T.C. Summary Opinion 2007-55



                        UNITED STATES TAX COURT



                  GERARD R. FITZGERALD, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 5544-05S.            Filed April 11, 2007.



        Gerard R. Fitzgerald, pro se.

        Terry Serena, for respondent.



     GOLDBERG, Special Trial Judge:     This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.     Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect at relevant times.
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     This proceeding arises from a petition for judicial review

filed in response to a Notice of Determination Concerning

Collection Actions Under Section 6320 (notice of determination).

The issue for decision is whether respondent abused his

discretion in sustaining a notice of Federal tax lien (notice of

lien) filed against petitioner.

                            Background

     At the time the petition was filed, petitioner resided in

Batavia, Ohio.

     Respondent assessed taxes, penalties, and interest against

petitioner for the taxable years 1989, 1997, 1998, 1999, and

2000.   On June 21, 2004, respondent filed the notice of lien and

mailed petitioner a Notice of Federal Tax Lien Filing and Your

Right to a Hearing Under IRC 6320.

     On July 22, 2004, the Internal Revenue Service Officer for

Tri-County, Ohio, received petitioner’s Form 12153, Request for a

Collection Due Process Hearing.   Subsequently petitioner’s case

was assigned to an Appeals officer.    The Appeals officer

conducted a telephone hearing with petitioner on January 20,

2005.   During the hearing, petitioner did not challenge his

underlying tax liabilities or the filing of the notice of lien.

Instead, petitioner disputed a levy on his Social Security

benefits for his unpaid Federal income tax liability for the

taxable year 1990.
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     Respondent issued petitioner the notice of determination on

February 23, 2005, sustaining the filing of the Federal tax lien.

The notice of determination states that petitioner could not

challenge the levy on his Social Security benefits because it did

not relate to the years at issue.    The notice also states that

respondent placed petitioner’s accounts in “Currently not

Collectible status and no further collection action would take

place.”

                            Discussion

     Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person when a demand for

the payment of the person’s liability for taxes has been made and

the person fails to pay those taxes.     Such a lien arises when an

assessment is made.   Sec. 6322.   Section 6323(a) requires the

Secretary to file a notice of Federal tax lien if the 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, affd. 

(9th

Cir. 2003).

     Section 6320 provides that a taxpayer shall be notified in

writing by the Secretary of the filing of a notice of Federal tax

lien and provided with an opportunity for an administrative

hearing.   An administrative hearing under section 6320 is

conducted in accordance with the procedural requirements of
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section 6330.    Sec. 6320(c).   At the administrative hearing, a

taxpayer is entitled to raise any relevant issue relating to the

unpaid tax, including a spousal defense or collection

alternatives such as an offer-in-compromise or an installment

agreement.    Sec. 6330(b) and (c)(2)(A); sec. 301.6320-1(e)(1),

Proced. & Admin. Regs.    A taxpayer also may challenge the

existence or amount of the underlying tax liability if the

taxpayer “did not receive any statutory notice of deficiency for

such tax liability or did not otherwise have an opportunity to

dispute such tax liability.”     Sec. 6330(c)(2)(B); see also

Montgomery v. Commissioner, 

, 9-10 (2004).

     At the conclusion of the hearing, the Appeals officer must

determine whether and how to proceed with collection, taking into

account, among other things, collection alternatives proposed by

the taxpayer and whether any proposed collection action balances

the need for the efficient collection of taxes with the

legitimate concern of the taxpayer that the collection action be

no more intrusive than necessary.     See sec. 6330(c)(3).

     Section 6330(d) provides for judicial review of the

administrative determination in the Tax Court or a Federal

District Court, as may be appropriate.     Where, as here, the

validity of the underlying tax liability is not at issue, the

Court reviews the Commissioner’s determination for abuse of

discretion.     Goza v. Commissioner, 

, 181-182 (2000).
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Whether an abuse of discretion has occurred depends upon whether

the exercise of discretion is without sound basis in fact or law.

See Freije v. Commissioner, 

, 23 (2005).

     As previously mentioned, petitioner does not challenge the

appropriateness of the notice of lien with respect to the taxable

years at issue.    Petitioner disputes only the levy on his Social

Security benefits for his unpaid Federal income tax liability for

the 1990 taxable year.   Petitioner contends he did not receive

prelevy notice and an opportunity to be heard, as required under

section 6330(a).

     Respondent appears to acknowledge that petitioner’s Social

Security benefits were levied upon.      Respondent’s records

indicate, however, that the levy was made with respect to

petitioner’s unpaid tax liability for the taxable year 1990,

which is not a year at issue.   Petitioner did not dispute that

the levy pertained solely to 1990.      Because we do not have a

notice of determination regarding the levy with respect to that

year, we do not have jurisdiction to review the levy.      See sec.

6330(d); Orum v. Commissioner, 

, 7-8 (2004), affd. 

(7th Cir. 2005).

     Petitioner has not set forth any other arguments concerning

respondent’s determination, such as a spousal defense or an offer

of a collection alternative.    Nor has petitioner alleged that the

Secretary failed to meet the requirements of any applicable law
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or administrative procedure with respect to the notice of lien.

Consequently, we conclude that respondent did not abuse his

discretion.   Respondent’s determination therefore is sustained.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.