T.C. Summary Opinion 2011-124
UNITED STATES TAX COURT
ROGER K. CIAFRE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7052-10SL. Filed October 24, 2011.
Roger K. Ciafre, pro se.
Harry J. Negro, 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 of 1986, as amended.
- 2 -
Respondent issued petitioner a Notice of Determination
Concerning Collection Action(s) Under Section 6320/6330 (the
notice). The notice sustained the filing of a notice of Federal
tax lien (NFTL) issued to petitioner pertaining to his unpaid
1998 Federal income tax. The issue for decision is whether
respondent correctly sustained the filing of an NFTL.
Background
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by reference. Petitioner resided in
Pennsylvania when he filed his petition.
Petitioner is an attorney and in 1998 worked for a small law
firm in Philadelphia. Petitioner was treated as an independent
contractor by the law firm. Petitioner timely filed his 1998
Federal income tax return but did not remit any tax with the
return.
Form 4340, Certificate of Assessments, Payments, and Other
Specified Matters, reflects that on December 3, 1999, respondent
issued petitioner a notice of an intent to levy to collect
petitioner’s unpaid tax liability for 1998. U.S. Postal Service
Form 3877, Certified Mailing List, indicates that on February 22,
2001, respondent mailed petitioner a notice of determination
pursuant to section 6330. On August 18, 2009, respondent issued
petitioner notice of an NFTL filing concerning petitioner’s
- 3 -
unpaid tax liability for 1998. Respondent issued petitioner a
notice of determination dated February 26, 2010, which sustained
the filing of the NFTL.
Discussion
Section 6321 imposes a lien in favor of the United States
upon all property and rights to property belonging to a person
who is liable for Federal taxes and neglects or refuses to pay
them after notice and demand for payment has been made. Section
6320(a) and (b) provides that a taxpayer shall be notified in
writing by the Commissioner of the filing of an NFTL and be
provided an opportunity for an administrative hearing. A hearing
under section 6320 is conducted in accordance with the procedural
requirements of section 6330. Sec. 6320(c).
If a taxpayer requests a hearing in a lien case, the hearing
is to be conducted by the Appeals Office (Appeals). Sec.
6320(b)(1). At the hearing the Appeals officer (AO) must verify
that the requirements of any applicable law or administrative
procedure have been met. Secs. 6320(c), 6330(c)(1). The
taxpayer may raise any relevant issue with regard to the
Commissioner’s intended collection activities, including
challenges to the appropriateness of the proposed lien and
collection alternatives. Sec. 6330(c)(2)(A). A taxpayer is
expected to provide all relevant information requested by Appeals
for its consideration of the facts and issues involved in the
- 4 -
hearing, including financial statements. Secs. 301.6320-1(e)(1),
301.6330-1(e)(1), Proced. & Admin. Regs. A taxpayer may raise
challenges to the existence or amount of the underlying tax
liability if he or she did not receive a notice of deficiency or
otherwise have an opportunity to dispute the tax. Sec.
6330(c)(2)(B).
If a taxpayer’s underlying tax liability is properly at
issue, the Court reviews any determination regarding the
underlying liability de novo. Sego v. Commissioner, 114 T.C.
604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182
(2000). The Court will review all other determinations regarding
the proposed collection for abuse of discretion. Sego v.
Commissioner, supra at 610; Goza v. Commissioner, supra at 181-
182. A taxpayer’s claim that the limitations period for
collections has expired is a challenge to the underlying tax
liability. Boyd v. Commissioner, 117 T.C. 127, 130 (2001)
(citing MacElvain v. Commissioner, T.C. Memo. 2000-320).
Petitioner’s only argument against the NFTL is that the
limitations period for collections has expired for his unpaid
1998 tax liability. Petitioner is challenging his underlying tax
liability. See Boyd v. Commissioner, supra at 130. Petitioner
believes it is possible that he had a hearing for a levy in 1999.
Petitioner testified that “I can’t say 100 percent I never
requested a hearing. * * * [I]f that’s what the hearing is, a
- 5 -
ten-minute phone call, I mean I barely remember the one I had in
2010, yet [sic] alone a hearing that I might have had in 1999.”
Respondent introduced into evidence transcripts suggesting
there was a collection due process hearing in December 1999 and a
U.S. Postal Service Form 3877 indicating that a notice of
determination was mailed by certified mail to petitioner in
February 2001. The Court finds by a preponderance of the
evidence that petitioner had a prior opportunity to dispute his
1998 tax liability. Therefore, petitioner’s underlying tax
liability is not properly at issue,1 see sec. 301.6320-1(e)(3),
Q&A-E7, Proced. & Admin. Regs., and the determination to sustain
the filing of the NFTL will be reviewed for abuse of discretion,
see Sego v. Commissioner, supra at 610; Goza v. Commissioner,
supra at 181-182.
Petitioner raised no challenge to the appropriateness of the
NFTL filing, offered no collection alternatives, and provided no
financial statements to the AO. See secs. 301.6320-1(e)(3), Q&A-
E7, 301.6320-1(e)(1), 301.6330-1(e)(1), Proced. & Admin. Regs.
1
The Court recognizes that petitioner would have had no
reason in 1999 to argue that the limitations period for
collection of his 1998 tax liability had expired. Even were the
Court to consider petitioner’s argument, the outcome of this case
would be the same. The limitations period for collection was
suspended for the period after the notice of determination for
the levy was issued. See secs. 6502 and 6503. The NFTL was
issued before the limitations period for collection expired.
- 6 -
The Court finds that respondent’s determination to sustain the
filing of the NFTL was not an abuse of discretion.
We have considered petitioner’s arguments, and, to the
extent not mentioned, we conclude the arguments to be moot,
irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.