                        T.C. Memo. 2003-288



                      UNITED STATES TAX COURT



                 ALFRED J. MARTIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13419-02L.              Filed October 8, 2003.


     Patricia Tucker, for petitioner.

     Anne W. Durning and James E. Cannon, for respondent.



                        MEMORANDUM OPINION


     MARVEL, Judge:   Pursuant to section 6330(d), petitioner

seeks review of respondent’s determination to proceed with the

collection of petitioner’s 1980 Federal income tax liability.1




     1
      All section references are to the Internal Revenue Code in
effect at all relevant times, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
                                - 2 -

                             Background

     The parties submitted this case fully stipulated pursuant to

Rule 122.   The stipulation of facts and accompanying exhibits are

incorporated herein by this reference.2   Petitioner resided in

Santa Fe, New Mexico, when he filed the petition.

     During 1980, petitioner was married to Amilu Stewart

(formerly Amilu Martin, formerly Amilu Rothhammer, and referred

to herein as Amilu).3   On April 15, 1981, petitioner and Amilu

filed a joint Federal income tax return for 1980 (the 1980 joint

return).    Subsequently, respondent audited the 1980 joint return

in connection with respondent’s investigation of individuals

involved in the Elektra Hemisphere tax shelters.4

     On December 6, 1983, during respondent’s examination of the

1980 joint return, petitioner signed Form 872-A, Special Consent

to Extend the Time to Assess Tax.   On June 7, 1988, respondent



     2
      In the stipulation of facts, petitioner objected to the
relevancy and materiality of certain stipulations drawn from the
findings of fact in a related case involving petitioner, Martin
v. Commissioner, T.C. Memo. 2000-187 (Martin I), affd. on other
grounds 38 Fed. Appx. 980 (4th Cir. 2002). We overrule
petitioner’s objections with respect to those stipulations
incorporated herein, because we conclude that those stipulations
are relevant to our discussion of the limitations issue.
     3
      Petitioner and Amilu divorced in 1981.
     4
      Before 1980, petitioner and Amilu purchased a limited
partnership interest in Winchester Oil, one of the Manhattan
group partnerships, which were the subject of the Elektra
Hemisphere tax shelter litigation in this Court. See Krause v.
Commissioner, 99 T.C. 132 (1992), affd. sub nom. Hildebrand v.
Commissioner, 28 F.3d 1024 (10th Cir. 1994).
                               - 3 -

issued notices of deficiency to petitioner at his last known

address in Suffolk, Virginia (the notice), and to Amilu at her

address in Colorado Springs, Colorado (Amilu’s notice).    The U.S.

Postal Service later returned the notice sent to petitioner in

Suffolk, Virginia, marked “undeliverable as addressed, no

forwarding order on file”.   Petitioner did not receive a copy of

the notice.5

     On September 6, 1988, Jeffrey Berg, an attorney representing

limited partners in the Elektra Hemisphere tax shelter

litigation, filed a petition with this Court on behalf of

petitioner and Amilu seeking a redetermination of their 1980

deficiency.6   Mr. Berg attached to the petition a copy of Amilu’s

notice.   In Martin v. Commissioner, T.C. Memo. 2000-187 (Martin

I), affd. on other grounds 38 Fed. Appx. 980 (4th Cir. 2002), we

granted petitioner’s request to dismiss him from the 1980

deficiency case for lack of jurisdiction, concluding that

petitioner did not file, authorize the filing of, or ratify the

filing of the petition Mr. Berg signed and submitted.    The



     5
      Although petitioner did not receive the notice, Arthur
Robb, petitioner’s authorized representative pursuant to Form
2848, Power of Attorney and Declaration of Representative,
received a copy. Respondent does not contend in this case that
receipt of the notice by Mr. Robb qualified as receipt by
petitioner for purposes of sec. 6330(c)(2)(B).
     6
      On Aug. 4, 1986, at petitioner’s request, Mr. Berg had
filed a petition for redetermination of petitioner’s 1981 and
1982 income tax deficiencies.
                                - 4 -

dismissal order was not appealed and became final on September

25, 2000.

     On November 20, 2000, respondent assessed income tax of

$56,771 and interest of $456,023.09 and sent petitioner a notice

of balance due.7   On November 29, 2001, respondent issued a Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing.    On December 14, 2001, petitioner timely submitted Form

12153, Request for a Collection Due Process Hearing, requesting a

hearing under section 6330 (the hearing).

