                        T.C. Memo. 2004-104



                      UNITED STATES TAX COURT



                 JUNE H. GINALSKI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12522-03L.             Filed April 22, 2004.



     June H. Ginalski, pro se.

     Rachael J. Zepeda, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     GERBER, Judge:   This matter arises, under section 6320,1 out

of respondent’s filing of a Notice of Federal Tax Lien with

respect to petitioner’s 1993 and 1994 income tax liabilities.

The sole issue presented for our consideration is whether


     1
       Section references are to the Internal Revenue Code in
effect for the periods under consideration.
                               - 2 -

petitioner is entitled to question the underlying merits of her

1993 and 1994 income tax liabilities.

                         FINDINGS OF FACT1

     June H. Ginalski, petitioner, resided in Phoenix, Arizona,

at the time her petition was filed.    Upon notification that

respondent had filed a Notice of Federal Tax Lien with respect to

petitioner’s 1993 and 1994 income tax liabilities, petitioner

timely requested a hearing before an Appeals officer.    At the

hearing, petitioner sought to question the underlying merits of

her 1993 and 1994 tax liabilities which, to some extent, involved

whether amounts received by petitioner in connection with a

divorce were income to her.   Petitioner did not wish to discuss

collection alternatives or other collection-related matters.

     The Appeals officer refused to discuss the merits of the

underlying liabilities because petitioner had received a notice

of deficiency for her 1993 and 1994 tax years and had filed a

petition with this Court.   After a trial on the merits of her

1993 and 1994 income tax, it was held in a Tax Court Summary

Opinion that the amounts petitioner received during 1993 and 1994

from her divorce proceeding were taxable to petitioner for those

years.   Pursuant to this Court’s decision, respondent assessed




     1
       At trial, the parties stipulated facts and exhibits and
presented oral argument.
                                  - 3 -

the 1993 and 1994 income tax liabilities, which are the

liabilities for which notice of lien has been filed.

     Respondent issued a Notice of Determination Concerning

Collection Action(s) under Section 6320 and/or 6330, and

petitioner filed a timely petition with this Court.

                                OPINION

     Section 6330 provides that, upon request and in the

circumstances described therein, a taxpayer has a right to a

“fair hearing”.   Sec. 6330(b).    A “fair hearing” consists of the

following elements:   (1) An impartial officer will conduct the

hearing; (2) the conducting officer will receive verification

from the Secretary that the requirements of applicable law and

administrative procedure have been met; (3) certain issues may be

heard such as spousal defenses and offers-in-compromise; and (4)

a challenge to the underlying liability may be raised if the

taxpayer did not receive a statutory notice of deficiency or

otherwise receive an opportunity to dispute such liability.    Sec.

6330(c).

     In that regard, section 6330(c)(2)(B) provides that a

taxpayer may raise issues concerning the underlying tax liability

in a proceeding under section 6330 where the taxpayer did not

receive a notice of deficiency or otherwise have an opportunity

to dispute the tax liability.     See Sego v. Commissioner, 114 T.C.

604 (2000); Goza v. Commissioner, 114 T.C. 176 (2000).     Because
                                 - 4 -

petitioner received a notice of deficiency, petitioned this Court

for relief, and a final decision was entered, she was not

entitled to contest the merits of the underlying liability at her

section 6330 hearing.

     Petitioner contends that the Summary Opinion issued to her

states on its face that it is not appealable and that it is not

precedent for any other case.    In particular, Summary Opinions of

this Court contain the caveat:    “[The] case was heard pursuant

to the provisions of section 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.”       Petitioner has mistakenly

interpreted that caveat to mean that the outcome of her Tax Court

proceeding involving the same taxable years (1993 and 1994) is

not binding with respect to her proceeding under sections 6320

and 6330.   Although this Court’s decision for petitioner’s 1993

and 1994 tax years is not precedential for any other case, it is

final and determinative as it relates to petitioner’s liability

for those years.   It appears that petitioner believes that the

limitation on citing Summary Opinions as precedent deprives them

of the effect of res judicata.    In any event, the fact that

petitioner had an opportunity to contest the merits of the 1993

and 1994 liabilities triggers the limitation on raising such

matters again before Appeals or in this proceeding in our Court.
                               - 5 -

See sec. 6330(c)(2)(B); Sego v. Commissioner, supra; Goza v.

Commissioner, supra.

     Petitioner does not contend that there was an abuse of

discretion on any matter other than respondent’s refusal to

consider the underlying merits of the 1993 and 1994 tax

liabilities.   Petitioner believes that, if given the opportunity,

she could show that respondent’s position and this Court’s prior

holding, with respect to the underlying merits of the tax

liability, are in error.

     Accordingly, the sole question we consider is whether, in

these circumstances, respondent has abused his discretion in

refusing to consider the underlying merits of petitioner’s tax

liability for the years 1993 and 1994.   Sections 6320 and 6330

provide for a hearing in connection with certain collection

activity by respondent, in this instance the filing of a Notice

of Federal Tax Lien.   Under section 6330(c)(2)(B) a taxpayer may

raise the merits of the underlying liability if the taxpayer “did

not receive any statutory notice of deficiency for such tax

liability or did not otherwise have an opportunity to dispute

such tax liability.”   It is clear in this case that petitioner

received a statutory notice of deficiency and did have an

opportunity to dispute such tax liability.   Under the statute, it

does not matter whether petitioner may now be able to show that
                                 - 6 -

the outcome or holding resulting from that opportunity may have

been in error.

     To reflect the foregoing,

                                         Decision will be entered for

                                 respondent.
