                        T.C. Memo. 2010-140



                      UNITED STATES TAX COURT



          JUDITH A. AND ROBERT SWANTON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7181-08L.              Filed June 24, 2010.



     Judith A. and Robert Swanton, pro sese.

     Emily J. Giometti, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   Respondent sent petitioners a Final Notice of

Intent to Levy and Notice of Your Right to a Hearing with respect

to an unpaid Federal income tax liability for their 2004 tax

year, and with respect to section 6672 penalties for quarterly

periods ending December 31, 2001, and March 31, 2002 (2007 notice
                               - 2 -

of levy).1   We must decide the following issues:   (1) Whether

petitioners may challenge their underlying liabilities with

respect to their unpaid Federal income tax liability for their

2004 tax year and with respect to section 6672 penalties for

quarterly periods ending December 31, 2001, and March 31, 2002;

(2) if petitioners may dispute their underlying liabilities,

whether the funds respondent seized from petitioner Robert

Swanton’s individual retirement account (IRA) should be included

in gross income for their 2004 tax year; (3) if petitioners may

dispute their underlying liabilities, whether respondent properly

assessed section 6672 penalties against petitioner Robert Swanton

for the quarterly periods ending December 31, 2001, and March 31,

2002; and (4) whether respondent’s Appeals Office abused its

discretion in denying petitioners an alternative to collection.

                            Background

     Some of the facts and certain exhibits have been stipulated.

The stipulations of fact are incorporated in this opinion by

reference and are found accordingly.

     At the time the petition was filed, petitioners resided in

New Carlisle, Ohio.




     1
      Unless otherwise indicated, all Rule references are to the
Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code, as amended. All
amounts are rounded to the nearest whole dollar.
                                - 3 -

     From 1988 until 2002, petitioners operated a corporation

organized under the laws of Ohio, called Stripco, Inc. (Stripco).

Petitioner Robert Swanton (Mr. Swanton) was the sole owner of

Stripco, holding all of the company’s outstanding stock.    Mr.

Swanton also served as Stripco’s president from its incorporation

in 1988 until it filed for bankruptcy and ceased operations in

2002.   While primarily in charge of sales, Mr. Swanton had

authority over Stripco’s operations and finances.   Mr. Swanton

had the authority to hire and fire Stripco’s employees and direct

payments to Stripco’s employees.   Mr. Swanton had the authority

to purchase equipment on behalf of Stripco and negotiate the

purchase price.   Mr. Swanton also had the authority to borrow on

behalf of Stripco and could withdraw funds from, and deposit

funds in, Stripco’s bank accounts.

     Stripco employed an outside accountant to handle its

finances and prepare its quarterly and corporate Federal income

tax returns.   Mr. Swanton signed the returns prepared by

Stripco’s outside accountant.

     Petitioner Judith A. Swanton (Mrs. Swanton) served as vice

president of Stripco from 1997 through 2002.   Mrs. Swanton had

the authority to hire and fire employees, direct payment of

bills, negotiate large corporate purchases, open and close bank

accounts, authorize payment of Federal income taxes, and sign

corporate checks.
                                - 4 -

     During 1999 Mrs. Swanton became aware that Stripco had

amassed tax delinquencies; however, petitioners continued to

authorize payments for payroll, rent, and supplies.

     On November 8, 2001, Stripco filed for chapter 11 bankruptcy

protection.   After the bankruptcy filing, Stripco laid off most

of its employees.   On May 10, 2002, the bankruptcy court ordered

conversion of Stripco’s bankruptcy from a chapter 11

reorganization to a chapter 7 liquidation.

