T.C. Summary Opinion 2011-124



                        UNITED STATES TAX COURT



                    ROGER K. CIAFRE, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 7052-10SL.             Filed October 24, 2011.



        Roger K. Ciafre, pro se.

        Harry J. Negro, for respondent.



     DEAN, 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, subsequent section references

are to the Internal Revenue Code of 1986, as amended.
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     Respondent issued petitioner a Notice of Determination

Concerning Collection Action(s) Under Section 6320/6330 (the

notice).   The notice sustained the filing of a notice of Federal

tax lien (NFTL) issued to petitioner pertaining to his unpaid

1998 Federal income tax.    The issue for decision is whether

respondent correctly sustained the filing of an NFTL.

                              Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.    Petitioner resided in

Pennsylvania when he filed his petition.

     Petitioner is an attorney and in 1998 worked for a small law

firm in Philadelphia.   Petitioner was treated as an independent

contractor by the law firm.    Petitioner timely filed his 1998

Federal income tax return but did not remit any tax with the

return.

     Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters, reflects that on December 3, 1999, respondent

issued petitioner a notice of an intent to levy to collect

petitioner’s unpaid tax liability for 1998.    U.S. Postal Service

Form 3877, Certified Mailing List, indicates that on February 22,

2001, respondent mailed petitioner a notice of determination

pursuant to section 6330.    On August 18, 2009, respondent issued

petitioner notice of an NFTL filing concerning petitioner’s
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unpaid tax liability for 1998.    Respondent issued petitioner a

notice of determination dated February 26, 2010, which sustained

the filing of the NFTL.

                            Discussion

     Section 6321 imposes a lien in favor of the United States

upon all property and rights to property belonging to a person

who is liable for Federal taxes and neglects or refuses to pay

them after notice and demand for payment has been made.     Section

6320(a) and (b) provides that a taxpayer shall be notified in

writing by the Commissioner of the filing of an NFTL and be

provided an opportunity for an administrative hearing.     A hearing

under section 6320 is conducted in accordance with the procedural

requirements of section 6330.    Sec. 6320(c).

     If a taxpayer requests a hearing in a lien case, the hearing

is to be conducted by the Appeals Office (Appeals).     Sec.

6320(b)(1).   At the hearing the Appeals officer (AO) must verify

that the requirements of any applicable law or administrative

procedure have been met.   Secs. 6320(c), 6330(c)(1).    The

taxpayer may raise any relevant issue with regard to the

Commissioner’s intended collection activities, including

challenges to the appropriateness of the proposed lien and

collection alternatives.   Sec. 6330(c)(2)(A).   A taxpayer is

expected to provide all relevant information requested by Appeals

for its consideration of the facts and issues involved in the
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hearing, including financial statements.    Secs. 301.6320-1(e)(1),

301.6330-1(e)(1), Proced. & Admin. Regs.    A taxpayer may raise

challenges to the existence or amount of the underlying tax

liability if he or she did not receive a notice of deficiency or

otherwise have an opportunity to dispute the tax.    Sec.

6330(c)(2)(B).

       If a taxpayer’s underlying tax liability is properly at

issue, the Court reviews any determination regarding the

underlying liability de novo.    Sego v. Commissioner, 

, 610 (2000); Goza v. Commissioner, 

, 181-182

(2000).    The Court will review all other determinations regarding

the proposed collection for abuse of discretion.    Sego v.

Commissioner, supra at 610; Goza v. Commissioner, supra at 181-

182.    A taxpayer’s claim that the limitations period for

collections has expired is a challenge to the underlying tax

liability.    Boyd v. Commissioner, 

, 130 (2001)

(citing MacElvain v. Commissioner, T.C. Memo. 2000-320).

       Petitioner’s only argument against the NFTL is that the

limitations period for collections has expired for his unpaid

1998 tax liability.    Petitioner is challenging his underlying tax

liability.    See Boyd v. Commissioner, supra at 130.   Petitioner

believes it is possible that he had a hearing for a levy in 1999.

Petitioner testified that “I can’t say 100 percent I never

requested a hearing. * * * [I]f that’s what the hearing is, a
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ten-minute phone call, I mean I barely remember the one I had in

2010, yet [sic] alone a hearing that I might have had in 1999.”

     Respondent introduced into evidence transcripts suggesting

there was a collection due process hearing in December 1999 and a

U.S. Postal Service Form 3877 indicating that a notice of

determination was mailed by certified mail to petitioner in

February 2001.   The Court finds by a preponderance of the

evidence that petitioner had a prior opportunity to dispute his

1998 tax liability.   Therefore, petitioner’s underlying tax

liability is not properly at issue,1 see sec. 301.6320-1(e)(3),

Q&A-E7, Proced. & Admin. Regs., and the determination to sustain

the filing of the NFTL will be reviewed for abuse of discretion,

see Sego v. Commissioner, supra at 610; Goza v. Commissioner,

supra at 181-182.

     Petitioner raised no challenge to the appropriateness of the

NFTL filing, offered no collection alternatives, and provided no

financial statements to the AO.   See secs. 301.6320-1(e)(3), Q&A-

E7, 301.6320-1(e)(1), 301.6330-1(e)(1), Proced. & Admin. Regs.




     1
      The Court recognizes that petitioner would have had no
reason in 1999 to argue that the limitations period for
collection of his 1998 tax liability had expired. Even were the
Court to consider petitioner’s argument, the outcome of this case
would be the same. The limitations period for collection was
suspended for the period after the notice of determination for
the levy was issued. See secs. 6502 and 6503. The NFTL was
issued before the limitations period for collection expired.
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The Court finds that respondent’s determination to sustain the

filing of the NFTL was not an abuse of discretion.

     We have considered petitioner’s arguments, and, to the

extent not mentioned, we conclude the arguments to be moot,

irrelevant, or without merit.

     To reflect the foregoing,


                                         Decision will be entered

                                  for respondent.