                  T.C. Summary Opinion 2005-37



                     UNITED STATES TAX COURT



                   LIONEL BROWN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7461-04S.                Filed March 30, 2005.



     Lionel Brown, pro se.

     Mindy S. Meigs, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of sections 6330(d) and 7463 of the Internal

Revenue Code in effect at the time that the petition was filed.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.
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     This proceeding arises from a petition for judicial review

filed in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination) sent to petitioner.       Pursuant to section 6330(d),

petitioner seeks review of respondent’s determination to proceed

with collection of his income tax liabilities for 1997 and 2000.

The issue for decision is whether respondent’s Appeals officer

abused her discretion in sustaining a proposed levy to collect

petitioner’s unpaid income tax liabilities for 1997 and 2000.

     The stipulation of facts and the exhibits received into

evidence are incorporated herein by reference.      Petitioner

resided in Glendora, California, at the time the petition was

filed.

                            Background

     Petitioner timely filed a Form 1040, U.S. Individual Income

Tax Return, for 1997 reflecting a tax liability of $7,135, but

failed to pay the liability in full.      Respondent assessed the tax

as well as an addition to tax for failure to pay tax of $7.32

and credited petitioner’s account for Federal withholding taxes

of $4,449.   Including interest, petitioner’s outstanding tax

liability for 1997 was $2,532.61 as of the date of the Notice of

Intent to Levy.   Petitioner has not made any other payments

toward his liability for 1997.
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     Petitioner timely filed a Form 1040 for 2000 reflecting a

tax liability of $11,976, but he failed to pay the liability in

full.   Respondent assessed the tax as well as an addition to tax

for failure to pay tax of $8.80 and credited his account for

Federal withholding taxes of $10,215.    Respondent also credited

$500 to petitioner’s account for the Immediate Tax Relief Credit

on August 6, 2001.   Including interest, petitioner’s outstanding

tax liability for 2000 was $1,635.36 as of the date of the Notice

of Intent to Levy.   Petitioner has not made any other payments

toward his liability for 2000.

     Respondent mailed to petitioner a Final Notice of Intent to

Levy and Notice of Your Right to a Hearing, that, among other

things, informed petitioner that respondent intended to levy to

collect the 1997 and 2000 liabilities and that petitioner could

request a hearing with respondent’s Appeals Office.   Petitioner

submitted a timely Form 12153, Request for a Collection Due

Process Hearing (hearing).

1.   Petitioner’s Hearing

     Respondent’s Appeals Officer, Janet E. Spaulding (Ms.

Spaulding), held a hearing with petitioner via telephone.    During

the hearing, petitioner requested that Ms. Spaulding consider the

1988, 1998, and 1999 tax years, in addition to 1997 and 2000.

     Ms. Spaulding informed petitioner that she could not

consider the 1988 year because a lien for that year was filed in
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1995.   She could not consider the 1998 and 1999 years because

petitioner had previously received a hearing for those years in

September 2001.

     During the hearing, petitioner also requested that Ms.

Spaulding consider collection alternatives to the proposed levy.

They discussed an installment agreement, but petitioner said he

could not afford the payments because he had been suspended from

his teaching position and was unemployed at the time.   Ms.

Spaulding also discussed an offer in compromise, but petitioner

said he did not believe that it was a viable option because

several offers he had submitted in the past had been rejected and

he did not have the funds to submit another offer in compromise.

     The final option Ms. Spaulding discussed with petitioner was

placing his account in “currently not collectible” status.    In

order to facilitate this classification, Ms. Spaulding asked

petitioner to complete and submit a Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals.   She also requested a statement from his employer

that he was not currently working for them and bank statements to

verify his income.

     On at least four separate occasions, Ms. Spaulding requested

that petitioner complete and submit the forms.   Petitioner did

not submit the completed documentation.
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     Respondent issued to petitioner a notice of determination

that sustained the proposed use of a levy to collect petitioner’s

unpaid Federal income tax liabilities for taxable years 1997 and

2000.   In the notice of determination, respondent concluded that

petitioner had not verified that he qualifies for currently not

collectible status or any other type of collection alternative.

