MULDAVIN v. COMMISSIONER

ROGER AND JEAN MULDAVIN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

MULDAVIN v. COMMISSIONER

No. 6854-00L

United States Tax Court

T.C. Memo 2002-182; 2002 Tax Ct. Memo LEXIS 187; 84 T.C.M. (CCH) 107;

July 31, 2002, Filed

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Decision will be entered for respondent.

Roger and Jean Muldavin, pro sese.

Timothy S. Murphy, for respondent.

Vasquez, Juan F.

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VASQUEZ

MEMORANDUM FINDINGS OF FACT AND OPINION

VASQUEZ, Judge: Pursuant to section 6330(d), ^{*188 1991. Petitioners filed petitions with the Court regarding their 1987, 1988, 1989, and 1991 tax years.}

The Court issued Muldavin v. Commissioner, T.C. Memo 1997-531">T.C. Memo 1997-531, I.R.C. 6320 (hearing notice) to Mr. Muldavin for 1987 and a hearing notice to petitioners for 1988, 1989, and 1991.

On August 27, 1999, the register's office recorded the FTL notices.

On or about September 6, 1999, petitioners filed a Request for a Collection Due Process Hearing, Form 12153. Petitioners explained their disagreement with the FTL notices as follows:

   We are currently before the U.S. Tax Court for 1985-89 with the

   opportunity to open 1980 for greater oil depletion allowances.

   Adjustments for carryforward and carryback credits have not been

   made for depletion, depreciation, and prepayments (as the court

   so ordered) nor has the Commissioner fullfilled [sic] its

   promises to make such adjustments in exchange for our not going

   to trial over proper business expenses in Ann Arbor, Michigan.

Pursuant to petitioners' request for a hearing, Appeals Officer Mary Jo Fedewa held a hearing attended by petitioners and Ms. Fedewa. Petitioners raised two issues at the hearing: (1) They challenged the underlying deficiencies, *190 Ms. Fedewa verified that for each of the years in issue petitioners received a statutory notice of deficiency, they petitioned the Court, and a decision had been entered. Ms. Fedewa also verified that on August 2, 1999, respondent prepared and mailed the FTL notices for each of the years in issue to the register's office and that on August 5, 1999, respondent issued hearing notices for each of the years in issue to petitioners. Ms. Fedewa repeatedly explained to petitioners that she could not consider the underlying liabilities.

On May 18, 2000, respondent mailed Mr. Muldavin a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of determination) for 1987 and petitioners a notice of determination for 1988, 1989, and 1991. The Appeals Office made the following determinations in the notices of determination: (1) There were no open Tax Court cases for 1985 through 1989; (2) petitioners could not raise the amount of the underlying liabilities as an issue; and (3) as no collection alternatives were raised, petitioners' request for relief from the proposed collection action was denied.

                OPINION

Petitioners received statutory notices of deficiency for each of the years in issue. Accordingly, petitioners cannot contest the underlying deficiencies for 1987, 1988, 1989, and 1991. Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604">114 T.C. 604, 610-611 (2000); Goza v. Commissioner, 114 T.C. 176">114 T.C. 176, 182-183 (2000).

Where the validity of the underlying tax liability is not properly in issue, we review respondent's determination for an abuse of discretion. Sego v. Commissioner, supra at 610. Section 6321 imposes a lien in favor of the United States on all property and rights to property of a person when demand for payment of that person's liability for taxes has been made and the person fails to pay those taxes. The lien arises when the assessment is made. Sec. 6322. Section 6323(a) requires the Secretary to file an FTL notice if such lien is to be valid against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor. Lindsay v. Commissioner, T.C. Memo 2001-285">T.C. Memo 2001-285.

Section 6320 provides that the Secretary shall furnish the person described in section 6321 with written notice (i.e., the hearing notice) of the filing of a notice of lien under section 6323. The hearing notice must be provided not more than 5 business days after the day the FTL notice is filed. Sec. 6320(a)(2). Section 6320 further provides that the taxpayer may request administrative review of the matter (in the form of an Appeals Office hearing) within the 30-day period beginning on the day after the 5-day period described above. The Appeals Office hearing generally shall be conducted consistent with the procedures set forth in section 6330(c), (d), and (e). Sec. 6320(c).

Petitioners claim that the FTL notices were filed on August 27, 1999, when the register's office recorded the FTL notices, and therefore respondent did not follow section 6320(a)(2) because he sent the hearing notices on August 5, 1999. Respondent claims that the FTL notices were filed on August 2, 1999, the date of mailing, and therefore the hearing notices were sent to petitioners within 5 days of the filing of the FTL notices as required by section 6320(a)(2).

Irrespective of whether the date of filing of the FTL notices was August 2, as respondent contends, or August 27, as petitioners contend, respondent complied with section 6320(a)(2). Section 6320(a)(2) requires that the hearing notice be given "not more than 5 business days after the date of the filing of the notice of lien." August 5, 1999, the date respondent issued the hearing notices to petitioners, is not more than 5 business days after August 2 or 27, 1999.

Petitioners have failed to raise a spousal defense, make a valid challenge to the appropriateness of respondent's intended collection action, or offer alternative means of collection. These issues are now deemed conceded. Rule 331(b)(4). Accordingly, we conclude that respondent's determination to proceed with collection with respect to petitioners' 1987, 1988, 1989, and 1991 tax years was not an abuse of discretion.

To reflect the foregoing,

Decision will be entered for respondent.

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Footnotes

• 1. Unless otherwise indicated, all section references are to the Internal Revenue Code, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩

• 2. This opinion also addressed the deficiencies and additions to tax determined by respondent for petitioners' 1985 and 1986 tax years.↩

• 3. Petitioners claimed they were entitled to additional depletion allowances and wanted respondent to change the computation of their underlying liabilities.↩