117 T.C. No. 12

UNITED STATES TAX COURT

GARY G. BOYD, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6677-00L. Filed September 28, 2001.

Held: Petitioner’s request for a sec. 6330 hearing

suspended the applicable 10-year limitations period for

collecting petitioner’s Federal income taxes for

taxable years 1989 and 1990, and respondent is not time

barred from collecting those taxes.

Held, further, petitioner has failed to show that

he paid the subject tax liabilities for taxable years

1991, 1992, 1993, 1996, and 1997.

Held, further, petitioner’s request for a new

trial is denied.

Gary G. Boyd, pro se.

A. Gary Begun, for respondent.
- 2 -

1 For taxable years 1989 and 1990, petitioner filed claiming

head of household status. For taxable years 1991 and 1992,

petitioner filed claiming a status of married filing separately. 

For taxable years 1993, 1996, and 1997, petitioner filed claiming

a status of married filing jointly.

THORNTON, Judge: Petitioner seeks review under section

6330(d) of a determination made by respondent’s Office of Appeals

that respondent’s action to collect by levy certain income taxes

for 1989, 1990, 1991, 1992, 1993, 1996, and 1997 may proceed. 

Petitioner contests the levy on grounds that respondent is time

barred from collecting taxes for taxable years 1989 and 1990, and

that petitioner has already paid the subject tax liabilities for

the other years in issue. 

Unless otherwise indicated, all section references are to

the Internal Revenue Code presently in effect, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT

The parties have stipulated some of the facts, which we

incorporate herein by this reference. When petitioner filed his

original and amended petitions, he resided in White Lake,

Michigan.

Throughout the years in issue, petitioner was a selfemployed, independent contractor who worked as a carpet installer

for various companies. For each taxable year in issue,

petitioner filed a timely Federal income tax return.1 When he

filed these returns, petitioner remitted no payments for any of
- 3 -

2 The respective assessment dates of petitioner’s income tax

liability for the subject years were as follows:

 Assessment

Year Date

1989 5/21/90

1990 5/20/91

1991 8/03/92

1992 7/12/93

1993 6/06/94

1996 6/02/97

1997 5/25/98

the taxes owed. Respondent assessed tax liabilities against

petitioner for these taxable years pursuant to the Federal income

tax returns petitioner filed.2

On February 27, 1999, respondent mailed to petitioner a

letter captioned “Final Notice--Notice of Intent to Levy and

Notice of Your Right to a Hearing” for unpaid tax liabilities for

taxable years 1989, 1990, 1991, and 1992. Also on February 27,

1999, respondent’s agent mailed to petitioner and to petitioner’s

former wife, Linda A. Boyd (Linda), a letter captioned “Final

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

Hearing” for unpaid tax liabilities for taxable years 1993, 1996,

and 1997. Each letter was accompanied by a Form 12153, Request

for a Collection Due Process Hearing (Form 12153), which a

taxpayer may use to request a section 6330 hearing.

On March 20, 1999, respondent received from petitioner a

completed Form 12153, submitted on behalf of petitioner and
- 4 -

Linda, requesting a section 6330 hearing. In that form,

petitioner contended, among other things, that the applicable

statute of limitations barred collection of his tax liability for

taxable year 1989 and that he previously had paid his tax

liabilities for taxable years 1990, 1991, 1992, 1993, 1996, and

1997.

By letter dated February 29, 2000, respondent sent

petitioner copies of respondent’s transcripts of petitioner’s

accounts for the subject taxable years. The letter stated that

if petitioner felt that he was not properly credited for any

payment, he should provide respondent supporting documentation. 

Petitioner did not provide respondent any documentation to

support the allegations contained in his Form 12153. 

On April 7, 2000, respondent sent petitioner a letter

informing him that the requested section 6330 hearing would be

scheduled for May 4, 2000, at 2:30 p.m. The letter stated that

if petitioner did “not appear for the hearing or call to

reschedule, * * * [his] case will be closed in Appeals and a

Determination Letter will be issued.” Petitioner failed to

attend the scheduled section 6330 hearing and did not call to

reschedule it.

On May 22, 2000, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination). The notice of
- 5 -

determination stated that petitioner would not be granted relief

pursuant to section 6330 because, among other things, petitioner

did not appear at the scheduled section 6330 hearing and did not

present any documentation to challenge the assessed tax

liabilities. The notice of determination further stated that the

10-year period of limitations for collecting petitioner’s 1989

tax liability was still open and that respondent’s transcripts of

petitioner’s account did not show that any payments had been made

with respect to petitioner’s taxable years 1990, 1992, 1993,

1996, or 1997, and that only two payments (both in 1993) had been

made with respect to petitioner’s 1991 taxable year. 

