T.C. Memo. 2010-93
UNITED STATES TAX COURT
SHIRLEY V. MCCOLLIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19179-08L. Filed May 3, 2010.
Shirley V. McCollin, pro se.
Michelle L. Maniscalco, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GALE, Judge: Pursuant to sections 6320 and 6330(d),1
petitioner seeks review of respondent’s determination to sustain
a notice of Federal tax lien with respect to petitioner’s unpaid
1
Unless otherwise noted, all section references are to the
Internal Revenue Code of 1986 as amended. All dollar amounts
have been rounded to the nearest dollar.
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trust fund recovery penalties (trust penalties) under section
6672 for the quarterly periods ended December 31, 2002, and June
30, 20032 (relevant periods). The issues for decision are: (1)
Whether petitioner is precluded from challenging her underlying
tax liabilities for the relevant periods; and (2) whether
respondent abused his discretion in upholding the notice of
Federal tax lien.3
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. Petitioner resided in New
York at the time she filed the petition.
I. Petitioner’s Liability for Trust Fund Recovery Penalties
On October 4, 2005, respondent sent petitioner by certified
mail a Letter 1153, Trust Funds Recovery Penalty Letter,
proposing to assess against petitioner trust fund penalties of
$15,129 pursuant to section 6672 for the relevant periods,
2
Although an attachment to respondent’s notice of
determination refers to June 30, 2006, the notice itself and all
other relevant documents refer to June 30, 2003. We conclude
that the reference to 2006 is a typographical error.
3
The Court conducted a trial on the issue of whether
petitioner is precluded from challenging her underlying tax
liabilities, leaving the option of a further trial concerning the
merits of the underlying tax liabilities if it were concluded
that petitioner is entitled to challenge them. Given our
conclusion herein that petitioner is precluded from challenging
her underlying liabilities, no further proceedings appear
necessary.
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attributable to unpaid tax liabilities of Globenet
Telecommunications, Inc. (Globenet). The Letter 1153 was sent to
petitioner’s last known address and informed her that she had the
right to appeal or protest the proposed assessment and that she
had to mail a written appeal within 60 days of the date of the
letter to preserve her right to appeal. The U.S. Postal Service
subsequently attempted delivery of the letter before returning it
to respondent marked “Unclaimed”. Respondent received the
unclaimed letter on October 28, 2005. Petitioner did not appeal,
and on March 27, 2006, the trust fund penalties were assessed
against petitioner as a responsible party for Globenet’s unpaid
tax liabilities.4
II. Respondent’s Collection Activities
On September 14, 2007, respondent sent to petitioner by
certified mail a Notice of Intent to Levy and Notice of Your
Right to a Hearing (levy notice) covering the section 6672
penalties for the relevant periods. Petitioner received the levy
notice shortly thereafter. On October 23, 2007, respondent
mailed to petitioner by certified mail a Notice of Federal Tax
Lien Filing and Your Right to a Hearing Under IRC 6320 (lien
notice) covering the section 6672 penalties for the relevant
periods as well as three other quarters in 2002 and two quarters
4
In the petition, petitioner averred that she was a “15%
shareholder” of Globenet during the relevant periods.
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in 2001. Respondent enclosed a Form 12153, Request for a
Collection Due Process or Equivalent Hearing, with the lien
notice. Petitioner completed the Form 12153, requesting a
hearing with respect to the relevant periods but not the other
quarters listed on the lien notice. The Form 12153 explained
petitioner’s disagreement with the lien as follows: “I was not
the decision maker in the business - all payment decisions were
made by president - Kenneth Williams.” Next to the form’s
signature line, petitioner entered the date “October 3, 2007”.
Petitioner checked boxes on the form indicating that the basis
for her hearing request was both a lien notice and a levy notice.
She further indicated that she wished to pursue a collection
alternative; namely, an installment agreement or an
offer-in-compromise. Petitioner hand-delivered an envelope
containing the form and a copy of the levy notice to a security
guard at respondent’s local office in Hauppauge, New York. The
envelope was dated “October 24”, in the handwriting of
respondent’s security guard.
