T.C. Memo. 2005-99



                UNITED STATES TAX COURT



           MERRY J. CHANDLER, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 6201-02L.            Filed May 9, 2005.



     Held: R’s Appeals officer did not abuse his
discretion by sustaining a determination to proceed
with collection by levy of P’s unpaid liabilities
following a telephonic conversation and an exchange of
correspondence with P. P failed to prove that she
requested a face-to-face interview with the Appeals
officer during the course of the sec. 6330, I.R.C.,
hearing.


Merry J. Chandler, pro se.

Ann M. Welhaf and Jeffrey E. Gold, for respondent.
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             MEMORANDUM FINDINGS OF FACT AND OPINION

     HALPERN, Judge:   This case is before the Court to review a

determination (the determination) made by respondent’s Appeals

Office (Appeals) that respondent may proceed to collect by levy

petitioner’s tax liabilities for her 1988, 1993, 1994, 1996,

1997, and 1998 taxable (calendar) years.   We review the

determination pursuant to section 6330(d)(1).1    At the start of

the trial in this case, respondent conceded that petitioner had

paid in full her liability for 1993 and that respondent would not

pursue a levy with respect to that year.   We accept that

concession and will reflect it in our decision.     We therefore

consider only respondent’s proposed levy with respect to

petitioner’s unpaid liabilities for 1988, 1994, 1996, 1997, and

1998 (collectively, the unpaid liabilities).     Petitioner’s sole

argument on brief is that Appeals erred in making the

determination because it failed to accord petitioner the face-to-

face interview that she claims to have requested.     Because

petitioner has failed to persuade us that she requested a face-

to-face interview, we sustain the determination.2

     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986.
     2
        During the trial in this case, petitioner also claimed
that she had paid in full her liability for 1997 and that Appeals
Officer McNichol (the individual in Appeals assigned to her case)
had failed to allow her reasonable time to submit an amended
offer in compromise. Respondent denied both of those claims. At
                                                   (continued...)
                                - 3 -

                         FINDINGS OF FACT

     The parties filed a stipulation of facts, which, with

accompanying exhibits, is incorporated herein by reference.

     Petitioner resided in Bowie, Maryland, at the time the

petition was filed.

     On July 25, 2000, respondent issued to petitioner a Final

Notice - Notice of Intent To Levy and Notice of Your Right to a

Hearing (the notice), which sets forth the unpaid liabilities and

describes respondent’s intent to levy on petitioner’s property to

collect those liabilities.   On August 7, 2000, petitioner timely

filed a Request for a Collection Due Process Hearing (the

request).   On June 26, 2001, the request was assigned to Appeals

Officer Francis McNichol, Jr.   Mr. McNichol maintained a written


     2
      (...continued)
the conclusion of the trial, the Court instructed petitioner that
she was required to file briefs. In particular, we instructed
her that, as to any argument she wished to make, she should state
in her brief the facts she wished the Court to find and then,
based on those facts, argue her case to the Court. Petitioner
filed both an opening brief and an answering brief. Although in
her opening brief petitioner proposes facts and makes an argument
with respect to the issue of whether she requested a face-to-face
interview with Appeals Officer McNichols, she neither proposes
facts nor makes any argument with respect to her claims that she
paid in full her liability for 1997 or that Appeals Officer
McNichols failed to allow her reasonable time to submit an
amended offer in compromise. If an argument is not pursued on
brief, we may conclude that it has been abandoned. E.g., Mendes
v. Commissioner, 

, 312-313 (2003). Because of our
instruction to petitioner concerning her brief and her pursuit on
brief exclusively of the face-to-face interview issue, we
conclude that she has abandoned her other two claims, and we need
not discuss them.
                                - 4 -

record of actions that he took with respect to the request that

he considered to be significant, including correspondence and

other contacts with petitioner and the final disposition of the

request (the case activity record).     The entry in the case

activity record for October 12, 2001, chronicles a telephone

conversation with petitioner.   In pertinent part, it states:

“Personal conference is not necessary per [petitioner].

Telephone discussion will be fine.”     The remainder of the entry

discusses (1) an offer in compromise that petitioner claimed to

have filed, but as to which Mr. McNichol could find no evidence

in an Internal Revenue Service (IRS) database, and (2) Mr.

McNichol’s advice to petitioner that, before an offer in

compromise could be considered, she must file her 2000 return.

     Mr. McNichol’s entry in the case activity record for

December 4, 2001, states that petitioner filed her 2000 return

and that the IRS received an offer in compromise from petitioner.

The entry states that there were problems with the offer and that

Mr. McNichol sent a letter to petitioner asking for revisions to

the offer and for additional information; the entry further

states that petitioner would be allowed 30 days to respond.     An

entry for January 2, 2002, states that there had been no word

from petitioner and that Mr. McNichol had determined to sustain

the collection (levy) action.   A further entry for that date

states that Mr. McNichol had prepared the case for closing.
                                - 5 -

Besides the entry on October 12, 2001, no entry in the case

activity record references any discussion of a personal

conference.

      On February 19, 2002, Appeals issued to petitioner the

determination.

                               OPINION

I.   Introduction

      If any person liable for Federal tax liability neglects or

refuses to make payment within 10 days of notice and demand, the

Commissioner is authorized to collect the tax by levy on that

person’s property.    See sec. 6331(a).   As a general rule, at

least 30 days before taking such action, the Commissioner must

provide the person with a written final notice of intent to levy

that describes, among other things, the administrative appeals

available to the person.    See sec. 6331(d).

      Upon request, the person is entitled to an administrative

review hearing before Appeals (a collection due process hearing).

