T.C. Memo. 2005-224
UNITED STATES TAX COURT
LARRY D. CARIFEE AND PAMELA A. CARIFEE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4502-04L. Filed September 27, 2005.
Larry D. Carifee and Pamela A. Carifee, pro sese.
Alvin A. Ohm, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Petitioners filed a petition in response to
respondent’s Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 (Notice of
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Determination).1 Petitioners allege that they have insufficient
assets to pay their income tax liability for the year 2000.
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 they filed
the petition, petitioners resided in Lewisville, Texas.
On August 20, 2003, respondent mailed to each of the
petitioners, individually, a Final Notice of Intent to Levy and
Notice of Your Right to a Hearing. By letter dated September 16,
2003, petitioners’ attorney mailed to respondent two Forms 12153,
Request for a Collection Due Process Hearing, one for each
petitioner, which stated that petitioners “have insufficient
income and assets to full pay the outstanding tax liabilities for
2000, [and] they would like to propose either an Installment
Payment Agreement or an Offer in Compromise.”
On October 6, 2003, respondent’s Collection Division
contacted petitioners’ attorney by telephone concerning the
Requests for a Collection Due Process Hearing (section 6330
hearing). On December 12, 2003, respondent’s Appeals Office in
Dallas, Texas, wrote petitioners’ attorney concerning the
requests for a section 6330 hearing asking that petitioners
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
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provide certain items of financial information prior to the
hearing in order for respondent’s Appeals Office to consider
alternative methods of collection. By letter dated December 22,
2003, respondent’s Dallas Appeals Office notified petitioners’
attorney that the section 6330 hearing was scheduled for January
14, 2004. By letter dated December 22, 2003, petitioners’
attorney notified respondent that he no longer represented
petitioners. On January 14, 2004, respondent’s Appeals Office
called petitioners directly to determine whether petitioners
still wanted the hearing held. Petitioners did not return the
call and did not show up for the hearing. Moreover, petitioners
did not submit any financial information to the hearing officer
and did not submit an offer in compromise.
On February 17, 2004, respondent issued to petitioners a
Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 sustaining the proposed collection
action as petitioners “did not respond to the letters issued
setting conferences” and “No agreement or viable option could be
discussed since they [petitioners] did not show up for the
hearings set or submit anything in writing either.”
OPINION
Section 6331(a) provides that, if any person liable to pay
any tax neglects or refuses to do so within 10 days after notice
and demand, the Secretary can collect such tax by levy upon
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property belonging to such person. Pursuant to section 6331(d),
the Secretary is required to give the taxpayer notice of his
intent to levy and within that notice must describe the
administrative review available to the taxpayer, before
proceeding with the levy. See also sec. 6330(a).
Section 6330(b) describes the administrative review process,
providing that a taxpayer can request an Appeals hearing with
regard to a levy notice. At the Appeals 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 notice of
deficiency for such tax liability or did not
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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).
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. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114
T.C. 176, 181 (2000). 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).
At the trial and in their petition, petitioners did not
contest their income tax liability for 2000 but made a claim that
they could not pay their tax liability at this time. We
therefore review respondent’s determination to proceed with the
levy action for an abuse of discretion.
Petitioners did not assert in the petition any spousal
defenses, any challenges to the appropriateness of the collection
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actions, or any offers of collection alternatives other than an
offer in compromise that was going to be submitted at an
unspecified future date but was never submitted. See sec.
6330(c)(2)(A). These issues are now deemed conceded. Rule
331(b)(4). Petitioners also did not submit any financial
information to the hearing officer. Accordingly, we conclude
that respondent did not abuse his discretion by determining to
proceed with collection.
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,
Decision will be
entered for respondent.