The Appeals employee assigned to petitioner’s case took the
position, on the basis that petitioner’s Form 12153 was received
by the Appeals Office on October 24, 2007, that the form was
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untimely with respect to the proposed levy.5 The Appeals
employee and petitioner conferred by telephone on May 20, 2008,
at which time an installment agreement was discussed, according
to the case activity record. The case activity record further
records that the Appeals employee subsequently sent petitioner a
proposed installment agreement but that on July 2, 2008,
petitioner called the Appeals employee and informed him that she
did “not want to pay on * * * [her] debt for the rest of her
life” and that she wanted him to issue a notice of determination
so that she could go to the Tax Court.
On July 7, 2008, the Appeals Office sent petitioner a Notice
of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330 (notice of determination) sustaining the notice
of Federal tax lien. The notice of determination stated that
petitioner raised no issues other than challenging her underlying
tax liabilities, which she was ineligible to do “since prior
appeal rights were offered” with respect to the Letter 1153.
Petitioner filed a timely petition contesting the notice of
determination. In her petition, petitioner’s only averments were
challenges to her underlying tax liabilities.
5
According to the Appeals employee’s case activity record,
petitioner did not request an equivalent hearing with respect to
the proposed levy.
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OPINION
I. Collection Hearing Procedure
Section 6320(a) requires the Secretary to notify the
taxpayer in writing of the filing of a notice of Federal tax lien
and of the taxpayer’s right to an administrative hearing on the
matter. At the hearing a taxpayer may raise any relevant issue,
including appropriate spousal defenses, challenges to the
appropriateness of the collection action, and possible collection
alternatives. Sec. 6330(c)(2)(A). A taxpayer is precluded,
however, from contesting the existence or amount of the
underlying tax liability unless the taxpayer failed to receive a
notice of deficiency for the tax liability in question or did not
otherwise have an opportunity to dispute the tax liability. See
sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 609
(2000).
Following a hearing the Appeals Office must issue a notice
of determination regarding the validity of the filed Federal tax
lien. In making the determination the Appeals officer is
required to take into consideration: (1) His verification that
the requirements of applicable law and administrative procedure
have been met; (2) relevant issues raised by the taxpayer; and
(3) whether the proposed collection action appropriately balances
the need for efficient collection of taxes with a taxpayer’s
concerns regarding the intrusiveness of the proposed collection
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action. Sec. 6330(c)(3). If the taxpayer disagrees with the
Appeals Office’s determination, the taxpayer may seek judicial
review by appealing to this Court. Sec. 6330(d).
II. Whether Petitioner May Challenge the Underlying Tax
Liabilities
Respondent contends, and we agree, that section
6330(c)(2)(B) precludes petitioner from challenging the existence
or amount of her underlying tax liabilities for the relevant
periods because petitioner had a prior opportunity to dispute
them. Although the Appeals employee concluded in the notice of
determination that petitioner was precluded from challenging the
underlying tax liabilities on the basis of the mailing of the
Letter 1153 to petitioner and its return to respondent unclaimed,
we need not decide whether the circumstances surrounding the
Letter 1153 provided sufficient grounds for the Appeals
employee’s conclusion. That is so because, even if the Appeals
employee erred in relying on the Letter 1153, such error was
harmless. The levy notice, which petitioner acknowledged
receiving sometime “close” to its mailing date of September 14,
2007, constituted a prior opportunity to dispute the underlying
tax liability as contemplated in section 6330(c)(2)(B). See Bell
v. Commissioner, 126 T.C. 356, 358 (2006).
As our findings reflect, we conclude that petitioner
submitted the Form 12153 hearing request on October 24, 2007, and
not on or about October 3, 2007, as petitioner claims.
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Petitioner testified, and respondent’s records reflect, that she
hand-delivered the Form 12153 to respondent’s office at
Hauppauge, New York. The envelope in which the form was
delivered has the notation “October 24” handwritten on it.
