T.C. Summary Opinion 2009-125
UNITED STATES TAX COURT
JODY LYNN HARPER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18931-07S. Filed August 5, 2009.
Jody Lynn Harper, pro se.
Shirley M. Francis, for respondent.
DEAN, 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, subsequent section references
are to the Internal Revenue Code.
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The petition was filed in response to a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (notice of determination). Petitioner seeks review
of respondent’s determination to sustain the proposed levy action
relating to her unpaid tax liability for 1999.
Petitioner does not dispute the underlying tax liability for
1999. The issue for decision is whether it was an abuse of
discretion for respondent to deny petitioner’s request for relief
from joint and several liability under section 6015.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the exhibits received into evidence
are incorporated herein by reference. When the petition was
filed, petitioner resided in Oregon.
Petitioner and her former husband, Richard Lewis Fisher III,
filed a joint Federal income tax return for 1999. Respondent
assessed the 1999 tax liability against petitioner and her former
husband.1
In December 2004 petitioner filed a Form 8857, Request for
Innocent Spouse Relief, under section 6015 for 1999.2
1
Petitioner and her former husband divorced in 2001.
2
Petitioner sought review of respondent’s determinations for
1998 and 1999. Because petitioner did not timely file a request
for a sec. 6330 hearing for 1998, she was issued a decision
letter rather than a notice of determination. See sec. 301.6330-
(continued...)
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On December 29, 2005, respondent issued a Notice of
Determination Concerning Your Request for Relief from Joint and
Several Liability under Section 6015 (final notice of
determination), denying petitioner’s request for relief under
section 6015(b), (c), and (f). Petitioner did not file a
petition with the Court challenging respondent’s final notice of
determination.
On November 23, 2006, respondent issued to petitioner a
Final Notice of Intent to Levy and Notice of Your Right to a
Hearing with respect to her unpaid tax liability for 1999.
On December 17, 2006, petitioner submitted to respondent
Form 12153, Request for a Collection Due Process Hearing under
section 6330 (section 6330 hearing), asserting that she had
previously requested relief from joint and several liability and
that she should be liable for only half of the unpaid tax.
On May 25, 2007, the Appeals officer sent petitioner a
letter acknowledging receipt of her Form 12153 and informing her
that a telephone section 6330 hearing was scheduled for June 21,
2007. The letter stated, in part, that “This call will be your
primary opportunity to discuss with me the reasons you disagree
with the collection action and/or discuss alternatives to the
collection action.” Additionally, respondent’s letter stated:
2
(...continued)
1(i), Proced. & Admin. Regs. Therefore, the only year at issue
before the Court is 1999.
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“We may also consider whether you owe the amount due, but only if
you have not otherwise had an opportunity to dispute it with
Appeals or did not receive a statutory notice of deficiency.”
On June 21, 2007, a telephone section 6330 hearing was held.
During the telephone hearing, petitioner did not dispute owing
the unpaid tax liability for 1999 but rather reasserted that she
only “wants to pay half” of the liability.
On July 25, 2007, respondent issued the notice of
determination sustaining the proposed levy action.
Discussion
Under section 6330(a), a taxpayer is entitled to notice and
opportunity for a hearing before levy action is taken by the
Commissioner in the process of collecting unpaid Federal taxes.
When conducting a section 6330 hearing, the Appeals officer is
required to: (1) Obtain verification from the Secretary that the
requirements of applicable law and administrative procedure have
been met; (2) consider certain issues raised by the taxpayer such
as collection alternatives; and (3) consider whether any proposed
collection action balances the need for the efficient collection
of taxes with the legitimate concern of the taxpayer that any
collection action be no more intrusive than necessary. Sec.
6330(c).
When the validity of the underlying tax liability is not at
issue, the Court reviews the Appeals officer’s determination
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under the abuse of discretion standard. Sego v. Commissioner,
114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176,
181-182 (2000). An abuse of discretion occurs when an Appeals
officer takes action that is arbitrary, capricious, or without
sound basis in fact or law. See Woodral v. Commissioner, 112
T.C. 19, 23 (1999).
Section 6330(c) prescribes the matters that a taxpayer may
raise at a section 6330 hearing. Under section 6330(c)(2)(A),
the taxpayer may raise any relevant issue relating to the unpaid
tax or the proposed levy including: (1) Appropriate spousal
defenses; (2) challenges to the appropriateness of collection
actions; and (3) offers of collection alternatives. Section
6330(c)(4), however, precludes a taxpayer from raising an issue
at a section 6330 hearing if the issue was raised and considered
at a previous administrative or judicial proceeding and the
taxpayer participated meaningfully in that proceeding.
Additionally, section 301.6330-1(e)(2) and (3), Q&A-E4, Proced. &
Admin. Regs., provides that a “taxpayer may raise any appropriate
spousal defenses at a * * * [section 6330] hearing unless the
Commissioner has already made a final determination as to spousal
defenses in a * * * [final notice of determination].”
On petitioner’s Form 12153 she states that she filed a
request for “innocent spouse relief”, and in her petition she
argues that she should be liable for only half of the unpaid
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liability for 1999.3 Petitioner, nevertheless, admits and
respondent contends that a final notice of determination denying
her request for relief from joint and several liability was
issued on December 29, 2005.
The regulations under section 6015 provide that pursuant to
section 6015(e), the requesting spouse may petition the Court to
review a denial of relief within 90 days after the Commissioner’s
final notice of determination is mailed. Sec. 1.6015-7(b),
Income Tax Regs.; see also Mora v. Commissioner, 117 T.C. 279
(2001). Petitioner, however, did not file a petition with the
Court challenging respondent’s determination within the 90 days
of the date of mailing the final notice of determination.
Consequently, the Court does not have jurisdiction to review
petitioner’s claim for relief from joint and several liability.
Moreover, because petitioner’s request for relief from joint
and several liability was considered and she received a final
notice of determination in a previous administrative proceeding,
she is effectively barred from raising her claim for “innocent
3
During the sec. 6330 hearing, petitioner did not file
another Form 8857 to request relief from joint and several
liability under sec. 6015. Pursuant to sec. 1.6015-5(b)(1),
Income Tax Regs., in order to request relief from joint and
several liability, “a requesting spouse must file Form 8857 or
other similar statement”. Thus, the requesting spouse is not
required to file a Form 8857, but can make a valid election by
submitting a similar written statement. Therefore, the Court
construes petitioner’s request as one for relief from joint and
several liability under sec. 6015.
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spouse relief” in the subsequent section 6330 hearing.4 See sec.
6330(c)(4). Thus, the Appeals officer was not required to
consider petitioner’s request for relief from joint and several
liability during the section 6330 hearing.
The Appeals officer verified that all requirements of
applicable law and administrative procedure had been met and
balanced the need for the efficient collection of taxes with
petitioner’s legitimate concern that the collection action be no
more intrusive than necessary. See sec. 6330(c)(1), (3)(C);
Tufft v. Commissioner, T.C. Memo. 2009-59. Therefore, the
Appeals officer did not abuse her discretion in sustaining the
proposed levy against petitioner.
Accordingly, the Court holds that respondent’s proposed levy
should be sustained.
Other arguments made by the parties and not discussed herein
were considered and rejected as irrelevant, without merit, or
moot.
To reflect the foregoing,
Decision will be entered
for respondent.
4
Petitioner does not allege that she did not participate
meaningfully in the initial sec. 6015 administrative proceeding.