                        T.C. Memo. 2010-93



                      UNITED STATES TAX COURT



               SHIRLEY V. MCCOLLIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19179-08L.             Filed May 3, 2010.



     Shirley V. McCollin, pro se.

     Michelle L. Maniscalco, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GALE, Judge:   Pursuant to sections 6320 and 6330(d),1

petitioner seeks review of respondent’s determination to sustain

a notice of Federal tax lien with respect to petitioner’s unpaid


     1
      Unless otherwise noted, all section references are to the
Internal Revenue Code of 1986 as amended. All dollar amounts
have been rounded to the nearest dollar.
                                - 2 -

trust fund recovery penalties (trust penalties) under section

6672 for the quarterly periods ended December 31, 2002, and June

30, 20032 (relevant periods).   The issues for decision are:   (1)

Whether petitioner is precluded from challenging her underlying

tax liabilities for the relevant periods; and (2) whether

respondent abused his discretion in upholding the notice of

Federal tax lien.3

                        FINDINGS OF FACT

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in New

York at the time she filed the petition.

I.   Petitioner’s Liability for Trust Fund Recovery Penalties

     On October 4, 2005, respondent sent petitioner by certified

mail a Letter 1153, Trust Funds Recovery Penalty Letter,

proposing to assess against petitioner trust fund penalties of

$15,129 pursuant to section 6672 for the relevant periods,


     2
      Although an attachment to respondent’s notice of
determination refers to June 30, 2006, the notice itself and all
other relevant documents refer to June 30, 2003. We conclude
that the reference to 2006 is a typographical error.
     3
      The Court conducted a trial on the issue of whether
petitioner is precluded from challenging her underlying tax
liabilities, leaving the option of a further trial concerning the
merits of the underlying tax liabilities if it were concluded
that petitioner is entitled to challenge them. Given our
conclusion herein that petitioner is precluded from challenging
her underlying liabilities, no further proceedings appear
necessary.
                               - 3 -

attributable to unpaid tax liabilities of Globenet

Telecommunications, Inc. (Globenet).    The Letter 1153 was sent to

petitioner’s last known address and informed her that she had the

right to appeal or protest the proposed assessment and that she

had to mail a written appeal within 60 days of the date of the

letter to preserve her right to appeal.    The U.S. Postal Service

subsequently attempted delivery of the letter before returning it

to respondent marked “Unclaimed”.   Respondent received the

unclaimed letter on October 28, 2005.   Petitioner did not appeal,

and on March 27, 2006, the trust fund penalties were assessed

against petitioner as a responsible party for Globenet’s unpaid

tax liabilities.4

II.   Respondent’s Collection Activities

      On September 14, 2007, respondent sent to petitioner by

certified mail a Notice of Intent to Levy and Notice of Your

Right to a Hearing (levy notice) covering the section 6672

penalties for the relevant periods.    Petitioner received the levy

notice shortly thereafter.   On October 23, 2007, respondent

mailed to petitioner by certified mail a Notice of Federal Tax

Lien Filing and Your Right to a Hearing Under IRC 6320 (lien

notice) covering the section 6672 penalties for the relevant

periods as well as three other quarters in 2002 and two quarters



      4
      In the petition, petitioner averred that she was a “15%
shareholder” of Globenet during the relevant periods.
                                - 4 -

in 2001.   Respondent enclosed a Form 12153, Request for a

Collection Due Process or Equivalent Hearing, with the lien

notice.    Petitioner completed the Form 12153, requesting a

hearing with respect to the relevant periods but not the other

quarters listed on the lien notice.     The Form 12153 explained

petitioner’s disagreement with the lien as follows:     “I was not

the decision maker in the business - all payment decisions were

made by president - Kenneth Williams.”     Next to the form’s

signature line, petitioner entered the date “October 3, 2007”.

Petitioner checked boxes on the form indicating that the basis

for her hearing request was both a lien notice and a levy notice.

She further indicated that she wished to pursue a collection

alternative; namely, an installment agreement or an

offer-in-compromise.    Petitioner hand-delivered an envelope

containing the form and a copy of the levy notice to a security

guard at respondent’s local office in Hauppauge, New York.      The

envelope was dated “October 24”, in the handwriting of

respondent’s security guard.