     Respondent sent each petitioner a Letter 1153, notice of

proposed trust fund recovery penalty assessment pursuant to

section 6672 (trust fund recovery penalty), dated October 23,

2002, with respect to the quarterly periods ending June 30,

September 30, and December 31, 2001, and March 31, 2002, based

upon section 6020(b) substitute returns.   Respondent proposed

penalties totaling $167,589.2   The Letters 1153 were returned to

respondent unclaimed on November 14, 2002.3




     2
      The proposed penalties included penalties for quarterly
periods ending June 30 and Sept. 30, 2001. Those periods are not
at issue in the instant case.
     3
      Mrs. Swanton’s Letter 1153 was sent to 1167 W. Lake Ave.,
New Carlisle, OH. Mr. Swanton’s Letter 1153 was addressed to
1167 Lake Ave., New Carlisle, OH. The Lake Ave. address listed
for Mr. Swanton is the address that was stipulated by the parties
as petitioners’ address at the time of filing, as well as the
address given to respondent by Mrs. Swanton on Feb. 23, 2000,
during an interview with regard to the trust fund recovery
penalties.
                               - 5 -

     On February 24, 2003, respondent assessed trust fund

recovery penalties against petitioners for the quarterly periods

ending December 31, 2001, and March 31, 2002.   Respondent sent

Mrs. Swanton a Final Notice of Intent to Levy and Notice of Your

Right to a Hearing (2003 notice of levy) regarding the trust fund

recovery penalties for the quarterly periods ending December 31,

2001, and March 31, 2002.

     During 2004 respondent seized $289,017 from Mr. Swanton’s

IRA by levy to collect trust fund recovery penalties for

quarterly periods not in issue in the instant case (the seized

funds).   On October 19, 2005, petitioners filed a Form 1040, U.S.

Individual Income Tax Return, for their 2004 tax year on which

they included the seized funds in gross income as a tax

distribution from an IRA.   Petitioners reported Federal income

tax of $76,730 for their 2004 tax year.   Petitioners had paid

$1,461 through withholding but failed to pay the remaining

$75,269 of tax shown on their 2004 return (unpaid 2004 income tax

liability).4

     On June 25, 2007, respondent sent petitioners the 2007

notice of levy.

     On July 11, 2007, petitioners filed Form 12153, Request for

Collection Due Process Hearing.   In their request petitioners

     4
      The $75,269 was summarily assessed pursuant to sec.
6201(a)(1). A notice of deficiency was not required before
assessment. Id.
                               - 6 -

stated that they were not liable for the trust fund recovery

penalties because Stripco was under the control of the bankruptcy

court during the time in issue and that they would like to get

waived or reduced the penalty that resulted in the seized funds

included in gross income for their 2004 tax year, and they

requested a collection alternative.

     Respondent’s Appeals Officer Monica Coronado (Ms. Coronado)

made several attempts to schedule a hearing; however, petitioners

failed to respond.   On December 3, 2007, petitioners informed Ms.

Coronado that Mr. Swanton had suffered from some type of illness

which precluded his participation in the Appeals Office

proceedings.   During the Appeals Office proceedings petitioners

did not submit an offer-in-compromise, propose terms for an

installment agreement, or submit any personal financial data.     By

letter dated February 28, 2008, Ms. Coronado sustained the 2007

notice of levy.

     On March 4, 2008, petitioners filed Form 843, Claim for

Refund and Request for Abatement, and Form 941, Employer’s

Quarterly Federal Tax Return, with respect to the trust fund

recovery penalties for the quarterly periods ending December 31,

1999 through 2002.   On the basis of the submitted information,

respondent abated the trust fund recovery penalties for the

periods ending December 31, 2001, and March 31, 2002, of $45,568,

and $57,385, respectively.    Following the abatement, petitioners
                                - 7 -

owed $4,918 for the quarterly period ending December 31, 2001,

and $1,195 for the quarterly period ending March 31, 2002.5

                             Discussion

     Section 6330 requires that before any levy on any person’s

(taxpayer’s) property or right to property the Commissioner give

the taxpayer notice of intent to levy and notice of the right to

a fair hearing before an impartial officer of the IRS Appeals

Office.   Secs. 6330(a) and (b), 6331(d).     At the hearing, a

taxpayer may raise appropriate spousal defenses, challenge the

appropriateness of collection actions, and offer collection

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

may challenge the existence or amount of the underlying tax

liability only if the taxpayer did not receive a notice of

deficiency or did not otherwise have an opportunity to challenge

the underlying liability.   Sec. 6330(c)(2)(B).     The term

“underlying liability” includes the tax reported on a return

prepared by the taxpayer.    Montgomery v. Commissioner, 122 T.C.

