T.C. Memo. 2010-14

UNITED STATES TAX COURT

GEORGE B. HEBERT, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 29220-08L. Filed January 26, 2010.

George B. Hebert, pro se.

Daniel P. Ryan, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION 

GOEKE, Judge: The issue for decision is whether respondent

abused his discretion in sustaining a proposed levy action

against petitioner to collect unpaid income tax assessments for

2002, 2003, and 2006 in addition to a civil penalty for taxable

year 2003. Petitioner argues that respondent abused his

discretion by refusing to provide him with a face-to-face
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collection due process (CDP) hearing. For the reasons stated

herein, we find respondent did not abuse his discretion.

FINDINGS OF FACT 

Some of the facts are stipulated and are so found. The

stipulation of facts and the attached exhibits are incorporated

herein by reference. Petitioner resided in Massachusetts at the

time he filed his petition.

On May 6, 2008, respondent issued petitioner a Letter 1058,

Final Notice of Intent To Levy and Notice of Your Right to a

Hearing (the notice). The notice included an account summary

outlining income tax due of $10,693 for 2002, $515 for 2003, and

$5,938 for 2006 and a section 6672 civil penalty of $667 for the

period ending in 2003. Petitioner timely filed a Form 12153,

Request for a Collection Due Process or Equivalent Hearing. His

request included a demand for verification from the Secretary

that the requirements of any applicable law or administrative

procedure were met, a request for copies of notice and demand

regarding the assessments listed in the notice, and other

arguments unrelated to the substantive merits of the assessed

liabilities. Petitioner was provided with documentation of the

liabilities in question and was sent the above-referenced notice

of intent to levy. At trial petitioner admitted receiving the

notices and demand but alleged they were not properly executed.
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 In a letter dated August 18, 2008, respondent offered

petitioner a telephone CDP hearing scheduled for September 22,

2008. Respondent’s letter stated that the issues petitioner

raised in his CDP hearing request were frivolous and advised him

that he would not be allowed a face-to-face hearing if he raised

only frivolous issues. Petitioner did not subsequently provide

the Appeals officer with a nonfrivolous issue or submit an

additional request for a face-to-face hearing. On September 22,

2008, petitioner failed to contact the Appeals officer for his

scheduled telephone conference. 

Respondent sent petitioner a letter dated September 22,

2008, informing him of the impending determination and again

requesting information to assist the Appeals officer with his

decision. Petitioner again failed to contact the Appeals officer

following respondent’s request for information. 

On October 24, 2008, respondent issued petitioner two

Notices of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330 (notices of determination) sustaining

the proposed levies for income tax liabilities incurred during

2002, 2003, and 2006 of $10,693, $515, and $5,938 respectively

and for a section 6672 civil penalty of $667 incurred for the

period ending in 2003. On December 1, 2008, petitioner filed his

petition contesting these determinations. On November 2, 2009,

trial was held in Boston, Massachusetts.
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OPINION

The issues we consider arise from respondent’s

determinations to proceed with levy action under section 6330. 

Specifically, we must decide: (1) Whether petitioner was granted

an opportunity for a hearing within the meaning of section 6330;

(2) whether the Appeals officer verified under section 6330(c)(1)

that the requirements of any applicable law or administrative

procedure were met and whether he wrongfully denied petitioner

copies of documents; and (3) whether respondent’s determination

to proceed with the proposed collection activity was an abuse of

discretion. For the reasons stated herein, we find respondent

did not abuse his discretion in sustaining the proposed levy

action. 

This collection review proceeding was filed pursuant to

section 6330. Section 6330(d) grants the Court jurisdiction to

review determinations made by an Appeals officer to proceed with

collection via levy. Where the validity of the underlying tax

liability is properly at issue, the Court will apply a de novo

standard of review. Sego v. Commissioner, 114 T.C. 604, 610

(2000). However, where the validity of the underlying tax

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

Commissioner’s administrative determination for abuse of

discretion. Id. At trial petitioner stated he was not making a

claim that he did not owe the tax liabilities. Accordingly, we
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review respondent’s determination for abuse of discretion. Abuse

of discretion is proven by showing that the Commissioner

exercised his discretion arbitrarily, capriciously, or without

sound basis in fact or law. Woodral v. Commissioner, 112 T.C.

19, 23 (1999).

