T.C. Memo. 2002-48
UNITED STATES TAX COURT
TERRY K. MANN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6263-00L. Filed February 21, 2002.
Joyce Griggs, for petitioner.
Ross M. Greenberg, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioner petitioned the Court under section
6330(d).1 We must decide whether (1) respondent abused his
discretion under section 6330 and (2) petitioner is liable for a
section 6673(a)(1) penalty.
1
Section references are to the Internal Revenue Code
applicable to the years in issue.
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FINDINGS OF FACT
Most facts were stipulated. We incorporate herein by this
reference the parties’ stipulation of facts and the accompanying
exhibits. Petitioner resided in Artesia, New Mexico, at the time
his petition was filed with the Court.
In a letter dated September 13, 1999, respondent mailed a
“Final Notice - Notice of Intent to Levy and Notice of Your Right
to a Hearing” to petitioner with respect to Federal income taxes.
The September 13 notice informed petitioner of (1) respondent’s
intention to levy under section 6331 and (2) petitioner’s right
to Appeals Office consideration. Additionally, enclosed with the
notice was a copy of Form 12153, Request for a Collection Due
Process Hearing, to request a hearing with the Appeals Office.
On October 12, 1999, pursuant to section 6330(a), petitioner
timely requested a hearing using the Form 12153. In the request
for a hearing, petitioner questioned the existence of a “valid
summary record of assessment pursuant to 26 CFR § 301.6203-1.”
On March 29, 2000, respondent mailed to petitioner a letter
stating that it was the Appeals officer’s “determination that * *
* [petitioner’s] reasons for disagreeing with the proposed
enforcement actions are frivolous and without merit” and
scheduling a hearing for April 19, 2000. Petitioner did not
attend the scheduled hearing and did not contact the Appeals
officer to reschedule the hearing.
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On May 11, 2000, respondent issued a notice of determination
to petitioner. The notice concluded: (1) All procedural,
administrative, and statutory requirements were met;
(2) petitioner failed to attend the scheduled hearing;
(3) petitioner failed to present any collection alternatives; and
(4) the proposed levy was justified. The Appeals officer
sustained the proposed levy on the basis of his review of a
computer transcript of respondent’s records. The Appeals officer
did not consider a Form 4340, Certificate of Assessments,
Payments, and Other Specified Matters.
On June 5, 2000, petitioner filed a timely petition with
this Court. On December 4, 2000, counsel for respondent provided
petitioner with a copy of a Form 4340 dated October 3, 2000.
OPINION
In a section 6330(d) appeal, where the validity of the
underlying tax liability is properly at issue, the Court will
review the liability de novo. Where the underlying liability is
not at issue, the Court will review the Commissioner’s
administrative determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000). The validity of the
underlying tax liability is not at issue in this case;
consequently, we review respondent’s actions under the abuse of
discretion standard.
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Petitioner alleges two errors by respondent. First,
petitioner alleges that the Appeals officer abused his discretion
by failing to obtain from the Secretary an assessment document
prepared by the assessment officer and certified under oath by an
authorized official. Instead, the Appeals officer relied upon
computer transcripts to verify the existence of an assessment.
Second, petitioner alleges the Appeals officer failed to grant
petitioner the requested hearing.
Section 6331(a) provides the Secretary with the authority to
levy upon the property of a taxpayer who is liable to pay any tax
and who neglects or refuses to pay such tax within 10 days after
notice and demand for payment. Section 6331(d) provides that the
Secretary must provide the taxpayer with notice of intent to levy
at least 30 days before the day of the levy.
In addition to the notice required by section 6331(d),
section 6330 provides the taxpayer with the right to a prelevy
hearing. Section 6330(e) generally provides that if the taxpayer
has timely requested a hearing with the Appeals Office, the
Secretary’s levy actions are suspended while the Appeals Office
considers the matter and during any appeal therein.
Section 6330(c)(1) requires the Appeals officer to “obtain
verification from the Secretary that the requirements of any
applicable law or administrative procedure have been met.”
Section 6330(c)(2) provides the taxpayer with the right to raise
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issues including: Appropriate spousal defenses, challenges to the
appropriateness of the collection actions, and offers of
collection alternatives. Challenges to the underlying liability
may be raised if the taxpayer did not receive a statutory notice
of deficiency or otherwise have an opportunity to dispute the
underlying liability. Judicial review of the Appeals officer’s
administrative determination is available in this Court, or if
this Court lacks jurisdiction over the type of tax underlying the
liability, in the appropriate U.S. District Court. See sec.
6330(d).
Issue 1. Verification of the Existence of an Assessment
Petitioner contends that the Appeals officer’s reliance upon
the computer transcript to verify the existence of an assessment
does not comply with section 6330(c)(1). In relevant part,
section 6330(c)(1) provides “the appeals officer shall at the
hearing obtain verification from the Secretary that the
requirements of any applicable law or administrative procedure
have been met.” Respondent contends that the Appeals officer
satisfied this requirement by reviewing the computer transcript
to verify the existence of an assessment. Petitioner has not
shown any irregularities in the assessment procedure. In this
case, reliance upon the computer transcript to verify the
existence of an assessment was not an abuse of discretion.
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Petitioner also contends that he was not given a hearing as
required by section 6330. Respondent contends that the Appeals
officer scheduled a hearing and provided petitioner with written
notice of the hearing. Petitioner has not contended that he did
not receive notice of the scheduled hearing. Petitioner did not
attend the scheduled hearing and did not attempt to reschedule
the hearing. The Court agrees with respondent that petitioner
was granted an opportunity for a hearing. Accordingly, we hold
that respondent’s determination to proceed with the levy is not
an abuse of discretion.
Issue 2. Section 6673(a)(1) Penalty
We decline to impose a penalty under section 6673(a)(1).
Contentions we have not addressed are irrelevant, moot, or
meritless.
To reflect the foregoing,
An appropriate order will be
issued, and decision will be
entered for respondent.