00)

Accordingly, in June of 2002, the IRS proceeded with
computational adjustments as referenced above. Mr.
Hudspath was issued copies of IRS’ computations, and
ultimately, Mr. Hudspath was issued the Notice of
Intent to Levy, upon which he requested the Collection
Due Process Hearing.

                  DISCUSSION AND ANALYSIS

Applicable Law and Administrative Procedures

* * * The Letter 1058, Notice of Intent to Levy and
Notice of your Right to a Hearing, was mailed certi-
fied, return receipt requested on April 19, 2003, to
the taxpayer’s last known address.

   *        *       *       *       *        *       *

* * * The taxpayer was provided the opportunity to
raise any relevant issue at the hearing.

This Settlement Officer has had no prior involvement
with respect to these tax liabilities.

Relevant Issues Raised by the Taxpayer

All issues raised by the taxpayer have been discussed
above. Per IRC 6330(c)(2)(B), underlying liability
challenges may only be raised if the person did not
receive any statutory notice of deficiency OR did not
otherwise have an opportunity to dispute such tax
liability. Appeals determined that a challenge to the
underlying liability could not be raised here under the
forum of this Collection Due Process request. * * *
[Mr. Hudspath] had previous opportunities to dispute
the tax liability in this case.
                               -17-

     Balancing Efficient Collection and Intrusiveness

     IRC 6330 requires that the Appeals Office consider
     whether any collection action balances the need for
     efficient collection of taxes with the taxpayer’s
     legitimate concern that any collection action be no
     more intrusive than necessary. The file indicates that
     the legal and procedural requirements pursuant to the
     issuance of the Final Notice, Notice of Intent to Levy,
     were met and were not improper.

     As stated, placement of the taxpayer’s account into
     Installment Agreement status will prevent enforced
     action from occurring. Therefore, the issued Notice of
     Intent to Levy will become moot. Should the agreement
     default, the IRS will issue CP523, Notice of Defaulted
     Installment Agreement, which will detail potential
     enforcement actions that may be taken against the
     taxpayer.

                            Discussion

     The Court may grant summary judgment where there is no

genuine issue of material fact and a decision may be rendered as

a matter of law.   Rule 121(b); Sundstrand Corp. v. Commissioner,

98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994).    We

conclude that there are no genuine issues of material fact

regarding the questions raised in respondent’s motion.

     In his response to respondent’s motion (petitioner’s re-

sponse), petitioner frames the issue presented in the instant

case as follows:

           Whether the misrepresentations by Respondent’s
     counsel of the terms of the settlement agreement in
     Hudspath v. Commissioner, Docket No. 7901-00 should
     render the settlement agreement void and thus, preclude
     any lien or levy action for assessments arising there-
     from?

Petitioner takes the following position in petitioner’s response:
                               -18-

          This Court should not only deny Respondent’s
     Motion for Summary Judgment, but this Court should also
     grant the Petitioner summary judgment. There is no
     genuine issue with regard to the misrepresentations
     concerning the stipulated settlement in Hudspath v.
     Commissioner, Docket No. 7901-00. * * *

        *        *       *       *       *       *         *

          Under the circumstances, there is only one re-
     course open to this Court for these material misrepre-
     sentations. * * * Declare that the stipulated settle-
     ment in Hudspath v. Commissioner, Docket No. 7901-00 is
     void and thus, the assessments arising therefrom are
     unenforceable.

     Respondent counters that the Court should reject the posi-

tion of petitioner in petitioner’s response.   We agree.

     We note initially that the instant case does not involve

assessments arising from petitioner’s non-TEFRA case at docket

No. 7901-00.   Nor does the instant case involve assessments

arising from petitioner’s affected items proceeding (petitioner’s

TEFRA-related case at docket No. 14741-02).    See supra note 6.