     On July 10, 2002, petitioner’s counsel attended the hearing

conducted by Appeals Officer Joann Mares.   At the hearing,

petitioner’s counsel argued that the statutory limitations period

for assessment (the limitations period) had expired before

respondent assessed petitioner’s 1980 income tax liability.

Petitioner’s counsel raised no other issues at the hearing.    With

respect to alternative collection methods, petitioner’s counsel

expressed interest in discussing an installment agreement at a

later date if Appeals Officer Mares determined that the

limitations period had not expired before respondent’s

assessment.   Petitioner’s counsel did not provide any financial

information at the hearing or propose an actual installment

agreement to Appeals Officer Mares.



     7
      The amount of the assessment was reduced by payments and
credits totaling $140,944.67 to arrive at the balance due.
                               - 5 -

     On July 22, 2002, the Appeals Office issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination) in which it determined the

following:

     1.   All legal and procedural requirements for the issuance

of the Notice of Intent to Levy had been met.

     2.   The limitations period had not expired prior to

respondent’s assessment of petitioner’s 1980 income tax

liability.

     3.   Petitioner did not offer collection alternatives; he

refused to provide financial information or otherwise explore

alternative collection methods at the hearing.

     4.   The proposed levy action balanced the need for efficient

collection of taxes with the legitimate concern of the taxpayer

that the collection action be no more intrusive than necessary

and was appropriate under the circumstances.

     On August 20, 2002, petitioner filed a timely petition with

this Court appealing respondent’s determination.   In his

petition, petitioner alleged that the limitations period had

expired before respondent assessed petitioner’s 1980 income tax

liability.   Specifically, petitioner claimed:

     The Petition filed in [Martin I] was not a Petition “in
     respect to the deficiency” for 1980 of Petitioner
     because he did not authorize or ratify the filing of
     the Petition on his behalf and because the Petition as
     filed, and as amended within the jurisdictional period,
     did not attach a copy of the Statutory Notice of
                               - 6 -

     Deficiency issued to him individually at his last known
     address.

In the alternative, if we conclude that the limitations period

did not expire, petitioner contends that we should remand the

case to Appeals for the discussion of collection alternatives.8

                             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 timely request

for a hearing, a hearing shall be held by the Internal Revenue

Service Office of Appeals.   Sec. 6330(b)(1).   At the hearing, a

taxpayer may contest the existence and 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

opportunity to dispute the tax liability.   Sec. 6330(c)(2)(B);

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

     Following a 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 Secretary, the

issues raised by the taxpayer, and whether the proposed

collection action appropriately balances the need for efficient


     8
      Petitioner raised this contention for the first time on
brief.
                                    - 7 -

collection of taxes with a taxpayer’s concerns regarding the

intrusiveness of the proposed collection action.         Sec.

6330(c)(3).   The taxpayer may petition the Tax Court or, in

limited cases, a Federal District Court for judicial review of

the Appeals Office’s determination.         Sec. 6330(d).

      If the taxpayer files a timely petition for judicial review,

the applicable standard of review depends on whether the

underlying tax liability is at issue.         Where the underlying tax

liability is properly at issue, the Court reviews any

determination regarding the underlying tax liability de novo.

Sego v. Commissioner, supra at 610.         The Court reviews any other

administrative determination regarding the proposed levy action

for abuse of discretion.      Id.    In the instant case, we need not

decide which standard of review applies to the limitations period

determination, for our holding would be the same regardless of

whether we review respondent’s determination de novo or for abuse

of discretion.

I.   The Limitations Issue9

      Section 6501(a) generally requires that the Commissioner

assess income tax within 3 years after the taxpayer filed the

return.   The mailing of a notice of deficiency to the taxpayer,

pursuant to section 6212, suspends the limitations period--


      9
      Respondent does not contend that sec. 6330(c)(2)(B)
precludes us from considering this issue. Cf. Rodriguez v.
Commissioner, T.C. Memo. 2003-153.
                               - 8 -

     for the period during which the Secretary is prohibited
     from making the assessment[10] * * * (and in any event,
     if a proceeding in respect of the deficiency is placed
     on the docket of the Tax Court, until the decision of
     the Tax Court becomes final), and for 60 days
     thereafter.

Sec. 6503(a)(1).