Sec. 6330(b)(1).    Appeals must offer the person an opportunity

for a hearing, in person, at the Appeals Office closest to the

person’s residence.    See sec. 301.6330-1(d)(2), Q&A-D7, Proced. &

Admin. Regs.   Nevertheless, a collection due process hearing

“may, but is not required to, consist of a face-to-face meeting,

one or more written or oral communications between an Appeals

officer or employee and the taxpayer * * *, or some combination
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thereof.”

Admin. Regs.     The Appeals

officer conducting the collection due process hearing must verify

that the requirements of any applicable law or administrative

procedure have been met.    Sec. 6330(c)(1).    Section 6330(c)

prescribes the relevant matters that a person may raise at the

collection due process hearing, including spousal defenses, the

appropriateness of respondent’s proposed collection action, and

possible alternative means of collection.      A taxpayer may contest

the existence or amount of the underlying tax liability at a

collection due process hearing if the taxpayer did not receive a

statutory notice of deficiency with respect to the underlying tax

liability or did not otherwise have an opportunity to dispute

that liability.    Sec. 6330(c)(2)(B).

     Following the collection due process hearing, the Appeals

officer must determine whether the collection action is to

proceed, taking into account the verification the Appeals officer

has made, the issues raised by the taxpayer at the hearing, and

whether the collection action, “balances the need for the

efficient collection of taxes with the legitimate concern of the

* * * [taxpayer] that any collection action be no more intrusive

than necessary.”    Sec. 6330(c)(3).    We have jurisdiction to

review such determinations where we have jurisdiction over the

type of tax involved in the case.      Sec. 6330(d)(1)(A); see

Iannone v. Commissioner, 

, 290 (2004).      Where the
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underlying tax liability is properly at issue, we review the

determination de novo.      E.g., Goza v. Commissioner, 

,

181-182 (2000).      Where the underlying tax liability is not at

issue, we review the determination for abuse of discretion.

   Whether an abuse of discretion has occurred depends upon

whether the exercise of discretion is without sound basis in fact

or law.    See Ansley-Sheppard-Burgess Co. v. Commissioner, 

, 371 (1995).

II.    Arguments of the Parties

       Petitioner argues that, because petitioner was not granted a

face-to-face interview, Mr. McNichol abused his discretion by

determining that collection of the unpaid liabilities by levy was

proper.    Respondent answers that petitioner received an adequate

hearing by telephone and exchange of correspondence and declined

a face-to-face interview when, on October 12, 2001, such an

interview was offered.

III.    Discussion

       We decide whether, before Appeals determined to proceed by

levy with collection of the unpaid liabilities, Appeals Officer

McNichol accorded petitioner a fair hearing, as required by

section 6330(b)(1).      Procedures for the conduct of collection due

process hearings are set forth in section 301.6330-1(d), Proced.

& Admin. Regs.       As set forth above, section 301.6330-1(d), Q&A-D6

and D7, Proced. & Admin. Regs., provides that, although a
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taxpayer must be offered a face-to-face interview, an acceptable

hearing can consist of an exchange of correspondence or oral

(telephonic) communications, or some combination of the two.    See

also Katz v. Commissioner, 

, 334-338 (2000);

Armstrong v. Commissioner, T.C. Memo. 2002-224; cf. Parker v.

Commissioner, T.C. Memo. 2004-226. Entries made by Mr. McNichol

in the case activity record show both an exchange of

correspondence and telephone conversations.   Based on the

testimony of Mr. McNichol and the corroborating October 12, 2001,

entry in the case activity record, we believe, and find, that, on

that date, Mr. McNichol offered petitioner the opportunity for a

face-to-face interview, which she declined.   We further find that

petitioner did not thereafter change her mind and request a face-

to-face interview.   Petitioner testified that, at some time,

perhaps after she received a letter from Mr. McNichol dated

December 4, 2001, she telephoned him and asked to meet with him,

and he refused.   Mr. McNichol testified that he recalled no such

request; indeed, he could recall no conversations with petitioner

after December 4, 2001.   The case activity record shows no

communication with petitioner after December 4, 2001.

Petitioner’s testimony was inexact as to dates, and she offers

nothing to corroborate her testimony.   While petitioner may have

decided at some point after initially having been contacted by

Mr. McNichol on October 12, 2001, and declining a face-to-face
                               - 9 -

interview, that, indeed, she did wish such an interview, we are

unconvinced that she communicated that fact to Mr. McNichol.

IV.   Conclusion

      As we understand her underlying claim, petitioner argues

that she should be allowed to make (and Appeals should accept) an

offer in compromise of the unpaid liabilities.    Petitioner

attempted to make an offer in compromise, but Mr. McNichol found

problems with the offer and asked petitioner to revise it and to

provide him with additional information.    Mr. McNichol gave

petitioner 30 days to do so.   At the end of 30 days, when

petitioner had failed to make the revisions or provide the

additional information, Mr. McNichol took steps to close

petitioner’s case and deny the request.    It took more than 6

weeks for Appeals to close the case and issue the determination.

Despite the additional 6 weeks, petitioner never revised the

offer or provided the additional information.    We do not think

that Appeals abused its discretion in determining to proceed to

collect the unpaid liabilities by levy.    See Roman v.

Commissioner, T.C. Memo. 2004-20 (reasonable to issue adverse

section 6330 determination when, after 6 weeks, taxpayer had
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failed to submit information requested with respect to offer in

compromise).

     To reflect the foregoing,

                                      An appropriate decision

                                 will be entered for respondent.