On June 16, 2000, in response to the notice of

determination, petitioner filed with the Court an imperfect

petition. On August 15, 2000, petitioner filed an amended

petition, disputing respondent’s determinations on grounds that: 

(1) The applicable period of limitations bars collection for

taxable years 1989 and 1990, and (2) the taxes owed for the

taxable years 1991, 1992, 1993, 1996, and 1997 were previously

paid.

OPINION

 Section 6330 provides for notice and opportunity of a

hearing before the Internal Revenue Service (IRS) may levy upon

the property of any person. Section 6330(b)(1) provides that if

the person requests a hearing, “such hearing shall be held by the

Internal Revenue Service Office of Appeals.” Section
- 6 -

3 Respondent does not contest that petitioner received no 

notice of deficiency for any year in issue and otherwise had no

opportunity to dispute the underlying tax liability.

6330(c)(2)(B) allows challenges to the existence or amount of the

underlying tax liability only if the person did not receive a

notice of deficiency or have an opportunity to dispute the

liability.3 

Section 6330(d) provides for judicial review of the

Commissioner’s administrative determination. Where the validity

of the underlying tax liability is properly in issue, this Court

reviews the matter de novo. Davis v. Commissioner, 115 T.C. 35,

39 (2000). 

Is Respondent Time Barred From Collecting Petitioner’s Tax

Liabilities for 1989 and 1990?

Petitioner contends that respondent is time barred from

collecting his Federal income tax liabilities for taxable years

1989 and 1990. We review this matter de novo. See MacElvain v.

Commissioner, T.C. Memo. 2000-320 (a claim that the limitations

period has expired constitutes a challenge to the underlying tax

liability).

The amount of any Federal income tax imposed generally must

be assessed within 3 years after a Federal income tax return is

filed. Sec. 6501(a). Where the assessment of Federal income tax

is made within the relevant period of limitations, the tax may be

collected by levy if the levy is made within 10 years after the
- 7 -

4 In 1990, Congress amended sec. 6502(a)(1) to extend the

period of limitations for the collection of taxes after

assessment from 6 years to 10 years. Omnibus Budget

Reconciliation Act of 1990 (OBRA), Pub. L. 101-508, sec.

11317(a), 104 Stat. 1388-458. The 10-year limitations period

applies to taxes assessed after Nov. 5, 1990, and to taxes

assessed on or before that date if the 6-year limitations period

under prior law had not expired as of that date. Id. subsec.

(c). Because respondent assessed petitioner’s 1989 tax liability

on May 21, 1990, and the 6-year limitations period under prior

law had not expired as of Nov. 5, 1990, the 10-year limitations

period applies with respect to petitioner’s 1989 tax liabilities. 

See, e.g., Rocanova v. United States, 955 F. Supp. 27 (S.D.N.Y.

1996), affd. 109 F.3d 127 (2d Cir. 1997). Because respondent

assessed petitioner’s 1990 tax liability after Nov. 5, 1990, the

10-year limitations period also applies to his 1990 tax

liability.

assessment of the tax. Sec. 6502(a)(1).4 If the taxpayer

requests a hearing under section 6330(a)(3)(B), the levy actions

that are the subject of the requested hearing and the running of

the period of limitations set forth in section 6502 “shall be

suspended for the period during which such hearing, and appeals

therein, are pending.” Sec. 6330(e)(1).

Respondent assessed petitioner’s 1989 and 1990 Federal

income tax liabilities on May 21, 1990, and May 20, 1991,

respectively--i.e., within 3 years after petitioner filed Federal

income tax returns for those years. On March 20, 1999,

respondent received petitioner’s Form 12153 requesting a section

6330 hearing for, among other years, taxable years 1989 and 1990. 

Consequently, as of March 20, 1999, the running of the applicable

10-year limitations period (which as of that date had not expired

for taxable years 1989 or 1990) was suspended and remains
- 8 -

suspended. See sec. 6330(e)(1); sec. 301.6330-1T(g)(2), A-G1,

Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3412 (Jan. 22,

1999). Thus, respondent is not time barred from collecting

petitioner’s Federal income tax liabilities for taxable years

1989 and 1990.

Petitioner has raised no other issue concerning his Federal

income tax liabilities for taxable years 1989 and 1990. We

conclude that petitioner is not entitled to the relief he seeks

for those years.

Has Petitioner Already Paid His Tax Liabilities for the Other

Taxable Years in Issue?