     Petitioner contends that the petition Mr. Berg filed and we

dismissed in Martin I (hereinafter referred to as the petition)

was an “erroneous filing”, which did not place “a proceeding in

respect of a deficiency” on our docket.   Petitioner alleges two

specific “filing errors” with respect to the petition: (1)

Petitioner lacked knowledge of the filing and did not consent to

it, and (2) the petition, although purportedly filed on both

petitioner and Amilu’s behalf, contained only a copy of Amilu’s

notice.   According to petitioner, these “filing errors” rendered

the petition a “nullity” or “materially defective”, and,

therefore, the filing of the petition did not suspend the

limitations period.

     A.   The Effect of an Unauthorized Petition on the
          Limitations Period

     Petitioner contends that a petition filed without the

taxpayer’s authorization or ratification, and later dismissed,

has “no effect on” the limitations period.   According to

petitioner, Mr. Berg was a “mere interloper” and, therefore, did


     10
      The prohibited assessment period referred to in sec.
6503(a)(1) includes the time during which the taxpayer may file a
petition with this Court. See sec. 6213(a).
                               - 9 -

not have the authority to bind petitioner to what was, in effect,

an agreement to extend the limitations period.   In so arguing,

petitioner compares the petition to a written agreement, such as

a Form 872-A, that purports to extend the limitations period but,

in fact, is signed by an unauthorized party.11   We disagree with

petitioner’s characterization of both the petition and Mr. Berg

for the reasons discussed below.

     Congress originally enacted the predecessor to section

6503(a)(1) as section 277 of the Revenue Act of 1928, ch. 852, 45

Stat. 791, which became section 277 of the Internal Revenue Code

of 1939.   In the legislative history of section 277, Congress

addressed the effect of a defective petition on the limitations

period:

     The decision dismissing the appeal may not be made
     until months after the proceeding was begun and there
     is some question whether in such cases the statute of
     limitations on assessment is actually suspended during
     the pendency of the proceeding. It is specifically
     provided in section 277 that the limitation period
     shall be suspended, if any proceeding is placed on the
     docket of the Board, until the decision of the Board in
     respect thereof becomes final and for 60 days
     thereafter.[12]



     11
      Sec. 6501(c)(4) authorizes extension agreements between
the Secretary and the taxpayer. Pursuant to sec. 6903, the
taxpayer may authorize a third party to act as his representative
and enter an agreement to extend the limitations period. See
Balkissoon v. Commissioner, T.C. Memo. 1992-223, affd. 995 F.2d
525 (4th Cir. 1993).
     12
      References to the “Board” are to the Board of Tax Appeals,
the predecessor of this Court.
                              - 10 -

H. Rept. 2, 70th Cong., 1st Sess. (1927), 1939-1 C.B. (Part 2)

384, 399-400; see also S. Rept. 960, 70th Cong., 1st Sess.

(1928), 1939-1 C.B. (Part 2) 409, 431.

      In Eversole v. Commissioner, 46 T.C. 56 (1966), the

taxpayers contended that the petition, which an improper party

had filed on the estate’s behalf and this Court had dismissed as

to the estate, failed to suspend the limitations period.    Relying

on the legislative history of section 277 of the Internal Revenue

Code of 1939, a predecessor of section 6503(a)(1) (quoted supra),

as well as statutory language and relevant case law,13 we held

that the petition suspended the limitations period.   Id. at 64-

65.   In reaching our conclusion, we found it significant that the

language of section 277 of the Internal Revenue Code of 1939

required suspension of the limitations period when a proceeding

“is placed” on the docket rather than when “the taxpayer places”

a proceeding on the docket.   Id. at 64.

      Petitioner attempts to distinguish Eversole from the instant

case on the basis of the improper party’s relationship to the


      13
      One such case on which we relied was Am. Equitable
Assurance Co. v. Helvering, 68 F.2d 46 (2d Cir. 1933), affg. 27
B.T.A. 247 (1932). Responding to a similar challenge to the
limitations period, the Court of Appeals for the Second Circuit
concluded that “the mere placing on the docket of the Board of a
proceeding in respect to the deficiency” suspended the
limitations period. Id. at 47. The Court of Appeals for the
Second Circuit reasoned that “Congress did not intend to have the
time a proceeding was pending before the Board counted any more
when the decision was a dismissal for want of jurisdiction than
when it was not.” Id.
                                - 11 -

taxpayer.    In Eversole v. Commissioner, supra at 57, the improper

party was the decedent’s widow and, formerly, executrix of his

estate.     In contrast, petitioner argues, Mr. Berg was nothing

more than an “interloper”.     We find this distinction

unpersuasive.     Not only does it ignore that Mr. Berg was

petitioner’s counsel in a related case involving his 1981 and

1982 deficiencies, but petitioner’s argument completely ignores

our discussion of the law in Eversole.

