                    118 T.C. No. 30



                UNITED STATES TAX COURT



           RAYMOND B. MAGANA, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 10306-00L.                 Filed May 31, 2002.



     Held: Under sec. 6330(c)(4), I.R.C., in this
judicial proceeding involving respondent’s proposed
collection activity, petitioner is precluded from
relitigating a statute of limitations issue that was
previously adjudicated in a related District Court
proceeding. Respondent’s motion for summary judgment
with regard thereto is granted.

     Held, further, in our review for an abuse of
discretion under sec. 6330(d)(1), I.R.C., of
respondent’s determination, generally we consider only
arguments, issues, and other matter that were raised at
the collection hearing or otherwise brought to the
attention of the Appeals Office. This case does not
involve an allegation of recent, unusual illness or
hardship, or other special circumstance, that might
cause us to make an exception to the general rule set
forth herein and to consider petitioner’s new hardship
argument.
                               - 2 -


     Paul H. Durham, for petitioner.

     William F. Castor, for respondent.



                              OPINION

     SWIFT, Judge:   This matter is before us on respondent’s

motion under Rule 121 for summary judgment.   Petitioner

challenges respondent’s Appeals Office determination sustaining

the filing of Federal tax liens relating to petitioner’s $472,532

assessed and unpaid Federal income tax deficiency for 1980.

     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 applicable to the

year in issue.

     The issues for decision on respondent’s motion for summary

judgment are whether we, in reviewing respondent’s notice of

determination under section 6330(d)(1) for an abuse of

discretion:   (1) May consider a statute of limitations contention

that was asserted by petitioner and adjudicated against

petitioner in a prior District Court proceeding; and (2) shall

consider a new issue that was not raised by petitioner at his

collection hearing with respondent’s Appeals Office.
                              - 3 -


                           Background

     At the time the petition was filed, petitioner resided in

Bartlesville, Oklahoma.

     Based on an amended Federal income tax return filed by

petitioner for 1980, on April 23, 1984, respondent assessed

against petitioner the above $472,532 Federal income tax

deficiency.

     In November of 1988, petitioner submitted an offer in

compromise that was rejected by respondent.    In October of 1990,

the statute of limitations on collection under section 6502 was

amended to provide a 10-year period from the date of assessment

for the collection of Federal taxes (extended from 6 years).

Omnibus Budget Reconciliation Act of 1990, Pub. L. 101-508, sec.

11317(a)(1), 104 Stat. 1388-458.

     On May 19, 1995, the United States brought an action in the

District Court for the Northern District of Oklahoma to reduce to

judgment respondent’s above $472,532 unpaid Federal income tax

assessment against petitioner for 1980.   United States v. Magana,

No. 95-CV-462-K (N.D. Okla., Jan. 26, 2000).   In the above

District Court proceeding, petitioner asserted that the period of

limitations on collection of petitioner’s unpaid tax liability

for 1980 had expired as of May 19, 1995, the day on which the

above suit was filed by the United States against petitioner.
                               - 4 -

     On or about November 19, 1999, respondent mailed to

petitioner copies of Forms 668(Y)(c), Notices of Federal Tax

Liens (lien filings), that respondent, on November 19, 1999, had

filed in various counties in Oklahoma with respect to

petitioner’s above unpaid $472,532 tax liability for 1980.

     On December 22, 1999, petitioner requested in writing from

respondent’s Appeals Office a collection hearing under section

6320 seeking release of respondent’s lien filings relating to

petitioner.

     In petitioner’s request for a collection hearing, petitioner

asserted only that the period of limitations on collection under

section 6502 of petitioner’s unpaid tax liability for 1980 had

expired and therefore that respondent’s lien filings with regard

thereto were untimely and improper.    Petitioner did not indicate

any other basis for his challenge to the appropriateness of

respondent’s lien filings.   Petitioner did not allege hardship,

and petitioner did not offer any alternative to the lien filings.

     On January 26, 2000, in United States v. Magana, supra, the

District Court granted the United States’ motion for summary

judgment, and on February 22, 2000, the District Court entered a

judgment against petitioner in favor of the United States in the

amount of $472,532 with respect to petitioner’s unpaid tax

liability for 1980.
                               - 5 -

     In its ruling on the United States’ motion for summary

judgment relating to petitioner’s unpaid tax liability for 1980,

the District Court concluded that the period of limitations on

collection of petitioner’s tax liability for 1980 remained open.

