Dara Blumenthal, Petitioner

T.C. Summary Opinion 2011-81

UNITED STATES TAX COURT

DARA BLUMENTHAL, Petitioner v. COMMIS IONER OF INTERNAL REVENUE, Respondent Dooket No. 30038-095.

• Filed'July 5, 2011.

Dara Blumentgal, pro se.

Monica E. Koch, for respondent.

DEAN, Specia Trial Judge:

This case wás 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 indicatedr subsequent section references are to the Internal Revenue Code of 1986, as amended, and all StRVED JUL -5 2011 Rule references are to the Tax Court Rules of Practice and Procedure .

Respondent issued petitioner a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (the notice of determination) .

The notice of determination sustained the filing of a notice of Federal tax lien (NFTL) issued to petitioner that pertained to her unpaid 2003 Federal income tax.

The issue for decision is whether respondent correctly sustained the filing of the 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 New York when she filed her petition.

During 2002 petitioner redeemed several savings, bonds . to pay her living expenses.¹ Although not working in 2002, petitioner sent the Internal Revenue Service (IRS) a $3,500 check to pay what she believed was her 2002 tax liability from redeeming the savings bonds. Petitioner did not file a Federal income tax return for 2002 until,May 2006.. Petitioner received a notice from.respondent dated June 12, 2006, ,alerting her that the period The Court ' s "jurisdiction under sec . 6330 (d) (1) (A) encompasses consideration of years where the facts and circumstances are relevant evaluating a claim that an uripaid tax has béen paid."- Freije v. Commissioner, 125 T.C. 14, 27 (2005) .

facts and issues ein nondétenäination in for claiming a r fund" or credit for 2002 had expired. Petitioner did not respond o the notice. Petitioner.filed her-2003 Federal income tax retur on August*20, 2004, without remittance.

On a transcript entered into evidence aireturn filed and tax liability assessed code beers the date-August 20, 2004, and shows an assessment of $3,306.

The transcript also shows that interest of $64.57 and an adcition to taxî for failure to pay of $99.18 were assessed on the same date.

Respondent sent petitioner a CP 2000 notice dated August 1, 2005, which infor ed her that.the income and payment information on file did not m tch the entries on her 2003 return.'

-Respondent included in petitioner's income for 2003 interest of $22,435 from Astoria Federal Savings and dividends of $400 from General Motors Corp.

reported on Forms 1099, twhich created an increasesin tax of $1,735.

On the same transcript mentioned above, an additional tax assessment co.e bears the date February 27, 2006, and shows an additional ass ssment of $1,735.

Respondent filed an'NFTL for the tax period ending December 31, 2003, in the register's office of Kings County, Brooklyn, New York, on May 5, 2009, and on the same day Mailed a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 to petitione .

The lien amount was $5,204.75, which 2The title fo thÁs code entrylon the trånscript is "failure The proper characterization for this amount to pay tax penalt ". is addition to ta..

- 4 -- included the amounts assessed when petitioner filed her return and the additional amount assessed on February 27, 2006.

• Petitioners timely filed a request for a collection due process (CDP) hearing wherein - she listede her reasons for 7 disagreeing with the NFTL as "Tax - paid" - no tax owed" " ande "unemployed with no income - lien endangers ability to pay basic livling expens es . " Pe t it ioner, was represented by - an ac c ountant through a power of attorney for her CDP hearing. Petitioner' s hearing was conducted-by telephone,calls between her accountant and - the Appeals -of f icer , (AO) and review of .documents petitioner submitted ,to Appeals .

Respondent issued petitioner the notice of determination dated November 10, 2009, in which he- determined ,that the collection action was appropriate, and sustained the filing of the NFTL. Petitioner timely filed a petition disagreeing with respondent ' s de terminat ion.?

Discussion Section ¡6321 imposes a lien in favor of the United States upon all prop.erty and rights to property belonging . to a person who is liable for Federal taxessand neglects or refuses to pay them after notice cand demand for payment has been made. eSection 3Petitioner presented several arguments in her' petition that were not addressed at, trial., The Court considers those arguments abandoned. (2001) ; Korchak v. Commissioner, T.C. Memo. 2005-244 n 6,., See Nicklaus v. Commissioner, 117 .T.C. 117,-120 in.⁴ i 6320(a) and (b) provides that a taxpayer shall be notified in writing by the Commissioner of the filing of an NFTL and 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.

Sec. 6320(b) (1)-. At the hearing the O 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 challen es to the appropriateness of the proposed lien and collection al ernatives.

Sec. 6330(c) (2) (A).

A taxpayer is expected to provi e all relevant information requested by Appeals for its considera ion of the facts and issues involved in the hearing, includin 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 òf the underlying tax liability if she did not receive a notice of deficiency or otherwise have an opportunity to dispute the tax.

Sec.

6330(c) (2) (B).

If a taxpaye 's underlying liability is properly at issue, the Court reviews |any determination regarding the underlying liability de novo.

Sego v. Commissioner, 114 T.C. 604, 610 (2000) ; Goza v. Commissioner, 114 T.C. 176, 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. Generally, we .

consider only arguments and 'issues the taxpayer raised at the collection hearing or otherwise brought to the attention of Appeals. Giamelli v. Commissioner, 129 T.C. 107, 112-113 (2007) ; Magana v. Commissioner, 118 T.C. 488, 493 (2002) ; see alsoesec.

301.6330-1(f) (2) , Q&A-F³, Proced. & Admin. Regs.

Petitioner' s three arguments that the NFTL is invalid are:

(1) She did not receive a hearing; (2) hers 2002 overpayment of taxes should be applied to her 2003 tax liability; and (3) the collection action is inappropriate because it will prevent her f rom paying her living expenses .