1, 9 (2004).    At the hearing, generally, the Appeals officer must

consider the above-stated issues raised by the taxpayer, verify

that the requirements of applicable law and administrative

procedures have been met, and consider whether “any proposed


     5
      Except for the balance due, neither petitioners nor
respondent offered details regarding the abatement. However, as
noted above, Stripco laid off most of its employees upon filing
for bankruptcy on Nov. 8, 2001.
                                 - 8 -

collection action balances the need for efficient collection of

taxes with the legitimate concern of the * * * [taxpayer] that

any collection action be no more intrusive than necessary.”      Sec.

6330(c)(3).

     Underlying liability, and other section 6330(c)(2) issues,

must be raised at the Appeals hearing to be properly raised

before this Court.     Giamelli v. Commissioner, 129 T.C. 107, 115

(2007); sec. 301.6320-1(f)(2) Q&A-F3, Proced. & Admin. Regs.;

sec. 301.6330-1(f)(2) Q&A-F3, Proced. & Admin. Regs.    Receipt of

a notice of intent to levy for the same tax and tax period may

constitute a prior opportunity to contest the underlying

liability, even if the opportunity is not pursued.     Bell v.

Commissioner, 126 T.C. 356, 358 (2006).

     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo; but

where the validity of the underlying tax is not properly in

issue, the Court will review the Commissioner’s determination for

abuse of discretion.     Sego v. Commissioner, 114 T.C. 604, 610

(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).      An

abuse of discretion is any action that is arbitrary, capricious,

or without sound basis in law or fact.     Woodral v. Commissioner,

112 T.C. 19, 23 (1999).

     We first address petitioners’ unpaid 2004 income tax

liability.    Petitioners failed to present evidence to the Appeals
                                   - 9 -

officer or at trial on their unpaid 2004 income tax liability.

That liability was the result of the seizure of $289,017 from Mr.

Swanton’s IRA to satisfy trust fund recovery penalties for

periods not in issue in the instant case.       IRA distributions are

taxed according to the annuity rules of section 72.6      Sec.

408(d).       Pursuant to section 72, a taxpayer includes IRA

distributions in gross income but may exclude from gross income

that portion of his IRA distribution which reflects nondeductible

contributions to his IRA.       Petitioners bear the burden of proving

the amount of their nondeductible contributions to Mr. Swanton’s

IRA.       See Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115

(1933).       At trial, petitioners failed to present any evidence

regarding nondeductible contributions to Mr. Swanton’s IRA.

Accordingly, petitioners failed to show that any of the seized

funds were improperly included in gross income for their 2004 tax

year.       We also note that payment of Federal taxes by way of a

levy constitutes an involuntary assignment of income and may be

included in gross income in the year of levy pursuant to the

doctrine of constructive receipt.       See Larotonda v. Commissioner,

89 T.C. 287, 291 (1987).      Consequently, we conclude that

petitioners are liable for the unpaid 2004 income tax liability.

       6
      Generally, early withdrawals     from IRAs are subject to a 10-
percent penalty tax. Sec. 72(t).       However, sec. 72(t) does not
apply to distributions where funds     are levied upon by the
Commissioner pursuant to sec. 6331     as occurred in the instant
case. Sec. 72(t)(2)(A)(vii).
                                - 10 -

     We next address the trust fund recovery penalties for the

quarterly periods ending December 31, 2001, and March 31, 2002.

This Court recently acquired exclusive jurisdiction to review

appeals from the Commissioner’s lien and levy determinations made

after October 16, 2006, irrespective of the type of tax making up

the underlying liability.   See Ginsberg v. Commissioner, 130 T.C.

88 (2008); Callahan v. Commissioner, 130 T.C. 44 (2008).

Accordingly, because respondent’s determination sustaining the

filing of notices of Federal tax lien for unpaid trust fund

recovery penalties was sent on February 28, 2008, we are

authorized to review the trust fund recovery penalties assessed

against petitioners.   Petitioners properly raised the trust fund

recovery penalties with Ms. Coronado and included this issue in

their petition to this Court.    Accordingly, that issue is

properly before this Court.

