2001 Tax Ct. Memo LEXIS 350">*350 Decision will be entered for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioner petitioned the Court under
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 A2001 Tax Ct. Memo LEXIS 350">*351 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)
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 stated2001 Tax Ct. Memo LEXIS 350">*352 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. 1 Mr. Generazio held the hearing with petitioner in Holly Hill; as respondent's counsel explained at trial, "there wasn't an appeals officer there that could meet with Petitioner for the due process matter, but -- so he was referred to an examiner there, who he did meet with." Following the hearing, Mr. Cable telephoned petitioner to notify him that Mr. Generazio had concluded that petitioner's Federal income tax liabilities (overpayments) for 1995, 1996, and 1997 were:
Year 2001 Tax Ct. Memo LEXIS 350">*353 Liability/(overpayments)
1995 1 ($ 129.74)
1996 10,525.56
1997 (1,973.66)
8,422.16
Mr. Cable also notified petitioner that he could pay this amount in full or in monthly installments. Petitioner told Mr. Cable that petitioner was unable to pay the balance in full at that time or to enter into an installment agreement. Petitioner had previously paid to the Commissioner at least $ 62,000 with respect to subject year taxes by borrowing the money, and he was making monthly payments on that debt while living on a fixed income.
On November 3, 1999, Appeals mailed to petitioner a Notice of Determination Concerning Collection Action(s) under Section 6320 and/ or 6330. The notice stated that petitioner's Federal income tax liability2001 Tax Ct. Memo LEXIS 350">*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 2
(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 right2001 Tax Ct. Memo LEXIS 350">*356 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
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. 3
2001 Tax Ct. Memo LEXIS 350">*358 Decision will be entered for respondent.
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
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.