                        T.C. Memo. 2001-312



                      UNITED STATES TAX COURT



              HILTON LEE STRICKLAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18080-99L.               Filed December 13, 2001.



     Hilton Lee Strickland, pro se.

     Brandi B. Darwin, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court under section

6330(d) to review respondent’s determination on a proposed levy.

We must decide whether to sustain that determination.    We shall.

Section references are to the Internal Revenue Code as applicable

herein.
                               - 2 -

                         FINDINGS OF FACT

     Most facts were stipulated.   We incorporate herein by this

reference the parties’ stipulation of facts and the accompanying

exhibits.   We find the stipulated facts accordingly.   Petitioner

resided in Florida when his petition was filed.

     On September 26, 1998, respondent mailed to petitioner

notices of deficiency in his 1995 and 1996 Federal income taxes.

Petitioner never petitioned the Court with respect to either

notice.   On June 9, 1999, respondent’s examination office in

Holly Hill, Florida (Holly Hill), issued to petitioner for those

years and 1997 a document that read in relevant part as follows:

                          FINAL NOTICE
 NOTICE OF INTENT TO LEVY AND NOTICE OF YOUR RIGHT TO A HEARING
                   PLEASE RESPOND IMMEDIATELY

          Your Federal tax is still not paid. We previously
     asked you to pay this, but we still haven’t received
     your payment. This letter is your notice of our intent
     to levy under Internal Revenue Code (IRC) Section 6331
     and your right to receive Appeals consideration under
     IRC Section 6330.

                *    *    *    *       *   *   *

          If you don’t pay the amount you owe, make
     alternative arrangements to pay, or request Appeals
     consideration within 30 days from the date of this
     letter, we may take your property, or rights to
     property, such as real estate, automobiles, business
     assets, bank accounts, wages, commissions, and other
     income. We’ve enclosed Publication 594 with more
     information, Publication 1660 explaining your right to
     appeal, and Form 12153 to request a Collection Due
     Process Hearing with Appeals. * * *
                               - 3 -

On the same day, petitioner requested the referenced hearing

before the Internal Revenue Service Office of Appeals (Appeals).

Petitioner stated in his request that “I relied on the advice of

a tax return professional who had given me wrong information.    I

do not owe the taxes which are now being billed to me.”

     Appeals assigned petitioner’s request for a hearing to

Settlement Officer Roger Cable, an Appeals officer, and Mr. Cable

sent the case to Michael Generazio, a revenue agent in the Holly

Hill examination office, for the purpose of holding the hearing.1

Mr. Generazio held the hearing with petitioner in Holly Hill; as

respondent’s counsel explained at trial, “there wasn’t an appeals

officer there that could meet with Petitioner for the due process

matter, but –- so he was referred to an examiner there, who he

did meet with.”   Following the hearing, Mr. Cable telephoned

petitioner to notify him that Mr. Generazio had concluded that

petitioner’s Federal income tax liabilities (overpayments) for

1995, 1996, and 1997 were:

                     Year    Liability/(overpayments)
                                   1
                     1995           ($129.74)
                     1996          10,525.56
                     1997          (1,973.66)
                                    8,422.16
          1
            This amount was primarily (if not entirely)
     attributable to interest payable by petitioner with
     respect to that year’s taxes.


     1
       The revenue agent who recommended the levy was also
assigned to respondent’s Holly Hill examination office.
                               - 4 -

Mr. Cable also notified petitioner that he could pay this amount

in full or in monthly installments.     Petitioner told Mr. Cable

that petitioner was unable to pay the balance in full at that

time or to enter into an installment agreement.     Petitioner had

previously paid to the Commissioner at least $62,000 with respect

to subject year taxes by borrowing the money, and he was making

monthly payments on that debt while living on a fixed income.

     On November 3, 1999, Appeals mailed to petitioner a Notice

of Determination Concerning Collection Action(s) under Section

6320 and/or 6330.   The notice stated that petitioner’s Federal

income tax liability for the subject years was the $8,422.16

referenced above.

