                    T.C. Summary Opinion 2007-75



                       UNITED STATES TAX COURT



                MARK LEWIS TRACTON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 13238-05S.             Filed May 21, 2007.



     Mark Lewis Tracton, pro se.

     Horace Crump, for respondent.



     GALE, Judge:   This case was heard pursuant to the provisions

of section 7463 of the Internal Revenue Code in effect when the

petition was filed.1   Pursuant to section 7463(b), the decision

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



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986.
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opinion shall not be treated as a precedent for any other case.

     This proceeding arises from a petition for review in

response to a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 that was sent to

petitioner on June 16, 2005, concerning his income tax liability

for 1997.   The issue for decision is whether respondent abused

his discretion in sustaining a Federal tax lien with respect to

petitioner's 1997 liability.

                             Background

     Some of the facts have been stipulated and are so found.     We

incorporate by this reference the stipulation of facts and the

exhibits attached thereto.    At the time the petition was filed,

petitioner resided in Mobile, Alabama.

     Petitioner filed a Federal income tax return for the 1997

taxable year.2   On that return, petitioner did not report any

income from Witness Incorporated (Witness) despite having

received a Form 1099-MISC, Miscellaneous Income, issued by

Witness that indicated he had received $56,370 in nonemployee

compensation during 1997.    Petitioner was a cofounder and



     2
       The record does not include a copy of petitioner's 1997
return, and there is conflicting evidence in the record with
regard to petitioner's filing status for that year. As discussed
infra, the underlying liability for 1997 is not properly at issue
in this case. Consequently, petitioner's filing status for 1997
is not material.
                                - 3 -

president of Witness.   He resigned his position as president in

October 1996 but in doing so offered to continue to serve the

company in other capacities.

     On August 30, 1999, the Internal Revenue Service (IRS) sent

a Notice CP 2501, Initial Inquiry Letter, requesting additional

information from petitioner about the discrepancy between the

income he reported on his 1997 return and the information that

was reported to the IRS by others, including Witness.    Petitioner

complied with this request, and received a letter from the IRS

acknowledging his response.    On November 13, 2000, a statutory

notice of deficiency (based on $56,370 of omitted income from

Witness) was sent by certified mail to petitioner at the same

address where respondent had sent the Notice CP 2501 on August

30, 1999 (to which petitioner responded).    Petitioner did not

petition the Tax Court with respect to the notice of deficiency.

     On June 4, 2002, a Letter 11, Notice of Intent to Levy and

Notice of Your Right to a Hearing, with respect to petitioner's

income tax liability for 1997 was mailed to petitioner.

Petitioner timely submitted a Form 12153, Request for a

Collection Due Process Hearing, with respect to the levy notice.

In connection with the hearing on the proposed levy (levy

hearing) petitioner contended that he did not receive any income

from Witness in 1997.   The Appeals employee conducting the levy
                               - 4 -

hearing concluded that petitioner had not provided any

"reasonable" evidence that he had not received the notice of

deficiency for 1997 mailed to him and accordingly that petitioner

was precluded under section 6330(c)(2)(B) from challenging the

underlying liability.   On March 22, 2004, a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (levy notice of determination) was issued to

petitioner that sustained the levy.     Petitioner did not petition

the Tax Court with respect to the levy notice of determination.

     On February 2, 2005, a Letter 3172, Notice of Federal Tax

Lien Filing and Your Right to a Hearing Under IRC 6320, with

respect to petitioner's 1997 taxable year was sent to petitioner.

On April 7, 2005, respondent received petitioner's timely

submitted Form 12153, in which petitioner again contended that he

never received the income that gave rise to the 1997 liability

that respondent was seeking to collect.

     On May 8, 2005, respondent sent a letter scheduling

petitioner's hearing and advising that petitioner was prohibited

from disputing the 1997 liability at the hearing because a

statutory notice of deficiency had been issued to him and he had

failed to contest it in Tax Court.     The letter also notified

petitioner that if he wanted the Appeals employee to consider

collection alternatives, petitioner would be required to submit a
                                - 5 -

completed Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals, and signed Federal income

tax returns for 1999-2004 (which respondent's records indicated

had not been filed).

     During the hearing, the only issue petitioner raised was the

existence of his underlying tax liability for 1997.      He did not

propose any collection alternatives, he did not complete a Form

433-A as requested, nor did he file any delinquent income tax

returns.   On June 16, 2005, a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (lien notice

of determination) was issued to petitioner that sustained the

lien.

     Petitioner timely filed his petition in the present case on

July 18, 2005.   The petition alleges that the Form 1099-MISC

issued by Witness is fraudulent and that petitioner received no

income from Witness in 1997.

