                   T.C. Summary Opinion 2007-1



                     UNITED STATES TAX COURT



                  JONITA CONNER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2054-06S.              Filed January 3, 2007.



     Jonita Conner, pro se.

     Michael A. Raiken and Ann Welhaf, for respondent.



     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of sections 6330(d) and 7463.   The

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

this opinion should not be cited as authority.   Unless otherwise

indicated, all section references are to the Internal Revenue

Code in effect at relevant times.
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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 on December 22, 2005.     The

issue for decision is whether respondent abused his discretion in

sustaining a proposed levy action against petitioner.1

                              Background

     Petitioner resided in Silver Spring, Maryland, when her

petition was filed.     Petitioner was a practicing physician at the

time of trial.

         Petitioner filed late a 2003 Federal income tax return and

did not pay all the tax reported thereon.     Respondent assessed

the tax, as well as related penalties and interest, and issued

petitioner a Final Notice of Intent to Levy and Notice of Your

Right to a Hearing.     Petitioner timely submitted a Form 12153,

Request for a Collection Due Process Hearing, offering to pay

$100 a month toward her tax liability.

     Petitioner’s case was assigned to a settlement officer, who

determined that petitioner had not filed her 2004 tax return.       On

November 8, 2005, the settlement officer requested that

petitioner submit a signed 2004 tax return and a Form 433-A,


     1
       Respondent filed a motion for summary judgment in
September 2006. Because we find there are genuine issues of
material fact, summary judgment is inappropriate. See Naftel v.
Commissioner, 85 T.C. 527, 529 (1985). We therefore shall deny
respondent’s motion.
                                - 3 -

Collection Information Statement for Wage Earners and Self-

Employed Individuals, which asks the taxpayer to provide certain

financial information.    The settlement officer indicated that if

petitioner did not provide the tax return and Form 433-A by

November 28, 2005, respondent would sustain the proposed

collection action.    The settlement officer did not receive the

requested documents by that date.

       On December 22, 2005, respondent issued petitioner a notice

of determination sustaining the proposed levy.    The notice states

that petitioner failed to file the 2004 tax return or submit the

Form 433-A.    It also states that the settlement officer verified

that applicable legal and administrative requirements had been

met.

       On or about December 23, 2005, petitioner sent a letter to

the settlement officer in response to the notice of

determination.    The letter states that petitioner mailed the 2004

tax return and the financial information on November 28, 2005.

Enclosed with the letter were a signed 2004 tax return and a Form
                               - 4 -

433-F, Collection Information Statement.2   Respondent had not

previously received these documents from petitioner.

                            Discussion

     Section 6331(a) authorizes the Secretary to levy upon

property and property rights of a taxpayer liable for taxes who

fails to pay those taxes within 10 days after a notice and demand

for payment is made.   Section 6331(d) provides that the levy may

be made only if the Secretary has given written notice to the

taxpayer 30 days before the levy.   Section 6330(a) requires the

Secretary to send a written notice to the taxpayer of the amount

of the unpaid tax and of the taxpayer’s right to a section 6330

hearing at least 30 days before the levy is begun.

     If a section 6330 hearing is requested, the hearing is to be

conducted by the Office of Appeals, and the Appeals officer

conducting it must verify that the requirements of any applicable

law or administrative procedure have been met.   Sec. 6330(b)(1),

(c)(1).   The taxpayer may raise at the hearing any relevant issue

relating to the unpaid tax or the proposed levy.   Sec.



     2
       Both the Form 433-A and the Form 433-F require the
taxpayer to provide financial information. The Form 433-F is a
1-page document that asks the taxpayer to list items such as
monthly income and expenses. The Form 433-A, in contrast, is a
6-page document that requires the taxpayer, inter alia, to list
income and expenses for a 3-month period; attach copies of
documents such as pay stubs, bank statements, and proof of
current expenses; and indicate whether the taxpayer has
transferred assets out of his or her name for less than actual
value.
                               - 5 -

6330(c)(2)(A).   The taxpayer also may raise challenges to the

existence or amount of the underlying tax liability at a hearing

if the taxpayer did not receive a statutory notice of deficiency

with respect to the underlying tax liability or did not otherwise

have an opportunity to dispute that liability.    Sec.