2.   The Petition and Motion

     Petitioner submitted to this Court a timely petition

appealing respondent’s determination.     Therein, petitioner

specified that he does not challenge the amount of the underlying

tax liabilities.   He challenges the “appropriateness of

collection actions based on circumstances, etc” and the “offers

of collection alternatives as listed without reference to the law

as written and efforts to settle by citizen (L Brown)(sic).”

     Respondent moved for summary judgment.     The Court ordered

respondent’s motion set for hearing at the call of the calendar

in Los Angeles.    After the hearing, the Court denied respondent’s

motion for summary judgment.

                             Discussion

     Section 6330(a) provides that 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 the right to a hearing

before the levy is made.   If the person makes a request for a
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hearing, a hearing shall be held before an impartial officer or

employee of the IRS Office of Appeals.     Sec. 6330(b)(1), (3).

     At the hearing, a taxpayer may raise any relevant issue,

including appropriate spousal defenses, challenges to the

appropriateness of the collection action, and collection

alternatives.   Sec. 6330(c)(2)(A).     Additionally, a taxpayer may

contest the existence or amount of the underlying tax liability

if the taxpayer did not receive a notice of deficiency for the

tax in question or did not otherwise have an earlier opportunity

to dispute the tax liability.    Sec. 6330(c)(2)(B); see also Sego

v. Commissioner, 114 T.C. 604, 609 (2000).

     Following the hearing, the Appeals Office must make a

determination whether the proposed levy action may proceed.      In

so doing, the Appeals Office is required to take into

consideration the verification presented by the Commissioner, the

issues raised by the taxpayer, and whether the proposed levy

action appropriately balances the need for efficient collection

of taxes with a taxpayer’s concerns regarding the intrusiveness

of the proposed levy action.    Sec. 6330(c)(3).

     This Court has jurisdiction to review the Commissioner’s

administrative determination under section 6330(d).     If the

underlying tax liability is properly at issue, the Court reviews

that issue de novo.   Sego v. Commissioner, supra at 610; Goza v.

Commissioner, 114 T.C. 176, 181 (2000).
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     Petitioner did not receive a notice of deficiency for 1997

or 2000 because respondent assessed the amounts of tax petitioner

reported on his tax returns.    The underlying tax liabilities,

however, are not properly at issue in this case because

petitioner did not raise them at his hearing and he specified in

the petition filed with this Court that he did not dispute the

amounts of those liabilities.

     Where, as is the case here, the validity of the underlying

tax liability is not properly placed at issue, the Court will

review the administrative determination of the Appeals Office for

abuse of discretion as to the matters raised in the petition.

Sego v. Commissioner, supra at 610; Goza v. Commissioner, supra

at 181-183.    An abuse of discretion occurs when an officer takes

action that is arbitrary, capricious, or without sound basis in

fact or law.   See Woodral v. Commissioner, 112 T.C. 19, 23

(1999).

     Petitioner “challenges the appropriateness of collection

actions based on circumstances, etc.,” and the “offers of

collection alternatives as listed without reference to the law as

written and efforts to settle by citizen (L Brown)(sic).”

Petitioner discussed collection alternatives, but failed to

provide any documentation or information regarding his financial

situation with which the Appeals officer could ascertain the

appropriateness of those alternatives.    Petitioner did not
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present any evidence at trial that the Appeals officer failed to

consider collection alternatives or failed to apply the

appropriate law to petitioner’s circumstances.

     The record is devoid of any evidence establishing that

respondent abused his discretion in determining to proceed with

collection of petitioner’s tax liabilities.       On the record before

us, the Court finds that respondent did not abuse respondent’s

discretion in making that determination.

     The Court has considered all of petitioner’s arguments and

contentions that are not discussed herein relating to whether

respondent may proceed with collection with respect to

petitioner’s taxable years 1997 and 2000, and the Court concludes

they are without merit or irrelevant.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,


                                         Decision will be entered

                                 for respondent.
