T.C. Memo. 2013-159
UNITED STATES TAX COURT
BLAIR T. WESSNER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26714-10L. Filed July 1, 2013.
Blair T. Wessner, pro se.
William R. Brown, Jr., for respondent.
MEMORANDUM OPINION
FOLEY, Judge: The issue for decision is whether respondent abused his
discretion in determining to proceed with the collection of petitioner’s 2006
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[*2] Federal income tax liability by levy. The parties submitted this case fully
stipulated pursuant to Rule 122.1
Background
Petitioner failed to file her 2006 Federal income tax return, and respondent,
pursuant to section 6020(b), prepared a substitute for return. Respondent, on June
5, 2009, sent petitioner a notice of deficiency, and on May 3, 2010, sent petitioner
a Notice of Intent to Levy and Notice of Your Right to a Hearing relating to 2006.
On May 19, 2010, petitioner submitted a Form 12153, Request for a Collection
Due Process or Equivalent Hearing; attached a 16-page letter in which she
asserted that respondent lacked authority to file a substitute for return; and stated
that “the heart of this matter and appeal, is the lack of any statute which clearly
and unequivocally makes me liable for, or subject to, the federal income tax
imposed”.
On July 8, 2010, respondent scheduled a telephonic collection due process
(CDP) hearing and informed petitioner that a face-to-face hearing would be
available only if she withdrew previously asserted frivolous issues and submitted
all required returns. Respondent also requested that petitioner submit financial
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect at all relevant times, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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[*3] documentation; proof that she was current with all Federal income tax
obligations; a Form 656, Offer in Compromise; and a Form 433-A, Collection
Information Statement for Wage Earners and Self-Employed Individuals.
On August 11, 2010, Appeals Officer Donna Connolly (AO Connolly)
conducted a telephonic hearing. Petitioner asserted that she was entitled to
challenge her underlying tax liability and requested a face-to-face hearing. AO
Connolly informed petitioner that she was not entitled to challenge her underlying
tax liability and denied her request for a face-to-face hearing. On September 1,
2010, petitioner informed AO Connolly that she had not received a notice of
deficiency relating to 2006. AO Connolly was unable to verify that petitioner had
received a notice of deficiency and transferred her case to Appeals Officer Eric
Feinman (AO Feinman).
On September 29, 2010, AO Feinman sent petitioner a letter informing her
that she was entitled to challenge her underlying tax liability by submitting a 2006
Federal income tax return. AO Feinman also informed petitioner that respondent
would issue a determination based on the information in the administrative record
if she did not submit the return on or before October 13, 2010. Petitioner did not
submit the requested return or otherwise challenge her underlying tax liability. On
October 27, 2010, respondent sent petitioner a notice of determination sustaining
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[*4] the proposed collection action. On December 1, 2010, petitioner, while
residing in Florida, filed a petition with the Court.
Discussion
During the CDP hearing petitioner had the opportunity, but failed, to
challenge her underlying tax liability. See Thompson v. Commissioner, 140 T.C.
__, __ (slip op. at 10) (Mar. 4, 2013) (“A taxpayer is precluded from disputing the
underlying liability if it was not properly raised in the CDP hearing.”); Giamelli v.
Commissioner, 129 T.C. 107, 114 (2007). Therefore, petitioner’s underlying tax
liability is not properly before the Court and we review respondent’s
determination for abuse of discretion.2 See Thompson v. Commissioner, 140 T.C.
at __ (slip op. at 9-10); Giamelli v. Commissioner, 129 T.C. at 115-116. Petitioner
raised frivolous issues in her CDP hearing request, did not raise any relevant
issues during the hearing, did not propose a collection alternative, and did not
provide requested documentation. Accordingly, respondent did not abuse his
discretion. See Gould v. Commissioner, 139 T.C. __, __ (slip op. at 81-82) (Nov.
26, 2012) (holding that it is not an abuse of discretion for the Commissioner to
reject a taxpayer’s request for a face-to-face hearing if such a hearing would be
2
There is insufficient documentation in the record to establish petitioner’s
underlying tax liability, even if it were at issue. See Rule 142(a).
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[*5] futile); Pough v. Commissioner, 135 T.C. 344, 351 (2010) (“[W]hen an
Appeals officer gives a taxpayer an adequate timeframe to submit requested items,
it is not an abuse of discretion to move ahead if the taxpayer fails to submit the
requested items.”); sec. 301.6330-1(d)(2), Q&A-D8, Proced. & Admin. Regs.
Contentions we have not addressed are irrelevant, moot, or meritless.
To reflect the foregoing,
Decision will be entered for
respondent.