T.C. Summary Opinion 2007-55
UNITED STATES TAX COURT
GERARD R. FITZGERALD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5544-05S. Filed April 11, 2007.
Gerard R. Fitzgerald, pro se.
Terry Serena, for respondent.
GOLDBERG, Special Trial Judge: This case was heard pursuant
to the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed. Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
and this opinion shall not be treated as precedent for any other
case. Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at relevant times.
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This proceeding arises from a petition for judicial review
filed in response to a Notice of Determination Concerning
Collection Actions Under Section 6320 (notice of determination).
The issue for decision is whether respondent abused his
discretion in sustaining a notice of Federal tax lien (notice of
lien) filed against petitioner.
Background
At the time the petition was filed, petitioner resided in
Batavia, Ohio.
Respondent assessed taxes, penalties, and interest against
petitioner for the taxable years 1989, 1997, 1998, 1999, and
2000. On June 21, 2004, respondent filed the notice of lien and
mailed petitioner a Notice of Federal Tax Lien Filing and Your
Right to a Hearing Under IRC 6320.
On July 22, 2004, the Internal Revenue Service Officer for
Tri-County, Ohio, received petitioner’s Form 12153, Request for a
Collection Due Process Hearing. Subsequently petitioner’s case
was assigned to an Appeals officer. The Appeals officer
conducted a telephone hearing with petitioner on January 20,
2005. During the hearing, petitioner did not challenge his
underlying tax liabilities or the filing of the notice of lien.
Instead, petitioner disputed a levy on his Social Security
benefits for his unpaid Federal income tax liability for the
taxable year 1990.
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Respondent issued petitioner the notice of determination on
February 23, 2005, sustaining the filing of the Federal tax lien.
The notice of determination states that petitioner could not
challenge the levy on his Social Security benefits because it did
not relate to the years at issue. The notice also states that
respondent placed petitioner’s accounts in “Currently not
Collectible status and no further collection action would take
place.”
Discussion
Section 6321 imposes a lien in favor of the United States on
all property and rights to property of a person when a demand for
the payment of the person’s liability for taxes has been made and
the person fails to pay those taxes. Such a lien arises when an
assessment is made. Sec. 6322. Section 6323(a) requires the
Secretary to file a notice of Federal tax lien if the lien is to
be valid against any purchaser, holder of a security interest,
mechanic’s lienor, or judgment lien creditor. Lindsay v.
Commissioner, T.C. Memo. 2001-285, affd. 56 Fed. Appx. 800 (9th
Cir. 2003).
Section 6320 provides that a taxpayer shall be notified in
writing by the Secretary of the filing of a notice of Federal tax
lien and provided with an opportunity for an administrative
hearing. An administrative hearing under section 6320 is
conducted in accordance with the procedural requirements of
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section 6330. Sec. 6320(c). At the administrative hearing, a
taxpayer is entitled to raise any relevant issue relating to the
unpaid tax, including a spousal defense or collection
alternatives such as an offer-in-compromise or an installment
agreement. Sec. 6330(b) and (c)(2)(A); sec. 301.6320-1(e)(1),
Proced. & Admin. Regs. A taxpayer also may challenge the
existence or amount of the underlying tax liability if the
taxpayer “did not receive any statutory notice of deficiency for
such tax liability or did not otherwise have an opportunity to
dispute such tax liability.” Sec. 6330(c)(2)(B); see also
Montgomery v. Commissioner, 122 T.C. 1, 9-10 (2004).
At the conclusion of the hearing, the Appeals officer must
determine whether and how to proceed with collection, taking into
account, among other things, collection alternatives proposed by
the taxpayer and whether any proposed collection action balances
the need for the efficient collection of taxes with the
legitimate concern of the taxpayer that the collection action be
no more intrusive than necessary. See sec. 6330(c)(3).
Section 6330(d) provides for judicial review of the
administrative determination in the Tax Court or a Federal
District Court, as may be appropriate. Where, as here, the
validity of the underlying tax liability is not at issue, the
Court reviews the Commissioner’s determination for abuse of
discretion. Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).
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Whether an abuse of discretion has occurred depends upon whether
the exercise of discretion is without sound basis in fact or law.
See Freije v. Commissioner, 125 T.C. 14, 23 (2005).
As previously mentioned, petitioner does not challenge the
appropriateness of the notice of lien with respect to the taxable
years at issue. Petitioner disputes only the levy on his Social
Security benefits for his unpaid Federal income tax liability for
the 1990 taxable year. Petitioner contends he did not receive
prelevy notice and an opportunity to be heard, as required under
section 6330(a).
Respondent appears to acknowledge that petitioner’s Social
Security benefits were levied upon. Respondent’s records
indicate, however, that the levy was made with respect to
petitioner’s unpaid tax liability for the taxable year 1990,
which is not a year at issue. Petitioner did not dispute that
the levy pertained solely to 1990. Because we do not have a
notice of determination regarding the levy with respect to that
year, we do not have jurisdiction to review the levy. See sec.
6330(d); Orum v. Commissioner, 123 T.C. 1, 7-8 (2004), affd. 412
F.3d 819 (7th Cir. 2005).
Petitioner has not set forth any other arguments concerning
respondent’s determination, such as a spousal defense or an offer
of a collection alternative. Nor has petitioner alleged that the
Secretary failed to meet the requirements of any applicable law
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or administrative procedure with respect to the notice of lien.
Consequently, we conclude that respondent did not abuse his
discretion. Respondent’s determination therefore is sustained.
To reflect the foregoing,
Decision will be entered for
respondent.