Before the Commissioner may proceed to levy on a taxpayer’s

property or right to property, the taxpayer must be notified, in

writing, of the Commissioner’s intent and of the taxpayer’s right

to a hearing. Secs. 6330(a), 6331(d). Section 6330(b)(1) and

(3) provides that if a person requests a hearing, that hearing

shall be held before an impartial officer or employee of the IRS

Office of Appeals. At the hearing a taxpayer may raise any

relevant issue, including challenges to the appropriateness of

the collection action. Sec. 6330(c)(2)(A). A taxpayer who

raises only frivolous arguments is not entitled to a face-to-face

CDP hearing. Lunsford v. Commissioner, 117 T.C. 183, 189 (2001). 

Further, a face-to-face meeting is not required to satisfy the

hearing requirement under section 6330(b). Katz v. Commissioner,

115 T.C. 329, 338 (2000) (concluding that telephone

communications between a taxpayer and an Appeals officer over the

phone constituted an Appeals hearing); sec. 301.6330-1(d)(2),

Q&A-D6, Proced. & Admin. Regs. 

Generally, a taxpayer’s failure to raise an issue during a

CDP hearing will bar our consideration of that issue. Giamelli
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v. Commissioner, 129 T.C. 107, 112-113 (2007); Magana v.

Commissioner, 118 T.C. 488, 493 (2002). However, the Appeals

officer’s mandated verification under section 6330(c)(1) that the

requirements of any applicable law or administrative procedure

have been met is subject to our review without regard to a

challenge by the taxpayer at the hearing. Hoyle v. Commissioner,

131 T.C. , (2008) (slip op. at 11).

Petitioner argues he was denied a CDP hearing because he did

not receive a face-to-face hearing. The record indicates that

respondent provided petitioner with several opportunities to

raise nonfrivolous arguments as to why respondent’s levy should

not be sustained. Petitioner was notified by letter dated August

18, 2008, scheduling his telephone hearing, that he would have a

face-to-face hearing if he had any nonfrivolous issues. 

Petitioner did not respond to this offer and ultimately failed to

contact the Appeals officer on the scheduled date of his

telephone CDP hearing. Petitioner chose not to reschedule his

hearing. Respondent did not abuse his discretion in denying

petitioner a face-to-face hearing because he raised only

frivolous issues. See Lunsford v. Commissioner, supra at 189;

Katz v. Commissioner, supra at 338.

Petitioner alternatively argues that the Appeals officer

failed to properly verify that the requirements of any applicable

law or administrative procedure were met as required by section
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6330. Petitioner’s argument includes a request to view certain

documents, including copies of assessments and notices and

demand, because his copies of these documents are not

legitimately signed by the Secretary. Section 6330 does not

require that an Appeals officer rely upon a particular document

in order to satisfy this requirement. Sec. 6330(c)(1); Craig v.

Commissioner, 119 T.C. 252, 262 (2002). The Forms 4340,

Certificates of Assessments, Payments, and Other Specified

Matters, which were submitted in the record at trial are valid

verification that the requirements of any applicable law or

administrative procedure have been met. See Craig v.

Commissioner, supra at 262. There is no requirement under the

internal revenue laws or the regulations that the Appeals officer

give the taxpayer a copy of the delegation of authority from the

Secretary to the person who signed the verification required

under section 6330(c)(1). Nestor v. Commissioner, 118 T.C. 162,

166-167 (2002). 

The record indicates that the Appeals officer verified that

the requirements of any applicable law or administrative

procedure were met. Respondent gave petitioner documents

verifying certificates of assessments, payments, and other

specified matters for the years at issue, including copies of the

relevant Forms 4340. Petitioner decided not to discuss or

otherwise review these documents at trial. 
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We find that respondent did not abuse his discretion in his

determination to proceed with the levy. Throughout the period

leading up to petitioner’s scheduled hearing, petitioner was

uncooperative and failed to respond to the Appeals officer’s

requests for information. The Appeals officer was prepared to

discuss petitioner’s concerns over the phone and offered

petitioner a face-to-face conference if he had any nonfrivolous

issues. The Appeals officer was deliberate throughout his

interactions with petitioner and verified that the requirements

of any applicable law and administrative procedure were met. 

Accordingly, we hold there was no abuse of discretion in

respondent’s determination to proceed with collection of

petitioner’s 2002, 2003, and 2006 tax liabilities and the civil

penalty for 2003. Section 6673(a)(1) authorizes the Court to

impose a penalty not in excess of $25,000 whenever it appears the

taxpayer’s position in a proceeding is frivolous or groundless. 

We strongly warn petitioner that he may be subject to a section

6673 penalty in a future case if he persists in maintaining

proceedings to delay or to advance frivolous arguments. 

To reflect the foregoing, 

Decision will be entered

for respondent.