T.C. Memo. 2007-269



                      UNITED STATES TAX COURT



                  YVONNE THOMAS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11047-06L.            Filed September 10, 2007.



     Jeffrey D. Moffatt, for petitioner.

     Elaine T. Fuller, for respondent.



                        MEMORANDUM OPINION


     SWIFT, Judge:   This matter is before us on cross-motions in

limine seeking a ruling as to whether petitioner, in this

collection action under section 6330, may challenge and may offer

evidence as to the amount of her underlying 2002 individual

Federal income tax liability.
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                            Background

     On March 26, 2007, a hearing was held on these motions in

Los Angeles, California.   Respondent’s motion is based on

section 6330(c)(2)(B) that limits considerably the scope of our

review of respondent’s Appeals Office determinations in

collection matters.   Petitioner’s motions are based on a variety

of theories and statutory provisions.

     A securities firm reported to respondent on Forms 1099-B,

Proceeds from Broker and Barter Exchange Transactions, that

petitioner in 2002 realized income of approximately $88,000 on

the sale of stock.

     On her 2002 individual Federal income tax return filed with

respondent, petitioner reported only nominal income and no income

from the sale of stock.

     Petitioner did not participate in the audit of her 2002

individual Federal income tax return that was conducted by

respondent, and petitioner did not submit information to

respondent’s examining agent relating to the income reported on

the above Forms 1099-B.

     Based on the $88,000 reported on the Forms 1099-B,

respondent recalculated petitioner’s income and determined a

$19,923 deficiency in petitioner’s 2002 Federal income taxes.

     On February 22, 2005, respondent mailed to petitioner a

notice of deficiency reflecting the above $19,923 tax deficiency

and a $3,900 section 6662 accuracy-related penalty.
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     On February 26, 2005, respondent’s notice of deficiency was

delivered to and received by petitioner, but petitioner did not

file a petition with this Court to contest respondent’s

deficiency determination.

     After assessment of the above deficiency, on October 29,

2005, respondent mailed to petitioner a notice of intent to levy,

and petitioner timely requested of respondent an Appeals Office

collection hearing.

     In the Appeals Office hearing, petitioner sought to raise an

issue as to the correctness of respondent’s above tax deficiency

determination, and petitioner requested an abatement of interest

solely on the ground that respondent’s tax deficiency

determination was erroneous.   Petitioner did not raise any

collection alternatives, and petitioner did not make or submit to

respondent an offer-in-compromise.     Because petitioner had

received respondent’s February 22, 2005, notice of deficiency and

because petitioner could have petitioned the Tax Court with

regard thereto, respondent’s Appeals officer declined to consider

petitioner’s 2002 Federal income tax liability and concluded that

the proposed levy should be sustained.     Also, respondent’s

Appeals officer rejected petitioner’s claim for interest

abatement.1




     1
        Respondent’s motion in limine does not seek to preclude
petitioner from pursuing her claim for interest abatement.
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     At the Appeals Office collection hearing (and herein)

petitioner claimed that in February of 2005 when she received

respondent’s deficiency notice charging her with an additional

$88,000 in income, she began to suspect that $88,000 may have

been stolen or embezzled from her and received by someone else.

     Accordingly, petitioner explains, rather than file a Tax

Court petition to contest respondent’s deficiency determination,

upon receipt of the notice of deficiency petitioner contacted a

local California police department and requested an investigation

as to whether $88,000 had been stolen from her.

     As part of the police investigation that was begun,

petitioner delivered to the police approximately 100 pages of

personal documents, apparently including the original of

respondent’s notice of deficiency to petitioner and the Forms

1099-B that petitioner had received.

     Petitioner explains further that she did not make copies of

the documents, including the notice of deficiency, and therefore

that once she turned the documents over to the police--in early

March of 2005 and until early 2006 when they were returned to

her--she did not have access to the documents.

     Because--for much of the 90-day period allowed under section

6213(a) for the filing of a Tax Court petition--the original of

respondent’s notice of deficiency to petitioner was in the

possession of the police, petitioner in this collection action

asserts that she should be excused for her failure to file a
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timely Tax Court petition and that during her hearing with

respondent’s Appeals Office she should have been allowed (and now

in this collection case should be allowed) to raise an issue as

to her correct 2002 Federal income tax liability.

     Further, petitioner claims that various physical, mental,

and emotional disabilities have afflicted her for years and

provide an equitable basis to excuse petitioner from not filing a

timely petition to challenge respondent’s notice of deficiency.

     Petitioner summarizes that, taken together, the suspected

theft, the police department’s possession for over a year of the

notice of deficiency, and petitioner’s poor medical condition

justify an equitable relaxation of the limitation of section

6330(c)(2)(B) and a ruling on the instant motions that would

allow petitioner now to raise the issue as to the correct income

she realized on 2002 stock sales and her correct 2002 Federal

income tax liability.

