Hardie v. Comm'r ( 2007 )

T.C. Memo. 2007-335
UNITED STATES TAX COURT
ROBIN T. HARDIE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9713-06L. Filed November 7, 2007.
Robin T. Hardie, pro se.
Karen A. Rennie, for respondent.
MEMORANDUM OPINION
HALPERN, Judge: This case is before the Court to review a
determination (the determination) by respondent’s Appeals Office
(Appeals) to proceed with the collection by levy of petitioner’s
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Federal income tax liability for 1999. We review the
determination pursuant to section 6330(d)(1).1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended and as applicable
to this case, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
Background
This case was submitted for decision without trial pursuant
to Rule 122. Facts stipulated by the parties are so found. The
stipulation of facts filed by the parties, with attached exhibits
(the stipulation of facts), is included herein by this reference.
In their joint motion asking leave to submit this case under
Rule 122, the parties agreed that the case may be submitted on
the basis of the pleadings and the stipulated facts.
By the petition, petitioner assigns error to the
determination as follows: “I believe the determination is
incorrect and have already provided written evidence including
from third parties which contradicts key factual statements in
the IRS’s determination. This evidence has been ignored by the
IRS.” Attached to the petition is a copy of a two-page document
entitled “Notice of Determination Concerning Collection Action(s)
1
While petitioner checked the box on the petition
indicating that he is seeking a redetermination of a deficiency,
clearly this action concerns a collection action, and we shall
treat it as such.
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Under Section 6320 and/or 6330”. In pertinent part, the document
states:
We have determined that the Notice of Intent to Levy
issued on the period listed above [1999] is valid and
appropriate. All legal and procedural requirements
were met in its issuance. The information you provided
concerning the check the Service shows was returned for
insufficient funds was not adequate to prove that a
valid payment was ever received. You raised no other
issues, and did not request a collection alternative.
By the answer, respondent denies petitioner’s assignment of
error.
The facts stipulated by the parties are set forth in four
numbered paragraphs in the stipulation of facts. The first
paragraph states petitioner’s address in London, England, at the
time the petition was filed. The second paragraph states his
Social Security number. The third paragraph states the date on
which the determination was issued, that it relates to
petitioner’s 1999 taxable year, and that a copy of it is
attached. The fourth paragraph states that a literal transcript
of account (the transcript of account) for petitioner’s 1999
taxable year is attached. The copy of the determination attached
to the stipulation of facts is identical to the document attached
to the petition. The transcript of account is dated April 13,
2007. It shows an account balance of $360,929.37 and has
sequential entries showing a payment in the amount of $106,888
and a dishonored check in the same amount. The parties have
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stipulated that the attachments to the stipulation of facts are
authentic.
On brief, petitioner raises two issues. First, although he
concedes that it “appears” that he did not pay $106,888 for 1999,
and, therefore, he “[owes] the IRS this amount together with
accrued penalties and interest”, he does not accept that his
check was returned for insufficient funds. Second, he states
that he does not agree with respondent’s computation of his
liability (presumably $360,929.37, as of April 14, 2007) (the
computational issue).
In his answering brief, respondent argues that petitioner
has failed to present sufficient evidence to show that Appeals
abused its discretion in making the determination. Respondent
claims that no evidence supports petitioner’s claim that the
check he submitted to pay his income tax liability was not
returned for insufficient funds. Respondent further claims that
petitioner may not raise the computational issue because he did
not raise it with Appeals during his section 6330 hearing.
Discussion
Petitioner bears the burden of proof. See Rule 142(a). The
transcript of account shows a dishonored check in the amount of
$106,888, and there is no evidence contradicting the inference to
be drawn from that entry that the check was returned for
insufficient funds. We cannot conclude that Appeals wrongfully
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concluded that the check was returned for insufficient funds.
Moreover, there is no evidence that petitioner raised the
computational issue during the section 6330 hearing. We agree
with respondent that, for failure to raise the computational
issue during the section 6330 hearing, petitioner is precluded
from raising it with us. See Giamelli v. Commissioner, 129 T.C.
, (2007) (slip op. at 15) (“we do not have authority to
consider section 6330(c)(2) issues that were not raised before
the Appeals Office”); Magana v. Commissioner, 118 T.C. 488, 493
(2002) (“in our review for an abuse of discretion under section
6330(d)(1) * * * generally we consider only arguments, issues,
and other matter that were raised at the collection hearing”);
sec. 301.6330-1(f)(2), Q&A-F5, Proced. & Admin. Regs. (2002).
Petitioner has failed to prove that Appeals erred in making
the determination.
To reflect the foregoing,
Decision will be entered
for respondent.