T.C. Memo. 2002-233
UNITED STATES TAX COURT
SAMUEL S. LEE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2635-01L. Filed September 18, 2002.
Samuel S. Lee, pro se.
Thomas R. MacKinson, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioner petitioned the Court under section
6330(d) to review respondent’s determination as to a proposed
levy to collect Federal income taxes for 1991 and 1992.1 We
1
Section references are to applicable versions of the
Internal Revenue Code.
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decide herein whether respondent may proceed with the proposed
levy. We hold he may.
FINDINGS OF FACT
Most facts were stipulated. We incorporate by this
reference the parties’ stipulation of facts and the accompanying
exhibits. We find those facts accordingly. Petitioner resided
in California when the petition commencing this proceeding was
filed.
Petitioner failed to file timely 1991 and 1992 Federal
income tax returns. Respondent prepared substitute returns for
those years and on July 22, 1996, assessed tax, additions to tax,
and interest. On May 16, 1997, petitioner and his wife filed
joint 1991 and 1992 Federal income tax returns.
Contemporaneously therewith, they also filed a joint 1990 Federal
income tax return claiming a refund of $11,646 for Federal income
tax withheld by one or more employers.2 Respondent accepted all
three returns and abated the prior assessments for 1991 and 1992.
2
On June 30, 1997, the Commissioner mailed a letter to
petitioner and his wife requesting documentation such as a 1990
Form W-2, Wage and Tax Statement, or a copy of an earnings
statement with year-to-date totals that would support their claim
that they had Federal income taxes withheld for 1990. On May 5,
1998, the Commissioner delivered to petitioner and his wife a
similar request for that documentation. The Commissioner never
received that documentation from either petitioner or his wife.
On July 12, 1999, the Commissioner acknowledged that petitioner
and his wife had overpaid their 1990 tax by $3,032.80, and
credited that amount to their 1991 tax. (The record does not
indicate the source of the $3,032.80.) Petitioner continues to
claim in this proceeding that his 1990 overpayment was $11,646.
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On April 24, 1998, respondent mailed to petitioner notices
of deficiency for 1991 and 1992. The deficiencies were
attributable to respondent’s determination that petitioner owed
self-employment tax on the income reported on his returns. As to
1991, the notice determined that petitioner was liable for a
$5,840 deficiency in income tax and a $1,460 addition to tax
under section 6651(a)(1). As to 1992, the notice determined that
petitioner was liable for a $2,609 deficiency in income tax and a
$652.25 addition to tax under section 6651(a)(1). Petitioner
received both notices of deficiency, but he did not petition the
Court in response to either notice.
On February 18, 1999, respondent issued to petitioner a
Notice of Intent to Levy and Notice of Your Right to a Hearing
for taxable years 1991 and 1992. On or about March 8, 1999,
petitioner requested such a hearing, and the hearing was held on
September 25, 2000. During the hearing, the Appeals officer
concluded that petitioner had “reasonable cause” for failing to
file timely his 1991 and 1992 returns and agreed to abate the
related additions to tax under section 6651(a)(1). Petitioner
also argued during the hearing that his liability for 1991 and
1992 should be offset by the refund claimed on his 1990 return.
The Appeals officer refused to consider this argument.
On February 2, 2001, respondent issued a notice of
determination to petitioner for 1991 and 1992, which abated the
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additions to tax and sustained the proposed levy to collect the
remainder of liability.
OPINION
In a proceeding commenced under section 6330(d), the Court
applies a de novo standard to redetermine a taxpayer’s underlying
tax liability, when and if at issue, and an abuse of discretion
standard to review certain other administrative determinations of
the Commissioner. Sego v. Commissioner, 114 T.C. 604, 610
(2000). Section 6330(c)(2)(B) provides that a taxpayer’s
underlying tax liability may only be at issue if he or she “did
not receive any statutory notice of deficiency for such tax
liability or did not otherwise have an opportunity to dispute
such tax liability.”
Here, petitioner received notices of deficiency for 1991 and
1992 and had opportunity to dispute his liability for those
years. His underlying tax liability is therefore not in issue.
Petitioner’s sole argument in this proceeding concerns his right
to offset his tax and interest liability for those years with his
claimed refund for 1990. By way of an Order dated July 24, 2002,
we dismissed petitioner’s allegations with respect to 1990 as the
credit or refund of any Federal income tax withheld by his or his
wife’s employer for 1990 would be time barred. Under section
6511(b)(2)(A), as applicable herein, petitioner’s credit or
refund of tax paid for 1990 is limited to the portion of that tax
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paid within the 3-year period immediately preceding the filing of
his 1990 Federal income tax return. Under section 6513(b)(1),
any Federal income taxes withheld by petitioner or his wife’s
employer for 1990 are considered paid to the Commissioner by
petitioner or his wife on April 15, 1991. See also Landry v.
Commissioner, 116 T.C. 60 (2001). Given that petitioner advances
no other allegation of error as to respondent’s determination,
and that the record does not otherwise disprove the
determination, we sustain respondent’s determination that he may
proceed with the proposed levy.
Decision will be entered
for respondent.