                         T.C. Memo. 2002-48



                      UNITED STATES TAX COURT



                    TERRY K. MANN, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6263-00L.               Filed February 21, 2002.



     Joyce Griggs, for petitioner.

     Ross M. Greenberg, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     LARO, Judge:   Petitioner petitioned the Court under section

6330(d).1   We must decide whether (1) respondent abused his

discretion under section 6330 and (2) petitioner is liable for a

section 6673(a)(1) penalty.


     1
        Section references are to the Internal Revenue Code
applicable to the years in issue.
                               - 2 -

                         FINDINGS OF FACT

     Most facts were stipulated.   We incorporate herein by this

reference the parties’ stipulation of facts and the accompanying

exhibits.   Petitioner resided in Artesia, New Mexico, at the time

his petition was filed with the Court.

     In a letter dated September 13, 1999, respondent mailed a

“Final Notice - Notice of Intent to Levy and Notice of Your Right

to a Hearing” to petitioner with respect to Federal income taxes.

The September 13 notice informed petitioner of (1) respondent’s

intention to levy under section 6331 and (2) petitioner’s right

to Appeals Office consideration.   Additionally, enclosed with the

notice was a copy of Form 12153, Request for a Collection Due

Process Hearing, to request a hearing with the Appeals Office.

     On October 12, 1999, pursuant to section 6330(a), petitioner

timely requested a hearing using the Form 12153.    In the request

for a hearing, petitioner questioned the existence of a “valid

summary record of assessment pursuant to 26 CFR § 301.6203-1.”

On March 29, 2000, respondent mailed to petitioner a letter

stating that it was the Appeals officer’s “determination that * *

* [petitioner’s] reasons for disagreeing with the proposed

enforcement actions are frivolous and without merit” and

scheduling a hearing for April 19, 2000.    Petitioner did not

attend the scheduled hearing and did not contact the Appeals

officer to reschedule the hearing.
                                 - 3 -

     On May 11, 2000, respondent issued a notice of determination

to petitioner.   The notice concluded:     (1) All procedural,

administrative, and statutory requirements were met;

(2) petitioner failed to attend the scheduled hearing;

(3) petitioner failed to present any collection alternatives; and

(4) the proposed levy was justified.      The Appeals officer

sustained the proposed levy on the basis of his review of a

computer transcript of respondent’s records.      The Appeals officer

did not consider a Form 4340, Certificate of Assessments,

Payments, and Other Specified Matters.

     On June 5, 2000, petitioner filed a timely petition with

this Court.   On December 4, 2000, counsel for respondent provided

petitioner with a copy of a Form 4340 dated October 3, 2000.

                                OPINION

     In a section 6330(d) appeal, where the validity of the

underlying tax liability is properly at issue, the Court will

review the liability de novo.    Where the underlying liability is

not at issue, the Court will review the Commissioner’s

administrative determination for abuse of discretion.      Sego v.

Commissioner, 114 T.C. 604, 610 (2000).      The validity of the

underlying tax liability is not at issue in this case;

consequently, we review respondent’s actions under the abuse of

discretion standard.
                                 - 4 -

     Petitioner alleges two errors by respondent.   First,

petitioner alleges that the Appeals officer abused his discretion

by failing to obtain from the Secretary an assessment document

prepared by the assessment officer and certified under oath by an

authorized official.   Instead, the Appeals officer relied upon

computer transcripts to verify the existence of an assessment.

Second, petitioner alleges the Appeals officer failed to grant

petitioner the requested hearing.

     Section 6331(a) provides the Secretary with the authority to

levy upon the property of a taxpayer who is liable to pay any tax

and who neglects or refuses to pay such tax within 10 days after

notice and demand for payment.    Section 6331(d) provides that the

Secretary must provide the taxpayer with notice of intent to levy

at least 30 days before the day of the levy.

     In addition to the notice required by section 6331(d),

section 6330 provides the taxpayer with the right to a prelevy

hearing.   Section 6330(e) generally provides that if the taxpayer

has timely requested a hearing with the Appeals Office, the

Secretary’s levy actions are suspended while the Appeals Office

considers the matter and during any appeal therein.

     Section 6330(c)(1) requires the Appeals officer to “obtain

verification from the Secretary that the requirements of any

applicable law or administrative procedure have been met.”

Section 6330(c)(2) provides the taxpayer with the right to raise
                               - 5 -

issues including: Appropriate spousal defenses, challenges to the

appropriateness of the collection actions, and offers of

collection alternatives.   Challenges to the underlying liability

may be raised if the taxpayer did not receive a statutory notice

of deficiency or otherwise have an opportunity to dispute the

underlying liability.   Judicial review of the Appeals officer’s

administrative determination is available in this Court, or if

this Court lacks jurisdiction over the type of tax underlying the

liability, in the appropriate U.S. District Court.     See sec.

6330(d).

Issue 1.   Verification of the Existence of an Assessment

     Petitioner contends that the Appeals officer’s reliance upon

the computer transcript to verify the existence of an assessment

does not comply with section 6330(c)(1).    In relevant part,

section 6330(c)(1) provides “the appeals officer shall at the

hearing obtain verification from the Secretary that the

requirements of any applicable law or administrative procedure

have been met.”   Respondent contends that the Appeals officer

satisfied this requirement by reviewing the computer transcript

to verify the existence of an assessment.    Petitioner has not

shown any irregularities in the assessment procedure.    In this

case, reliance upon the computer transcript to verify the

existence of an assessment was not an abuse of discretion.
                                 - 6 -

     Petitioner also contends that he was not given a hearing as

required by section 6330.   Respondent contends that the Appeals

officer scheduled a hearing and provided petitioner with written

notice of the hearing.    Petitioner has not contended that he did

not receive notice of the scheduled hearing.       Petitioner did not

attend the scheduled hearing and did not attempt to reschedule

the hearing.   The Court agrees with respondent that petitioner

was granted an opportunity for a hearing.       Accordingly, we hold

that respondent’s determination to proceed with the levy is not

an abuse of discretion.

Issue 2.   Section 6673(a)(1) Penalty

     We decline to impose a penalty under section 6673(a)(1).

     Contentions we have not addressed are irrelevant, moot, or

meritless.

     To reflect the foregoing,

                                         An appropriate order will be

                                 issued, and decision will be

                                 entered for respondent.
