T.C. Memo. 2004-267
UNITED STATES TAX COURT
JOE SHELBY GRIFFITH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18161-02L. Filed November 22, 2004.
Joe Shelby Griffith, pro se.
Jeffrey C. Venzie, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Pursuant to section 6330(d),1 petitioner
seeks review of respondent’s determination to proceed with
collection of his 1988 and 1989 tax liabilities.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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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. At the time he filed the
petition, petitioner resided in Milmay, New Jersey.
Petitioner is a habitual nonfiler. In addition to several
other years, petitioner did not file income tax returns for 1988
or 1989. In separate notices of deficiency, respondent
determined: (1) Deficiencies of $8,174 and $1,616 for 1988 and
1989, respectively; (2) additions to tax pursuant to section
6651(a) of $1,646 and $276.25 for 1988 and 1989, respectively;
and an addition to tax pursuant to section 6654(a) of $409.39 for
1988. Petitioner did not receive the notices of deficiency for
1988 and 1989. On May 2, 1994, respondent assessed the
aforementioned amounts and interest.
On or about May 6, 2002, respondent sent petitioner a Final
Notice--Notice of Intent to Levy and Notice of Your Right to a
Hearing for 1988 and 1989. On May 30, 2002, petitioner sent
respondent a Form 12153, Request for a Collection Due Process
Hearing (hearing request). In the hearing request, petitioner
claimed he was unemployed during 1988 and 1989, he owed no tax
for 1988 and 1989, and that the period of limitations on
collection for 1988 and 1989 had expired.
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In August 2002, Appeals Officer Judith Hornstein was
assigned to petitioner’s collection case. Ms. Hornstein sent
petitioner a letter scheduling a hearing for October 8, 2002.
Petitioner did not attend the hearing.
On October 8, 2002, Ms. Hornstein wrote to petitioner and
again offered him the opportunity to meet with her. On October
9, 2002, petitioner wrote Ms. Hornstein that because issues of
religion and conscience would not be considered at the hearing he
saw no point in attending the hearing. On October 23, 2002,
respondent issued petitioner a Notice of Determination Concerning
Collection Action(s) Under Section 6320 and/or 6330 sustaining
the proposed levy.
In his petition, petitioner contended that the 10-year
period of limitations for collection for 1988 and 1989 had
expired and challenged the deficiencies and additions to tax for
1988 and 1989 on moral and religious grounds.
OPINION
Respondent concedes that petitioner did not receive the
notices of deficiency for 1988 or 1989 and that he is entitled to
contest the underlying tax liability for 1988 and 1989.
Accordingly, we review petitioner’s underlying tax liability for
1988 and 1989. Goza v. Commissioner, 114 T.C. 176 (2000). If
the underlying tax liability is properly at issue, we review that
issue on a de novo basis. Sego v. Commissioner, 114 T.C. 604,
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610 (2000); Goza v. Commissioner, supra at 181. We review the
remainder of respondent’s determination for an abuse of
discretion. Sego v. Commissioner, supra.
Petitioner challenged the tax and additions to tax on moral
and religious grounds. This argument is without merit. Adams v.
Commissioner, 170 F.3d 173 (3d Cir. 1999), affg. 110 T.C. 137
(1998). Petitioner otherwise conceded that the amounts
determined in the notices of deficiency are correct.
For the first time at trial, petitioner argued that
respondent did not mail the notices of deficiency to petitioner’s
last known address. Generally, we do not consider an issue that
is raised for the first time at trial. See Foil v. Commissioner,
92 T.C. 376, 418 (1989), affd. 920 F.2d 1196 (5th Cir. 1990);
Markwardt v. Commissioner, 64 T.C. 989, 997 (1975).
Additionally, petitioner was aware of this issue before filing an
amendment to petition. Petitioner, however, chose not to amend
the petition to raise this issue. Thus, we do not consider it.
Petitioner also claimed that the period of limitations for
collection for 1988 and 1989 expired. We disagree. Tax may be
collected by levy if the levy is made within 10 years after the
assessment of the tax. Sec. 6502(a)(1). If a hearing is
requested under section 6330(a)(3)(B), the levy actions which are
the subject of the requested hearing and the running of any
period of limitations under section 6502 are suspended for the
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period during which the hearing and appeals thereof are pending.
Sec. 6330(e)(1).
The deficiencies and additions to tax for 1988 and 1989 were
assessed on May 2, 1994. These assessments were timely because,
in light of petitioner’s failure to file returns for these years,
pursuant to section 6501(c)(3) respondent could assess the taxes
for 1988 and 1989 at any time. Respondent sought to levy on
petitioner’s property on or about May 6, 2002--well within the
10-year period of limitations. On May 30, 2002, the period of
limitations on collection for 1988 and 1989 was suspended by
petitioner’s hearing request. Sec. 6330(e)(1). The period of
limitations on collection for 1988 and 1989 remains suspended
during this proceeding. Id. Accordingly, the period of
limitations on collection for 1988 and 1989 has not expired.
Petitioner has failed to raise a spousal defense, make a
valid challenge to the appropriateness of respondent’s intended
collection action, or offer alternative means of collection.
These issues are now deemed conceded. See Rule 331(b)(4).
To reflect the foregoing,
Decision will be entered
for respondent.