     According to petitioner, we should apply instead the holding

of Kirch v. United States, 83 AFTR 2d 99-2153, 99-1 USTC par.

50,452 (S.D. Ohio 1999).     In Kirch, the taxpayers, also former

Elektra Hemisphere tax shelter investors, asserted that the

petition they filed with this Court, which we had dismissed for

lack of jurisdiction, failed to suspend the limitations period.

The taxpayers had filed the petition before the Commissioner’s

issuance of a notice of deficiency.      Accordingly, the District

Court concluded that because the Commissioner had not issued a

notice of deficiency, the filing of the petition with this Court

had not placed a “proceeding in respect of the deficiency” on the

docket.     Id.

     Unlike Kirch, in the present case respondent issued a valid

notice of deficiency before Mr. Berg filed the petition.

Although petitioner did not authorize Mr. Berg to file the

petition, the petition nevertheless placed a “proceeding in
                              - 12 -

respect of the deficiency” on our docket and suspended the

limitations period.14

     B.   Failure To Attach the Notice

     Petitioner further contends that because Mr. Berg attached

only Amilu’s notice to the petition, the petition was not filed

with respect to petitioner’s share of the joint deficiency.   As a

result, petitioner asserts, the petition did not confer

jurisdiction upon this Court and failed to suspend the

limitations period.15


     14
      We note that petitioner’s position on this issue is also
unacceptable from a policy perspective for several reasons.
First, the petition in Martin I was pending in this Court for
more than a decade before petitioner moved to dismiss it, by
which time, according to his theory, the assessment period had
run. Disabling the assessment and collection of tax in that
fashion is clearly not what Congress intended. See O’Neill v.
United States, 44 F.3d 803, 806 (9th Cir. 1995). Second, a
strong presumption of authority is afforded to counsel when
filing a petition in this Court. See Rule 33; Gray v.
Commissioner, 73 T.C. 639, 646-647 (1980).
     15
      We have already rejected this argument as it relates to
our jurisdiction in a prior proceeding involving petitioner and
respondent that arose out of Martin I. In Rothhammer v.
Commissioner, T.C. Memo. 2001-46, petitioner unsuccessfully
sought litigation costs under sec. 7430. Petitioner contended
that Mr. Berg’s failure to attach the notice, as required by Rule
34(b)(8), deprived this Court of jurisdiction. Petitioner cited
cases, as he does now, in which the taxpayers’ original petitions
failed to name certain taxpayers or include all tax years for
which the Commissioner made a determination. We found that, in
contrast to the petitions filed in those cases, the petition Mr.
Berg filed named petitioner and clearly contested petitioner’s
1980 income tax deficiency. Accordingly, in Rothhammer, we
rejected petitioner’s argument.

     On brief, respondent discussed our decision in Rothhammer
                                                   (continued...)
                              - 13 -

     The two requirements for our jurisdiction in a deficiency

case are a valid notice of deficiency issued by the Commissioner

and a timely petition filed by the taxpayer.   Frieling v.

Commissioner, 81 T.C. 42, 46 (1983).   The content of a petition

filed in a deficiency case should conform to Rule 34(b).     Rule

34(b)(8) provides that the petition shall contain:   “A copy of

the notice of deficiency * * * which shall be appended to the

petition”.

     This Court has consistently followed a liberal policy with

respect to treating as petitions documents timely filed by

taxpayers and intended as petitions.   O’Neil v. Commissioner, 66

T.C. 105, 107 (1976).   However, we cannot treat a document as a

petition without “some objective indication that the taxpayer

contests the deficiency determined by respondent against that

taxpayer.”   Normac, Inc. v. Commissioner, 90 T.C. 142, 147-148

(1988); see also O’Neil v. Commissioner, supra.   At a minimum,

for purposes of our jurisdiction, an intended petition must

contain (1) the amount of the deficiencies determined against the

taxpayer, (2) the amount the taxpayer is contesting, and (3) the



     15
      (...continued)
but did not specifically argue that petitioner is collaterally
estopped from raising the issue again in this proceeding. Even
if respondent intended the discussion of Rothhammer as a
collateral estoppel argument, respondent did not raise it as a
defense in the pleadings, and we therefore deem it waived. See
Rule 39; Sundstrand Corp. v. Commissioner, 96 T.C. 226, 349
(1991).
                               - 14 -

years in dispute.    InverWorld, Ltd. v. Commissioner, 98 T.C. 70,

86 (1992), affd. 979 F.2d 868 (D.C. Cir. 1992).    The petition

clearly conformed to all three requirements.

