T.C. Memo. 2003-1
UNITED STATES TAX COURT
CAROL LEE MOORE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7556-01L. Filed January 2, 2003.
Carol Lee Moore, pro se.
Kevin M. Murphy, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: The petition in this case was filed in
response to a Notice of Determination Concerning Collection
Action Under Section 6320 (notice of determination).1 Pursuant
to section 6330(d), petitioner seeks review of respondent’s
filing of a notice of lien under section 6323.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
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FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts, with accompanying exhibits, is
incorporated herein by this reference. At the time she filed her
petition, petitioner resided in Liverpool, New York.
On April 12, 1994, respondent sent petitioner a notice of
deficiency determining a deficiency of $2,333 and a penalty under
section 6662(a) of $467 for 1992. Respondent determined that
petitioner did not qualify for a filing status of “head of
household”, was not allowed certain dependency exemptions, and
did not qualify for the earned income credit (EIC). Petitioner
received the notice of deficiency but did not file a petition
with the Court. Instead, on June 27, 1994, petitioner sent
respondent a letter enclosing additional information and the
notice of deficiency. Petitioner also contacted the Taxpayer
Advocate Office regarding her 1992 tax return; as a result,
respondent reduced petitioner’s 1992 deficiency to $1,361 by
allowing petitioner the EIC.2
On July 31, 2000, respondent sent petitioner a Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320. On August 21, 2000, respondent received petitioner’s
timely Request for a Collection Due Process Hearing. In the
request, petitioner explained: “I do not owe this tax. Have
2
As of Feb. 13, 2002, petitioner owed $2,130.47.
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repeatedly proven that EIC, dependents and head of household are
valid claims.” (Emphasis in original.)
On March 9, 2001, respondent sent petitioner a letter
scheduling the hearing with an Appeals officer on March 20, 2001
in Syracuse, New York. In response to petitioner’s request to
reschedule the hearing, the Appeals officer sent petitioner a
letter on March 16, 2001, rescheduling the hearing to March 22,
2001, in Syracuse, New York. Petitioner did not appear at the
hearing. On March 22, 2001, the Appeals officer sent petitioner
a letter notifying her that if she did not contact him within 14
days, he would close the file with respect to the hearing
request. On April 9, 2001, in response to a telephone message
left by petitioner, the Appeals officer left a telephone message
with petitioner requesting that she call him regarding
rescheduling the hearing. Petitioner did not return the
telephone call.
On May 9, 2001, respondent sent petitioner a notice of
determination. In the notice of determination, respondent
stated:
Appeals has determined that the notice of lien filed
for this tax period properly balances the need for efficient
collection of the tax with your concerns over the
intrusiveness of the collection action. You have not raised
an issue concerning the underlying liability that can be
considered in a due process hearing and have not made a
payment proposal.
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On June 11, 2001, petitioner filed a Petition for Lien or
Levy Action Under Code Section 6320(c) or 6330(d). On August 30,
2001, petitioner filed an Amended Petition for Lien or Levy
Action Under Code Section 6320(c) or 6330(d).
OPINION
In the amended petition, petitioner argues that (1)
respondent denied her right to a “Due Process Hearing under IRC
6320" alleging that respondent ignored petitioner’s telephone
calls to reschedule the hearing; and (2) she is entitled to a
filing status as “Head of Household” because she sent proofs of
eligibility to respondent. Respondent contends that (1)
petitioner was afforded the opportunity for a hearing but waived
that right when she failed to cooperate; and (2) under section
6330(c)(2)(B), petitioner is precluded from challenging her 1992
liability because she received a notice of deficiency for 1992.
Section 6321 provides that, if any person liable to pay any
tax neglects or refuses to do so after demand, the amount shall
be a lien in favor of the United States upon all property and
rights to property, whether real or personal, belonging to such
person. Pursuant to section 6323, the Commissioner generally is
required to file a Notice of Federal Tax Lien with the
appropriate State office for the lien to be valid against certain
third parties.
