Sponberg v. Comm'r ( 2002 )

MICHAEL SPONBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Sponberg v. Comm'r

No. 7073-00L

United States Tax Court

T.C. Memo 2002-177; 2002 Tax Ct. Memo LEXIS 211; 84 T.C.M. (CCH) 77; T.C.M. (RIA) 54816;

July 29, 2002, Filed

---

Decision will be entered for the Commissioner.

Michael Sponberg, pro se.

Willis B. Douglass, for respondent.

Carolyn P. Chiechi, Judge

---

Carolyn P. Chiechi

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: The petition in this case was filed in response to a "NOTICE OF DETERMINATION CONCERNING COLLECTION ACTION(S) UNDER SECTION 6320 and/or 6330" (notice of determination).

We must consider whether respondent correctly determined in the notice of determination to proceed with the collection action with respect to each of petitioner's taxable years 1987 and 1990. We hold that, except for respondent's concession with respect to petitioner's taxable year 1987, respondent did.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found with one exception stated herein.

Petitioner resided in Palos Verdes Estates, California, at the time he filed the petition in this case.

On August 15, 1985, April 15, 1986, and October 11, 1988, respectively, petitioner filed Forms 1040, U.S. Individual Income Tax Return (Form 1040), for his taxable years 1984 (1984 return), 1985 (1985 return), and 1986 (1986 return). As reflected in Form 4340, Certificate of Assessments, Payments, and Other Specified Matters (Form 4340), with respect to each of petitioner's taxable years 1984 and 1985 and in respondent's complete statement of petitioner's account with respect to his taxable year 1986 (respondent's statement of petitioner's account with respect to his taxable year 1986), ^{TotalYearTaxAdditions to TaxInterestLiability1984$ 6,266$ 1,823.10$ 4,203.66fn 1 $ 12,306.7619859,1001,414.1510,113.6120,627.761986886327.49621.71fn 2 1,845.20fn1 Form 4340 with respect to petitioner's taxable year 1984 also reflects a $ 14 charge for "FEES AND COLLECTION COSTS", making the total liability for that year $ 12,306.76. fn2 Respondent's statement of petitioner's account with respect to his taxable year 1986 also reflects a $ 10 "COLLECTION CHARGE-LIEN FEE", making the total liability for that year $ 1,845.20.}

On December 6, 1993, and October 30, 1993, respectively, petitioner filed Forms 1040 for his taxable years 1987 (1987 return) and 1990 (1990 return), the two years to which the collection action at issue relates. As reflected in Form 4340 with respect to each of petitioner's taxable years 1987 and 1990, respondent assessed on January 3, 1994, and December 6, 1993, respectively, the following amounts of tax, additions to tax, and interest:

				Total
Year	Tax	Additions to Tax	Interest	Liability
1987	$ 3,911	$ 1,857.73	$ 3,475.41	$ 9,244.14
1990	1,954	529.10	386.15	2,869.25

Petitioner made certain payments to the Internal Revenue Service (IRS) that respondent ultimately Petitioner's Pay Period EndedAmount Collected by Levy05/03/91$ 706.1405/20/91706.1406/05/91706.1406/20/91706.1407/05/91706.1407/19/91706.1408/08/91706.1408/20/91122.47

As reflected in Form 4340 with respect to each of petitioner's taxable years 1984 and 1985, respondent ultimately credited: (1) Petitioner's accounts with respect to his taxable years 1984 and 1985 with petitioner's payments totaling $ 1,277.20 and $ 1,547.36, respectively, consisting of each of the $ 706.14 payments set forth above that were made by levy from petitioner's wages for his pay periods that ended May 3, May 20, June 5, and June 20, 1991; (2) petitioner's account with respect to his taxable year 1985 with petitioner's payments totaling $ 1,412.28, consisting of each of the $ 706.14 payments set forth above that were made by levy from petitioner's wages for his pay periods that ended July 5 and July 19, 1991; (3) petitioner's account with respect to his taxable year 1985 with $ 54 of petitioner's payment of $ 706.14 set forth above that was made by levy from petitioner's wages for his pay period that ended August 8, 1991; *216 Also included within the payments that petitioner made to the IRS during the period March 20, 1996, through March 29, 1998, were 15 $ 1,000 payments that petitioner believed respondent should have credited against his unpaid liability for each of his taxable years 1987 and 1990. However, as reflected in Form 4340 with respect to each of petitioner's taxable years 1984 and 1985 and in respondent's statement of petitioner's account with respect to his taxable year 1986, respondent ultimately credited petitioner's 15 $ 1,000 payments as follows:

Taxable Year to

Which Payment     Date as of Which      Amount of

Was Credited     Payment Was Credited   Payment Credited

_______________    ____________________   ________________

  1986          03/20/96        $ 1,000

  1985          04/20/96         1,000

  1985          05/19/96         1,000

  1985          06/20/96         1,000

  1985          07/20/96         1,000

  1985          08/20/96          1,000

  1985          09/21/96         1,000

  1985          10/22/96         1,000

  1985          11/20/96         1,000

  1985          12/20/96         1,000

  1985          01/19/97         1,000

  1985          03/04/97         1,000

  1984          03/29/97         1,000

  1984          06/01/97         1,000

  1985          03/29/98         1,000

In addition to crediting petitioner's payments to his accounts with respect to his taxable years 1984, 1985, 1986, and/or 1990, respondent ultimately: (1) Credited petitioner's account with respect to each of his taxable years 1984, 1985, and 1987 with certain credits and (2) debited petitioner's account with respect to each of his taxable years (a) 1984 and 1985 to reflect certain refunds to him, (b) 1984, 1985, and 1986 to reflect the transfer of certain credits from each of those taxable years to his taxable years 1984, 1985, and/or 1987, and (c) 1984, 1985, and 1987 to reflect certain corrections of payments and/or certain reversals of credits. As reflected in Form 4340 with respect to each of petitioner's taxable years 1984 and 1985 and in respondent's statement of petitioner's account with respect to his taxable year 1986, on various dates respondent credited and debited petitioner's account as follows:

		Credits
	Payments	Applied	Credits
	by	From Other	For
Year	Petitioner	Years	Interest	Refunds
1984	$ 30,594.34	$ 4,663.13	$ 7.98	($ 12.91)
1985	35,033.56	1,184.05	.77	(377.84)
1986	2,509.00	---	---	---

	Credits	Corrections of
	Transferred	Payments and	Actual Total
	to Other	Reversals	Payments
Year	Years fn1	of Credits fn2	and Credits fn3
1984	($ 2,494.51)	($ 20,451.27)	$ 12,306.76
1985	(3,085.93)	(12,126.85)	20,627.76
1986	(663.80)	---	1,845.20
fn1 Respondent applied the amounts shown under
the heading "Credits Transferred to Other Years"
as payments and/or credits to petitioner's
accounts with respect to his taxable years 1984,
1985, and/or 1987.
fn2 Respondent applied the amounts shown under
the heading "Corrections of Payments and
Reversals of Credits" as payments to
petitioner's accounts with respect to his taxable
years 1984 and/or 1985.
fn3 The amounts shown under the heading "Actual
Total Payments and Credits" are the payments and
credits that respondent ultimately applied to
petitioner's accounts with respect to his
taxable years 1984, 1985, and 1986,
respectively.

As reflected in Form 4340 with respect to petitioner's taxable year 1987, respondent made the following assessments and credited and debited petitioner's account as follows:

                    Assessment,   Payment,   Assessment

        Explanation of      Other Debits    Credit   Date (23C,

 Date      Transaction        (Reversal)   (Reversal)   RAC 006)

 ____      _______________      ____________   __________  __________

      Adjusted gross income

         38,849.00

      Taxable income

         22,013.00

12-06-93   Return filed and tax      $ 3,911.00         01-03-94

       assessed

       89221-338-08708-3 199351

04-15-88   Extension of time to file

       ext. date 08-15-88

      Late filing penalty        879.98         01-03-94

       199351

      Failure to pay tax penalty     977.75         01-03-94

       199351

      Interest assessed 199351     3,475.41         01-03-94

08-08-94   Federal tax lien

05-22-96   Collection statute

       extension to 12-31-08

06-01-97   Overpaid credit applied          $ 270.78

       1040 198412

06-01-97   Overpaid credit applied           880.46

       1040 198412

03-23-98   Interest overpayment              7.98

       credit

       1040 198412

06-01-97   Overpaid credit reversed

       1040 198412                (270.78)

06-01-97   Overpaid credit reversed

       1040 198412                (880.46)

