T.C. Summary Opinion 2006-68

UNITED STATES TAX COURT

GERALD R. TASSIELLI, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 22326-04S. Filed April 26, 2006.

Gerald R. Tassielli, pro se.

Daniel J. Parent, for respondent.

PANUTHOS, Chief Special Trial Judge: This case was heard

pursuant to the provisions of sections 6330(d) and 7463 of the

Internal Revenue Code in effect when the petition was filed. The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority. Unless otherwise

indicated, all subsequent section references are to the Internal

Revenue Code in effect at relevant times. 
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1 Respondent did not refund the overpayment to petitioner. 

Instead, respondent applied $6,195.86 to petitioner’s unpaid tax

liability for 1997 and $4,370.40 to his unpaid tax liability for

1998. 

This proceeding arises from a petition for judicial review

filed in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination) sent to petitioner on October 27, 2004. The issue

for decision is whether respondent abused his discretion in

determining that the proposed levy action should proceed

regarding petitioner’s unpaid Federal income tax and related

liabilities for 1999. 

Background

Some of the facts have been stipulated, and they are so

found. The record consists of the stipulation of facts with

attached exhibits and the testimony of petitioner. At the time

of filing the petition, petitioner resided in San Ramon,

California.

On his 1999 Federal income tax return, petitioner claimed an

overpayment of $11,198. Respondent determined that petitioner’s

tax return contained mathematical or clerical errors and adjusted

his personal exemption and itemized deductions. After

adjustments, respondent determined that petitioner’s overpayment

was $10,566.26.1 Respondent assessed additional tax resulting
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2 Petitioner’s 1999 tax return did not include a computation

of his AMT liability. 

from the adjustments and notified petitioner of the changes to

his tax return on February 5, 2001. 

Several months later, respondent determined a $9,823

deficiency for petitioner’s taxable year 1999. The deficiency

was attributable solely to alternative minimum tax (AMT).2

Respondent issued petitioner a notice of deficiency on December

18, 2001, which states in part: “If you want to contest this

determination in court before making payment, you have until * *

* 90 days from the date of this letter * * * to file a petition

with the United States Tax Court.” The notice of deficiency

explains how to obtain a petition and provides the Tax Court’s

mailing address.

On March 18, 2002, petitioner sent a letter to the Internal

Revenue Service in Philadelphia, Pennsylvania, along with a copy

of the notice of deficiency. The letter states: “I do not agree

with the action taken against me reflected in the accompanying

letter. Hence, I would like to petition the U.S. Tax Court. I

want to contest this claim.” Petitioner did not send a copy of

the letter to the Tax Court. Respondent sent petitioner a letter

dated March 26, 2002, informing petitioner that if he wished to

challenge respondent’s determination, he must follow the

instructions contained in the notice of deficiency. Petitioner
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did not file a petition with the Tax Court based on that notice

of deficiency. 

On December 18, 2003, respondent sent petitioner a Final

Notice Of Intent To Levy And Notice Of Your Right To A Hearing. 

Petitioner timely submitted a Form 12153, Request for a

Collection Due Process Hearing. During the administrative

hearing with respondent’s Appeals Office, petitioner raised two

issues: (1) He disagreed with respondent’s calculation of his

AMT liability; and (2) he disputed respondent’s right to issue a

notice of deficiency after previously adjusting his tax return

based on mathematical or clerical errors. Petitioner did not

raise a spousal defense or offer a collection alternative. On

October 27, 2004, respondent issued a notice of determination to

petitioner sustaining the proposed levy action. The notice of

determination states that the Appeals officer verified that the

requirements of applicable law or administrative procedure had

been met, and that the levy action balanced the need for the

efficient collection of taxes with the concern that any

collection action be no more intrusive than necessary. 

Discussion

Section 6331(a) authorizes the Secretary to levy upon

property and property rights of a taxpayer liable for taxes who

fails to pay those taxes within 10 days after the notice and

demand for payment is made. Section 6331(d) provides that the
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levy authorized in section 6331(a) may be made with respect to

unpaid tax only if the Secretary has given written notice to the

taxpayer 30 days before the levy. Section 6330(a) requires the

Secretary to send a written notice to the taxpayer of the amount

of the unpaid tax and of the taxpayer’s right to a section 6330

hearing at least 30 days before the levy is begun.

