T.C. Memo. 2000-198

UNITED STATES TAX COURT

WILLIAM A. HOFFMAN, JR., Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 14273-99L. Filed June 29, 2000.

William A. Hoffman, Jr., pro se.

Karen Nicholson Sommers, for respondent.

MEMORANDUM OPINION

WELLS, Chief Judge: Respondent issued to petitioner a

Notice of Determination Concerning Collection Actions Under

Section 6320 and/or 6330. In response to that notice, petitioner

timely filed a Petition for Lien or Levy Action Under Code

Section 6320(c) or 6330(d). We review for abuse of discretion 
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respondent's Notice of Determination Concerning Collection

Actions Under Section 6320 and/or 6330.

On May 23, 1997, respondent issued a notice of deficiency to

petitioner determining a deficiency in, additions to, and

penalties on petitioner's 1994 Federal income tax. Petitioner

received the notice of deficiency and responded to respondent by

a letter dated June 8, 1997. Petitioner failed to petition this

Court within the time required by section 6213 with respect to

the notice of deficiency.

Subsequently, on April 7, 1999, respondent sent petitioner a

Final Notice of Intent to Levy pursuant to section 6330. The

notice stated that petitioner owed taxes, penalties, and interest

totaling $7,729.59 for the 1994 taxable year and that respondent

was preparing to collect that amount by levy. The notice stated

that petitioner could request a "Collection Due Process Hearing"

with respondent's Appeals Office.

On April 21, 1999, respondent received from petitioner a

request for a collection due process hearing. On July 14, 1999,

petitioner met with Appeals Officer Fred McMullen of the Southern

California Appeals Division. At that meeting, petitioner

declined to discuss collection alternatives or any facts

concerning his tax liability and chose instead to present

frivolous arguments. Consequently, Appeals Officer McMullen 
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determined that the Internal Revenue Service could proceed with

the proposed levy.

The relevant parts of section 6330 provide:

SEC. 6330 Notice and Opportunity for Hearing Before Levy.

(a) Requirement of notice before levy.--

 (1) In general.--No levy may be made on any property or 

right to property of any person unless the Secretary has 

notified such person in writing of their right to a hearing 

under this section before such levy is made. 

 * * * * * * *

(b) Right to a fair hearing.--

 (1) In general.–- If the person requests a hearing 

under subsection (a)(3)(B), such hearing shall be held by 

the Internal Revenue Service Office of Appeals.

 * * * * * * *

(c) Matters considered at hearing.--

 * * * * * * *

(2) Issues at hearing.--

 (A) In general.--The person may raise at the 

hearing any relevant issue relating to the 

unpaid tax or the proposed levy, including–-

(i) appropriate spousal

defenses;

(ii) challenges to the 

appropriateness of collection 

actions; and

(iii) offers of collection 

alternatives, which may include

the posting of a bond, the

substitution of other assets, an

installment agreement, or an offerin-compromise.
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(B) Underlying liability.--The person may also 

raise at the hearing 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. 

 * * * * * * *

(d) Proceeding after hearing.--

 (1) Judicial review of determination.--The person may, 

within 30 days of a determination under this section, appeal

such determination–-

(A) to the Tax Court (and the Tax Court

shall have jurisdiction to hear such matter);

* * *.

In a recent opinion, Goza v. Commissioner, 114 T.C. 176

(2000), the taxpayer received a notice of deficiency and failed

to petition this Court for redetermination with respect thereto. 

At the due process hearing pursuant to section 6330(b), the

taxpayer challenged the underlying deficiency on constitutional

grounds. The Commissioner issued a determination letter to the

taxpayer, and the taxpayer timely filed a petition for review

with this Court. The Court granted the Commissioner's motion to

dismiss the petition for failure to state a claim on the grounds

that the taxpayer could not challenge the underlying deficiency. 

The Court held that a taxpayer who received a notice of

deficiency and failed to file a petition for redetermination of

that deficiency with this Court was precluded from later
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contesting the underlying deficiency in a proceeding in this

Court under section 6330(d). 

Petitioner does not dispute that he received a notice of

deficiency and failed to file a timely petition with this Court

pursuant to section 6213 for redetermination of that deficiency. 

Petitioner further does not dispute that he failed to raise any

of the issues listed in section 6330(c)(2)(A) at the July 14,

1999, meeting with respondent's Appeals Office. Rather,

petitioner continues to put forth frivolous arguments that have

been universally rejected by this and other courts. Because,

however, petitioner received a notice of deficiency and failed to

file a timely petition with this Court for redetermination of

that deficiency, he is precluded from raising any issue regarding

his underlying tax liability at this time. Consequently, we

sustain respondent's determination in the Notice of Determination

Concerning Collection Actions Under Section 6320 and/or 6330.

Petitioner perhaps did not realize the frivolity of his

petition in the instant case. Accordingly, we warn petitioner

that pursuant to section 6673 we are authorized to impose a

penalty of up to $25,000 on taxpayers who institute proceedings

merely for delay or who set forth in a proceeding a position that

is frivolous or groundless. Petitioner should bear that fact in

mind in connection with any further proceedings which he may

institute in this Court.
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To reflect the foregoing,

Decision will be entered

for respondent.