06-01-97   Overpaid credit applied           151.24

       1040 198412

10-17-98   Overpaid credit applied           448.28

       1040 199712

03-12-99   Legal/bankruptcy suit

       pending

08-21-89   Taxpayer delinquency notice

01-24-94   Statutory notice of intent

       to levy

01-03-94   Statutory notice of balance

       due

Balance      $ 8,636.64

As reflected in Form 4340 with respect to petitioner's taxable year 1990, respondent made the following assessments and credited petitioner's account as follows:

                     Assessment,   Payment,   Assessment

        Explanation of       Other Debits    Credit   Date (23C,

 Date       Transaction         (Reversal)   (Reversal)   RAC 006)

 ____      ______________       ____________   __________  _________

      Adjusted gross income

         22,419.00

      Taxable income

         13,016.00

10-30-93   Return filed and tax      $ 1,954.00          12-06-93

       assessed

       89211-306-95415-3 199347

10-30-93   Withholding and excess FICA           $ 573

04-15-91   Extension of time to file

       ext. date 08-15-91

08-11-91   Extension of time to file

       ext. date 10-15-91

10-30-93   Payment with return                 516

      Late filing penalty         310.73          12-06-93

       199347

      Failure to pay tax penalty     218.37          12-06-93

       199347

      Interest assessed          386.15          12-06-93

       199347

08-08-94   Federal tax lien

05-28-96   Collection statute

       extension to 12-31-08

03-12-99   Legal/bankruptcy suit

       pending

12-06-93   Statutory notice of balance

       due

12-27-93   Statutory notice of intent

        to levy

Balance      $ 1,780.25

On January 29, 1999, respondent issued to petitioner a final notice of intent to levy (notice of intent to levy) with respect to, inter alia, petitioner's taxable years 1987 and 1990. Section 6331 and your right to receive Appeals consideration under IRC Section 6330.

We may file a Notice of Federal Tax Lien at any time to protect the government's interest. A lien is a public notice to your creditors that the government has a right to your current assets, including any assets you acquire after we file the lien.

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. * * *

* * * The amount you owe is:

Form	Tax	Unpaid Amount	Additional
Number	Period	from Prior Notices	Penalty & Interest	AMOUNT YOU OWE
1040	1987	fn1 $ 8636.64	fn2 $ 5082.64	$ 13719.28
* * * * * * *
1040	1990	fn1 $ 1780.25	fn2 $ 1078.73	$ 2858.98
fn1 The amount shown for each of the years 1987 and 1990 under the
heading "Unpaid Amount from Prior Notices" is the same as the amount
of the balance shown due in Form 4340 with respect to each such
year.
fn2 The amount shown for each of the years 1987 and 1990 under the
heading "Additional Penalty & Interest" is the additional amount of
penalties and/or interest for each such year that is not reflected
in Form 4340 with respect to each such year.

In response to the notice of intent to levy, on February 24, 1999, petitioner filed Form 12153, Request For a Collection Due Process Hearing (Form 12153), and requested a hearing with the IRS Appeals Office (Appeals Office).

Sometime after February 24, 1999, the Appeals officer assigned to petitioner's case (Appeals officer) scheduled petitioner's Appeals Office hearing. The Appeals officer was unable to attend that scheduled hearing because of the death of the Appeals officer's father. Sometime thereafter, the Appeals officer sent petitioner a letter rescheduling petitioner's Appeals Office hearing on a date and at a time not disclosed by the record. Petitioner did not receive that letter until after the rescheduled date and time for that hearing had passed. Thereafter, at a time not disclosed by the record, petitioner had an opportunity via the telephone to discuss with the Appeals officer and/or the Appeals officer's supervisor the notice of intent to levy with respect to petitioner's taxable years 1987 and 1990.

During petitioner's communications with the Appeals Office, petitioner claimed that he had made an overpayment with respect to each of his taxable years 1984, 1985, and 1986 and that respondent should have applied such claimed overpayments against his unpaid liability for each of his taxable years 1987 and 1990. Petitioner did not provide the Appeals Office with evidence to verify any such claimed overpayments. During his communications with the Appeals Office, petitioner did not offer any collection alternatives, nor did he provide the Appeals Office with any financial statements.

On May 24, 2000, respondent issued to petitioner a notice of determination with respect to, inter alia, his taxable years 1987 and 1990. That notice stated in pertinent part as follows:

Summary of Determination:

The Notice of Federal Tax Liens were filed on 8/18/94 and are not subject to the Due Process Procedures under IRC Section 6320.