United States v. Magana, supra.1

     Petitioner’s motion for rehearing was denied in the above

District Court case, and petitioner did not appeal the District

Court judgment.   On June 18, 2000, that judgment became final.

Fed. R. App. P. 4(a)(1)(B).   In United States v. Magana, supra,

petitioner was represented by counsel.

     During petitioner’s collection hearing with respondent’s

Appeals Office, petitioner, by way of counsel, again asserted the

same statute of limitations contention.   Also during the

collection hearing, petitioner did not allege hardship, and

petitioner did not wish to discuss any alternatives to the lien

filings.   Respondent’s Appeals Office memorandum expressly states

in this regard that petitioner’s counsel “did not desire a

discussion with regard to alternatives” to the lien filings and

“Therefore, Appeals is unable to make an alternative

determination that is less intrusive” than the lien filings.




1
     The District Court’s ruling was based on the execution by
petitioner of an extension of the period of limitations on
collection, on an offer in compromise submitted by petitioner to
respondent, and on the referred-to statutory extension of the
period of limitations on collection from 6 years to 10 years.
                               - 6 -

     On August 31, 2000, respondent’s Appeals Office mailed to

petitioner a notice of determination in which respondent’s lien

filings were sustained.   In the above notice of determination,

with regard to the statute of limitations contention asserted by

petitioner, respondent’s Appeals Office concluded that the period

of limitations on collection had not expired.   Also in the notice

of determination, respondent’s Appeals Office concluded that,

because petitioner did not wish to discuss any collection

alternatives and because petitioner did not raise any concerns

regarding collection other than the statute of limitations, the

lien filings balanced the need for efficient collection of taxes

with the legitimate concerns of petitioner that the lien filings

be no more intrusive than necessary.

     On September 29, 2000, petitioner timely filed a petition

herein for our review of the above notice of determination.   In

his petition, petitioner reiterated his claim that the period of

limitations on collection had expired with respect to his tax

liability for 1980 and therefore that respondent’s lien filings

were untimely and improper.   The basis for petitioner’s statute

of limitations contention was that he allegedly had not executed

an extension of the period of limitations on the collection of

petitioner’s unpaid tax liability for 1980.

     Also in his petition, petitioner, for the first time, raised

hardship as an objection to respondent’s lien filings (namely,
                               - 7 -

petitioner’s physical illness and the resulting cloud on title to

petitioner’s residence, petitioner’s only significant asset).

Petitioner makes no other argument with regard to the propriety

of respondent’s notice of determination.

     On February 13, 2002, at the hearing before us on

respondent’s motion for summary judgment, petitioner’s counsel

acknowledged that petitioner’s ill health was not recent but had

extended back over 20 years.   Further, at that hearing, in

response to a question from the Court as to why hardship had not

been raised at petitioner’s collection hearing or otherwise

brought to the attention of respondent’s Appeals Office,

petitioner’s counsel acknowledged that he had had an opportunity

at the collection hearing to raise hardship but that he had

chosen not to do so.


                           Discussion

Statute of Limitations

     Respondent argues that under section 6330(c)(4) and under

the principle of collateral estoppel petitioner is precluded in

this case from asserting that no effective extension to extend

the period of limitations on collection of petitioner’s unpaid

tax liability for 1980 was executed by petitioner.   We agree with

respondent.

     Section 6330(c)(4) expressly provides that taxpayers, at

collection hearings before respondent’s Appeals Office, may not
                              - 8 -

raise issues that were previously raised by taxpayers and

considered in any other administrative or judicial proceeding in

which the taxpayers meaningfully participated.   See secs.

301.6320-1(e)(1), 301.6330-1(e)(1), Proced. & Admin. Regs.    These

statutory and regulatory prohibitions are directly applicable to

the statute of limitations contention that petitioner previously

litigated in United States v. Magana, No. 95-CV-462-K (N.D.

Okla., Jan. 26, 2000), that he sought to raise at his collection

hearing, and that he now asks this Court to consider.2

     Petitioner is precluded from raising the statute of

limitations contention.


New Issue

     As indicated, petitioner for the first time in his petition

raised hardship as an objection to respondent’s lien filings.

     In respondent’s motion for summary judgment, respondent

asserts that, under the abuse of discretion standard that applies

to our review of respondent’s lien filings, petitioner’s new

ground for opposing respondent’s lien filings (namely, hardship)

is not properly before this Court.