      Petitioner insists that a separate notice of deficiency must

be attached with respect to each taxpayer involved in a

deficiency case.    In support of his position, petitioner

mistakenly relies on cases in which the petitions did not list

all of the taxpayers’ names or all of the taxable years at issue.

See Normac, Inc. v. Commissioner, supra; O’Neil v. Commissioner,

supra; Estate of DuPuy v. Commissioner, 48 T.C. 918 (1967).       In

this case, the petition that Mr. Berg filed listed both

petitioner and his former wife as petitioners and included, as an

attachment, a copy of the notice of deficiency issued with

respect to the 1980 joint Federal income tax return of petitioner

and his former wife.

      Although this Court ultimately dismissed the petition in

Martin I for other jurisdictional reasons, Mr. Berg’s failure to

attach the notice did not invalidate the petition with respect to

petitioner and did not deprive us of jurisdiction.    Consequently,

the filing of the petition placed a proceeding with respect to

petitioner’s 1980 income tax deficiency on our docket and

suspended the limitations period.

II.   Installment Agreement Alternative

      For the first time on brief, petitioner argues in the
                                - 15 -

alternative that we should remand the case to Appeals for the

discussion of collection alternatives.     Specifically, petitioner

claims that he and Appeals Officer Mares made an “agreement” to

later explore the possibility of an installment agreement if we

concluded that the limitations period had not expired before

respondent’s assessment.     Respondent opposes petitioner’s request

for the following reasons:     (1) The issue is deemed conceded; and

(2) petitioner “is entitled to only one hearing” under section

6330.     We consider each of respondent’s arguments in turn.

     A.      Whether Petitioner Conceded the Installment Agreement
             Issue

        When appealing to this Court pursuant to section 6330(d), a

taxpayer may raise in his petition any issues that he raised at

the Appeals hearing.     See sec. 301.6330-1(f)(2), Q&A-F5, Proced.

& Admin. Regs.     In this case, the question of an installment

agreement was raised by petitioner at the hearing in that

petitioner’s counsel expressed interest in discussing such an

agreement depending on the resolution of the limitations issue.

        Respondent does not argue that the issue of an installment

agreement never came up at the hearing.     Rather, respondent

argues that, because petitioner did not raise the installment

agreement issue in his petition, the issue is deemed conceded.

Respondent relies on Rule 331(b)(4), which provides that “Any

issue not raised in the assignments of error shall be deemed to

be conceded.”
                              - 16 -

     Although petitioner did not raise the installment agreement

argument in his petition, petitioner may pursue the argument as

long as his failure to provide respondent with notice of the

argument did not prejudice respondent.   See Pagel, Inc. v.

Commissioner, 91 T.C. 200, 212 (1988), affd. 905 F.2d 1190 (8th

Cir. 1990).   The existence of prejudice depends on “the amount of

surprise and the need for additional evidence on behalf of the

party opposed to the new position.”    Id.   Upon examination of the

record,16 we find no prejudice to respondent, and we consider the

issue.

     B.   Whether a Remand of the Case to Appeals Is Appropriate

     Taxpayers are entitled to only one section 6330 hearing for

the taxable period for which the tax is unpaid.    Sec. 6330(b)(2).

