Strickland v. Comm'r ( 2001 )

HILTON LEE STRICKLAND, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Strickland v. Comm'r

No. 18080-99L

United States Tax Court

T.C. Memo 2001-312; 2001 Tax Ct. Memo LEXIS 350; 82 T.C.M. (CCH) 961; T.C.M. (RIA) 54564;

December 13, 2001, Filed

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Decision will be entered for respondent.

Hilton Lee Strickland, pro se.

Brandi B. Darwin, for respondent.

Laro, David

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LARO

MEMORANDUM FINDINGS OF FACT AND OPINION

LARO, Judge: Petitioner petitioned the Court under section 6330(d) to review respondent's determination on a proposed levy. We must decide whether to sustain that determination. We shall. Section references are to the Internal Revenue Code as applicable herein.

FINDINGS OF FACT

Most facts were stipulated. We incorporate herein by this reference the parties' stipulation of facts and the accompanying exhibits. We find the stipulated facts accordingly. Petitioner resided in Florida when his petition was filed.

On September 26, 1998, respondent mailed to petitioner notices of deficiency in his 1995 and 1996 Federal income taxes. Petitioner never petitioned the Court with respect to either notice. On June 9, 1999, respondent's examination office in Holly Hill, Florida (Holly Hill), issued to petitioner for those years and 1997 a document that read in relevant part as follows:

                FINAL NOTICE

   NOTICE OF INTENT TO LEVY AND NOTICE OF YOUR RIGHT TO A HEARING

            PLEASE RESPOND IMMEDIATELY

        Your Federal tax is still not paid. We previously

     asked you to pay this, but we still haven't received your

     payment. This letter is your notice of our intent to levy

     under Internal Revenue Code (IRC) Section 6331 and your

     right to receive Appeals consideration under IRC Section

     6330.

              * * * * * * *

   If you don't pay the amount you owe, make alternative

arrangements to pay, or request Appeals consideration within 30 days

from the date of this letter, we may take your property, or rights to

property, such as real estate, automobiles, business assets, bank

accounts, wages, commissions, and other income. We've enclosed

Publication 594 with more information, Publication 1660 explaining

your right to appeal, and Form 12153 to request a Collection Due

Process Hearing with Appeals. * * *

On the same day, petitioner requested the referenced hearing before the Internal Revenue Service Office of Appeals (Appeals). Petitioner stated in his request that "I relied on the advice of a tax return professional who had given me wrong information. I do not owe the taxes which are now being billed to me."

Appeals assigned petitioner's request for a hearing to Settlement Officer Roger Cable, an Appeals officer, and Mr. Cable sent the case to Michael Generazio, a revenue agent in the Holly Hill examination office, for the purpose of holding the hearing.

  Year         Liability/(overpayments)

  1995           *354 for the subject years was the $ 8,422.16 referenced above.

Petitioner petitioned the Court on December 2, 1999, to review respondent's determination. The petition contains no allegation of error as to respondent's determination. Petitioner alleges in the petition that he has already paid his income tax liability for the subject years (exclusive of interest and penalties), that he lives on a "fixed income", and that he has "taken out a second mortgage to clear this debt, which has caused me to be over-extended and behind with all my creditors". Petitioner requested in his petition that the Court waive the $ 8,422.16. Petitioner asked the Court at trial, as an alternative to waiving that amount, to allow him to meet with a collection officer to discuss that amount.

OPINION Section 6330 was added to the Code as part of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA), Pub. L. 105-206, 112 Stat. 685. The passage of the RRA culminated a year of congressional investigations and hearings over the future of the IRS, resulting in highly publicized criticisms of the agency's collection methods. The RRA contains over 60 provisions fortifying taxpayer rights and improving customer service, and its passage establishes new taxpayer rights. Section 6330, in particular, "establishes formal procedures * * * where the IRS seeks to collect taxes by levy". S. Rept. 105-174, at 67 (1998), 1998-3 C. B. 537, 603. The Senate Finance Committee explained in its report that "taxpayers are entitled to protections in dealing with the IRS that are similar to those they would have in dealing with any other creditor." Id.

Section 6330 provides in relevant part as follows:

   SEC. 6330. NOTICE AND OPPORTUNITY FOR HEARING BEFORE LEVY.

     (a) Requirement of Notice Before Levy. --

        (1) In general. -- No levy may be made on any property

     or right to property of any person unless the Secretary has

     notified such person in writing of their right to a hearing

     under this section before such levy is made. * * *

                 * * * * * * *

     (b) Right to Fair Hearing. --

        (1) In general. -- If the person requests a hearing

     * * *, such hearing shall be held by the Internal Revenue

     Service Office of Appeals.

Pursuant to the Court's holding in Lunsford v. Commissioner, 117 T.C. 183">117 T.C. 183, 2001 U.S. Tax Ct. LEXIS 49">2001 U.S. Tax Ct. LEXIS 49, (2001) (Lunsford II), we confine our analysis solely to the issues raised in the petition. The only issue that we understand petitioner to have raised in the petition concerns either: (1) The amount and/or existence of the underlying tax liability for 1996 (the only year in issue with a liability) or (2) an offer to compromise the $ 8,422.16 by paying nothing. Pursuant to Lunsford II, we consider petitioner to have abandoned all other allegations of error which he might have set forth in this petition, including, in particular, any allegation that his hearing with the revenue agent was improper by virtue of the fact that section 6330(b)(1) requires explicitly that a "hearing [under section 6330] shall be held by the Internal Revenue Service Office of Appeals."

As to the first of the two issues possibly raised in the petition, it is well settled in this Court that the taxpayer cannot challenge the amount and/ or existence of an underlying tax liability where the taxpayer receives a notice of deficiency. Id. at ___ (slip op. at 3). As to the second issue, it is well settled in this Court that we review that issue under an abuse of discretion standard. Id. at ___ (slip op. at 6). Because the judicial record at hand does not support our finding of any abuse of discretion on the part of IRS Appeals, we sustain respondent's determination in full. ^{*358 Decision will be entered for respondent.}

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Footnotes

• 1. The revenue agent who recommended the levy was also assigned to respondent's Holly Hill examination office.↩

• 1. This amount was primarily (if not entirely) attributable to interest payable by petitioner with respect to that year's taxes.↩

• 2. On the basis of the Court's holding in Lunsford v. Commissioner, 117 T.C. 159">117 T.C. 159, 2001 U.S. Tax Ct. LEXIS 48">2001 U.S. Tax Ct. LEXIS 48↩, (Lunsford I), we conclude that we have jurisdiction in this case.

• 3. As to petitioner's request to allow him to meet with a collection officer to discuss the $ 8,422.16, petitioner has not set forth in his petition any bona fide argument that makes it "either necessary or productive to remand this case to IRS Appeals to consider" that amount. Lunsford v. Commissioner, 117 T.C. 183">117 T.C. 183, 2001 U.S. Tax Ct. LEXIS 49">2001 U.S. Tax Ct. LEXIS 49↩, (2001) (slip op. at 11) (Lunsford II). We reject that request on the basis of Lunsford II.