1 Unless otherwise indicated, section references are to the

Internal Revenue Code applicable to the years in issue. Rule

references are to the Tax Court Rules of Practice and Procedure.

T.C. Memo. 2002-81

UNITED STATES TAX COURT

STANLEY HOWARD, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 7913-00L. Filed March 28, 2002.

Joyce Griggs, for petitioner.

John A. Weeda and Judith C. Winkler, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

LARO, Judge: Petitioner seeks judicial review under section

6330(d)1 of an adverse Appeals Office collection action

determination.
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FINDINGS OF FACT

Some facts were stipulated. We incorporate by this

reference the parties’ stipulation of facts and the accompanying

exhibits. Petitioner resided in Orofino, Idaho, when the

petition in this case was filed.

Petitioner failed to file income tax returns for 1992

through 1995. Respondent prepared substitute returns for each

year at issue. On March 28, 1997, a statutory notice of

deficiency was issued to petitioner for 1992, and statutory

notices of deficiency for 1993, 1994, and 1995 were issued to

petitioner on October 24, 1997. Respondent assessed $122,183.42

of income tax, penalties, and interest against petitioner for the

years at issue.

On January 11, 2000, respondent issued a Final Notice of

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

petitioner. Petitioner timely requested a hearing. In his

request for a hearing, petitioner raised a single argument:

I do not agree with the collection action of

levy and notice of intent to levy [notice

date]. The basis of my complaint is what I

believe to be the lack of a valid summary

record of assessment pursuant to 26 CFR §

301.6203-1. Without a valid assessment there

is no liability. Without a liability there

can be no levy, no notice of intent to levy,

nor any other collection actions.
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On April 26, 2000, respondent provided written notification

to petitioner’s representative that a telephone hearing was

scheduled for June 6, 2000, and enclosed copies of respondent’s

computer transcripts of account for each of the tax years at

issue. The Appeals officer relied upon the computer transcripts

of account (a.k.a. MEFTRA or MEFTRA-X) that were contained in the

administrative file as both proof that a valid assessment was

made and verification of petitioner’s liability.

At the time scheduled for the hearing, the Appeals officer

placed telephone calls to petitioner’s representative at two

different telephone numbers provided by the representative.

Petitioner’s representative was not available at either number. 

The Appeals officer left messages at both numbers requesting that

petitioner’s representative contact the Appeals officer to

reschedule the hearing. Petitioner’s representative did not

return either message.

 On June 14, 2000, respondent sent to petitioner a “NOTICE

OF DETERMINATION CONCERNING COLLECTION ACTION(S) UNDER SECTION

6320 AND/OR 6330” (notice of determination). The notice of

determination states in pertinent part:

You allege the assessments and the

liabilities are invalid. Statutory Notice of

Deficiency (SND) were sent to you dated March

28, 1997 for the 1992 tax year, and October

24, 1997 for the 1993, 1994 and 1995 tax

years. There is no evidence that you

responded to the SNDs either by filing
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amended returns or petitioning the Tax Court. 

You are precluded from raising liability as

an issue under IRC 6330(c)(2)(B). You have

not provided any relevant information or

proposed any alternative collection

resolutions. You were offered an opportunity

for a hearing to raise appropriate issues

under the statute. You did not respond to

this opportunity.

Without further cooperation, it is Appeals

determination that the proposed collection

action balances the need for efficient

collection of taxes with the taxpayer’s

legitimate concern that any collection action

be no more intrusive than necessary.

Petitioner timely filed a petition for judicial review of

that determination. After the time the petition was filed with

this Court, but before trial, respondent provided petitioner with

copies of the Form 4340, Certificate of Assessments and Payments, 

for each year at issue.

OPINION

In the judicial review of a section 6330 determination where

the validity of the underlying tax liability is properly at

issue, the Court will review the matter de novo. Where the

underlying liability is not at issue, the Court will review the

Commissioner's administrative determination for abuse of

discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000). In

this case, the validity of the underlying tax is not at issue;

consequently we review respondent’s determination under the abuse

of discretion standard.
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2 Any other issues raised by petitioner at the

administrative level are deemed conceded because petitioner did

not pursue them at trial and did not file a posttrial brief as

required by the Court’s rules. See Rule 151(a); Remuzzi v.

Commissioner, T.C. Memo. 1988-8, (issue not addressed by the

taxpayers on brief deemed conceded) affd. without published

opinion 867 F.2d 609 (4th Cir. 1989).