With respect to the Notice of Intent to Levy, there has been no response to requests for the completion of financial statements in order to determine if a possible collection alternative is feasible. We are sustaining the District's decision to take appropriate enforcement action.

*   *   *   *   *   *   *   *   *   *   *   *   *

Applicable Law and Administrative Procedures

With the best information available, the requirement [sic] of various applicable law or administrative procedures have been met.

Notice and Demand was made for the above periods as verified by review of the transcripts and revenue officer history and correspondence.

IRC Section 6331(d) requires that the IRS notify a taxpayer at least 30 days before a Notice of Levy can be issued. The 30 day notice was mailed to the taxpayer via certified mail and the return receipt was signed.

IRC Section 6330(a) states that no levy may be made unless the IRS notifies a taxpayer of the opportunity for a hearing with the IRS Office of Appeals. Letter 1058 "Final Notice" was sent to the taxpayer by certified mail. The hearing was requested within the appropriate time frames.

This appeals officer had no prior involvement with respect to these liabilities.

Relevant Issues Presented by the Taxpayer

The attachment to Form 12153 referred to the taxpayers' original audits for 1984 and 1985 and the penalties and interest assessed. IRC Section 6320.

The taxpayer has not raised any possible collection alternative.

Balancing Efficient Collection and Intrusiveness

The revenue officer issued L 1058 after identifying levy sources. Repeated requests were made for financial statements and they were not provided nor has the taxpayer raised any possible collection alternative for these years. It is his contention that prior years are overpaid, yet no evidence has been provided to verify that any possible overpayments not previously addressed would full pay these tax years. Therefore, since the taxpayer has not provided any financial statements to determine if there may be a less intrusive method of collection, the District should proceed with levy enforcement.

OPINION

Petitioner contends that respondent has not accounted for all of the payments that he made to the IRS with respect to his taxable years 1984, 1985, 1986, 1987, and/or 1990. *229 that respondent should have credited that $ 652.14 as of August 29, 1991, to petitioner's account with respect to his taxable year 1987. See supra note 4.

Because the amount of the liability that remains unpaid for each of petitioner's taxable years 1987 and 1990 is properly at issue, we review respondent's determination de novo. Boyd v. Comm'r, 117 T.C. 127">117 T.C. 127, 131 (2001); Landry v. Comm'r, 116 T.C. 60">116 T.C. 60, 62 (2001).

The record in this case includes Form 4340 with respect to each of petitioner's taxable years 1984, 1985, 1987, and 1990 and respondent's statement of petitioner's account with respect to his taxable year 1986. Although as reflected in those forms and that statement respondent made numerous and various corrections, including so-called reversals, to petitioner's accounts with respect to his taxable years 1984, 1985, 1986, and 1987, we have been able to reconcile all of the entries therein. Except for respondent's concession regarding petitioner's taxable year 1987, see supra note 4, on the record before us, we are unable to find that respondent has not accounted for all of the payments that petitioner made to the IRS with respect to his taxable years 1984, 1985, 1986, 1987, and/or 1990. Nor are we able to find on the instant record that petitioner made an overpayment with respect to any of his taxable years 1984, 1985, and 1986 for which respondent has not accounted and which respondent should have applied against petitioner's liability for each of his taxable years 1987 and 1990.

Based upon our examination of the entire record before us, we find that, except for respondent's concession regarding petitioner's taxable year 1987, see supra note 4, petitioner has not paid the liability for each of his taxable years 1987 and 1990 that respondent is now attempting to collect.

We have considered all of the contentions and arguments that petitioner advanced at the trial in this case and that are not discussed herein, and we find them to be without merit and/or irrelevant.