Petitioner contends that he has already paid his Federal

income tax liabilities for taxable years 1991, 1992, 1993, 1996,

and 1997. Because the validity of the underlying tax liability--

i.e., the amount of tax owed that remains unpaid--is properly in

issue for these taxable years, we review respondent’s

determinations for these years de novo. See Landry v.

Commissioner, 116 T.C. 60, 62 (2001).

Respondent introduced certified transcripts of account for

petitioner’s Federal income taxes for each of the taxable years

in issue. These transcripts reflect, among other things,

petitioner’s tax liabilities for taxable years 1991, 1992, 1993,

1996, and 1997 and all payments received for those liabilities. 

The transcripts show that petitioner made some payments for his 
- 9 -

back taxes, but balances remain that are consistent with the

amounts that respondent is now attempting to collect.

Petitioner alleges that he previously entered into an

agreement with the IRS, pursuant to which certain amounts were

withheld from his paychecks and remitted to the IRS to cover his

back taxes. Petitioner also contends that he sent money orders

to the IRS’s Chicago office to pay some of his back taxes. 

 Petitioner failed to present credible evidence of his

alleged payment agreement with the IRS or of the amounts he

alleges were withheld from his paychecks or otherwise paid to

respondent. Petitioner’s self-serving, uncorroborated testimony

inadequately substantiates the alleged payments. See Tokarski v.

Commissioner, 87 T.C. 74, 77 (1986).

Petitioner did introduce into evidence two 1998 paycheck

stubs that indicate two separate withholdings of $157.43, listed

on each paycheck stub as “MISC. DEDUCTIONS”. Petitioner

handwrote “IRS Levy Proceeds” on one of the paycheck stubs. 

Respondent’s transcripts for taxable year 1989 show one $157.43

payment credited to petitioner’s account. There is no evidence

to establish that the other alleged payment, if it was in fact

made, should have been credited to petitioner’s tax liabilities

for taxable years 1991, 1992, 1993, 1996, or 1997, which are the 

only years for which petitioner has argued that respondent failed

to give him proper credit for payments made.
- 10 -

5 Petitioner mentioned at the end of trial that he might

have some records at home that would evidence his payments to the

Internal Revenue Service. We informed petitioner that we would

entertain a motion to reopen the record should he find any

records of his previous payments. Petitioner never made any such

motion. 

Petitioner also placed into evidence copies of the fronts of

two money orders in the amounts of $299.99 and $434, dated June

10, 1994, and September 3, 1997, respectively, and both made

payable to the IRS. The evidence does not indicate, however,

whether those money orders were ever negotiated. The IRS has no

record of having received either money order.

 Without credible evidence showing that petitioner made

greater payments to the IRS than are reflected in the

transcripts, we cannot assume that petitioner previously paid the

tax liabilities respondent is now attempting to collect.

Accordingly, we conclude that respondent correctly determined 

that collection efforts for taxable years 1991, 1992, 1993, 1996,

and 1997 should proceed.

Petitioner’s Request for a New Trial

 On brief, petitioner requests that he be granted a new

trial and that a “tax attorney” be appointed to represent him. 

Petitioner contends that with the assistance of a court-appointed

attorney he could obtain additional evidence to support his

contentions that he has already paid certain Federal income taxes

that respondent is seeking to collect.5 

A rehearing is an extraordinary measure and will be granted
- 11 -

6 Petitioner has no constitutional right to an attorney in

this civil matter. See Riland v. Commissioner, 79 T.C. 185, 207

(1982); Cupp v. Commissioner, 65 T.C. 68, 85-86 (1975), affd.

without published opinion 559 F.2d 1207 (3d Cir. 1977). 

only for good cause shown. Pierce Oil Corp. v. Commissioner, 30

B.T.A. 469, 475 (1934). We see no reason to give petitioner a

rehearing based on his belated desire to be represented by

counsel or on his hope that he might develop evidence that he has

failed to develop or present thus far. Petitioner chose to

appear at trial pro se and was afforded a full opportunity to be

heard and represent himself pursuant to Rule 24(b). Although he

could have secured representation for trial if he had so chosen,

he has no basis to complain that the Court did not compel him to

do so or did not appoint counsel for him.6 See Crane-Johnson Co.

v. Commissioner, 105 F.2d 740 (8th Cir. 1939), affg. 38 B.T.A.

1355 (1938), affd. 311 U.S. 54 (1940). Petitioner has not shown

that his failure to present additional evidence was not due to a

lack of diligence on his own part or that a new trial is

warranted. See Selwyn Operating Corp. v. Commissioner, 11 B.T.A.

593, 594-595 (1928); Strasser v. Commissioner, T.C. Memo. 1986-

579.

Accordingly, we deny petitioner’s request for a new trial.

Decision will be

entered for respondent.