The instant case involves only assessments for petitioner’s

taxable years 1996 and 1997 that are attributable to flowthrough

computational adjustments, as defined in section 6231(a)(6),

resulting from the respective SCC-FPAA and WIN-FPAA, which FPAAs

had been the subject of the partnership-level proceeding (the

TEFRA case at docket No. 7982-00) that the Court dismissed for

lack of jurisdiction on April 2, 2001.   See secs. 6223,

6225(a)(2), 6226(h), 6229, 6230(a)(1), 6231(a)(6); see also

Brookes v. Commissioner, 108 T.C. 1, 5 (1997).
                                -19-

     In petitioner’s affected items proceeding (petitioner’s

TEFRA-related case at docket No. 14741-02), petitioner took a

position that is virtually the same as the position that he is

taking in the instant case.    In petitioner’s affected items

proceeding, the Court summarized petitioner’s position as fol-

lows:

     respondent’s determinations relating to this affected
     items proceeding should not be sustained because re-
     spondent informed petitioner that, pursuant to the
     April 24, 2002, stipulation [in petitioner’s non-TEFRA
     case at docket No. 7901-00], petitioner would have an
     opportunity to challenge the partnership items. In
     support of his contention, petitioner, who is blind,
     asserts that he justifiably relied on respondent to
     explain the terms of the stipulation.

Hudspath v. Commissioner, T.C. Memo. 2004-75.

     The Court rejected petitioner’s position in petitioner’s

affected items proceeding.    In so doing, the Court concluded:

          Petitioner’s credible testimony and the plain
     language of the stipulation (i.e., “The tax treatment
     of petitioner’s partnership items * * * will be re-
     solved in a separate partnership proceeding”. (Empha-
     sis added.)) established that respondent misled peti-
     tioner. These facts, however, do not override the
     mandate of section 6221 that “the tax treatment of any
     partnership item * * * shall be determined at the
     partnership level.” Maxwell v. Commissioner, 87 T.C.
     783, 787-788 (1986).

          Respondent complied with the partnership audit and
     litigation procedures and, upon completion of the
     partnership-level proceeding, assessed a computational
     adjustment against petitioner. See secs. 6223,
     6225(a)(2), 6230(a)(1), 6231(a)(6); Brookes v. Commis-
     sioner, 108 T.C. 1, 5 (1997). Petitioner had the
     opportunity, in the partnership-level proceeding [the
     TEFRA case at docket No. 7982-00], to challenge the
     partnership items, but he failed to do so. Accord-
                                 -20-

        ingly, petitioner is precluded from challenging those
        items in this [petitioner’s affected items] proceeding
        [petitioner’s TEFRA-related case at docket No. 14741-
        02]. See secs. 6221, 6226; Brookes v. Commissioner,
        supra at 5-7.

Id.

        For the same reasons on which we relied in rejecting peti-

tioner’s position in petitioner’s affected items proceeding, id.,

we reject petitioner’s position in the instant case.    On the

record before us, we find that petitioner may not challenge the

existence or the amount of petitioner’s respective unpaid liabil-

ities for 1996 and 1997.    See sec. 6330(c)(2)(B).

      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 for abuse of discre-

tion.    Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v.

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

        Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining in the notice of determination that, as long as

petitioner is in compliance with the installment agreement into

which he voluntarily entered with respect to petitioner’s respec-

tive unpaid liabilities for 1996 and 1997, the notice of intent

to levy is moot.     On that record, we shall grant respondent’s

motion.

        We have considered all of petitioner’s statements, conten-
                                 -21-

tions, and arguments in petitioner’s response and in the petition

in this case that are not discussed herein, and we find them to

be without merit, irrelevant, frivolous, and/or groundless.7

     To reflect the foregoing,


                                 An appropriate order granting

                         respondent’s motion and decision will be

                         entered for respondent.




     7
      In addition to petitioner’s position in petitioner’s
response that respondent misled him with respect to certain terms
of the parties’ stipulation in petitioner’s non-TEFRA case at
docket No. 7901-00, petitioner advanced in the petition in the
instant case certain contentions and arguments that the Court
finds to be frivolous and/or groundless.
