                         T.C. Memo. 2002-182



                       UNITED STATES TAX COURT



             ROGER AND JEAN MULDAVIN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6854-00L.                 Filed July 31, 2002.


     Roger and Jean Muldavin, pro sese.

     Timothy S. Murphy, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Pursuant to section 6330(d),1 petitioners

seek review of respondent’s determination to proceed with

collection of petitioners’ 1987, 1988, 1989, and 1991 tax

liabilities.


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

                        FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   At the time they filed

the petition, petitioners resided in Arcadia, Michigan.

     In 1992, respondent issued statutory notices of deficiency

to petitioners for 1987, 1988, and 1989.   In 1993, respondent

issued a statutory notice of deficiency to petitioners for 1991.

Petitioners filed petitions with the Court regarding their 1987,

1988, 1989, and 1991 tax years.

     The Court issued Muldavin v. Commissioner, T.C. Memo. 1997-

531,2 orders, and decisions which addressed the deficiencies and

additions to tax for petitioners’ 1987, 1988, and 1989 tax years.

Petitioners did not appeal these decisions.   A stipulated

decision was entered for petitioners’ 1991 tax year.

     On August 2, 1999, respondent prepared a Notice of Federal

Tax Lien (FTL notice) for Roger Muldavin (Mr. Muldavin) for 1987

and an FTL notice for petitioners for 1988, 1989, and 1991.   That

same day, respondent mailed the FTL notices to the Register of

Deeds, Manistee County, Michigan (register’s office).

     On August 5, 1999, respondent issued a Notice of Federal Tax

Lien Filing and Your Right to a Hearing Under I.R.C. 6320


     2
        This opinion also addressed the deficiencies and
additions to tax determined by respondent for petitioners’ 1985
and 1986 tax years.
                               - 3 -

(hearing notice) to Mr. Muldavin for 1987 and a hearing notice to

petitioners for 1988, 1989, and 1991.

     On August 27, 1999, the register’s office recorded the FTL

notices.

     On or about September 6, 1999, petitioners filed a Request

for a Collection Due Process Hearing, Form 12153.   Petitioners

explained their disagreement with the FTL notices as follows:

     We are currently before the U.S. Tax Court for 1985-89
     with the opportunity to open 1980 for greater oil
     depletion allowances. Adjustments for carryforward and
     carryback credits have not been made for depletion,
     depreciation, and prepayments (as the court so ordered)
     nor has the Commissioner fullfilled [sic] its promises
     to make such adjustments in exchange for our not going
     to trial over proper business expenses in Ann Arbor,
     Michigan.

     Pursuant to petitioners’ request for a hearing, Appeals

Officer Mary Jo Fedewa held a hearing attended by petitioners and

Ms. Fedewa.   Petitioners raised two issues at the hearing:    (1)

They challenged the underlying deficiencies,3 and (2) they

claimed that respondent had not followed proper procedures in

providing them with the hearing notices.

     Ms. Fedewa verified that for each of the years in issue

petitioners received a statutory notice of deficiency, they

petitioned the Court, and a decision had been entered.   Ms.

Fedewa also verified that on August 2, 1999, respondent prepared


     3
        Petitioners claimed they were entitled to additional
depletion allowances and wanted respondent to change the
computation of their underlying liabilities.
                               - 4 -

and mailed the FTL notices for each of the years in issue to the

register’s office and that on August 5, 1999, respondent issued

hearing notices for each of the years in issue to petitioners.

Ms. Fedewa repeatedly explained to petitioners that she could not

consider the underlying liabilities.

     On May 18, 2000, respondent mailed Mr. Muldavin a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination) for 1987 and petitioners a

notice of determination for 1988, 1989, and 1991.   The Appeals

Office made the following determinations in the notices of

determination:   (1) There were no open Tax Court cases for 1985

through 1989; (2) petitioners could not raise the amount of the

underlying liabilities as an issue; and (3) as no collection

alternatives were raised, petitioners’ request for relief from

the proposed collection action was denied.

                              OPINION

     Petitioners received statutory notices of deficiency for

each of the years in issue.   Accordingly, petitioners cannot

contest the underlying deficiencies for 1987, 1988, 1989, and

1991.   Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604,

610-611 (2000); Goza v. Commissioner, 114 T.C. 176, 182-183

(2000).

     Where the validity of the underlying tax liability is not

properly in issue, we review respondent’s determination for an
                                - 5 -

abuse of discretion.    Sego v. Commissioner, supra at 610.

Section 6321 imposes a lien in favor of the United States on all

property and rights to property of a person when demand for

payment of that person's liability for taxes has been made and

the person fails to pay those taxes.     The lien arises when the

assessment is made.    Sec. 6322.   Section 6323(a) requires the

Secretary to file an FTL notice if such lien is to be valid

against any purchaser, holder of a security interest, mechanic's

lienor, or judgment lien creditor.      Lindsay v. Commissioner, T.C.

Memo. 2001-285.

     Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice (i.e., the

hearing notice) of the filing of a notice of lien under section

6323.   The hearing notice must be provided not more than 5

business days after the day the FTL notice is filed.     Sec.

6320(a)(2).   Section 6320 further provides that the taxpayer may

request administrative review of the matter (in the form of an

Appeals Office hearing) within the 30-day period beginning on the

day after the 5-day period described above.     The Appeals Office

hearing generally shall be conducted consistent with the

procedures set forth in section 6330(c), (d), and (e).     Sec.

6320(c).

     Petitioners claim that the FTL notices were filed on August

27, 1999, when the register’s office recorded the FTL notices,
                                 - 6 -

and therefore respondent did not follow section 6320(a)(2)

because he sent the hearing notices on August 5, 1999.

Respondent claims that the FTL notices were filed on August 2,

1999, the date of mailing, and therefore the hearing notices were

sent to petitioners within 5 days of the filing of the FTL

notices as required by section 6320(a)(2).

     Irrespective of whether the date of filing of the FTL

notices was August 2, as respondent contends, or August 27, as

petitioners contend, respondent complied with section 6320(a)(2).

Section 6320(a)(2) requires that the hearing notice be given “not

more than 5 business days after the date of the filing of the

notice of lien.”   August 5, 1999, the date respondent issued the

hearing notices to petitioners, is not more than 5 business days

after August 2 or 27, 1999.

     Petitioners have failed to raise a spousal defense, make a

valid challenge to the appropriateness of respondent’s intended

collection action, or offer alternative means of collection.

These issues are now deemed conceded.       Rule 331(b)(4).

Accordingly, we conclude that respondent’s determination to

proceed with collection with respect to petitioners’ 1987, 1988,

1989, and 1991 tax years was not an abuse of discretion.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.