If a section 6330 hearing is requested, the hearing is to be

conducted by the Office of Appeals, and, at the hearing, the

Appeals officer conducting it must verify that the requirements

of any applicable law or administrative procedure have been met. 

Sec. 6330(b)(1) and (c)(2). The taxpayer may raise at the

hearing “any relevant issue relating to the unpaid tax or the

proposed levy.” Sec. 6330(c)(2)(A). The taxpayer may also raise

challenges to the existence or amount of the underlying tax

liability at a hearing if the taxpayer did not receive a

statutory notice of deficiency with respect to the underlying tax

liability or did not otherwise have an opportunity to dispute

that liability. Sec. 6330(c)(2)(B); see Montgomery v.

Commissioner, 122 T.C. 1 (2004).

This Court has jurisdiction under section 6330 to review the

Commissioner’s administrative determinations. Sec. 6330(d); see

Iannone v. Commissioner, 122 T.C. 287, 290 (2004). When the

validity of the underlying tax liability is properly at issue, we

review the determination de novo. When the underlying liability
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is not properly at issue, the Court will review respondent’s

determination for abuse of discretion. Sego v. Commissioner, 114

T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 183

(2000). Whether an abuse of discretion has occurred depends upon

whether the exercise of discretion is without sound basis in fact

or law. See Freije v. Commissioner, 125 T.C. 14 (2005);

Ansley-Sheppard-Burgess Co. v. Commissioner, 104 T.C. 367, 371

(1995).

In the present case, petitioner received a notice of

deficiency for the taxable year 1999. The letter he sent

respondent on March 18, 2002, was not a petition for

redetermination because it was not mailed to or filed with the

Tax Court. See sec. 6213(a). Petitioner therefore cannot

challenge the existence or amount of his underlying tax

liability. See Kaplowitz v. Commissioner, T.C. Memo. 2005-62. 

We review for abuse of discretion. 

Petitioner has not raised a spousal defense, offered a

collection alternative, or otherwise challenged the

appropriateness of respondent’s proposed collection action. 

Petitioner’s dispute with respect to his AMT liability is a

challenge to his underlying tax liability, as is his contention

that respondent was not permitted to issue a notice of deficiency

after adjusting his tax return because of mathematical or

clerical errors. Even if petitioner were allowed to raise these
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issues with the Court, he has offered no evidence to indicate

that respondent incorrectly determined his AMT liability. In

addition, the Government is not prohibited from issuing a notice

of deficiency where it previously adjusted a taxpayer’s return

based on mathematical or clerical errors. See sec. 6213(b)(1);

Heasley v. Commissioner, 45 T.C. 448, 457 (1966); Ciciora v.

Commissioner, T.C. Memo. 2003-202.

Finally, we note that in his pretrial memorandum, petitioner

argues that we should reverse respondent’s determination because

“the enforcement of the [AMT] results in inequities”. He also

contends that Congress soon will enact legislation to repeal the

AMT, thereby rendering the issue in his case moot. These

arguments are also challenges to petitioner’s underlying tax

liability. Furthermore, we have rejected challenges to the AMT

based on equitable considerations, holding that such “policy

issues are in the province of Congress, and we are not authorized

to rewrite the statute.” Kenseth v. Commissioner, 114 T.C. 399,

407-408 (2000) (and cases cited therein); see also Anthes v.

Commissioner, 81 T.C. 1, 7 (1983), affd. without published

opinion 740 F.2d 953 (1st Cir. 1984) (“We must apply the law as

in effect during the taxable year in issue.”). 

Based on our review of the record, we conclude that

respondent satisfied the requirements of section 6330 and did not

abuse his discretion in sustaining the proposed collection action
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against petitioner. Respondent’s determination therefore is

sustained.

Reviewed and adopted as the report of the Small Tax Case

Division.

To reflect the foregoing,

Decision will be entered

for respondent.