T.C. Memo. 2007-163

UNITED STATES TAX COURT

ROGER PAVLICA, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5861-06L. Filed June 21, 2007.

Frederick J. O’Laughlin, for petitioner.

Abbey B. Garber, for respondent.

MEMORANDUM OPINION

SWIFT, Judge: Petitioner seeks review of respondent’s

notice of determination sustaining respondent’s notice of levy

relating to petitioner’s 1997, 1998, 1999, and 2001 Federal

income tax liabilities.

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect at all relevant times.
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The issue for decision is whether respondent’s Appeals

Office abused its discretion in sustaining respondent’s notice of

levy.

Background

The essential facts of this case were stipulated and are so

found.

At the time the petition was filed, petitioner resided in

Dallas, Texas.

For 1997, 1998, 1999, 2000, and 2001, petitioner failed to

file individual Federal income tax returns. 

On or about October 17, 2003, respondent mailed to

petitioner notices of deficiency determining deficiencies in

petitioner’s Federal income taxes for 1997 through 2000 of

$6,305, $4,986, $4,234, and $33,831, respectively, and for 2001

an amount not disclosed in the record.

On January 14, 2004, in docket Nos. 1053-04, 1054-04, 

1055-04, and 1056-04, petitioner filed separate petitions

relating to the above notices of deficiency for 1997 through

2000. 

Petitioner did not file a petition with regard to the above

notice of deficiency for 2001, and on November 29, 2004,

respondent assessed the tax deficiency against petitioner for

2001.
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On December 15, 2004, after the parties had agreed to a

settlement of all issues, we entered decisions in the above four

dockets in which the parties stipulated deficiencies in

petitioner’s Federal income taxes for 1997, 1998, 1999, and 2000

of $6,085, $4,986, $4,234, and $1,166, respectively. The parties

also stipulated that petitioner had fully paid the tax deficiency

for 2000.

On June 23, 2005, respondent mailed to petitioner a notice

of levy relating to the above Federal income tax deficiencies for

1997, 1998, 1999, and 2001.

On July 19, 2005, petitioner mailed to respondent a written

request for a section 6330 Appeals Office hearing relating to

respondent’s June 23, 2005, levy notice. In petitioner’s written

Appeals Office hearing request, petitioner’s only request was

that he be allowed to pay his above Federal income tax

deficiencies in installments.

On February 14, 2006, petitioner’s attorney held a face-toface hearing with respondent’s Appeals officer. At the hearing,

petitioner’s attorney’s only request was that petitioner be

allowed to enter into an installment agreement. 

As of the February 14, 2006, hearing date, petitioner had

not filed his Federal income tax return for 2004.

On March 15, 2006, respondent’s Appeals Office mailed to

petitioner an adverse notice of determination sustaining
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respondent’s notice of levy and citing petitioner’s failure to

file his Federal income tax returns as a factor.

On October 27, 2006, petitioner late filed with respondent

his Federal income tax return for 2004.

Discussion

Generally, under section 6331(a) respondent may lawfully

collect by levy upon property belonging to a taxpayer outstanding

taxes which remain unpaid 10 days after respondent’s notice and

demand therefor.

Prior to making a levy upon a taxpayer’s property,

respondent must give to the taxpayer written notice of both the

proposed levy and of the taxpayer’s right to an Appeals Office

hearing relating to the proposed levy. Secs. 6330(a),

6331(d)(1), (4).

In such a hearing, respondent is to verify whether the

requirements of applicable law and administrative procedure have

been met and consider other appropriate issues such as collection

alternatives raised by the taxpayer. Sec. 6330(c).

Under section 6330(c)(3)(C), respondent also is to consider

whether respondent’s proposed levy balances the need for

efficient collection of taxes with the taxpayer’s concern that 

respondent’s collection action be no more intrusive than

necessary.
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Under section 6330(d)(1), we have jurisdiction to review

respondent’s notice of determination relating to a section 6330

hearing. Where the underlying Federal income tax liability is

not at issue, we review for abuse of discretion respondent’s

determination adverse to a taxpayer sustaining respondent’s

collection activity. Sego v. Commissioner, 114 T.C. 604, 610

(2000).

Petitioner argues that respondent’s Appeals Office should

have granted petitioner an installment agreement. Because,

however, petitioner had a history of noncompliance with his

Federal income tax obligations and was not compliant with his

current tax obligations as of the date of the Appeals Office

hearing, respondent’s Appeals Office did not abuse its discretion

in declining to grant petitioner an installment agreement. See

Orum v. Commissioner, 412 F.3d 819, 821 (7th Cir. 2005), affg.

123 T.C. 1 (2004) (no abuse of discretion when rejecting an

installment agreement from a taxpayer who had a history of not

fulfilling Federal income tax obligations); Rodriguez v.

Commissioner, T.C. Memo. 2003-153 (no abuse of discretion when

rejecting an offer-in-compromise from a taxpayer who had not

filed current and previous returns); Londono v. Commissioner,

T.C. Memo. 2003-99 (no abuse of discretion when rejecting an

offer-in-compromise from a taxpayer who had a history of not

fulfilling Federal income tax obligations); McCorkle v.
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Commissioner, T.C. Memo. 2003-34 (no abuse of discretion when

rejecting an installment agreement from a taxpayer who had not

filed a current return). 

We sustain respondent’s levy.

To reflect the foregoing,

Decision will be entered

for respondent.