                        T.C. Memo. 2003-206



                      UNITED STATES TAX COURT



                  JOHN R. PEACOCK, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6168-02L.                Filed July 15, 2003.


     Noel W. Spaid, for petitioner.

     Karen N. Sommers, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION


     FOLEY, Judge:   The issue for decision is whether respondent

may proceed with his proposed collection activity relating to

petitioner’s 1994 tax liability.

                         FINDINGS OF FACT

     Petitioner failed to file his 1994 Federal income tax

return.   On April 18, 1997, respondent sent petitioner a notice
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of deficiency.     On May 23, 1997, respondent sent petitioner a

second notice, which corrected a typographical error in the April

18, 1997, notice.     Petitioner did not file a petition with the

Court to challenge either notice.     On October 13, 1997,

respondent assessed a $42,859 deficiency and, pursuant to

sections 66511 and 6654, a $4,027.50 addition to tax and a

$676.92 addition to tax, respectively.

     On December 31, 1997, respondent sent a Form 668-W(c),

Notice of Levy on Wages, Salary, and Other Income (notice of

levy), to petitioner’s employer, United Airlines (United).     The

notice of levy required United to relinquish a portion of

petitioner’s pay to satisfy his 1994 tax liability.

     Respondent, on February 16, 2001, sent petitioner a Final

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

Hearing, relating to his 1994 tax liability.     On March 14, 2001,

petitioner sent respondent Form 12153, Request for a Collection

Due Process Hearing, in which petitioner alleged that the tax

liability had been fully paid.     On August 10, 2001, the Appeals

officer held a conference with petitioner.     The Appeals officer

reviewed transcripts of petitioner’s 1994 income tax account and

payroll records.    The payroll records indicated that between

October 20, 1997, and November 17, 1998, United, pursuant to an



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
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“assignment”, deducted $92,923.47 from petitioner’s wages.    In an

attempt to determine where the $92,923.47 had been sent, the

Appeals officer wrote to United and to the California Franchise

Tax Board.

     On the basis of respondent’s records and those provided by

the State of California, the Appeals officer determined that levy

payments totaling $53,476.27 and $5,965.54 had been applied to

petitioner’s 1992 and 1994 income tax accounts, respectively, and

that in 1998 the State of California had received $12,109.23 in

levy payments relating to petitioner’s State income tax

liabilities.   United and petitioner did not provide any

documentation of payments received by respondent other than the

payments reflected on respondent’s records.

     On February 7, 2002, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 relating to 1994.    In response, on March 18, 2002,

petitioner, while residing in San Diego, California, filed his

petition with the Court.

                                OPINION

     Petitioner contends that respondent erred in determining

his 1994 tax liability because respondent used “married filing

separately” filing status rather than “married filing jointly”

status.   Petitioner, however, received a statutory notice of

deficiency relating to 1994 and, thus, is precluded from raising
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his filing status.     Sec. 6330(c)(2)(B); see Goza v. Commissioner,

114 T.C. 176 (2000).

     Petitioner further contends that respondent failed to apply

petitioner’s levy payments (i.e., the amounts withheld from his

wages by his employer) to his 1994 tax liability.          We disagree.

The record did not establish that respondent’s calculation of the

unpaid tax was incorrect.    United deducted $92,923.47 from

petitioner’s wages, but Forms 4340, Certificate of Assessments,

Payments, and Other Specified Matters, relating to petitioner’s

1994 income tax account indicate an unpaid assessed balance due

of $19,924.82.    See Davis v. Commissioner, 115 T.C. 35, 40 (2000)

(stating “courts have held that Form 4340 provides at least

presumptive evidence that a tax has been validly assessed under

section 6203").    Before deciding to proceed with collection,

respondent provided petitioner with transcripts relating to his

1994 tax liability, took adequate steps to determine the correct

amount of petitioner’s unpaid tax, and gave due consideration to

petitioner’s contentions.    Accordingly, respondent committed no

error and may proceed with the proposed collection activity.

     Contentions we have not addressed are irrelevant, moot, or

meritless.

     To reflect the foregoing,



                                             Decision will be entered

                                         for respondent.
