T.C. Memo. 2006-238

UNITED STATES TAX COURT

LOUIS P. MITCHELL, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19258-04L. Filed November 6, 2006. 

Louis P. Mitchell, pro se.

David R. Jojola and Elaine Fuller, for respondent.

MEMORANDUM OPINION

SWIFT, Judge: This matter is before us on respondent’s

Rule 121 motion for summary judgment and petitioner’s opposition

thereto.

The issue for decision is whether respondent’s Appeals

Office abused its discretion in sustaining a notice of levy
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1Respondent apparently has not determined tax deficiencies

relating to petitioner’s 2001, 2002, or 2003 Federal income

taxes.

against petitioner without offering petitioner a face-to-face

hearing.

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

Background

At the time the petition was filed, petitioner resided in

Casper, Wyoming.

For 2000 through 2003, petitioner did not file Federal

income tax returns and apparently did not pay Federal income

taxes. Based on third-party information returns, respondent

prepared substitute returns for petitioner for the above years. 

In 2002, respondent mailed to petitioner a notice of

deficiency relating to petitioner’s 2000 Federal income tax

liability in the approximate amount of $26,000.1 Petitioner did

not file a petition in this Court with regard to respondent’s

notice of deficiency for 2000. 

On September 29, 2003, respondent assessed against

petitioner the above $26,000 Federal income tax deficiency for

2000, and respondent mailed to petitioner a first notice and

demand for payment thereof, plus penalties and interest. 
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Respondent periodically mailed to petitioner additional

collection notices relating to this assessment.

On January 29, 2004, respondent mailed to petitioner a

notice of intent to levy relating to petitioner’s outstanding

2000 Federal income taxes, penalties, and interest, showing a

total due from petitioner of $43,883.

On February 17, 2004, respondent received petitioner’s

request for an Appeals Office hearing in which petitioner stated

that he: (1) Had issues to discuss in connection with the

notice; (2) expected to discuss those issues at a face-to-face

hearing; and (3) planned to audiotape the hearing. Petitioner,

however, did not identify a single specific issue in his Appeals

Office hearing request.

On July 8, 2004, respondent’s Appeals officer mailed an

initial letter (initial letter) to petitioner in which he

informed petitioner of an Appeals Office policy against

conducting face-to-face hearings with taxpayers where taxpayers

do not identify specific issues prior to the hearing. The

Appeals officer provided petitioner with examples of appropriate

issues, requested that petitioner by July 23, 2004, provide

written notice of the issues petitioner wished to raise, warned

petitioner against making frivolous arguments, and proposed

alternate telephonic hearing dates -- July 29, 2004, and

August 2, 2004. 
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2Petitioner now contends that he did not receive

respondent’s notice of deficiency relating to 2000 and therefore

that, at the Appeals Office hearing, he should have been entitled

to challenge the underlying tax liability. Petitioner, however,

did not raise the issue of receipt of respondent’s notice of

deficiency in his communications with the Appeals Office.

Petitioner did not respond to respondent’s initial letter by

the July 23, 2004, stated deadline.

On July 27, 2004, petitioner mailed a letter to respondent’s

Appeals officer in which petitioner again refused to identify

specific issues,2 and in which petitioner reiterated his intent

to tape record the hearing. In his letter, petitioner

erroneously claimed that, if he identified specific issues prior

to the hearing, he somehow would be precluded from adding to

those issues at the hearing.

On July 29, 2004, and on August 2, 2004, the Appeals officer

attempted to contact petitioner by telephone. On both dates, no

one answered at the phone number petitioner had provided.

Later on August 2, 2004, the Appeals officer mailed another

letter to petitioner (final letter) in which the Appeals officer

noted that petitioner had not yet identified specific issues, and

the Appeals officer again requested that petitioner identify

specific issues to be considered at a face-to-face hearing. The

final letter also set an August 12, 2004, deadline for petitioner

to identify specific issues or the Appeals officer would decide

petitioner’s appeal based solely on information already in the

administrative file.
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Petitioner did not reply either by writing, as requested, or

by telephone, to the Appeals officer’s final letter.

On September 1, 2004, the Appeals officer reviewed

petitioner’s administrative file, concluded that the proposed

levy was appropriate, and mailed to petitioner a notice of

determination sustaining respondent’s levy notice.

On a motion for summary judgment, we decide whether there is

a genuine issue as to any material fact. Rule 121(b). Reviewing

the facts in the light most favorable to the nonmoving party,

Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985), we decide

whether the moving party has shown that: (1) There is no genuine

issue of material fact, Craig v. Commissioner, 119 T.C. 252, 260

(2002); and (2) the moving party is entitled to a favorable

judgment according to controlling legal principles, Espinoza v.

Commissioner, 78 T.C. 412, 416 (1982). 

 Where the underlying tax liability is not in dispute, abuse

of discretion is the standard of review in Appeals Office hearing

cases. Lunsford v. Commissioner, 117 T.C. 183, 185 (2001). 

Upon proper and timely request, section 6330 requires

respondent to provide taxpayers with an Appeals Office hearing

relating to a notice of proposed levy. Sec. 6330(b)(1). 

We have consistently held that a face-to-face hearing is not

invariably required: Where a taxpayer’s rights are not affected

by the absence of a face-to-face hearing, Gougler v.

Commissioner, T.C. Memo. 2002-185; where a taxpayer fails to
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cooperate with respondent’s Appeals officer, Taylor v.

Commissioner, T.C. Memo. 2004-25, affd. 130 Fed. Appx. 934 (9th

Cir. 2005); where a taxpayer requests an Appeals Office hearing

to cause delay, Nestor v. Commissioner, T.C. Memo. 2002-251

(2002); or where a taxpayer raises frivolous issues and

arguments, id.

While petitioner has not raised frivolous issues, petitioner

did cause delay and has refused to identify any specific issues

in spite of repeated requests and opportunities to do so. At

least one other taxpayer was unsuccessful in using delaying

tactics similar to those petitioner now uses. See Ho v.

Commissioner, T.C. Memo. 2006-41. 

On the available administrative record, we conclude that

respondent’s Appeals Office did not abuse its discretion in

making a determination sustaining respondent’s notice of levy

where petitioner herein did not identify specific issues relevant

to an Appeals Office hearing, did not give the Appeals officer a

reasonable explanation as to why issues could not be identified

prior to the hearing, and did not participate in the offered

telephonic hearing. 

Other arguments raised by petitioner have been considered

and are rejected.
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To reflect the foregoing,

 An appropriate order and

decision will be entered for

respondent.