     Our standard of review for the trust fund recovery penalty

issue turns on whether petitioners had a prior opportunity to

dispute the underlying tax liability.7   Sec. 6330(c)(2)(B).   The

Commissioner is required to provide the taxpayer with notice of

trust fund recovery penalties before assessment.    Sec.

6672(b)(1).   Letter 1153 provides a taxpayer with section 6672(b)

notice and the means of protesting a proposed trust fund recovery


     7
      Because the assessments against petitioners were trust fund
recovery penalties, respondent would not have issued and mailed a
notice of deficiency. See sec. 6212(a).
                                - 11 -

penalty assessment administratively with the Commissioner.     Mason

v. Commissioner, 132 T.C. 301, 317 (2009).     When a Letter 1153 is

mailed, the Commissioner must follow mailing procedures that are

similar to those provided for notices of deficiency in section

6212(b).   Sec. 6672(b)(1).   The same evidence that establishes

that the Commissioner mailed a notice of deficiency to a

taxpayer’s last known address is sufficient to establish that the

Commissioner properly sent the taxpayer a Letter 1153.     Mason v.

Commissioner, supra at 318.     However, a Letter 1153 that is not

received, and not deliberately refused by the taxpayer, does not

constitute an opportunity to dispute underlying liability.     Id.

     In determining whether Mrs. Swanton had a prior opportunity

to dispute her underlying liability, we note that respondent

mailed Mrs. Swanton the 2003 notice of levy with respect to the

trust fund recovery penalties.    Mrs. Swanton does not dispute

that she received the 2003 notice of levy, or that it was sent to

her last known address.   Mrs. Swanton failed to respond to that

notice.

     The Tax Court is a court of limited jurisdiction, and our

exercise of jurisdiction pursuant to section 6330 depends upon

the issuance of a valid notice of determination and the filing of

a timely petition for review.     Orum v. Commissioner, 123 T.C. 1,

8 (2004), affd. 412 F.3d 819 (7th Cir. 2005); Moorhaus v.

Commissioner, 116 T.C. 263, 269 (2001); Space v. Commissioner,
                              - 12 -

T.C. Memo. 2009-230.   It is well settled that this Court can

proceed in a case only if we have jurisdiction and that any

party, or the Court sua sponte, may question jurisdiction at any

time, even after the case has been tried and briefed.     Romann v.

Commissioner, 111 T.C. 273, 280 (1998); Space v. Commissioner,

supra.

     Mrs. Swanton was entitled to a collection hearing with

respondent’s Appeals Office with respect to the trust fund

recovery penalties only upon the basis of the first pre-levy or

post-levy notice sent to her last known address.   See sec.

301.6330-1(b)(2), Q&A-B2, Proced. & Admin. Regs.   With respect to

the trust fund penalties, respondent sent Mrs. Swanton a Letter

1153 during 2002 and the 2003 notice of levy.8   Mrs. Swanton

forfeited her right to a collection hearing with respondent’s

Appeals Office and judicial review of respondent’s determination

by not timely requesting a hearing in response to the first of

those notices sent to her last known address.    Id.   However,

respondent also sent petitioners the 2007 notice of levy with


     8
      Respondent mailed Mrs. Swanton a Letter 1153 dated Oct. 23,
2002 addressed to 1167 W. Lake Ave. The parties stipulated that
Mrs. Swanton’s Letter 1153 was returned unclaimed and that
petitioners’ address at the time of filing the instant case was
1167 Lake Ave. Additionally, during a February 2000 interview
with respondent regarding the trust fund recovery penalties, Mrs.
Swanton listed her address as 1167 Lake Ave. We need not decide
whether Mrs. Swanton’s Letter 1153 was the first pre-levy notice
sent to her last known address because, as stated above, Mrs.
Swanton does not dispute that she received the 2003 notice of
levy, or that it was sent to her last known address.
                              - 13 -

respect to the trust fund recovery penalties.   Petitioners timely

requested, and respondent’s Appeals Office conducted, a hearing

with respect to the 2007 notice of levy.   Respondent was not

obligated under section 6330(b) to conduct another hearing for

Mrs. Swanton.   See Orum v. Commissioner, supra at 11; see also

Pragasam v. Commissioner, T.C. Memo. 2006-86 (finding a similar

result in a lien setting), affd. 239 Fed. Appx. 325 (9th Cir.