To reflect the foregoing and the concession of respondent with respect to petitioner's taxable year 1987,

Decision will be entered under Rule 155. ^{*232  ____       ______________     ____________   __________   __________}

      Adjusted gross income

         20,567.00

      Taxable income

         19,462.00

08-15-85   Return filed and tax     $ 2,658.00           10-28-85

       assessed

       17211-278-01512-5 198542

08-15-85   Withholding and excess           $ 189.00

       FICA

04-15-85   Extension of time to file

       ext. date 08-15-85

      Estimated tax penalty      153.00           10-28-85

       198542

      Failure to pay tax penalty    86.41           10-28-85

       198542

      Interest assessed 198542     161.13           10-28-85

04-28-86   Overpaid credit applied            216.39

       1040 198512

04-15-86   Overpaid credit applied           2,869.54

       1040 198512

      Failure to pay tax penalty    61.73           04-28-86

       198616

      Interest assessed 198616     141.75           04-28-86

04-28-86   Refund                    (12.91)

      Additional tax assessed by     0.00           12-05-88

       examination

       29247-720-10501-8 198847

11-21-88   Legal/bankruptcy suit

       pending

      Late filing penalty 198923   1,215.40           06-19-89

      Additional tax assessed by   3,608.00           06-19-89

       examination

       29247-550-70013-9 198923

05-26-89   Legal/bankruptcy suit no

       longer pending

06-19-89   Failure to pay tax penalty    (24.69)

       abated

      Interest assessed 198923    2,493.61           06-19-89

01-10-90   Federal tax lien

      Additional tax assessed      0.00           07-02-90

       89254-559-18001-0 199025

07-09-91    Subsequent payment             2,824.56

08-29-91   Overpaid credit applied            54.00

       1040 198912

10-16-93   Overpaid credit applied            87.84

       1040 199212

10-16-93   Overpaid credit applied            277.04

       1040 199212

12-07-93   Subsequent payment              144.96

10-19-92   Overpaid credit applied            389.51

       1040 199112

01-08-93   Overpaid credit applied            105.01

       1040 199112

07-09-91   Subsequent payment             (2,824.56)

       corrected

03-29-94   Subsequent payment              157.73

05-02-95   Subsequent payment               0.00

       miscellaneous payment

05-22-95   Fees and collection costs     14.00

04-20-96   Subsequent payment             1,000.00

05-19-96   Subsequent payment              1,000.00

03-20-96   Overpaid credit applied            663.80

       1040 198612

05-22-96   Collection statute

       extension to 12-31-08

06-20-96   Subsequent payment             1,000.00

07-20-96   Subsequent payment             1,000.00

08-20-96   Subsequent payment             1,000.00

09-21-96   Subsequent payment             1,000.00

      Failure to pay tax penalty    573.57           10-14-96

       199640

10-22-96   Subsequent payment             1,000.00

      Interest assessed        763.69           11-11-96

       199644

      Failure to pay tax penalty    236.31           11-11-96

       199644

11-20-96   Subsequent payment             1,000.00

      Interest assessed       1,000.00           12-16-96

       199649

12-20-96   Subsequent payment             1,000.00

      Interest assessed       1,000.00           02-03-97

       199704

01-19-97   Subsequent payment             1,000.00

      Interest assessed       1,000.00           02-10-97

       199705

03-04-97   Subsequent payment             1,000.00

      Interest assessed       1,000.00           03-31-97

       199712

03-29-97   Subsequent payment             1,000.00

      Interest assessed       1,000.00           04-21-97

       199715

05-04-97   Subsequent payment              335.29

      Interest assessed        664.71           05-26-97

       199720

05-04-97   Overpayment credit              (335.29)

       transferred

       1040 198512

06-01-97   Subsequent payment              1,000.00

06-01-97   Overpayment credit              (729.22)

       transferred

       1040 198512

06-01-97   Overpayment credit              (270.78)

       transferred

       1040 198712

06-20-97   Federal tax lien released

11-17-90   Subsequent payment              706.14

12-05-90   Subsequent payment              706.14

12-20-90   Subsequent payment              706.14

01-07-91   Subsequent payment              706.14

01-30-91   Subsequent payment              706.14

02-04-91   Subsequent payment              706.14

02-22-91   Subsequent payment              706.14

03-03-91   Subsequent payment              706.14

03-26-91   Subsequent payment              706.14

04-05-91   Subsequent payment              706.14

04-22-91   Subsequent payment               706.14

03-23-98   Failure to pay tax penalty   (478.63)

       abated

03-23-98   Interest abated        (4,902.19)

07-09-91   Subsequent payment             1,277.20

08-01-91   Subsequent payment             1,412.28

09-03-91   Subsequent payment              122.47

04-06-98   Interest abated         (119.04)