     The Appeals employee assigned to petitioner’s case took the

position, on the basis that petitioner’s Form 12153 was received

by the Appeals Office on October 24, 2007, that the form was
                               - 5 -

untimely with respect to the proposed levy.5    The Appeals

employee and petitioner conferred by telephone on May 20, 2008,

at which time an installment agreement was discussed, according

to the case activity record.   The case activity record further

records that the Appeals employee subsequently sent petitioner a

proposed installment agreement but that on July 2, 2008,

petitioner called the Appeals employee and informed him that she

did “not want to pay on * * * [her] debt for the rest of her

life” and that she wanted him to issue a notice of determination

so that she could go to the Tax Court.

     On July 7, 2008, the Appeals Office sent petitioner a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330 (notice of determination) sustaining the notice

of Federal tax lien.   The notice of determination stated that

petitioner raised no issues other than challenging her underlying

tax liabilities, which she was ineligible to do “since prior

appeal rights were offered” with respect to the Letter 1153.

Petitioner filed a timely petition contesting the notice of

determination.   In her petition, petitioner’s only averments were

challenges to her underlying tax liabilities.




     5
      According to the Appeals employee’s case activity record,
petitioner did not request an equivalent hearing with respect to
the proposed levy.
                               - 6 -

                              OPINION

I.   Collection Hearing Procedure

     Section 6320(a) requires the Secretary to notify the

taxpayer in writing of the filing of a notice of Federal tax lien

and of the taxpayer’s right to an administrative hearing on the

matter.   At the hearing a taxpayer may raise any relevant issue,

including appropriate spousal defenses, challenges to the

appropriateness of the collection action, and possible collection

alternatives.   Sec. 6330(c)(2)(A).    A taxpayer is precluded,

however, from contesting the existence or amount of the

underlying tax liability unless the taxpayer failed to receive a

notice of deficiency for the tax liability in question or did not

otherwise have an opportunity to dispute the tax liability.       See

sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 609

(2000).

     Following a hearing the Appeals Office must issue a notice

of determination regarding the validity of the filed Federal tax

lien.   In making the determination the Appeals officer is

required to take into consideration:     (1) His verification that

the requirements of applicable law and administrative procedure

have been met; (2) relevant issues raised by the taxpayer; and

(3) whether the proposed collection action appropriately balances

the need for efficient collection of taxes with a taxpayer’s

concerns regarding the intrusiveness of the proposed collection
                                - 7 -

action.   Sec. 6330(c)(3).   If the taxpayer disagrees with the

Appeals Office’s determination, the taxpayer may seek judicial

review by appealing to this Court.      Sec. 6330(d).

II.   Whether Petitioner May Challenge the Underlying Tax
      Liabilities

      Respondent contends, and we agree, that section

6330(c)(2)(B) precludes petitioner from challenging the existence

or amount of her underlying tax liabilities for the relevant

periods because petitioner had a prior opportunity to dispute

them.   Although the Appeals employee concluded in the notice of

determination that petitioner was precluded from challenging the

underlying tax liabilities on the basis of the mailing of the

Letter 1153 to petitioner and its return to respondent unclaimed,

we need not decide whether the circumstances surrounding the

Letter 1153 provided sufficient grounds for the Appeals

employee’s conclusion.   That is so because, even if the Appeals

employee erred in relying on the Letter 1153, such error was

harmless.   The levy notice, which petitioner acknowledged

receiving sometime “close” to its mailing date of September 14,

2007, constituted a prior opportunity to dispute the underlying

tax liability as contemplated in section 6330(c)(2)(B).     See Bell

v. Commissioner, 126 T.C. 356, 358 (2006).

      As our findings reflect, we conclude that petitioner

submitted the Form 12153 hearing request on October 24, 2007, and

not on or about October 3, 2007, as petitioner claims.
                                 - 8 -

Petitioner testified, and respondent’s records reflect, that she

hand-delivered the Form 12153 to respondent’s office at

Hauppauge, New York.   The envelope in which the form was

delivered has the notation “October 24” handwritten on it.