Pe tit ioner' s CDP Hearing .

A CDP hearing may consist of one or more written or oral communications between an AO and the taxpayer.

Sec.

301. 6330 -1 (d) (2) , Q&A-D⁶ , Proced . & Admin. Regs .

; . see Katz y .

Commissioner, 115 T.C. 329 (2000) ; Dinino -v. Commissioner T.C.

Memo. 2009-284.

The statute requires only that a taxpayer be given a reasonable chance to be heard before the issuance of a i not i c e of de t erminat ion .

Roman v . Commi s s ioner , T . C . Memo ." 20 0 4 -- 20 .

7 - Petitioner i estified that she did not have a prop'er hearing because when her accountant called the AO, her accountant was not prepared for the hearing and did not know that his telephone call with the AO constituted a heaking.

It is alear froe the administrative record that petitioner's accountant had more than one conversation with the AO and that petitioner herself faxed documents to the AO. Petitioner was afforded a heafiný undet the guidelines of the statute.

See Katz v. Commissioner, supra; Dinino, v. Commissioner, supra; Roman v. Commissioner, supra.

Applying the 2002 Overpayment to the 2003 Tax Liability' Petitioner argues that het overpayment of taxes for 2002 should be applied to her tax liability for 2003. Respondent argues- that the 2302 overpayment petitioner seeks to apply to 2003 iå barred by sectïon'6511(b) (2).4 The amount o a credit or refund is limited by two "look- back" periods.

C méissioner v. Lundy, 516 U.S: 235, 239-240 (1996).!

A claim or credit or'refund of än overpayment of any- tax "shall be fil d by the taxpayer":

(1) Within 3 years from the time the retu n was filed, or.(2) within 2 years from the time the tax was aid, whichever of those-perióds expires later.

Sec. 6511(a).

Un er the 3-year look-back period, if the claim was filed within years of filing the return, then the taxpayer 4The Court ne d not determine what standard of review to use is a legal one and for petitioner's argument because her argument the standard of review is immaterial.

is , entitled to a refund of t·axes - paid within 3 syears immediately preceding the fi-ling of the claim, plus the period of any .extension of time- fora filing the return.

- Sec . 6511(b) (2) (A) .

If no return is filed, the taxpayer is. entitled to a refund - of. only those- taxes paid during the 2 years immediately preceding the filing of the refund claim.

Sec. 6511(b) (2) (B) .

In the case of,any overpayment, by a taxpayer, the Commissioner generallysmay*, within the applicable period of limitations¿ credit the samount-of such overpayment against , any tax liability of that taxpayer .

Sec . 6402 (a) .

Petitioner filed her 2002-Federal income tax return in- May 2006.

. Her tax return is her claim for irefund.

See sec.

301.6402-3-(a) (1), Proced. & Admin. Regs.; see also Anderson v.

Commissioner, T . C. Memo. 1993 --288 (tax return ,is, an informal claim for refund or credit) , affd. without published opinion 36 F.3d 1091 (4th Cir. 1994) .

As they were, on. the same document, petitioner's claim was filed,within 3 years of, the filing of the return for 2002 and is timely.

See omohundro v. United -States, , a 300 F.3d 1065 (9th Cir. 2002); asee also Rev. Rul. 76-511, 1976-2 C.B. 428. Petitioner is therefore allowed to claim a refund of or credit for any, tax, paid within the- 3-year period immediately preceding her claim.

See sec . 6511 (b) (2) (A) .

, * The 3-year 'look-back" period immediately preceding petitioner's cla:.m would be from May 2003 to May 2006.5 The overpayment that petitioner wants credited to 2003 was paid in 2002.

No portion of the overpayment was paid in the 3-year "look,back" peri d. Although petitioner's claim fora refund or, credit was timel , a refund or credit of petitioner's 2002 overpayment is b rred.? See sec. 6511(b) (2) (A).

Appropriateness df the Lien Petitioner also'argues that enforcement of the lien will make it difficult for her to þay her living expenses.

The Court will review respondent's determination for abuse of discretion.

See Sego v. Commissioner, 114 T.C. at 610; Goza v. Commissioner, 114 T.C. at 181-182. Petitioner testified that she had applied for disability behefits and public assistance.

She did not provide the applications themselves as evidence. Petitioner neither provided espondent with a Form 433-A, Collectionc e Information State ent for Wage Earners and Self-Employed sPetitioner did not file for any extension of time to file her 2002 return.

'Petitioner also argues that an IRS employee told her there fact, not statements of was no deadline f r filing her 2002 return. Estoppel applies only to statemente of v. Bloom, 112 F.3 Commissioner, T.C Memo. 2001-55. argument concerne a statement of alleged reliance n advice from the IRS is undermined to the extent that such dvice was oral. 870 F.2d 634, 637 (Fed. Cir. 1989) See Henry v. United States, (and cases cited therein).

Even if petitioner's estoppel the Court notes that her 200, 205 (5th Cir. 1997); Miller v.

law. United States fact, Individuals, during the Appeals process, nor offered further evidence beyond:her testimony of her financial situation at~ trial. Petitioner did not offer any other collection alternative.

We therefore,sustain respondent!s determination that ethe coll-ection action was appropriate.

Conclusion Petitioner was af forded a 'CDP hearing. Petitioner's» request for a credit of her 2002 overpayment of Federal income tax tosher 2003 Federal income -tax liabilitya is barred by section 6511 (b) (2) (A) -; - theref ore , the 20 0 3 tax. liability remains⁴ unpaid .

Respondent' sadetermination to sustain the NFTL in the light of petitioner's failure to provide financial information or.other:

collection alternatives was not an abuse of discretion.

We .have - cons idered 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.