T.C. Memo. 2007-163
UNITED STATES TAX COURT
ROGER PAVLICA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5861-06L. Filed June 21, 2007.
Frederick J. O’Laughlin, for petitioner.
Abbey B. Garber, for respondent.
MEMORANDUM OPINION
SWIFT, Judge: Petitioner seeks review of respondent’s
notice of determination sustaining respondent’s notice of levy
relating to petitioner’s 1997, 1998, 1999, and 2001 Federal
income tax liabilities.
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times.
- 2 -
The issue for decision is whether respondent’s Appeals
Office abused its discretion in sustaining respondent’s notice of
levy.
Background
The essential facts of this case were stipulated and are so
found.
At the time the petition was filed, petitioner resided in
Dallas, Texas.
For 1997, 1998, 1999, 2000, and 2001, petitioner failed to
file individual Federal income tax returns.
On or about October 17, 2003, respondent mailed to
petitioner notices of deficiency determining deficiencies in
petitioner’s Federal income taxes for 1997 through 2000 of
$6,305, $4,986, $4,234, and $33,831, respectively, and for 2001
an amount not disclosed in the record.
On January 14, 2004, in docket Nos. 1053-04, 1054-04,
1055-04, and 1056-04, petitioner filed separate petitions
relating to the above notices of deficiency for 1997 through
2000.
Petitioner did not file a petition with regard to the above
notice of deficiency for 2001, and on November 29, 2004,
respondent assessed the tax deficiency against petitioner for
2001.
- 3 -
On December 15, 2004, after the parties had agreed to a
settlement of all issues, we entered decisions in the above four
dockets in which the parties stipulated deficiencies in
petitioner’s Federal income taxes for 1997, 1998, 1999, and 2000
of $6,085, $4,986, $4,234, and $1,166, respectively. The parties
also stipulated that petitioner had fully paid the tax deficiency
for 2000.
On June 23, 2005, respondent mailed to petitioner a notice
of levy relating to the above Federal income tax deficiencies for
1997, 1998, 1999, and 2001.
On July 19, 2005, petitioner mailed to respondent a written
request for a section 6330 Appeals Office hearing relating to
respondent’s June 23, 2005, levy notice. In petitioner’s written
Appeals Office hearing request, petitioner’s only request was
that he be allowed to pay his above Federal income tax
deficiencies in installments.
On February 14, 2006, petitioner’s attorney held a face-to-
face hearing with respondent’s Appeals officer. At the hearing,
petitioner’s attorney’s only request was that petitioner be
allowed to enter into an installment agreement.
As of the February 14, 2006, hearing date, petitioner had
not filed his Federal income tax return for 2004.
On March 15, 2006, respondent’s Appeals Office mailed to
petitioner an adverse notice of determination sustaining
- 4 -
respondent’s notice of levy and citing petitioner’s failure to
file his Federal income tax returns as a factor.
On October 27, 2006, petitioner late filed with respondent
his Federal income tax return for 2004.
Discussion
Generally, under section 6331(a) respondent may lawfully
collect by levy upon property belonging to a taxpayer outstanding
taxes which remain unpaid 10 days after respondent’s notice and
demand therefor.
Prior to making a levy upon a taxpayer’s property,
respondent must give to the taxpayer written notice of both the
proposed levy and of the taxpayer’s right to an Appeals Office
hearing relating to the proposed levy. Secs. 6330(a),
6331(d)(1), (4).
In such a hearing, respondent is to verify whether the
requirements of applicable law and administrative procedure have
been met and consider other appropriate issues such as collection
alternatives raised by the taxpayer. Sec. 6330(c).
Under section 6330(c)(3)(C), respondent also is to consider
whether respondent’s proposed levy balances the need for
efficient collection of taxes with the taxpayer’s concern that
respondent’s collection action be no more intrusive than
necessary.
- 5 -
Under section 6330(d)(1), we have jurisdiction to review
respondent’s notice of determination relating to a section 6330
hearing. Where the underlying Federal income tax liability is
not at issue, we review for abuse of discretion respondent’s
determination adverse to a taxpayer sustaining respondent’s
collection activity. Sego v. Commissioner, 114 T.C. 604, 610
(2000).
Petitioner argues that respondent’s Appeals Office should
have granted petitioner an installment agreement. Because,
however, petitioner had a history of noncompliance with his
Federal income tax obligations and was not compliant with his
current tax obligations as of the date of the Appeals Office
hearing, respondent’s Appeals Office did not abuse its discretion
in declining to grant petitioner an installment agreement. See
Orum v. Commissioner, 412 F.3d 819, 821 (7th Cir. 2005), affg.
123 T.C. 1 (2004) (no abuse of discretion when rejecting an
installment agreement from a taxpayer who had a history of not
fulfilling Federal income tax obligations); Rodriguez v.
Commissioner, T.C. Memo. 2003-153 (no abuse of discretion when
rejecting an offer-in-compromise from a taxpayer who had not
filed current and previous returns); Londono v. Commissioner,
T.C. Memo. 2003-99 (no abuse of discretion when rejecting an
offer-in-compromise from a taxpayer who had a history of not
fulfilling Federal income tax obligations); McCorkle v.
- 6 -
Commissioner, T.C. Memo. 2003-34 (no abuse of discretion when
rejecting an installment agreement from a taxpayer who had not
filed a current return).
We sustain respondent’s levy.
To reflect the foregoing,
Decision will be entered
for respondent.