1 Unless otherwise noted, section references are to the

Internal Revenue Code as amended.

T.C. Memo. 2004-172

UNITED STATES TAX COURT

TIM W. HOLLIDAY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13020-02L. Filed July 22, 2004.

Tim W. Holliday, pro se.

Laurel M. Costen, for respondent.

MEMORANDUM OPINION

GALE, Judge: This case arises from a petition for review

under section 6330(d)1 of respondent’s determination to proceed

with a proposed levy to collect petitioner’s 1992, 1993, 1994,

1995, 1996, 1997, and 1998 Federal income tax liabilities. The
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2 Respondent concedes that notices of deficiency for these

years were not received by petitioner.

issue for decision is whether respondent may proceed with the

proposed levy. We hold that he may.

Background

Petitioner was a resident of American Canyon, California,

when his petition was filed. 

Petitioner timely filed a 1992 individual Federal income tax

return reporting tax due of $716. After correcting the return

for computational and clerical errors, respondent assessed the

tax due thereon of $1,061 on June 7, 1993. 

Petitioner did not timely file a Federal income tax return

for 1993 or 1995. On October 6, 1997, respondent prepared a

substitute for return for each year, and on May 18, 1998,

respondent assessed tax of $2,903 for 1993 and $6,138 for 1995.2

Petitioner filed 1993 and 1995 individual Federal income tax

returns on September 21 and 18, 1998, respectively. Respondent

subsequently abated the assessment for each year to reflect the

tax reported on petitioner's returns after correcting for

computational and clerical errors. 

Petitioner filed a 1994 individual Federal income tax return

on September 21, 1998; an assessment of $2,974 was made with

respect to that return. 
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Petitioner did not timely file a Federal income tax return

for 1996. On September 14, 1998, respondent prepared a

substitute for return, and 3 days later petitioner submitted a

return that was filed as an amended return. The return

petitioner submitted reported $5,805 of tax due, which respondent

assessed. 

Petitioner timely filed 1997 and 1998 individual Federal

income tax returns, reporting tax due of $7,037 and $7,842,

respectively, which respondent assessed. 

On September 21, 2000, petitioner filed amended returns for

1993, 1994, 1995, 1996, and 1997 reporting the tax due on each

amended return as zero. Respondent treated these amended returns

as claims for refund and denied them. 

On April 9, 2001, respondent issued a Letter 1058, Final

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

Hearing, to petitioner for the unpaid balances of the

aforementioned assessments for the tax years 1992, 1993, 1994,

1995, 1996, 1997, and 1998. On May 1, 2001, petitioner submitted

to respondent a Form 12153, Request for a Collection Due Process

Hearing. In his request, petitioner advised that he would have a

stenographer present at the hearing.

By letter dated May 3, 2002, the Appeals officer advised

petitioner that neither stenographic nor audio recording of the

hearing would be permitted. A hearing was held on May 22, 2002,
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during which petitioner was not permitted to make an audio or

stenographic recording. The Appeals officer also refused to

consider petitioner's arguments related to the underlying tax

liabilities covered by the levy notice. 

On July 11, 2002, a notice of determination concerning

collection action(s) under section 6320 and/or 6330 was mailed to

petitioner in which the Appeals officer recommended proceeding

with the levy. On August 12, 2002, petitioner timely petitioned

this Court for review of the determination. 

Discussion

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

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

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon property belonging to the taxpayer.

Section 6331(d) provides that the Secretary is obliged to provide

the taxpayer with notice, including notice of the administrative

appeals available to the taxpayer, before proceeding with

collection by levy. 

Section 6330 generally provides that the Secretary cannot

proceed with the collection of taxes by way of a levy on a

taxpayer's property until the taxpayer has been given notice of,

and the opportunity for, an administrative review of the matter

(in the form of an Appeals Office hearing) and, if dissatisfied,

with judicial review of the administrative determination. See
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Davis v. Commissioner, 115 T.C. 35, 37 (2000); Goza v.