2007).   Therefore, as to Mrs. Swanton, the hearing was an

equivalent hearing.9   See Orum v. Commissioner, supra.   Where a

taxpayer fails to timely request a collection hearing, a decision

letter following an equivalent hearing does not constitute a

determination pursuant to section 6330(d)(1) which provides a

basis for a taxpayer to invoke the Court’s jurisdiction.     Id.;

sec. 301.6330-1(i)(2), Q&A-I6, Proced. & Admin. Regs.

Accordingly, the decision letter issued to Mrs. Swanton is not a

proper basis for her to invoke this Court’s jurisdiction.

Consequently, we will dismiss the case as to Mrs. Swanton for

lack of jurisdiction with respect to the trust fund recovery

penalties.




     9
      An equivalent hearing is an administrative hearing provided
to a taxpayer who fails to make a timely request for a collection
hearing with the Commissioner’s Appeals Office. Sec. 301.6330-
1(i)(1), Proced & Admin. Regs. An equivalent hearing is
conducted similarly to a regular collection hearing; however, it
does not result in a notice of determination, but rather a
decision letter. Id.
                                - 14 -

     The record is less than clear regarding whether Mr. Swanton

had a prior opportunity to contest the underlying liability

relating to the trust fund recovery penalties.     The parties

stipulated that Mr. Swanton was mailed a Letter 1153 regarding

those penalties.10    However, the parties also stipulated that Mr.

Swanton’s Letter 1153 was returned unclaimed.     Respondent failed

to argue or present evidence that Mr. Swanton deliberately

refused to receive his Letter 1153.      See Mason v. Commissioner,

supra at 318.   Mr. Swanton did not contest his liability for the

trust fund recovery penalties until the Appeals Office hearing

that preceded the instant case.    See McClure v. Commissioner,

T.C. Memo. 2008-136.    Nor did Mr. Swanton receive or refuse

receipt of the Letter 1153 mailed to him.     Additionally,

respondent sent the 2003 notice of levy solely to Mrs. Swanton.

Accordingly, we hold that Mr. Swanton has not had a prior

opportunity to contest the underlying liability of the trust fund

recovery penalties.    Consequently, we review the trust fund

recovery penalties with respect to Mr. Swanton de novo.

     Section 6672 imposes a penalty for the willful failure to

collect, account for, and pay over income and employment taxes of

employees.   Trust fund recovery penalties are assessed and



     10
      Respondent mailed separate Letters 1153 to petitioners.
Mr. Swanton’s Letter 1153 was addressed to 1167 Lake Ave.
However, a copy of certified mailing for the Letters 1153 was
provided only as to Mrs. Swanton.
                               - 15 -

collected in the same manner as tax against a person including

“an officer or employee of a corporation, or a member or employee

of a partnership who as such officer, employee, or member is

under a duty to perform” the duties referred to in section 6672.

Sec. 6671(b).    Such persons are referred to as “responsible

persons” and the term may be broadly applied.     Mason v.

Commissioner, 132 T.C. at 321.    A trust fund recovery penalty may

be assessed against any responsible person and is separate from

the employer’s responsibility for the unpaid income and

employment taxes.    Sec. 6672(a); Mason v. Commissioner, supra at

321.

       Petitioners do not dispute that Mr. Swanton was given

preliminary notice11 or that Mr. Swanton willfully failed to pay

the trust fund taxes.    See sec. 6672.   Rather, petitioners

dispute whether Mr. Swanton was a responsible person.