2
     Also, based on collateral estoppel, petitioner would be
precluded from relitigating in this Court the statute of
limitations contention that was adjudicated in the District Court
proceeding. See Graham v. Commissioner, 76 T.C. 853, 856-857
(1981); see also Gass v. United States, 4 Fed. Appx. 565, 568
(10th Cir. 2001) (applying collateral estoppel to bar the
taxpayers’ claims previously litigated in the Tax Court).
                                 - 9 -

     Under section 6330(d)(1), respondent’s notices of

determination generally are to be reviewed only for an abuse of

discretion.   Lunsford v. Commissioner, 117 T.C. 183, 185 (2001);

Nicklaus v. Commissioner, 117 T.C. 117, 120 (2001); Davis v.

Commissioner, 115 T.C. 35, 39 (2000); Sego v. Commissioner, 114

T.C. 604, 609-610 (2000); Goza v. Commissioner, 114 T.C. 176,

181-182 (2000) (citing H. Conf. Rept. 105-599, at 266 (1998),

1998-3 C.B. 755, 1020); MRCA Info. Servs. v. United States, 145

F. Supp. 2d 194, 198 (D. Conn. 2000).

     Under that standard of review, generally it would be

anomalous and improper for us to conclude that respondent’s

Appeals Office abused its discretion under section 6330(c)(3) in

failing to grant relief, or in failing to consider arguments,

issues, or other matter not raised by taxpayers or not otherwise

brought to the attention of respondent’s Appeals Office.    McCoy

Enters., Inc. v. Commissioner, 58 F.3d 557, 563 (10th Cir. 1995)

(“The Tax Court * * * cannot find an abuse of discretion where

there is no evidence that the Commissioner exercised any

discretion at all”), affg. T.C. Memo. 1992-693; Estate of Chimblo

v. Commissioner, T.C. Memo. 1997-535, affd. 177 F.3d 119 (2d Cir.

1999); see also secs. 301.6320-1(f)(2), Q&A-F5, 301.6330-1(f)(2),

Q&A-F5, Proced. & Admin. Regs.

     Accordingly, in our review for an abuse of discretion under

section 6330(d)(1) of respondent’s determination, generally we
                              - 10 -

consider only arguments, issues, and other matter that were

raised at the collection hearing or otherwise brought to the

attention of the Appeals Office.

     In this case, because petitioner’s alleged longstanding

illness and hardship were not raised as an issue and were not

otherwise brought to respondent’s attention in connection with

petitioner’s collection hearing with respondent’s Appeals Office,

petitioner may not now raise hardship for the first time before

this Court.   Petitioner herein has not established any credible

basis for us to make an exception to the above general rule.    See

The Inner Office, Inc. v. United States, No. 3:00-CV-2576-L, 2001

U.S. Dist. LEXIS 20617, at *5-6 (Magis. N.D. Tex., Dec. 11, 2001)

(“In seeking * * * [judicial] review of a Notice of

Determination, the taxpayer can only ask the court to consider an

issue that was raised in the taxpayer’s * * * [collection]

hearing.”), adopted on this issue 89 AFTR 2d 2002-1311 (N.D. Tex.

2002); see also Miller v. Commissioner, 115 T.C. 582, 589 n.2

(2000) (“we would not consider * * * [taxpayer’s] alternative

request * * * because the record does not establish that he

raised that issue at his Appeals Office hearing”), affd.

per curiam 21 Fed. Appx. 160 (4th Cir. 2001); Sego v.

Commissioner, supra at 612 (“Matters raised after a hearing do

not reflect on whether the determinations that are the basis of

this petition were an abuse of discretion.”).
                             - 11 -

     This case does not involve an allegation of recent, unusual

illness or hardship, or other special circumstance, that might

cause us to make an exception to the general rule set forth

herein and to consider petitioner’s new hardship argument.

Further, under section 6334(a)(13) and (e), respondent may not

levy upon petitioner’s principal residence without approval of a

Federal District Court.3

     For the reasons stated, we shall grant respondent’s motion

for summary judgment.


                                   An appropriate order and

                              decision will be entered.




3
     Also, we note that this case does not involve a claim under
sec. 6015 for relief from joint and several liability, and the
general rule set forth herein is not intended to control the
issue of whether such a claim under sec. 6015 may be raised in a
collection proceeding under sec. 6330(d)(1) for the first time in
this Court. We leave that question for another day.
