T.C. Summary Opinion 2007-173



                      UNITED STATES TAX COURT



                   GREG GRIFFIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5870-06S.              Filed October 9, 2007.



     Greg Griffin, pro se.

     Karen N. Sommers, for respondent.



     DEAN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time 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, subsequent
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section references are to the Internal Revenue Code in effect for

the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     This is an appeal under section 6330(d)(1) from respondent's

determinations to uphold the filing of the Notice of Federal Tax

Lien (NFTL) and to proceed with proposed levy action.    Respondent

contends that petitioner waived his right to challenge collection

of his tax liabilities for 1988 and 1989 because he signed Forms

4549-CG, Income Tax Examination Changes.1   The issues for

decision are whether:   (1) Petitioner is precluded from

challenging the underlying tax liabilities in this proceeding;

and (2) respondent’s determinations to uphold the filing of the

NFTL and to proceed with the proposed levy were an abuse of

discretion.

                            Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.    At the time the petition

was filed, petitioner resided in Imperial, California.

     Petitioner failed to file Federal income tax returns for

1988 and 1989.   Respondent issued to petitioner notices of



     1
       In general, Form 4549-CG provides a waiver whereby the
taxpayer consents to the immediate assessment and collection of
the tax and waives the right to the issuance of a notice of
deficiency and any rights to appeal.
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deficiency with respect to 1988 and 1989.   Petitioner did not

file timely petitions with this Court in response to the notices

of deficiency, and the deficiencies were assessed.

     On March 17, 1997, petitioner filed his 1988 and 1989

Federal income tax returns.   Respondent abated the assessments

down to the amount shown on petitioner’s returns.    Thereafter,

petitioner requested audit consideration, and respondent

initiated an examination of petitioner’s return.    During the

examination, the revenue agent proposed additional assessments

for each year, and petitioner signed Forms 4549-CG on June 21,

1999.   The Forms 4549-CG show deficiencies of $3,036 and $2,695

for 1988 and 1989, respectively.

     Respondent issued a Letter 1058, Final Notice of Intent to

Levy and Notice of Your Right to a Hearing, on June 23, 2005.      On

June 24, 2005, respondent’s revenue officer filed an NFTL at the

County Recorder, San Diego, California.   On June 29, 2005,

respondent’s revenue officer issued a Letter 3172(DO), Notice of

Federal Tax Lien Filing and Your Right to a Hearing under IRC

6320.   Petitioner submitted a Form 12153, Request for a

Collection Due Process Hearing, with respect to both notices.

Respondent consolidated the hearings into one proceeding.     In

communications with the Appeals officer, petitioner sought to

challenge the underlying tax liabilities and would not offer any

alternatives to collection.   Because petitioner intended to seek
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audit reconsideration, the face-to-face hearing was not held, and

the Appeals officer issued the Notice of Determination.

                             Discussion

1. Challenges to the Underlying Tax Liabilities

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

all property and rights to property of a person liable for taxes,

interest, additional amounts, additions to tax, and costs that

may accrue in addition thereto if there has been a demand for

payment and the person has failed to pay.     The lien arises at the

time of assessment.    Sec. 6322.   In order for the Federal tax

lien to have priority over other liens or security interests, the

Secretary must file an NFTL.     Sec. 6323(a); Behling v.

Commissioner, 

, 575 (2002).

     Generally, section 6320(a) states that the Secretary must

give the person against whom a Federal tax lien is filed written

notice of the lien’s filing within 5 business days after the date

of its filing.    Section 6320(b) also provides the taxpayer with

an opportunity for a hearing before the Office of Appeals.     The

hearing is conducted pursuant to subsections (c), (d), and (e) of

section 6330.    Sec. 6320(c).

     Section 6331(a) authorizes the Secretary to levy upon

property and property rights of a taxpayer liable for taxes who

fails to pay the taxes within 10 days after a notice and demand

for payment.    Section 6331(d) provides that the levy may be made
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only if the Secretary has given written notice to the taxpayer 30

days before the levy.   Section 6330(a) requires the Secretary to

send a written notice to the taxpayer of the amount of the unpaid

tax and the taxpayer’s right to a hearing at least 30 days before

the Service can collect a tax by levy.

     At the hearing, the taxpayer may raise challenges to the

existence or amount of the underlying tax liability if the person

did not receive a notice of deficiency or did not otherwise have

an opportunity to dispute the tax liability.   Sec. 6330(c)(2)(B).

This Court has decided that for purposes of section

6330(c)(2)(B), if a taxpayer signed a Form 4549-CG and waived his

right to challenge the proposed assessments, then he is deemed to

have had an opportunity to dispute his tax liabilities and is

thereby precluded from challenging them.   Zapara v. Commissioner,

, 228 (2005); Aguirre v. Commissioner, 

,

327 (2001).

     Putting aside petitioner’s receiving notices of deficiency

and failing to respond, which precludes review by this Court

under section 6330(c)(2)(B), he signed the Forms 4549-CG.     He

thereby explicitly waived his right to contest the existence or

the amount of the underlying liabilities in this Court and is

deemed to have had a prior opportunity to dispute his liabilities

within the meaning of section 6320(c)(2)(B).   Accordingly,

respondent’s determination is sustained.
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2. Abuse of Discretion

      A taxpayer may appeal the Commissioner’s determination with

this Court within a 30-day period starting on the day after the

date of the Notice of Determination.     Sec. 6330(d)(1).   In

reviewing the Commissioner’s determination, this Court applies an

abuse of discretion standard.     Sego v. Commissioner, 

, 610 (2000).

     In making a determination, the Appeals officer must consider

the following:   (1) Whether any applicable law or administrative

procedure has been followed; (2) the issues properly raised by

the taxpayer; and (3) whether the proposed collection action

balances the need for the efficient collection of taxes with the

taxpayer’s legitimate concern that the collection action be no

more intrusive than necessary.    Sec. 6330(c)(3).

     The applicable laws and administrative procedures were

satisfied since petitioner received the required notices and was

advised of his rights for a hearing within the timeframes

mandated by sections 6303, 6320, and 6330.

     The Appeals officer did not consider any issues raised by

petitioner because:   (1) The underlying tax liabilities were not

properly at issue; and (2) she could not consider any collection

alternatives since petitioner refused to suggest any, he refused

to provide the required financial information, and he chose not

to proceed with the hearing.
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     The Appeals officer balanced the need for efficient

collection of taxes against petitioner’s concern over the

action’s intrusiveness.

     Had petitioner proceeded with the hearing, an alternative

collection action might have been considered.       The Court notes

that there was sufficient evidence introduced at trial indicating

that if petitioner goes through the proper procedural steps

(i.e., requesting audit reconsideration or submitting an offer-

in-compromise), he might receive administrative relief.

     Therefore, the Court concludes that respondent’s Appeals

officer did not abuse her discretion in upholding the filing of

the NFTL and the proposed levy action.       Accordingly, respondent’s

determination is sustained.

     To reflect the foregoing,


                                         An appropriate decision will

                                 be entered.