Petitioner’s sole allegation of error is that the Appeals

officer abused her discretion by failing to obtain proper

verification of the liability from the Secretary as required by

section 6330(c)(1).2 The Appeals officer relied on the computer

transcript of account to verify petitioner’s tax liability. 

Respondent argues that in the absence of any evidence of an

irregularity in the assessment, reliance upon the transcript of

account as verification of the liability is sufficient to satisfy

the requirements of section 6330(c)(1). We agree with

respondent.

Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay the tax within 10 days after

notice and demand for payment, the Secretary may collect the tax

by levy upon the taxpayer’s property. Section 6331(d) provides

that the Secretary must provide the taxpayer with notice,

including notice of the administrative appeals available to the

taxpayer, before proceeding with collection by such a levy.

In 1998, Congress enacted section 6330 to provide additional

procedural protections for taxpayers in tax collection matters
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3 Petitioner actually referenced the temporary regulations,

sec. 301.6320-1T(e)(1), Temporary Proced. & Admin. Regs., 64 Fed.

Reg. 3402-3403 (Jan. 22, 1999) We understand that petitioner

intended to reference section 301.6330-1T(e)(1), Temporary

Proced. & Admin. Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999). 

Additionally, since this case was submitted final regulations

were issued, and are applicable to this case. The final

regulations effected no material change to the section cited by

petitioner.

involving the imposition of a levy on a taxpayer's property.

Internal Revenue Service Restructuring and Reform Act of 1998,

Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746. Section 6330

generally provides that the Secretary cannot proceed with the

collection of taxes by way of a levy until the taxpayer has been

given notice and an opportunity for administrative review of the

matter (in the form of a hearing). Judicial review of the

administrative determination is available if the taxpayer timely

petitions this Court or the appropriate United States District

Court. Sec. 6330(d).

Section 6330(c)(1) requires that the “appeals officer shall

at the hearing obtain verification from the Secretary that the

requirements of any applicable law or administrative procedure

have been met.” Petitioner relies upon section 301.6330-1(e)(1),

Proced. & Admin. Regs., to demonstrate that respondent failed to

comply with section 6330(c)(1).3 Section 301.6330-1(e)(1),

supra, governs the matters to be considered at the hearing and

provides in relevant part:
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(e) Matters considered at CDP hearing

(1) In general. Appeals has the

authority to determine the validity,

sufficiency, and timeliness of any CDP Notice

given by the IRS and of any request for a CDP

hearing that is made by a taxpayer. Prior to

issuance of a determination, the hearing

officer is required to obtain verification

from the IRS office collecting the tax that

the requirements of any applicable law or

administrative procedure have been met. * * *

We have previously held that an Appeals officer may rely on

either a Form 4340 or a computer printout of the transcript of

account for the taxpayer to verify the taxpayer’s liability and

that a valid assessment has been made. See Davis v.

Commissioner, 115 T.C. 35 (2000); Kuglin v. Commissioner, T.C.

Memo. 2002-51; Mann v. Commissioner, T.C. Memo. 2002-48; Wylie

v. Commissioner, T.C. Memo. 2001-65. The information contained

in a Form 4340 that is used to verify the validity of an

assessment is also contained in a computer transcript of account. 

Accordingly, the Appeals officer’s reliance upon the computer

transcript as verification of petitioner’s liability satisfied

the requirements of section 6330(c)(1).

Moreover, when the Commissioner provides the taxpayer with

the Form 4340 (i.e., proof of assessment) after the hearing and

before the trial, and the taxpayer does not “show at trial any

irregularity in the assessment procedure that would raise a

question about the validity of the assessments,” the taxpayer is
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not prejudiced. See Nestor v. Commissioner, 118 T.C. 162, 167

(2002). In this case, petitioner was provided with a copy of the

Form 4340 prior to trial. However, petitioner did not allege any

irregularities in the assessment procedure. Petitioner also did

not present any evidence at trial or otherwise show any

irregularity in the assessment procedure. Accordingly, we

sustain respondent’s determination that the collection action

should proceed.

Additionally, petitioner has not alleged that the proposed

method of collection is inappropriate. Neither has petitioner

offered any alternative means of collection, nor has he raised

any spousal defenses. Accordingly, we hold for respondent. See

Lunsford v. Commissioner, 117 T.C. 183 (2001).

Accordingly,

Decision will be entered for

respondent.