                         T.C. Memo. 2009-1



                      UNITED STATES TAX COURT



   ANTHONY J. MARTINO, JR. AND MIKELIN MARTINO, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22063-07L.              Filed January 5, 2009.



     Anthony J. Martino, Jr., pro se.

     Kristina Rico, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:   This action was commenced in response to a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 (notice of determination) with respect

to petitioners’ 2005 Federal income tax liability.   The issue for

decision is whether the settlement officer abused his discretion

in sustaining the proposed levy action against petitioners.
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Unless otherwise indicated, all section references are to the

Internal Revenue Code.

                         FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioners resided in Pennsylvania at the time their petition

was filed.   Anthony J. Martino (petitioner) is an attorney and

has been practicing law for 22 years.   Mikelin Martino is a

homemaker.

     Petitioners filed a joint Federal income tax return for 2005

on October 18, 2006, and reported tax due of $49,127 (not

including a withholding credit of $4,135).    The Internal Revenue

Service (IRS) timely assessed petitioners’ reported tax due on

November 27, 2006.   Petitioners failed to pay the tax due.

     The IRS sent a Notice of Intent to Levy and Notice of Your

Right to a Hearing to petitioners on April 2, 2007.     Petitioners

made a timely request for an Appeals Office administrative

hearing (section 6330 hearing).   In their request, petitioners

asked for relief from interest, penalties, and any lien to be

filed, as well as a delay in collection.     With respect to the

levy, petitioners proposed a collection alternative that would

pay the tax liability within 1 year through a “refinance”.

Petitioners also proposed “an abatement” of Mikelin Martino’s tax

liability because she had no taxable income or separate assets.
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Petitioners, however, did not submit any forms, documentation, or

financial information to the Appeals Office concerning their

proposals, nor did they take any steps to obtain refinancing.

     On August 29, 2007, a settlement officer held a telephonic

section 6330 hearing with petitioner.   On September 14, 2007, the

settlement officer sent to petitioners the notice of

determination that is the basis of this case.   In the notice of

determination, the settlement officer determined that:   (1)

Petitioners did not challenge the levy action or raise any other

issues; (2) petitioners failed to submit Form 8857, Request for

Innocent Spouse Relief, that had been provided to them; and (3)

the assessment was valid.   The notice of determination concluded

that the levy was the most efficient method of collection.

     Petitioners have two other section 6330 cases pending before

this Court, docket Nos. 13912-06L and 8524-07L, with unpaid tax

liabilities for 1998 through 2004 in issue.   In those cases,

petitioners challenge the rejection of an offer-in-compromise

they submitted on June 19, 2004, proposing a payment of $170,000

for the unpaid income taxes from 1998 through 2002.    Petitioners

also have not paid the tax due on their 2006 and 2007 Federal

income tax returns.

                              OPINION

     Our jurisdiction in this case is predicated upon section

6330(d)(1), which gives the Tax Court jurisdiction “with respect
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to such matter” as is set forth in the determination of the

Appeals Office.   Greene-Thapedi v. Commissioner, 126 T.C. 1, 6

(2006).   Where, as here, liability for the underlying tax is not

disputed, we review the settlement officer’s determination for

abuse of discretion.    Goza v. Commissioner, 114 T.C. 176, 181-182

(2000).

     Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon property belonging to the taxpayer.

Section 6331(d) provides that the Secretary is obliged to provide

the taxpayer with notice, including notice of the administrative

appeals available to the taxpayer, before proceeding with

collection by levy on the taxpayer’s property.

     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 of the matter

(in the form of a section 6330 hearing) and, if dissatisfied,

with judicial review of the administrative determination.

Section 6330(c)(2)(A) specifies the issues that the taxpayer may

raise at the hearing.   The taxpayer is allowed to raise “any

relevant issue relating to the unpaid tax or the proposed levy”

including spousal defenses, challenges to the appropriateness of
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collection actions, and alternatives to collection.     Sec.

6330(c)(2)(A).   Section 6330(c)(3) provides that the

determination of the settlement officer shall take into

consideration the verification under section 6330(c)(1), the

issues raised by the taxpayer, and whether the proposed

collection action balances the need for the efficient collection

of taxes with the legitimate concern of the taxpayer that any

collection action be no more intrusive than necessary.

     This is at least the third time that petitioners have

invoked the procedures of section 6330 to forestall collection of

tax liabilities unpaid over the last 10 years.   They are well

aware of the applicable law.   Respondent argues that petitioners

did not challenge the levy or offer any collection alternatives

at the section 6330 hearing.   Respondent also points out that

petitioners failed to refinance any property or to submit the

innocent spouse relief request form, as they had proposed in

their request for a section 6330 hearing.

     Petitioners argue that petitioner specifically challenged

the levy action at the section 6330 hearing and that he requested

that the settlement officer consider the offer-in-compromise and

all financial documents in issue in the earlier docketed cases.

Petitioners proposed incorporating the 2005 tax liability into

the preexisting offer-in-compromise as a “less intrusive

collection alternative”.
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     In considering the settlement officer’s determination from

the section 6330 hearing, we review for abuse of discretion.       See

Sego v. Commissioner, 114 T.C. 604, 610 (2000).     To demonstrate

that there was an abuse of discretion in sustaining the levy,

petitioners would have to show that the settlement officer’s

determination was arbitrary, capricious, or without sound basis

in fact or law.   See Giamelli v. Commissioner, 129 T.C. 107, 111

(2007).   Petitioners have not done so.

     Petitioners presented neither evidence nor argument showing

any arbitrary or capricious reasoning used by the settlement

officer in reaching his determination.     Petitioners failed to

present any new financial information or collection alternative

with respect to their 2005 liability and relied instead on the

offer-in-compromise previously submitted for their 1998-2002 tax

liabilities.   The settlement officer was not reasonably required

to consider the rejected offer-in-compromise that is being

litigated in the prior cases.     We hold that the settlement

officer did not abuse his discretion in sustaining the levy.

     To reflect the foregoing,


                                         Decision will be entered for

                                   respondent.
