Brandon Christopher Merriweather, Petitioner

MEMORANDUM OPINION

ARMEN, Special Trial Judge: This case is before the Court on respondent's Motion To Dismiss The Tax Years 1995 And 1996 For Failure To State A Claim Upon Which Relief Can Be Granted, filed pursuant to Rule 40.¹ ¹ All Rule references are to the Tax Court Rules of (continued...)

SERVED

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1 2001 taxable years 1995, 1996, and 1997, respectively, and that respondent was preparing to collect the same.

The notice stated that petitioner would be given 30 days to request an administrative hearing with respondent's Appeals Office.

On October 19, 1999, petitioner filed a request for a collection hearing, Form 12153, with respondent's Appeals Office stating that he was not liable for the taxes set forth in respondent's notice of intent to levy.

On September 28, 2000, respondent's Appeals Office issued to petitioner a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (the determination letter) stating that respondent intended to proceed with collection for the taxable years 1995, 1996, and 1997.

The determination letter stated further that because petitioner had received a notice of deficiency for the taxable years 1995 and 1996, petitioner was not permitted to challenge his tax liabilities for those years in proceedings before the Appeals Office.

On October 30, 2000, petitioner filed with the Court a petition for review of respondent's determination to proceed with collection for the taxable years 1995, 1996, and 1997.

The petition includes allegations that petitioner is not liable for the deficiencies for each of the years in question.

In response, respondent filed a Motion To Dismiss The Tax Years 1995 And 1996 of the matter (in the form of an Appeals Office hearing) and, if dissatisfied, with judicial review of the administrative determination in either the Tax Court or a Federal District Court.

Section 6330(c)(2) (B) provides that neither the existence nor the amount of the underlying tax liability can be contested at an Appeals Office hearing unless the taxpayer did not receive a notice of deficiency for the tax in question or did not .

otherwise have an earlier opportunity to dispute such tax liability. Section 6330(d)(1)(A) provides that a taxpayer may file a petition for review of the Commissioner's administrative determination with the Tax Court so long as the Court has jurisdiction over the underlying tax liability.

In Goza v. Commissioner, 114 T.C. 176 (2000), we explained that section 6330(c) provides for an Appeals Office hearing to address collection issues such as spousal defenses, the appropriateness of the Commissioner's intended collection action, and possible alternative means of collection.

We further explained that section 6330(c)(2)(B) provides that neither the existence nor the amount of the underlying tax liability can be contested at an Appeals Office hearing unless the taxpayer did not receive a notice of deficiency for the tax in question or did not otherwise have an earlier opportunity to dispute such tax liability.

The taxpayer in Goza had received a notice of those years.³ In view of the foregoing, we hold that respondent may proceed with collection with respect to petitioner's tax liabilities for 1995 and 1996. Accordingly, we shall grant respondent's Motion To Dismiss The Tax Years 1995 And 1996 For Failure To State A Claim Upon Which Relief Can Be Granted.

Thereafter, the current proceedings will go forward with respect to petitioner's claims for the taxable year 1997.

In order to give effect to the foregoing, An appropriate order oranting respondent's motion will be issued.

The decision to be entered in this case at the conclusion the proceedings will of all of respondent's administrative determination to proceed with collection against petitioner for the taxable years 1995 and 1996. However, such decision is not review of respondent's determinations as to petitioner.'s underlying tax liabilities for 1995 and 1996.

indicate that we sustain intended to serve as a