Commissioner, 114 T.C. 176, 179-180 (2000). Section 6330(c)(2)

specifies issues that the taxpayer may raise at the hearing. The

taxpayer may raise "any relevant issue relating to the unpaid tax

or the proposed levy" including spousal defenses, challenges to

the appropriateness of collection actions, and alternatives to

collection. Sec. 6330(c)(2)(A). The taxpayer also may challenge

the underlying tax liability if the taxpayer did not receive a

statutory notice of deficiency or did not otherwise have an

opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). 

Section 6330(c)(3) provides that the determination of the Appeals

officer shall take into consideration, inter alia, the issues

raised by the taxpayer. We review the determination de novo when

the underlying tax liability is in dispute, Goza v. Commissioner,

supra at 181-182, and under an abuse of discretion standard when

it is not, Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza

v. Commissioner, supra at 182. 

Two of the principal arguments petitioner raises are that he

did not receive the hearing to which he was entitled under

section 6330 because he was not permitted to record the hearing

and that the Appeals officer refused to consider arguments

pertaining to the underlying tax liabilities (because petitioner

reported those liabilities as due on his returns). The hearing

in this case was conducted, and the determination issued, before
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3 Certain portions of the underlying tax liabilities were

attributable to adjustments respondent made pursuant to sec.

6213(b)(1). However, we do not consider whether, pursuant to

sec. 6213(b)(2), petitioner previously had an “opportunity to

dispute” these portions within the meaning of sec. 6330(c)(2)(B)

because in this proceeding petitioner has, in any event, raised

only meritless arguments with respect to his underlying tax

liabilities.

4 In light of the fact that petitioner sought, but was

denied, recordation of the hearing, we resolve all doubts in

petitioner’s favor, treating any issue or argument he raised at

trial or in any written submission as having been raised at his

hearing.

our Opinions in Keene v. Commissioner, 121 T.C. 8 (2003), and

Montgomery v. Commissioner, 122 T.C. 1 (2004), in which we held,

respectively, that a taxpayer in a section 6330 hearing is

entitled to make an audio recording thereof, and to dispute the

underlying tax liability even where the taxpayer reported the

liability as due on his return.3 At trial, we afforded

petitioner the opportunity to raise any issue he considered

relevant to the proposed levy or the underlying tax liabilities.4

We consider those arguments below.

Petitioner argues that the notice of determination was

invalid, and we therefore lack jurisdiction, because the hearing

he received was defective in several respects. We disagree. The

defects in the hearing alleged by petitioner do not invalidate

the notice and deprive us of jurisdiction. See Lunsford v.

Commissioner, 117 T.C. 159, 164 (2001). 
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Petitioner next argues that his hearing was invalid and

collection may not proceed because the Appeals officer refused to

provide him with verification, and did not verify at the hearing,

that the requirements of any applicable law or administrative

procedure were met, as required under section 6330(c)(1). 

Petitioner admitted in his petition and at trial that, at the

hearing, the Appeals officer would not allow petitioner to see

the Appeals officer’s copies of the transcripts of account. On

the basis of the foregoing, we are satisfied that the Appeals

officer obtained verification at the hearing; he was not required

to provide any such verification to petitioner. See Nestor v.

Commissioner, 118 T.C. 162, 166-167 (2002).

Petitioner next claims that he did not receive notice and

demand for payment (as required by section 6303(a)) with respect

to the liabilities for any of the taxable years in question, and

that the Appeals officer did not consider his contentions in this

regard. Petitioner’s claim of nonreceipt is belied by the

certified copies of Forms 4340, Certificate of Assessments,

Payments and Other Specified Matters, in evidence for each year,

which show that statutory notices of balance due were issued for

each year. Absent some showing of irregularity in the Forms

4340, which petitioner has not made, those records serve as

presumptive evidence that notice and demand pursuant to section

6303(a) was mailed to petitioner. See Hansen v. United States, 7
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F.3d 137, 138 (9th Cir. 1993); United States v. Chila, 871 F.2d

1015, 1019 (11th Cir. 1989); Craig v. Commissioner, 119 T.C. 252,

261-262 (2002). Respondent also relies on the notice of intent

to levy issued in this case as satisfying section 6303(a). See

Hughes v. United States, 953 F.2d 531, 536 (9th Cir. 1992);

Standifird v. Commissioner, T.C. Memo. 2002-245, affd. 72 Fed.