Respondent’s collection group manager at the Hauppauge office
testified credibly that it was standard practice at the office
for the security guard to accept hand-delivered materials and to
date them, and that he recognized the “October 24” notation as
the handwriting of the security guard. The Form 12153 itself
also bears a “RECEIVED” stamp of October 24, 2007, corroborating
the foregoing. Petitioner, by contrast, was unable to recall at
trial the exact date on which she delivered the form to
respondent’s office. Moreover, petitioner offers no explanation
as to how the Form 12153 could have been delivered on or about
October 3, 2007, when the form requested a hearing for both the
levy notice and the lien notice, the latter of which was not
issued until October 23, 2007. In these circumstances, we are
persuaded that delivery occurred on October 24, 2007.
The levy notice was dated September 14, 2007. Accordingly,
the last day for making a timely hearing request with respect to
the levy notice was October 15, 2007.6 Petitioner’s Form 12153
was therefore untimely with respect to the levy notice, with the
result that she failed to avail herself of a previous opportunity
6
Oct. 14, 2007, was a Sunday.
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to dispute the underlying tax liabilities. See id. (“This
statutory preclusion is triggered by the opportunity to contest
the underlying liability, even if the opportunity is not
pursued.” (emphasis added)). We conclude that the Appeals
employee’s determination that petitioner was precluded from
challenging the underlying tax liabilities under section
6330(c)(2)(B) was proper.
III. Review of the Notice of Determination for Abuse of
Discretion
Because the validity of the underlying tax liabilities is
not properly at issue, we review the notice of determination for
abuse of discretion. See Sego v. Commissioner, supra at 610;
Goza v. Commissioner, 114 T.C. 176, 182 (2000). In reviewing for
abuse of discretion under section 6330(d)(1), generally we
consider only arguments, issues, and other matters that were
raised at the section 6330 hearing or otherwise brought to the
attention of the Appeals Office. Giamelli v. Commissioner, 129
T.C. 107, 115 (2007); see also sec. 301.6320-1(f)(2), Q&A-F3,
Proced. & Admin. Regs. However, we review whether the Appeals
Office verified compliance with applicable law under section
6330(c)(1) without regard to whether the taxpayer raised it as an
issue at the Appeals hearing. Hoyle v. Commissioner, 131 T.C.
197, 202-203 (2008). The Appeals Office abuses its discretion if
its “discretion has been exercised arbitrarily, capriciously, or
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without sound basis in fact.” Mailman v. Commissioner, 91 T.C.
1079, 1084 (1988).
Petitioner has not advanced any argument or presented any
evidence that would allow us to conclude that the determination
to sustain the lien was arbitrary, capricious, or without
foundation in fact, or otherwise an abuse of discretion. See,
e.g., Giamelli v. Commissioner, supra at 111-112, 115. According
to the case activity record and notice of determination, while an
installment agreement was initially considered, petitioner
terminated such consideration because she wanted to contest the
underlying tax liabilities in the Tax Court. Petitioner has not
disputed the foregoing.
According to respondent’s notice of determination, the
Appeals employee verified through transcript analysis that valid
assessments of the underlying tax liabilities were made for the
relevant periods. Petitioner has not disputed the foregoing.
Transcripts of account for each year are in the record, and they
demonstrate compliance with assessment procedures. We
accordingly find that the Appeals employee verified that all
requirements of applicable law and administrative procedure were
met. Further, the Appeals Office concluded that the filing of
the notice of Federal tax lien balanced the need for efficient
collection of taxes with concerns that the collection action be
no more intrusive than necessary, according to the notice of
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determination. Petitioner has not disputed the foregoing.
Petitioner raised no other issues throughout the section 6330
administrative process, in her petition, or at trial. On the
basis of the foregoing, we conclude that respondent did not abuse
his discretion in sustaining the notice of Federal tax lien.
We have considered all of petitioner’s statements,
contentions, arguments, and requests that are not discussed
herein, and, to the extent we have not found them to be frivolous
and/or groundless, we find them to be without merit and/or
irrelevant.
To reflect the foregoing,
Decision will be entered
for respondent.