6330(c)(2)(B); Montgomery v. Commissioner, 122 T.C. 1 (2004).

     This Court has jurisdiction under section 6330 to review the

Commissioner’s administrative determinations.    Sec. 6330(d);

Iannone v. Commissioner, 122 T.C. 287, 290 (2004).       Where, as

here, the validity of the underlying tax liability is not at

issue, we review the determination for abuse of discretion.          Sego

v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner,

114 T.C. 176, 182 (2000).   Whether an abuse of discretion has

occurred depends upon whether the exercise of discretion is

without sound basis in fact or law.    See Freije v. Commissioner,

125 T.C. 14, 23 (2005).   The Commissioner’s refusal to consider

collection alternatives is not an abuse of discretion where the

taxpayer has failed to file all required tax returns or to

provide complete financial information.   See Roman v.

Commissioner, T.C. Memo. 2004-20; Rodriguez v. Commissioner, T.C.

Memo. 2003-153 (and cases cited therein).

     Petitioner contends she sent the requested information to

respondent on November 28, 2005.   Petitioner testified that she

did not send the information by certified or registered mail,
                                 - 6 -

however, and therefore she does not have a receipt of mailing to

corroborate her testimony.

     Respondent contends that petitioner has a history of failing

to file tax returns or provide financial information, and,

therefore, petitioner’s testimony is not credible.   Respondent’s

settlement officer testified that petitioner had tax liabilities

for previous years that respondent had attempted to collect.

Respondent’s records indicate that although petitioner proposed

collection alternatives for those years, respondent rejected the

proposals due to petitioner’s failure to file tax returns or

provide financial information.

     Petitioner did not dispute the settlement officer’s

testimony regarding the prior years’ tax liabilities.   In

addition, petitioner acknowledged that she filed her 2005 tax

return late.   On the basis of the record, we agree with

respondent that petitioner has demonstrated a pattern of missing

deadlines with respect to filing her tax returns and providing

respondent with requested information.   In the absence of

corroborating evidence, we are not required to accept, and do not

accept, petitioner’s self-serving testimony that she mailed the

2004 tax return and Form 433-F to respondent on November 28,

2005.   See Tokarski v. Commissioner, 87 T.C. 74, 77 (1986);

Madden v. Commissioner, T.C. Memo. 2006-4.
                                - 7 -

     We note that even if petitioner did mail the Form 433-F on

that date, the settlement officer requested a Form 433-A.    As

described above, the Form 433-A requires the taxpayer to provide

substantially more financial information, such as pay stubs and

bank records, than does the Form 433-F.    Petitioner does not

contend that she mailed these documents to the settlement

officer.    Thus, petitioner did not provide complete financial

information.    See Roman v. Commissioner, supra.   Moreover, the

Form 433-F that petitioner provided appears incomplete in several

respects.    For example, petitioner lists monthly income of $1,500

and monthly expenses of $5,056.    The Form 433-F gives no

indication how petitioner covered the shortfall between the

reported income and expenses.    Petitioner listed no assets other

than $100 in a checking account.    The only debt listed is $450 of

credit card debt.    Petitioner also failed to indicate she was a

physician or include a business address as requested on the Form

433-F.

     On the basis of our review of the record, we conclude that

respondent satisfied the requirements of section 6330(c) and did

not abuse his discretion in refusing to consider collection

alternatives and sustaining the proposed levy against petitioner.

Respondent’s determination therefore is sustained.
                                - 8 -

    Reviewed and adopted as the report of the Small Tax Case

Division.

    To reflect the foregoing,


                                        An appropriate order and

                                decision will be entered.
