                         T.C. Memo. 2002-26



                       UNITED STATES TAX COURT



                 HARLEY GUNDERSON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16050-99L.                    Filed January 25, 2002.


     Harley Gunderson, pro se.

     Marty J. Dama, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This case is before the Court on

respondent’s motion under Rule 120,1 which, pursuant to Rule

120(b), the Court shall treat as respondent’s motion for summary

judgment under Rule 121.



     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 in effect for the
year in issue.
                               - 2 -

     The sole issue is whether respondent’s determination to

proceed with collection as to petitioner’s 1993 taxable year was

an abuse of discretion.

Background

     At the time the petition was filed, petitioner resided in

Arlington, Texas.

     On January 9, 1997, respondent sent petitioner a notice of

deficiency in his income tax for 1993.   In response to this

notice, petitioner filed a timely petition with this Court.     On

July 7, 1997, respondent made a master file assessment for the

amount of the 1993 deficiency.2   After realizing that a Tax Court

petition had been timely filed, respondent abated the master file

assessment on June 22, 1998.

     On March 3, 1998, the Court entered a stipulated decision

that petitioner’s deficiency for 1993 was $5,954.   Petitioner and

respondent both signed this decision document.   On May 21, 1998,

respondent made a nonmaster file assessment of $5,954 to reflect

the stipulated decision.3

     On February 2, 1999, respondent sent petitioner a Notice of



     2
        Master file assessments are assessments posted to the
master file computer in Martinsburg, W. Va. Assessment in
Appealed Cases, Internal Revenue Manual (IRM) (RIA), sec.
35.13.10.3 (2002).
     3
        Nonmaster file assessments are processed manually through
the service centers. Reference Guide: Examining Process, IRM,
sec. 104.3.1-1 (2002). The taxpayer’s tax account record
includes both master and nonmaster file assessments. Transcript
of Account Defined, IRM, sec. 8.17.3.1.1 (2002).
                               - 3 -

Intent to Levy and Notice of your Right to a Hearing under

sections 6331 and 6330.   On March 4, 1999, petitioner filed a

Request for a Collection Due Process Hearing.   After respondent

conducted a hearing by telephone, respondent issued a notice of

determination.   In the notice, respondent stated:

     Your challenge to the appropriateness of the collection
     action was that you felt the I.R.S. notice issued June
     22, 1998, which showed the abatement for the premature
     master file assessment showing nothing due on that
     account, relieved you also of the non-master file
     assessment made in accordance with the Tax Court’s
     determination reflected in the decision document signed
     by you and Judge Mary Ann Cohen and entered March 3,
     1998. The notice reflects only internal accounting
     changes. I.R.S. does not have authority to change the
     Tax Court determination, and that was not the purpose
     of the notice.

On October 8, 1999, petitioner filed a petition for Lien/Levy

Action under Code Section 6320(c) or 6330(d).   In response to a

Court order, petitioner filed an Amended Petition for Lien or

Levy Action under Code Section 6320(c) or 6330(d) on November 29,

1999.4

Discussion

I.   Summary Judgment

     Respondent moved for summary judgment on the issue of

whether respondent’s determination to proceed with collection as



     4
        Petitioner filed a Motion for Leave to File an Amendment
to Petition (Embodying Amendment to Petition) in order to add his
wife, Mary L. Knotts, as a party-petitioner. Respondent objected
to the motion arguing that we lacked jurisdiction over Ms. Knotts
because a notice of determination was not issued to her. We
denied petitioner’s motion.
                               - 4 -

to petitioner’s 1993 taxable year was an abuse of discretion.

Respondent argues that petitioner disputes only the underlying

liability of $5,954 and that the validity of the liability is not

properly before us.

      Rule 121(a) provides that either party may move for summary

judgment upon all or any part of the legal issues in controversy.

Full or partial summary judgment may be granted only if it is

demonstrated that no genuine issue exists as to any material fact

and a decision may be rendered as a matter of law.    See Rule

121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).

      We conclude that there is no genuine issue as to any

material facts regarding whether respondent’s determination was

an abuse of discretion.

II.   The Levy Action

      Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to do so within 10 days after notice

and demand, the Secretary can collect such tax by levy upon

property belonging to such person.     Pursuant to section 6331(d),

the Secretary is required to give the taxpayer notice of his

intent to levy and within that notice must describe the

administrative review available to the taxpayer, before

proceeding with the levy.   See also sec. 6330(a).

      Section 6330(b) describes the administrative review process,

providing that a taxpayer can request an Appeals hearing with
                                 - 5 -

regard to a levy notice.    At the Appeals hearing, the taxpayer

may raise certain matters set forth in section 6330(c)(2), which

provides, in pertinent part:

          SEC. 6330(c). Matters Considered At Hearing.--In
     the case of any hearing conducted under this section--

                 *    *      *    *      *   *   *

          (2) Issues at hearing.--

               (A) In general.--The person may raise
          at the hearing any relevant issue relating to
          the unpaid tax or proposed levy, including--

                    (i) appropriate spousal
               defenses;

                    (ii) challenges to the
               appropriateness of collection
               actions; and

                    (iii) offers of collection
               alternatives, which may include the
               posting of a bond, the substitution
               of other assets, an installment
               agreement, or an offer-in-
               compromise.

               (B) Underlying liability.--The person
          may also raise at the hearing challenges to
          the existence or amount of the underlying tax
          liability for any tax period if the person
          did not receive any statutory notice of
          deficiency for such tax liability or did not
          otherwise have an opportunity to dispute such
          tax liability.

Pursuant to section 6330(d)(1), within 30 days of the issuance of

the notice of determination, the taxpayer may appeal that

determination to this Court if we have jurisdiction over the

underlying tax liability.    Van Es v. Commissioner, 115 T.C. 324,

328 (2000).
                               - 6 -

     Although section 6330 does not prescribe the standard of

review that the Court is to apply in reviewing the Commissioner’s

administrative determinations, we have stated that, where the

validity of the underlying tax liability is properly at issue,

the Court will review the matter on a de novo basis.    Where the

validity of the underlying tax liability is not properly at

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.    Sego v.

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

T.C. 176, 181 (2000).

     We review respondent’s determination to proceed with the

levy action on an abuse of discretion basis because the validity

of the underlying tax liability is not properly at issue.   At the

hearing and in his petition, petitioner raised several arguments

regarding the conduct of his audit and the amount of the

liability.   Petitioner could not dispute the existence or the

amount of the underlying tax liability at the hearing because

petitioner received a notice of deficiency and did have the

opportunity to dispute such liability which resulted in the

stipulated decision.5   See sec. 6330(c)(2)(B).

     In addition, petitioner did not assert in the petition any


     5
        The doctrine of res judicata, which applies to a
stipulated decision, precludes relitigation of the issues
involved in that tax litigation. Cincinnati Transit Inc. v.
Commissioner, 55 T.C. 879, 883 (1971), affd. 455 F.2d 220 (6th
Cir. 1972); Krueger v. Commissioner, 48 T.C. 824, 829 (1967);
Hamdan v. Commissioner, T.C. Memo. 2000-19.
                                 - 7 -

spousal defenses, any challenges to the appropriateness of the

collection actions, or any offers of collection alternatives.

See sec. 6330(c)(2)(A).   There is no basis in the record for the

Court to conclude that respondent abused his discretion with

respect to any of these matters.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and, to the extent not herein

discussed, we find them to be irrelevant or without merit.

     To reflect the foregoing,

                                         An appropriate order and

                                 decision will be entered granting

                                 respondent’s motion for summary

                                 judgment.