After the hearing, the Appeals Office maintains jurisdiction over


     16
      On the basis of evidence in the record, we find it
unlikely that petitioner’s failure to raise the collection
alternatives issue in the pleadings unduly surprised respondent
or prevented respondent from submitting any necessary, additional
evidence. In the stipulation of facts, respondent stipulated
that consideration of an installment agreement “was deferred
pending the resolution of the statute of limitations issue.” On
petitioner’s Form 12153, Request for a Collection Due Process
Hearing, submitted as an exhibit, he claimed to “[retain] the
right to request collection arrangements other than collection by
levy if any liability is determined to be valid.” Additionally,
after the hearing, in the notice of determination, also submitted
as an exhibit, Appeals Officer Mares discussed petitioner’s
counsel’s refusal to consider an installment agreement at the
hearing. Appeals Officer Mares noted that petitioner’s counsel
would not discuss the installment agreement “because she
[believed] the assessment was barred by statute” and concluded
that “[petitioner] declined an offer to explore collection
alternatives to the proposed collection action.”
                              - 17 -

its determination with respect to the collection action and may

hold subsequent hearings with the taxpayer.   Sec. 6330(d)(2);

sec. 301.6330-1(h)(1), Proced. & Admin. Regs.   However, any

subsequent hearing is not treated as a continuation of the

original section 6330 hearing and, therefore, is not appealable

to this Court.   Sec. 301.6330-1(h)(2), Q&A-H1 and H2, Proced. &

Admin. Regs.

     In Lunsford v. Commissioner, 117 T.C. 183, 189 (2001), we

acknowledged that “there may be cases where taxpayers were not

given a proper opportunity for an Appeals hearing, where it will

be appropriate for this Court to require that an Appeals hearing

be held.”   Accordingly, we return a case to Appeals if we

consider a rehearing “necessary or productive”.17   See id.; Moore

v. Commissioner, T.C. Memo. 2003-1.

     Petitioner bases his request for a remand on the alleged

agreement he had with respondent to discuss an installment

agreement after resolving the limitations period issue.      Without

addressing the alleged agreement, respondent asserts that the

proper context for any alternative collection method discussion

at this point is with “appropriate IRS personnel in accordance

with the normal procedures for such matters”, not at another

section 6330 hearing.   We find no credible evidence of an


     17
      For an example of cases that we remanded to the Appeals
Office, see Keene v. Commissioner, 121 T.C. __ (2003), and
Harrell v. Commissioner, T.C. Memo. 2003-271.
                              - 18 -

agreement between the parties to hold a section 6330 hearing

after this proceeding in order to discuss an installment

agreement.   Moreover, we do not find that a remand in this case

is necessary or would be productive.   Respondent has expressed a

willingness to discuss an installment agreement with petitioner

pursuant to the proper procedures.18

     At the hearing, Appeals Officer Mares gave petitioner’s

counsel the opportunity to discuss an installment agreement and

provide the requisite financial information.    Petitioner’s

counsel declined to discuss an installment agreement at that time

and did not supply any financial information.    Consequently,

respondent determined that petitioner refused to explore

collection alternatives at the hearing.   We review respondent’s

determination for abuse of discretion.    Black v. Commissioner,

T.C. Memo. 2002-307.

     Installment agreements are based on the taxpayer’s current

financial condition.   See sec. 6159; sec. 301.6159-1, Proced. &

Admin. Regs.; 2 Administration, Internal Revenue Manual (CCH),

5.19.1.5.4.1, at 18,299-50; Form 433-D, Installment Agreement.

Because petitioner failed to provide financial information for


     18
      We note that the legislative history of sec. 6330 provides
in part that “A taxpayer could apply for consideration of new
information, make an offer-in-compromise, request an installment
agreement, or raise other considerations at any time before,
during, or after the Notice of Intent to Levy hearing.” H. Conf.
Rept. 105-599, at 266 (1998), 1998-3 C.B. 755, 1020 (emphasis
added).
                              - 19 -

review at the hearing, Appeals Officer Mares could not properly

consider an installment agreement at that time.   See Wells v.

Commissioner, T.C. Memo. 2003-234.19   Accordingly, we conclude

that respondent’s determination with respect to collection

alternatives was not an abuse of discretion.

     Petitioner has failed to demonstrate that the proposed levy

action is inappropriate, another collection alternative is more

appropriate, or some other relevant issue adversely affects

respondent’s proposed collection activity.   We therefore conclude

that respondent’s determination to proceed by levy with the

collection of petitioner’s 1980 income tax liability was not an

abuse of discretion.

     We have considered the remaining arguments of both parties

for results contrary to those expressed herein and, to the extent

not discussed above, find those arguments to be irrelevant, moot,

or without merit.

     To reflect the foregoing,



                                         Decision will be entered

                                   for respondent.




     19
      We also note that, for purposes of this proceeding,
petitioner did not introduce into evidence any information
regarding his financial condition that would suggest a remand is
appropriate. See Wells v. Commissioner, T.C. Memo. 2003-234.
