T.C. Memo. 2009-224



                      UNITED STATES TAX COURT



                   DON C. LONG, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10551-07L.              Filed October 1, 2009.



     Don C. Long, pro se.

     Susan K. Greene, for respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   This case was commenced in response to a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.    The issue for decision is whether it

was an abuse of discretion for the Appeals conferee to refuse to

consider petitioner’s challenge to his underlying tax liability
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for 1981.   Unless otherwise indicated, all section references are

to the Internal Revenue Code.

                            Background

     The material facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner was a resident of Texas at the time that he filed his

petition.

     Petitioner filed a Form 1040, U.S. Individual Income Tax

Return, for 1981 on November 30, 1982.      Based on third-party

reporting, the Internal Revenue Service (IRS) determined a

deficiency and sent a notice of deficiency to petitioner.

Petitioner received the notice of deficiency but did not petition

the Court to challenge the notice.      On September 10, 1984, the

IRS assessed additional tax of $7,395, plus additions to tax and

interest for 1981 against petitioner.

     On June 30, 1989, petitioner signed a waiver extending the

period of limitations on a suit for collection of his 1981

liabilities to December 31, 1999.    On November 12, 1996, in

conjunction with an installment agreement, petitioner agreed to

further extend the period of limitations to December 10, 2010.

     Credits of overpaid taxes for 1984, 1985, 1986, 1988, 1989,

1990, 1991, 1993, 2001, 2002, 2003, 2004, and 2006 tax years have

been applied to petitioner’s account for the 1981 tax year.        As

of February 19, 2008, the unpaid balance of $1,444.43 on
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petitioner’s 1981 tax liability had grown to $36,115.28, with

additions to tax, penalties, and interest.

     On December 11, 2006, the IRS sent petitioner a Final

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

Hearing. In response, petitioner requested a hearing under

section 6330 by sending a timely Form 12153, Request for a

Collection Due Process or Equivalent Hearing, to the IRS.      In his

request for a hearing, during the telephone hearing conducted by

a settlement officer, in all filings in this case, and at trial,

petitioner insisted that he was unemployed during 1981 and

requested proof of the earnings that the IRS relied on in sending

the notice of deficiency.   Petitioner also disputed the

applications of his overpayments for subsequent years and

questioned the remaining liability.     He did not offer any

collection alternatives.    The settlement officer determined that

petitioner was not entitled to dispute the deficiency, verified

the procedural prerequisites and application of credits by

reference to transcripts and analysis of petitioner’s account,

and sustained the proposed levy.

                             Discussion

     This opinion was held in abeyance while petitioner sought

audit reconsideration.   The records that led to the deficiency

determination for 1981 are no longer available.     Petitioner has

now been advised that any claims for credits or refunds are
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barred by the statute of limitations.   He has received various

transcripts and analyses that show how the penalties and interest

accumulated so that the present balance is a large multiple of

the original deficiency determined for 1981.   Upon review of the

transcripts, we see various credits for overpayments in

subsequent years applied to the 1981 liability.   Petitioner has

not identified any unapplied credits or payments.

     Petitioner has not disputed, and he ultimately stipulated,

that he received a notice of deficiency and did not petition the

Court with respect to his 1981 liability.   We are not

unsympathetic to the predicament petitioner faces as a

consequence of his failure to file a petition in response to that

notice and the accumulation of penalties and interest on his

account over the long period of time that a portion of the

original assessment for that year has remained unpaid.    However,

our role in this proceeding is limited by the express provisions

of section 6330 that govern a taxpayer’s challenges to collection

action.   Section 6330 generally provides that the IRS cannot

proceed with the collection of taxes by way of levy on a

taxpayer’s property until the taxpayer has been given notice of

and the opportunity for an administrative review of the proposed

levy (in the form of an IRS Office of Appeals hearing).    Section

6330(c)(1) provides that the Appeals officer shall obtain

verification that the requirements of any applicable law or
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administrative procedure have been met.   The record here supports

the conclusion that proper verification by the Appeals Office

occurred, and the review of records during and after trial shows

no error in that portion of the determination.

     During the hearing, the taxpayer may raise challenges to the

existence or amount of the underlying tax liability only if he or

she did not receive a statutory notice of deficiency with respect

to the underlying tax liability and did not otherwise have an

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

Although a taxpayer may also raise other issues, such as

challenges to the appropriateness of collection actions and

alternatives to collection, under section 6330(c)(2)(A),

petitioner did not do so.   Our review is limited to the issues

that he raised.    Giamelli v. Commissioner, 

, 114

(2007); Magana v. Commissioner, 

, 493 (2002).

Although he raised the issue of application of overpayments for

later years, credits not previously claimed are barred by the

passage of time.   See Landry v. Commissioner, 

(2001).

     Because the underlying deficiency may not be considered, our

review of the notice of determination sustaining the proposed

levy is for abuse of discretion.   See Goza v. Commissioner, 

, 181-182 (2000).   In order to prevail, petitioner must

prove that the settlement officer who conducted the hearing acted

arbitrarily, capriciously, or without sound basis in fact or law.
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Woodral v. Commissioner, 

, 23 (1999).     Nothing in the

record here would justify a conclusion that the settlement

officer abused her discretion.    For the foregoing reasons,


                                         Decision will be entered for

                                   respondent.