Appx. 729 (9th Cir. 2003). In light of the Appeals officer’s

review of the transcripts of account, we are satisfied that he

obtained sufficient verification that the requirements of

applicable laws and procedures had been met.

Petitioner also advanced a claim at trial that the period of

limitations for collection of his 1992 liability had expired. 

The period for collection following assessment is 10 years. Sec.

6502(a). If a hearing is requested under section 6330(a)(3)(B),

the running of the period of limitations for collection is

suspended for the period during which the hearing, and appeals

therein, are pending. Sec. 6330(e)(1); Boyd v. Commissioner, 117

T.C. 127, 130-131 (2001). Further, the period for collection

shall not expire before the 90th day after the day on which there

is a final determination in the hearing. Sec. 6330(e)(1). 

Petitioner's 1992 liability was assessed on June 7, 1993, and

petitioner requested a hearing under section 6330(a)(3)(B) on May

1, 2001; i.e., within the 10-year period following the June 7, 
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1993, assessment. Accordingly, the period of limitations for

collection of petitioner's 1992 liability is suspended and has

not expired.

Further, with respect to the underlying tax liabilities,

petitioner contends that he asked the Appeals officer to tell him

which Internal Revenue Code section makes him liable for tax and

whether that section is within subtitle A. Petitioner further

claims that he inquired as to what “legislative regulation” makes

him liable for interest. In both instances, the Appeals officer

apparently refused to consider these inquiries. These are

frivolous issues that the Appeals officer might have responded to

but was certainly not required to consider. Suffice it to say

that petitioner reported wage income for each of the years in

question and such income is taxable pursuant to sections 1(a)-

(c), 61(a)(1), and 62. See also United States v. Romero, 640

F.2d 1014, 1016 (9th Cir. 1981). As to petitioner's interest

liability, section 6601 provides for the imposition of interest

on unpaid tax liabilities, and section 6601(g) provides for the

assessment and collection of that interest. See also sec.

301.6601-1, Proced. & Admin. Regs. In sum, the challenges to the

existence or amount of the underlying tax liabilities that

petitioner advanced either at his hearing or in the instant

proceeding are meritless.

Finally, petitioner raised a frivolous argument to the

effect that there had been no delegation of authority from the
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Secretary to issue the notice concerning his hearing under

section 6330 or to conduct it, and accordingly his hearing was

null and void for want of notice from, or its conduct by, the

Secretary himself. For the purposes presented here, the

Secretary has delegated the authority to issue a final notice of

intent to levy to certain IRS employees. See Delegation Order

191 (Rev. 3), effective June 11, 2001, Internal Revenue Manual,

sec. 1.2.2.5.3; see also Craig v. Commissioner, 119 T.C. 252, 263

(2002). The statute itself provides that the hearing is to be

conducted by an officer or employee of the IRS Office of Appeals,

not the Secretary. Sec. 6330(b)(1), (3).

Having considered all of petitioner’s arguments and found

them meritless, we conclude that the Appeals officer’s failure to

permit petitioner to make an audio or other recording of his

hearing was harmless error. Similarly, since petitioner has

raised only meritless arguments with respect to the underlying

tax liabilities, the Appeals officer’s refusal to consider

arguments concerning the underlying tax liabilities was also

harmless error. In these circumstances, we do not believe it is

“either necessary or productive” to remand this case for a

recorded hearing where an Appeals officer might consider

petitioner’s meritless arguments concerning his underlying tax

liabilities. See Lunsford v. Commissioner, 117 T.C. at 183, 189;

see also Keene v. Commissioner, 121 T.C. at 19-20; Kemper v.

Commissioner, T.C. Memo. 2003-195. As petitioner has not raised
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a spousal defense, challenged the appropriateness of collection

actions, or offered collection alternatives, and the arguments he

has raised are meritless, we sustain respondent’s determination

to proceed with the levy at issue. To reflect the foregoing, 

Decision will be entered for

respondent.