       An individual’s designation as a responsible person is based

“upon the degree of influence and control which the person

exercised over the financial affairs of the corporation and,


       11
      Sec. 6672(b)(1) and (2) provides: (1) That no penalty may
be imposed unless the Secretary notifies the taxpayer in person
or in writing by mail to the taxpayer’s last known address that
the taxpayer shall be subject to assessment for such penalty; and
(2) that in-person delivery or mailing of the notice must precede
any notice and demand for payment of the trust fund recovery
penalty by at least 60 days. Mason v. Commissioner, 132 T.C. 301
(2009); Hickey v. Commissioner, T.C. Memo. 2009-2. Actual
receipt of the Letter 1153 is not required in order to prove that
the Commissioner provided the required preliminary notice.
Hickey v. Commissioner, supra.
                                - 16 -

specifically, disbursement of funds and the priority of payments

to creditors.”     Gephart v. United States, 818 F.2d 469, 473 (6th

Cir. 1987).12    Indications of being a responsible person include

the following factors:

     (1) the duties of the officer as outlined by the corporate
     by-laws;
     (2) the ability of the individual to sign checks of the
     corporation;
     (3) the identity of the officers, directors, and
     shareholders of the corporation;
     (4) the identity of the individuals who hired and fired
     employees; [and]
     (5) the identity of the individuals who are in control of
     the financial affairs of the corporation.

Kinnie v. United States, 994 F.2d 279, 283 (6th Cir. 1993)

(citing Gephart v. United States, supra at 473).

     Mr. Swanton testified that he was president and owned 100

percent of Stripco.     While he dealt primarily with sales, Mr.

Swanton had substantial authority over the financial affairs of

Stripco.     Mr. Swanton could hire or fire employees, order

equipment for Stripco, direct payment of bills, and negotiate on

Stripco’s behalf.     Additionally, Mr. Swanton could borrow on

behalf of Stripco and open and close bank accounts in Stripco’s

name.     Mr. Swanton also signed several of Stripco’s Federal

income tax returns.     Accordingly, we conclude on the basis of his


     12
      Absent stipulation to the contrary, any appeal of the
instant case would be to the Court of Appeals for the Sixth
Circuit. The Tax Court follows the law of the court to which an
appeal would lie if that law is on point. Golsen v.
Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th
Cir. 1971).
                               - 17 -

status, duty, and authority that Mr. Swanton exercised a

sufficient degree of responsibility and control over Stripco’s

financial affairs to be a responsible person.    Therefore, we

conclude that Mr. Swanton is liable for the trust fund recovery

penalties assessed against him.

       Finally, we address whether Ms. Coronado abused her

discretion in denying petitioners a collection alternative.

Decisions regarding collection alternatives do not go to

underlying liability and are, therefore, reviewed for abuse of

discretion.    Olsen v. United States, 414 F.3d 144, 153 (1st Cir.

2005); Davis & Associates, LLC v. Commissioner, T.C. Memo. 2008-

292.    Petitioners indicated on their request for an Appeals

Office review that they would like to make an offer-in-

compromise.    However, petitioners failed to cooperate in

scheduling a hearing, submit financial information, or propose

terms of an installment agreement or an offer-in-compromise

during the Appeals Office proceedings.    After Ms. Coronado’s

determination sustaining collection, petitioners submitted

information regarding the trust fund recovery penalties, and

respondent abated some of those penalties.    However, there was no

abuse of discretion in Ms. Coronado’s failing to consider

collection alternatives because no collection alternatives were

submitted during the Appeals Office review.    See Kendricks v.

Commissioner, 124 T.C. 69, 79 (2005).    Additionally, petitioners
                             - 18 -

generally cannot raise an issue in this Court that they did not

raise during their Appeals Office hearing.   See Giamelli v.

Commissioner, 129 T.C. at 115; Magana v. Commissioner, 118 T.C.

488, 493 (2002); sec. 301.6320-1(f)(2), Q&A-F3, Proced. & Admin.

Regs.; sec. 301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs.

Accordingly, we hold that Ms. Coronado did not abuse her

discretion in failing to consider collection alternatives.

     The Court has considered all of the arguments made by the

parties and, to the extent we have not addressed them herein, we

consider them unnecessary, moot, irrelevant, or without merit.

     To reflect the foregoing and respondent’s concessions,


                                        An appropriate order and

                                   decision will be entered.