      Failure to pay tax penalty     0.00           04-20-98

       199814

      Restricted interest        0.00           04-20-98

       assessed 199814

      Additional tax assessed      0.00           04-20-98

       89254-489-15000-8 199814

07-09-91   Subsequent payment             (1,547.36)

       corrected

07-09-91   Subsequent payment             1,547.36

08-01-91   Subsequent payment             (1,412.28)

       corrected

09-03-91   Subsequent payment              (122.47)

       corrected

12-07-93   Subsequent payment              (144.96)

       corrected

03-29-94   Subsequent payment              (157.73)

       corrected

04-20-96   Subsequent payment             (1,000.00)

       corrected

05-19-96   Subsequent payment             (1,000.00)

       corrected

06-20-96   Subsequent payment             (1,000.00)

       corrected

07-20-96   Subsequent payment             (1,000.00)

       corrected

08-20-96   Subsequent payment             (1,000.00)

       corrected

09-21-96   Subsequent payment             (1,000.00)

       corrected

10-22-96   Subsequent payment             (1,000.00)

       corrected

11-20-96   Subsequent payment             (1,000.00)

       corrected

12-20-96    Subsequent payment             (1,000.00)

       corrected

01-19-97   Subsequent payment             (1,000.00)

       corrected

03-04-97   Subsequent payment             (1,000.00)

       corrected

05-04-97   Subsequent payment              (664.71)

       corrected

05-04-97   Subsequent payment              664.71

08-29-91   Overpaid credit reversed           (54.00)

       1040 198512

10-19-92   Overpaid credit reversed           (389.51)

       1040 198512

01-08-93   Overpaid credit reversed           (105.01)

       1040 198512

10-16-93   Overpaid credit reversed           (277.04)

       1040 198512

10-16-93   Overpaid credit reversed           (87.84)

       1040 198512

03-20-96   Overpaid credit reversed           (663.80)

       1040 198512

06-01-97   Overpayment credit              (119.54)

       transferred

       1040 198512

06-01-97   Overpayment credit              (880.46)

       transferred

       1040 198712

03-23-98   Interest due taxpayer              7.98

03-23-98   Overpayment interest              (7.98)

       transferred

       1040 198712

03-29-97   Subsequent payment             (1,000.00)

       corrected

06-01-97   Subsequent payment              270.78

06-01-97   Subsequent payment              880.46

      Additional tax assessed      0.00           10-05-98

       29254-657-18007-8 199838

06-01-97   Overpayment credit              (151.24)

       transferred

       1040 198712

10-28-85   Statutory notice of

       balance due

12-02-85   Notice of balance due

02-17-86   Statutory notice of intent

        to levy

06-19-89   Statutory notice of

       balance due

07-24-89   Notice of balance due

11-12-90   Statutory notice of intent

       to levy

05-11-98   Statutory notice of

       balance due

06-01-98   Statutory notice of intent

       to levy

Balance    $ 0.00

               APPENDIX B

        Information Reflected in Form 4340 With

       Respect to Petitioner's Taxable Year 1985

                    Assessment,    Payment,   Assessment

        Explanation of      Other Debits    Credit    Date (23C,

 Date       Transaction       (Reversal)    (Reversal)   RAC 006)

 ____      ______________      ____________   __________   __________

      Adjusted gross income

       20,059.00

      Taxable income

       16,354.00

04-15-86   Return filed and tax     $ 1,817.00           04-28-86

       assessed

       31211-089-63604-6 198616

04-15-86   Withholding and excess FICA        $ 5,280.00

04-15-86   Overpayment credit

       transferred               (3,085.93)

       1040 198412

04-28-86   Interest due taxpayer              0.77

04-28-86   Refund

                           (377.84)