                             Discussion

     Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person when a demand for

the payment of the person's liability for taxes has been made and

the person fails to pay those taxes.      The lien arises when an

assessment is made.    Sec. 6322.   Section 6323(a) requires the

Secretary to file a notice of Federal tax lien if the lien is to
                               - 6 -

be valid against any purchaser, holder of a security interest,

mechanic's lienor, or judgment lien creditor.    Lindsay v.

Commissioner, T.C. Memo. 2001-285, affd. 56 Fed. Appx. 800 (9th

Cir. 2003).

     Section 6320 provides that the Secretary must send a

taxpayer written notice of the filing of a notice of Federal tax

lien under section 6323.   The notice required by section 6320

must be provided not more than 5 business days after the filing

of the notice of lien.   Sec. 6320(a)(2).   Section 6320 further

provides that the person may request administration review of the

matter (in the form of an Appeals Office hearing) within 30 days

beginning on the day after the 5-day period.    An administrative

hearing under section 6320 is conducted in accordance with the

procedural requirements of section 6330.    Sec. 6320(c).

     Section 6330(c)(2) prescribes the matters that a person may

raise at an Appeals Office hearing.    Under that section, a person

may raise any relevant issue relating to the unpaid tax,

including a spousal defense or collection alternatives.     Sec.

6330(b) and (c)(2); sec. 301.6320-1(e)(1), Proced. & Admin. Regs.

A challenge to the existence or amount of the underlying tax

liability may also be made, but only 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
                                - 7 -

liability.   Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C.

604, 609 (2000); Goza v. Commissioner, 114 T.C. 176, 180-181

(2000).   A prior opportunity to dispute the underlying tax

liability includes a prior hearing pursuant to section 6330

concerning the liability where the taxpayer fails to seek

judicial review of the Appeals Office's determination arising

from that hearing.   Bell v. Commissioner, 126 T.C. 356 (2006).

     The sole material3 issue raised by petitioner at his hearing

and at trial with respect to the unpaid 1997 tax and the lien is

his claim that he did not receive the income that gave rise to

the unpaid liability.    Respondent argues that petitioner's

contention constitutes a challenge to the underlying tax

liability for 1997 that is precluded under section 6330(c)(2)(B)

because petitioner had a previous opportunity to dispute the

liability.   We agree.




     3
       Two other immaterial issues were raised by petitioner.
First, petitioner complains of respondent's failure to provide
him with a copy of his 1997 return. The Appeals officer,
however, was not required to furnish documentation or information
to petitioner beyond proof of the assessment. See, e.g., Nestor
v. Commissioner, 118 T.C. 162, 166-167 (2002); Scott v.
Commissioner, T.C. Memo. 2007-91. Second, petitioner complains
that respondent has sent information regarding petitioner's tax
liabilities to an unauthorized third party. Our jurisdiction in
this case is limited to the issue of whether respondent may
proceed with the proposed collection action. Petitioner's remedy
for any unauthorized disclosure of his personal tax information
lies in the U.S. District Court. See sec. 7431.
                               - 8 -

     As in Bell v. Commissioner, supra, petitioner received a

prior hearing pursuant to section 6330 (the levy hearing) when

respondent proposed a levy to collect petitioner’s 1997

liabilities in June 2002.   The Appeals employee conducting the

levy hearing rejected petitioner's claim that he had not received

the notice of deficiency for 1997 and therefore would not

consider petitioner’s challenge to the underlying tax liability.

When the levy notice of determination was issued, petitioner

could have obtained judicial review of the determination,

including the issue of whether the Appeals employee properly

refused to consider the underlying tax liability for 1997, but

did not.   Accordingly, under Bell v. Commissioner, supra,

petitioner has had a prior opportunity to dispute the underlying

liability and may not do so in this proceeding.4   In sum,

petitioner forfeited his opportunity to obtain judicial review of

his claim that he did not receive the income reported by Witness

for 1997 by failing to petition the Tax Court with respect to the

earlier notice of determination he received concerning the levy.

     As the challenge to the underlying tax liability for 1997 is

the only relevant issue that petitioner has raised, respondent is


     4
       Because we conclude that petitioner had a prior
opportunity to dispute the underlying tax liability as a result
of the levy notice of determination issued to him, we need not
address whether petitioner actually received the notice of
deficiency issued to him with respect to 1997.
                                 - 9 -

entitled to a decision in his favor.       We therefore conclude that

respondent did not abuse his discretion in sustaining the notice

of Federal tax lien.

     We have considered all the remaining arguments made by the

parties for results contrary to those expressed herein, and to

the extent not discussed, we conclude those arguments are moot,

without merit, or unnecessary to reach.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