     On brief petitioner adds to her arguments.   Petitioner

refers to language in the Internal Revenue Manual (IRM) which

provides that, “In a CDP hearing, a taxpayer may raise and

Appeals must consider, a liability that arose as a result of math

error notice adjustments.”   4 Administration, Internal Revenue

Manual (CCH), sec. 8.7.2.3.10.1(1), at 27,306.    Petitioner claims

that whatever income petitioner realized in 2002 from the sale of

stock would be offset by petitioner’s cost basis in the stock and

that the failure to take into account petitioner’s cost basis
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should be treated as a mere “math error” which, under the above

IRM provision, should be treated as an administrative adjustment

automatically in issue under section 6330(c)(1) and (c)(3)(C).

     Further, petitioner refers to the mandate of the Americans

With Disabilities Act of 1990 (ADA), Pub. L. 101-336, 104 Stat.

327, currently codified as 42 U.S.C. secs. 12101-12213 (2000), to

the general effect that disabled persons be given equal access to

governmental agencies, and petitioner argues that because she has

medical disabilities, the ADA overrides the period of limitations

of section 6213(a) and the jurisdictional limitation of section

6330(c)(2)(B), and she should be allowed to raise an issue as to

her correct Federal income tax liability.

     At the March 26, 2007, Court hearing on the instant motions

in limine, petitioner’s counsel claimed to have in his possession

corrected brokerage account information showing that all 2002

stock sales that properly are to be charged to petitioner

resulted in a net loss.


                            Discussion

     We briefly discuss our reasons for rejecting petitioner’s

various arguments and for granting respondent’s motion in limine.

     Upon receipt of the notice of deficiency petitioner filed a

police report.   Obviously, petitioner could have chosen in

addition, or in lieu thereof, to file a Tax Court petition.

Petitioner made that choice.   Petitioner’s explanation for not
                               - 7 -
filing a Tax Court petition is not credible.   Nothing in the

record adequately explains why petitioner, having filed a police

report, could not also have filed a timely Tax Court petition to

contest respondent’s determination of her 2002 Federal income tax

liability.

     Even the credible evidence submitted relating to

petitioner’s medical condition does not establish that petitioner

in 2002 was incapacitated in such a manner that would have

prevented her from filing a Tax Court petition.   Much of the

evidence relates to petitioner’s medical condition in more recent

years, not to her medical condition in 2002.

     Respondent’s notice of deficiency in this case does not

constitute a “math error notice”.   Generally, a “math error

notice of adjustment” does not result in a notice of deficiency

but results in an automatic assessment notice under section

6213(b).   Petitioner, however, received a notice of deficiency

and expressly had a right to petition this Court.   Sec. 6213(a).

The IRM provision referred to by petitioner relating to math

errors provides no help to petitioner.

     With regard to petitioner’s reliance on the ADA, petitioner

asserts that because of her medical disabilities and the ongoing

police investigation, we should conclude that petitioner did not

have a practical or realistic prior “opportunity to dispute” the

$19,923 tax deficiency and that under the ADA we should excuse

petitioner’s failure to timely file a Tax Court petition.
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     As explained, in addition to her filing of a police report,

petitioner could have filed a Tax Court petition.   Further, the

provisions of the ADA do not apply to Federal courts.   United

States v. Wishart, 146 Fed. Appx. 171, 172-173 (9th Cir. 2005);

Sheridan v. Michels (In re Disciplinary Proceedings), 282 Bankr.

79, 92 n.15 (B.A.P. 1st Cir. 2002) (the ADA definition of a

public entity includes only State and local governments), vacated

on other grounds Sheridan v. Michels (In re Sheridan), 

(1st Cir. 2004).

     Petitioner points out that under section 6330(c)(2)(A)(iii)

one basis for considering an offer-in-compromise is doubt as to

the underlying tax liability, and therefore that in considering

whether an offer-in-compromise would be appropriate, petitioner’s

underlying tax liability should be allowed to be raised.

Petitioner, however, in her collection hearing with respondent’s

Appeals Office, did not raise an offer-in-compromise, nor has she

made one to respondent at any time since then, and accordingly we

herein will not consider any offer-in-compromise.   Magana v.

Commissioner, 

, 493 (2002).

     In this regard, respondent asks us to expressly hold that

the collection alternative language of section 6330(c)(2)(A)(iii)

does not implicitly or necessarily raise an issue as to the

amount of a taxpayer’s underlying tax liability and does not

override the section 6330(c)(2)(B) limitation on the raising of
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an issue as to the amount of a taxpayer’s tax liability.     We need

not and do not address that issue.

     None of the exceptions petitioner asks us to recognize are

valid.   Under section 6330(c)(2)(B), petitioner is precluded from

challenging herein the amount of her 2002 Federal income tax

liability.   Evidence relating to petitioner’s 2002 Federal income

tax liability is not relevant and will not be admitted.2

     For the reasons stated, we shall deny petitioner’s motions

in limine, but we shall grant respondent’s motion in limine.

     The issue as to petitioner’s claim for interest abatement

will be set for subsequent hearing.

                                            An appropriate order will

                                       be issued.




     2
        We note that in certain circumstances under sec. 6201(d)
respondent is required to seek reasonable verification of
taxpayer income reported by third parties on information returns
such as Forms 1099-B. For this verification requirement to be
triggered, however, a taxpayer must have cooperated with
respondent during respondent’s audit. Here, petitioner did not
participate in the audit, and sec. 6201(d) has no application.