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After the Commissioner files a notice of lien, section
6320(a)(1) requires the Commissioner to provide notice to the
taxpayer of such filing. Additionally, under section
6320(a)(3)(B) and (b), the Commissioner must provide the taxpayer
with notice of and an opportunity for an administrative review of
the lien filing; i.e., a hearing. Section 6320(b)(1) requires
that the Appeals Office conduct the hearing. Section 6320(c)
incorporates section 6330(c) and certain parts of section
6330(d), which describe the procedural rules that apply to the
hearing and the judicial review thereof.
At the hearing, the taxpayer may raise certain matters set
forth in section 6330(c)(2), which provides, in pertinent part:
SEC. 6330(c). Matters Considered At Hearing.--In the
case of any hearing conducted under this section--
* * * * * * *
(2) Issues At Hearing.--
(A) In General.--The person may raise at the
hearing any relevant issue relating to the unpaid tax
or proposed levy, including--
(i) appropriate spousal defenses;
(ii) challenges to the appropriateness of
collection actions; and
(iii) offers of collection alternatives,
which may include the posting of a bond, the
substitution of other assets, an installment
agreement, or an offer-in-compromise.
(B) Underlying Liability.--The person may also
raise at the hearing challenges to the existence or
amount of the underlying tax liability for any tax
period if the person did not receive any statutory
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notice of deficiency for such tax liability or did not
otherwise have an opportunity to dispute such tax
liability.
Pursuant to section 6330(d)(1), within 30 days of the issuance of
the notice of determination, the taxpayer may appeal that
determination to this Court if we have jurisdiction over the
underlying tax liability. Van Es v. Commissioner, 115 T.C. 324,
328 (2000).
I. Hearing Request
The question arises whether this Court should remand the
case to the Appeals Office to hold the hearing because petitioner
alleges that a hearing was not properly held. In Lunsford v.
Commissioner, 117 T.C. 183 (2001), the Court declined to remand
the case to the Appeals Office to hold a hearing to consider the
taxpayer’s arguments because we did not “believe that it is
either necessary or productive”. Id. at 189. The same reasoning
is true here. As discussed below, petitioner’s only dispute
involved her underlying tax liability, which is not properly at
issue. We, therefore, consider it neither necessary nor
productive to remand this case to the Appeals Office to hold a
hearing.
Further, the Court agrees with respondent that petitioner
was granted the opportunity for a hearing. The Appeals officer
set a hearing date, rescheduled it, and, when petitioner failed
to appear, offered to reschedule it a second time pursuant to
petitioner’s request. Petitioner did not avail herself of the
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opportunities for a hearing nor respond to the Appeals officer’s
telephone call regarding the second rescheduling of the hearing.
II. Underlying Liability
Although section 6330 does not prescribe the standard of
review that the Court is to apply in reviewing the Commissioner’s
administrative determinations, we have stated that, where the
validity of the underlying tax liability is properly at issue,
the Court will review the matter on a de novo basis. Where the
validity of the underlying tax liability is not properly at
issue, however, the Court will review the Commissioner’s
administrative determination for abuse of discretion. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 181 (2000).
In her request for a hearing, petitioner only argued issues
that involved the underlying tax liability: Filing status,
exemptions, and EIC. Petitioner cannot dispute the existence or
the amount of the underlying tax liability because petitioner
received a notice of deficiency. Sec. 6330(c)(2)(B).
Additionally, petitioner did not assert in the petition any
spousal defenses, any challenges to the appropriateness of the
collection actions, or any offers of collection alternatives.
See sec. 6330(c)(2)(A). There is no basis in the record for the
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Court to conclude that respondent abused his discretion with
respect to any of these matters.3
In reaching all of our holdings herein, we have considered
all arguments made by the parties, and, to the extent not herein
discussed, we find them to be irrelevant or without merit.
To reflect the foregoing,
An appropriate order and
decision will be entered.
3
Our holding that respondent did not abuse his discretion
renders moot respondent’s motion to dismiss for failure to
properly prosecute filed on July 23, 2002. We therefore deny
respondent’s motion.