      Additional tax assessed by     0.00           12-05-88

       examination

       29247-720-10502-8 198847

11-21-88   Legal/bankruptcy suit

       pending

      Additional tax assessed by   7,283.00           06-19-89

       examination

       29247-550-70014-9 198923

05-26-89   Legal/bankruptcy suit no

       longer pending

      Interest assessed 198923    2,717.50           06-19-89

01-10-90   Federal tax lien

11-17-90   Subsequent payment              706.14

      Additional tax assessed      0.00           12-24-90

       89254-739-00011-0 199050

12-05-90   Subsequent payment              706.14

12-20-90   Subsequent payment              706.14

01-07-91   Subsequent payment              706.14

01-30-91   Subsequent payment              706.14

02-04-91   Subsequent payment              706.14

02-22-91   Subsequent payment              706.14

03-03-91   Subsequent payment              706.14

03-26-91   Subsequent payment              706.14

04-05-91   Subsequent payment              706.14

04-22-91   Subsequent payment              706.14

08-01-91   Subsequent payment             1,412.28

09-03-91   Subsequent payment              122.47

07-09-91   Subsequent payment             2,824.56

      Interest assessed       1,409.98            03-07-94

       199408

      Failure to pay tax penalty    716.37           03-07-94

       199408

05-22-96   Collection statute

       extension to 12-31-08

05-04-97   Overpaid credit applied            335.29

       1040 198412

      Failure to pay tax penalty     0.02           05-26-97

       199720

      Interest assessed        335.27           05-26-97

       199720

06-01-97   Overpaid credit applied            729.22

       1040 198412

      Interest assessed        729.22           06-23-97

       199724

06-20-97   Federal tax lien released

11-17-90   Subsequent payment

       corrected                 (706.14)

12-05-90   Subsequent payment

       corrected                 (706.14)

12-20-90   Subsequent payment

       corrected                 (706.14)

01-07-91   Subsequent payment

       corrected                 (706.14)

01-30-91   Subsequent payment

       corrected                 (706.14)

02-04-91   Subsequent payment

       corrected                 (706.14)

02-22-91   Subsequent payment

       corrected                 (706.14)

03-03-91   Subsequent payment

       corrected                 (706.14)

03-26-91   Subsequent payment

       corrected                 (706.14)

04-05-91   Subsequent payment

       corrected                 (706.14)

04-22-91   Subsequent payment

       corrected                 (706.14)

07-09-91   Subsequent payment

       corrected                (2,824.56)

08-01-91   Subsequent payment

        corrected                (1,412.28)

09-03-91   Subsequent payment

       corrected                 (122.47)

      Failure to pay tax penalty   1,104.36           03-23-98

       199810

      Interest assessed       9,816.51           03-23-98

       199810

07-09-91   Subsequent payment             1,547.36

08-01-91   Subsequent payment             1,412.28

08-29-91   Subsequent payment               54.00

09-03-91   Subsequent payment              122.47

10-19-92   Subsequent payment              389.51

01-08-93   Subsequent payment              105.01

10-16-93   Subsequent payment               87.84

10-16-93   Subsequent payment              277.04

12-07-93   Subsequent payment              144.96

03-29-94   Subsequent payment               157.73

03-20-96   Subsequent payment              663.80

04-20-96   Subsequent payment             1,000.00

05-19-96   Subsequent payment             1,000.00

06-20-96   Subsequent payment             1,000.00

07-20-96   Subsequent payment             1,000.00

08-20-96   Subsequent payment             1,000.00

09-21-96   Subsequent payment             1,000.00

10-22-96   Subsequent payment             1,000.00

11-20-96   Subsequent payment             1,000.00

12-20-96   Subsequent payment             1,000.00

01-19-97   Subsequent payment             1,000.00

03-04-97   Subsequent payment             1,000.00

05-04-97   Subsequent payment              664.71

03-29-98   Subsequent payment             1,000.00

04-20-98   Failure to pay tax penalty   (406.60)

        abated

04-20-98   Interest abated        (4,894.10)

03-23-89   Overpaid credit applied            119.54

       1040 198412

04-20-98   Interest abated          (0.77)

06-19-89   Statutory notice of balance

       due

07-24-89   Notice of balance due

03-23-98   Statutory notice of balance

       due

Balance    $ 0.00

               APPENDIX C

  Information Reflected in Respondent's Statement of Petitioner's

      Account With Respect to His Taxable Year 1986

Transaction

  Date     Amount       Transaction Explanation

___________   ______       _______________________

10-11-88   $ 522.00    Tax return filed -- amount of tax assessed

04-15-87    552.00-   Credit for withholding and excess FICA taxes

04-15-87     0.00    Request for extension of time to file approved --

              extended to 08-15-87

09-16-91    143.99    Negligence penalty charge

09-16-91    100.00    Penalty charge for late filing

09-16-91    334.00    Additional tax assessed after return examination

09-16-91    255.65    Interest charge

08-29-94     10.00    Collection charge-lien fee

02-18-96    957.00-   Payment received

03-11-96     29.86    Interest charge

03-11-96     83.50    Penalty charge for late payment of tax

03-20-96   1,000.00-   Payment received

04-15-96    336.20    Interest charge

03-20-96    663.80    Credit transferred to another period or account

---

Footnotes

• 1. We attach hereto as Appendix A, Appendix B, and Appendix C, respectively, and incorporate herein by this reference, the information reflected in Form 4340 with respect to each of petitioner's taxable years 1984 and 1985 and respondent's statement of petitioner's account with respect to his taxable year 1986.↩

