                          T.C. Memo. 2001-88



                        UNITED STATES TAX COURT



          BRANDON CHRISTOPHER MERRIWEATHER, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11167-00L.                     Filed April 11, 2001.


     Brandon Christopher Merriweather, pro se.

     Vicki L. Miller and Kerry H. Bryan, for respondent.



                          MEMORANDUM OPINION

     ARMEN, Special Trial Judge:     This case is before the Court

on respondent's Motion To Dismiss The Tax Years 1995 And 1996 For

Failure To State A Claim Upon Which Relief Can Be Granted, filed

pursuant to Rule 40.1


     1
         All Rule references are to the Tax Court Rules of
                                                    (continued...)
                               - 2 -

Background

     On October 29, 1998, respondent issued a notice of

deficiency to petitioner determining a deficiency of $2,891 in

his Federal income tax for 1997.   The notice of deficiency may

not have been mailed to petitioner at his last known address.      In

any event, the notice of deficiency was returned to respondent by

the Postal Service and was not received by petitioner.

     On November 18, 1998, respondent issued a notice of

deficiency to petitioner determining deficiencies of $2,126 and

$2,623 in his Federal income taxes for 1995 and 1996,

respectively.   This notice of deficiency was mailed to petitioner

at his last known address.   Petitioner does not assert that he

did not receive the notice of deficiency.2   However, petitioner

failed to file a petition with the Court challenging the notice

of deficiency pursuant to section 6213(a).

     On October 14, 1999, respondent mailed to petitioner a Final

Notice/Notice Of Intent To Levy And Notice Of Your Right To A

Hearing (notice of intent to levy) pursuant to section 6331(a).

The notice stated that petitioner owed taxes and statutory

additions totaling $1,453.37, $3,267.96, and $3,307.40 for the



     1
      (...continued)
Practice and Procedure and, unless otherwise indicated, all
section references are to the Internal Revenue Code, as amended.
     2
       Indeed, petitioner attached a partial copy of this notice
of deficiency to his petition.
                              - 3 -

taxable years 1995, 1996, and 1997, respectively, and that

respondent was preparing to collect the same.   The notice stated

that petitioner would be given 30 days to request an

administrative hearing with respondent's Appeals Office.

     On October 19, 1999, petitioner filed a request for a

collection hearing, Form 12153, with respondent's Appeals Office

stating that he was not liable for the taxes set forth in

respondent’s notice of intent to levy.

     On September 28, 2000, respondent’s Appeals Office issued to

petitioner a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (the determination

letter) stating that respondent intended to proceed with

collection for the taxable years 1995, 1996, and 1997.    The

determination letter stated further that because petitioner had

received a notice of deficiency for the taxable years 1995 and

1996, petitioner was not permitted to challenge his tax

liabilities for those years in proceedings before the Appeals

Office.

     On October 30, 2000, petitioner filed with the Court a

petition for review of respondent's determination to proceed with

collection for the taxable years 1995, 1996, and 1997.    The

petition includes allegations that petitioner is not liable for

the deficiencies for each of the years in question.    In response,

respondent filed a Motion To Dismiss The Tax Years 1995 And 1996
                               - 4 -

For Failure To State A Claim Upon Which Relief Can Be Granted,

asserting that because petitioner received a notice of deficiency

for the taxable years 1995 and 1996, he is barred from

challenging in the present proceeding either the existence or the

amount of the underlying tax liabilities for those years.

     This matter was called for hearing at the Court's motions

session in Washington, D.C.   Counsel for respondent appeared at

the hearing and presented argument in support of respondent's

motion.   No appearance was made by or on behalf of petitioner at

the hearing.   However, the Court did have before it petitioner’s

Objection to respondent’s motion.

     During the hearing in Washington, D.C., counsel for

respondent acknowledged that the petition states a claim for

relief with respect to respondent’s determination to proceed with

collection for the taxable year 1997.

Discussion

     In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress

enacted new sections 6620 (pertaining to liens) and 6630

(pertaining to levies) to provide protections for taxpayers in

tax collection matters.   Section 6330 generally provides that the

Commissioner cannot proceed with the collection of taxes by way

of a levy on a taxpayer's property until the taxpayer has been

given notice of and the opportunity for an administrative review
                               - 5 -

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

dissatisfied, with judicial review of the administrative

determination in either the Tax Court or a Federal District

Court.

     Section 6330(c)(2)(B) provides that neither the existence

nor the amount of the underlying tax liability can be contested

at an Appeals Office hearing unless the taxpayer did not receive

a notice of deficiency for the tax in question or did not

otherwise have an earlier opportunity to dispute such tax

liability.   Section 6330(d)(1)(A) provides that a taxpayer may

file a petition for review of the Commissioner's administrative

determination with the Tax Court so long as the Court has

jurisdiction over the underlying tax liability.

     In Goza v. Commissioner, 114 T.C. 176 (2000), we explained

that section 6330(c) provides for an Appeals Office hearing to

address collection issues such as spousal defenses, the

appropriateness of the Commissioner's intended collection action,

and possible alternative means of collection.   We further

explained that section 6330(c)(2)(B) provides that neither the

existence nor the amount of the underlying tax liability can be

contested at an Appeals Office hearing unless the taxpayer did

not receive a notice of deficiency for the tax in question or did

not otherwise have an earlier opportunity to dispute such tax

liability.   The taxpayer in Goza had received a notice of
                                   - 6 -

deficiency, yet failed to file a petition for redetermination

with the Court.    When the taxpayer subsequently attempted to use

the Court's collection review procedure as a forum to assert

frivolous and groundless constitutional arguments against the

Federal income tax, the Court dismissed the petition for failure

to state a claim upon which relief can be granted.

     As was the case in Goza v. Commissioner, supra, it is

evident that petitioner received a notice of deficiency for 1995

and 1996, failed to file a timely petition for redetermination

with the Court challenging such notice pursuant to section

6213(a), and now is attempting to contest his underlying tax

liabilities for those years in this collection review proceeding.

Under the circumstances, section 6330(c)(2)(B) clearly provides

that petitioner is barred from contesting the existence or amount

of his tax liabilities for 1995 and 1996 before the Appeals

Office.   Petitioner failed to raise a spousal defense or to

challenge respondent's proposed levy by offering a less intrusive

means for collecting the taxes for 1995 and 1996 in either the

Appeals Office hearing or in his petition for review filed with

the Court.    See sec. 6330(c)(2)(A).      These issues are now deemed

conceded.    See Rule 331(b)(4).    In the absence of a justiciable

issue for review with respect to the taxable years 1995 and 1996,

we shall grant respondent’s motion to dismiss with respect to
                                 - 7 -

those years.3

     In view of the foregoing, we hold that respondent may

proceed with collection with respect to petitioner’s tax

liabilities for 1995 and 1996.    Accordingly, we shall grant

respondent’s Motion To Dismiss The Tax Years 1995 And 1996 For

Failure To State A Claim Upon Which Relief Can Be Granted.

Thereafter, the current proceedings will go forward with respect

to petitioner’s claims for the taxable year 1997.

     In order to give effect to the foregoing,



                                         An appropriate order granting

                                 respondent’s motion will be issued.




     3
        The decision to be entered in this case at the conclusion
of all of the proceedings will indicate that we sustain
respondent's administrative determination to proceed with
collection against petitioner for the taxable years 1995 and
1996. However, such decision is not intended to serve as a
review of respondent's determinations as to petitioner's
underlying tax liabilities for 1995 and 1996.