     Petitioner petitioned the Court on December 2, 1999, to

review respondent’s determination.     The petition contains no

allegation of error as to respondent’s determination.     Petitioner

alleges in the petition that he has already paid his income tax

liability for the subject years (exclusive of interest and

penalties), that he lives on a “fixed income”, and that he has

“taken out a second mortgage to clear this debt, which has caused

me to be over-extended and behind with all my creditors”.

Petitioner requested in his petition that the Court waive the

$8,422.16.   Petitioner asked the Court at trial, as an

alternative to waiving that amount, to allow him to meet with a

collection officer to discuss that amount.
                                - 5 -

                              OPINION2

      Section 6330 was added to the Code as part of the Internal

Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA),

Pub. L. 105-206, 112 Stat. 685.    The passage of the RRA

culminated a year of congressional investigations and hearings

over the future of the IRS, resulting in highly publicized

criticisms of the agency’s collection methods.    The RRA contains

over 60 provisions fortifying taxpayer rights and improving

customer service, and its passage establishes new taxpayer

rights.   Section 6330, in particular, “establishes formal

procedures * * * where the IRS seeks to collect taxes by levy”.

S. Rept. 105-174, at 67 (1998), 1998-3 C.B. 537, 603.    The Senate

Finance Committee explained in its report that “taxpayers are

entitled to protections in dealing with the IRS that are similar

to those they would have in dealing with any other creditor.”

Id.

      Section 6330 provides in relevant part as follows:

      SEC. 6330.   NOTICE AND OPPORTUNITY FOR HEARING BEFORE
                   LEVY.

           (a) Requirement of Notice Before Levy.--

                (1) In general.--No levy may be made on
           any property or right to property of any
           person unless the Secretary has notified such
           person in writing of their right to a hearing


      2
       On the basis of the Court’s holding in Lunsford v.
Commissioner, 117 T.C.     (2001) (Lunsford I), we conclude that
we have jurisdiction in this case.
                                - 6 -

            under this section before such levy is made.
            * * *

                 *     *    *    *      *     *    *

            (b) Right to Fair Hearing.--

                 (1) In general.--If the person requests
            a hearing * * *, such hearing shall be held
            by the Internal Revenue Service Office of
            Appeals.

     Pursuant to the Court’s holding in Lunsford v. Commissioner,

117 T.C.       (2001) (Lunsford II), we confine our analysis solely

to the issues raised in the petition.       The only issue that we

understand petitioner to have raised in the petition concerns

either:    (1) The amount and/or existence of the underlying tax

liability for 1996 (the only year in issue with a liability) or

(2) an offer to compromise the $8,422.16 by paying nothing.

Pursuant to Lunsford II, we consider petitioner to have abandoned

all other allegations of error which he might have set forth in

this petition, including, in particular, any allegation that his

hearing with the revenue agent was improper by virtue of the fact

that section 6330(b)(1) requires explicitly that a “hearing

[under section 6330] shall be held by the Internal Revenue

Service Office of Appeals.”

     As to the first of the two issues possibly raised in the

petition, it is well settled in this Court that the taxpayer

cannot challenge the amount and/or existence of an underlying tax

liability where the taxpayer receives a notice of deficiency.
                                 - 7 -

Id. at     (slip op. at 3).     As to the second issue, it is well

settled in this Court that we review that issue under an abuse of

discretion standard.   Id. at        (slip op. at 6).      Because the

judicial record at hand does not support our finding of any abuse

of discretion on the part of IRS Appeals, we sustain respondent’s

determination in full.3

                                              Decision will be entered

                                         for respondent.




     3
       As to petitioner’s request to allow him to meet with a
collection officer to discuss the $8,422.16, petitioner has not
set forth in his petition any bona fide argument that makes it
“either necessary or productive to remand this case to IRS
Appeals to consider” that amount. Lunsford v. Commissioner,
117 T.C. __, __ (2001) (slip op. at 11) (Lunsford II). We reject
that request on the basis of Lunsford II.
