William R. & Kathleen S. Weber, Petitioner

CAL .

ST.AT .

S/~ JUDGE T .C . Summary. Opinion 2008-11 8

UNITED STATES TAX COURT

A WILLIAM R . WEBER AND KATHLEEN S . WEBER, Petitioners v_ . COMMISSIONER OF .INTERNAL REVENUE, Responden t Docket No . 24899-065 .

Filed September 9, 2008 .

William R . Weber, pro se .

' Carol-Lynn E . Moran , for respondent .

NIMS, Judge : This case was healyd pursuant to the provisions of section 7463 of the Internal Revelnue Code in effect when the petition was filed : Pursuant to section 7463(b), the decision t o be entered is not reviewable by any other court, and this opinio n shall not be treated as precedent fdr any other case . This case was commenced in response to a'Notice of Determination Concerning Collection Action(s) Under Section 6320 and 6330 (notice o f

SERVED SEP - 9 2008

i determination). for unpaid income tax, penalties, and interest for petitioners' 1996 tax year . The sole issue for decision i s whether .respondent abused his discretion in determining to proceed with collection of the tax due with respect to petitioners' 1996 tax year . Unless otherwise indicated, al l section references are to sections of the Internal Revenue Code .

Background The relevant facts have been stipulated .

At theHtime of th e petition, petitioners resided in New Jersey .

On June 27, 2005, separate Final Notices of Intent to Levy and Notice of Your Right to a Hearing (final notices of intent to levy) were'sent to petitioner William R . Weber and forpetitione r Kathleen S . Weber for liabilities arising under theirS1996 an d 2003 tax years . Petitioners had received a notice ofjdeficienc y with, respect to the 1996 tax year but had not petitioned th e { Court within the statutory 90-day time period .

On August 2, 2005, petitioners submitted to respondent a Form 12153, Request for a Collection Due .Process Hearing, with .

respect to their 1996, 1997, and 2003 tax years . A conference with an .Appeals officer was held on August 28, 2006 ..-(There were no discussions of an installment agreement or collectio n alternatives with respect to the 1996 tax year at theiconference .

On November 1 ; 2006, respondent sent petitioners'[a notice o f determination with respect to their 1996 and 2003 taxiyears . In k³ sustaining the final notices of)intedt to levy, the notice o f determination set forth the legal and procedural requirements for collection and discussed the issues petitioners raised at th e conference . It also stated tha :tthe Appeals officer found that the enforcement action Was not unnecessarily intrusive because petitioners had a balance due and "did not make appropriate arrangements to satisfy the liability" : It noted that petitioners had failed to respond tolthe notice of deficiency .

with respect to their 1996 tax year . . While stating that petitioners could not contest the underlying 1996 liability a t F the collection due process conference, it notified petitioners of their right to seek an audit reconsideration for the 1996 tax year .

On December 6, 2006, petitioners timely filed a petition with this Court based on the,ndtice If determination, in which they sought redetermination offthe deficiency for their 1996 tax year . Petitioners asserted that they were eligible for certain deductions that would either reduce or eliminate the underlyin g deficiency .

Trial was held on March 10, 200 8 . At trial, petitione r William R . Weber acknowledged that hl~e could not contest the underlying liability for the 1996 tax year because he had failed to timely petition the Court in response to the notice o f deficiency . Rather, he requested that he be given time to pursue -an audit reconsideration before the Internal Revenue Service .

Discussion Petitioners petitioned the Court pursuant to section 6330(d) challenging respondent's determination to sustain hisjfina l notices of intent to. levy : Where the underlying tax liability is at issue, the Court will review the Commissioner's determinatio n de novo .

Davis v . Commissioner , 115 T .C . 35, 39 (2000) . Sectio n 6330(c)(2)(B) provides :

SEC . 6330(c) . Matters Considered at Hearing .--In, the case of any hearing conducted under this section-- (B) Underlying liability .--The person may also raise at the hearing t challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability .

Petitioners do not allege that they did not receive a notice of deficiency with respect to the 1996 . tax year, nor do they allege that they had no prior opportunity to contest th e deficiency determination . Because petitioners failed1to aver facts showing that either condition under section 6330(c)(2)(B) .has been met, petitioners' underlying tax liability is no t properly before the Court . See Davis v . Commissioner s supra at 39 . Because petitioners' underlying liability is not before the Court, the Court will review respondent's determination for abuse .of discretion . See Sego v . Commissioner , 114 T .C . 6 .04, 61 0 (2000) ; Goza v . Commissioner , 114 T .C . 176, 181-182 (2000) .

Under section 633.0(c)(3), when reviewing the Notice o f Intent to Levy the Appeals officer is required to : (1) Verify that the legal and procedural requirements for levy have bee n xpayer ; and (3 ) balance the need for efficient tax coollection with the concern that any collection action be no more intrusive than necessary .

Petitioners have made no argument that respondent failed to meet these requirements or otherwise abused his discretion i n sustaining the final .notices of intent to levy . In their petition and arguments before this Court, petitioners raised only their underlying tax liabilitysfor 1996 . That issue is not before the Court . As a result, respondent did not abuse hi s discretion in determining to proceed with collection o f petitioners' 1996 tax liability . Accordingly , An appropriate decision will be entered .

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