Respondent’s collection group manager at the Hauppauge office

testified credibly that it was standard practice at the office

for the security guard to accept hand-delivered materials and to

date them, and that he recognized the “October 24” notation as

the handwriting of the security guard.    The Form 12153 itself

also bears a “RECEIVED” stamp of October 24, 2007, corroborating

the foregoing.   Petitioner, by contrast, was unable to recall at

trial the exact date on which she delivered the form to

respondent’s office.   Moreover, petitioner offers no explanation

as to how the Form 12153 could have been delivered on or about

October 3, 2007, when the form requested a hearing for both the

levy notice and the lien notice, the latter of which was not

issued until October 23, 2007.    In these circumstances, we are

persuaded that delivery occurred on October 24, 2007.

     The levy notice was dated September 14, 2007.    Accordingly,

the last day for making a timely hearing request with respect to

the levy notice was October 15, 2007.6   Petitioner’s Form 12153

was therefore untimely with respect to the levy notice, with the

result that she failed to avail herself of a previous opportunity


     6
      Oct. 14, 2007, was a Sunday.
                                - 9 -

to dispute the underlying tax liabilities.   See id. (“This

statutory preclusion is triggered by the opportunity to contest

the underlying liability, even if the opportunity is not

pursued.” (emphasis added)).    We conclude that the Appeals

employee’s determination that petitioner was precluded from

challenging the underlying tax liabilities under section

6330(c)(2)(B) was proper.

III. Review of the Notice of Determination for Abuse of
     Discretion

     Because the validity of the underlying tax liabilities is

not properly at issue, we review the notice of determination for

abuse of discretion.   See Sego v. Commissioner, supra at 610;

Goza v. Commissioner, 114 T.C. 176, 182 (2000).    In reviewing for

abuse of discretion under section 6330(d)(1), generally we

consider only arguments, issues, and other matters that were

raised at the section 6330 hearing or otherwise brought to the

attention of the Appeals Office.    Giamelli v. Commissioner, 129

T.C. 107, 115 (2007); see also sec. 301.6320-1(f)(2), Q&A-F3,

Proced. & Admin. Regs.   However, we review whether the Appeals

Office verified compliance with applicable law under section

6330(c)(1) without regard to whether the taxpayer raised it as an

issue at the Appeals hearing.    Hoyle v. Commissioner, 131 T.C.

197, 202-203 (2008).   The Appeals Office abuses its discretion if

its “discretion has been exercised arbitrarily, capriciously, or
                                - 10 -

without sound basis in fact.”    Mailman v. Commissioner, 91 T.C.

1079, 1084 (1988).

       Petitioner has not advanced any argument or presented any

evidence that would allow us to conclude that the determination

to sustain the lien was arbitrary, capricious, or without

foundation in fact, or otherwise an abuse of discretion.    See,

e.g., Giamelli v. Commissioner, supra at 111-112, 115.     According

to the case activity record and notice of determination, while an

installment agreement was initially considered, petitioner

terminated such consideration because she wanted to contest the

underlying tax liabilities in the Tax Court.    Petitioner has not

disputed the foregoing.

       According to respondent’s notice of determination, the

Appeals employee verified through transcript analysis that valid

assessments of the underlying tax liabilities were made for the

relevant periods.    Petitioner has not disputed the foregoing.

Transcripts of account for each year are in the record, and they

demonstrate compliance with assessment procedures.    We

accordingly find that the Appeals employee verified that all

requirements of applicable law and administrative procedure were

met.    Further, the Appeals Office concluded that the filing of

the notice of Federal tax lien balanced the need for efficient

collection of taxes with concerns that the collection action be

no more intrusive than necessary, according to the notice of
                              - 11 -

determination.   Petitioner has not disputed the foregoing.

Petitioner raised no other issues throughout the section 6330

administrative process, in her petition, or at trial.     On the

basis of the foregoing, we conclude that respondent did not abuse

his discretion in sustaining the notice of Federal tax lien.

     We have considered all of petitioner’s statements,

contentions, arguments, and requests that are not discussed

herein, and, to the extent we have not found them to be frivolous

and/or groundless, we find them to be without merit and/or

irrelevant.

     To reflect the foregoing,


                                      Decision will be entered

                                 for respondent.