• 2. On various occasions during 1995 through at least 1998, petitioner and one or more of respondent's representatives had discussions regarding at least certain of his taxable years discussed herein, and respondent made various corrections, including so-called reversals, to petitioner's accounts with respect to his taxable years 1984, 1985, 1986, and 1987. In describing petitioner's accounts with respect to certain of his taxable years, we use the word "ultimately" to refer to the corrected accounts as reflected in respective Forms 4340 with respect to petitioner's taxable years 1984, 1985, and 1987 and respondent's statement of petitioner's account with respect to his taxable year 1986.↩

• 3. In addition to respondent's levy notice which respondent served on KG7 K-Surf Radio, respondent: (1) Recorded a notice of Federal tax lien (tax lien) in Orange County, California, in the amount of $ 17,292.82 with respect to petitioner's unpaid liabilities of $ 7,292.32 and $ 10,000.50 for his taxable years 1984 and 1985, respectively; (2) sent petitioner a notice of levy, which respondent served on Ocean Broadcasting Inc., in the amount of $ 12,618.19 with respect to petitioner's unpaid liabilities of $ 7,379.82, $ 4,356.86, and $ 881.51 for his taxable years 1984, 1985, and 1986, respectively; (3) released respondent's tax lien with respect to petitioner's taxable years 1984 and 1985; and (4) recorded a notice of tax lien with respect to each of petitioner's taxable years 1987, 1988, and 1990.

  With respect to the notice of levy that respondent sent petitioner and served on Ocean Broadcasting Inc., the parties stipulated: "Attached as Exhibit 11-P is a copy of respondent's notice of levy dated January 14, 1992, which was served on Ocean Broadcasting, Inc. in an attempt to collect respondent's personal income tax liability for 1984, 1985 and 1986." That stipulation is clearly contrary to the facts disclosed by the record to the extent that it states that respondent's notice of levy was served in an attempt to collect respondent's, rather than petitioner's, unpaid liability for each of certain taxable years, and we shall disregard it. See Cal-Maine Foods, Inc. v. Commissioner, 93 T.C. 181">93 T.C. 181, 195↩ (1989). The record establishes, and we have found, that respondent's notice of levy was served in an attempt to collect petitioner's unpaid liabilities for his taxable years 1984, 1985, and 1986.

• 4. Sometime before the trial in this case, respondent conceded, and on brief respondent reaffirms respondent's concession, that respondent did not credit to petitioner's account with respect to any taxable year $ 652.14 of the $ 706.14 that respondent collected by levy from petitioner's wages for his pay period that ended Aug. 8, 1991, and that respondent should have credited that $ 652.14 as of Aug. 29, 1991, against petitioner's unpaid liability for his taxable year 1987.↩

• 5. The notice of intent to levy also applied to petitioner's taxable year 1988. Petitioner does not raise any issues with respect to that year in this case.↩

• 1. The record does not contain a copy of the attachment to petitioner's Form 12153. ↩

• 6. Although given the opportunity to do so, petitioner did not file any briefs in this case. Our understanding of petitioner's position is based upon his opening statement and his testimony at the trial in this case.↩

• 7. Petitioner acknowledges that even if respondent had applied certain alleged overpayments against his liability for each of his taxable years 1987 and 1990, he nonetheless would have an unpaid liability for each such year, although he does not know the amount of each such unpaid liability.↩

• 8. We reject respondent's position that an abuse-of-discretion standard applies in the instant case. See Boyd v. Comm'r, 117 T.C. 127">117 T.C. 127, 131 (2001); Landry v. Comm'r, 116 T.C. 60">116 T.C. 60, 62 (2001). In this connection, respondent does not contest that petitioner received no notice of deficiency for taxable year 1987 or taxable year 1990 and that petitioner otherwise had no opportunity to dispute the amount of the liability that remains unpaid for each such year. See sec. 6330(c)(2)(B), I.R.C. 116↩ T.C. 60, 62 (2001).

• 9. The reference to Rule 155 is to Rule 155, Tax Court Rules of Practice and Procedure.↩