T.C. Memo. 2007-23

UNITED STATES TAX COURT

JOHN E. HUNTER, II AND ALMA E. HUNTER, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

JOHN ERWIN HUNTER, II, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 23649-04, 14984-05L. Filed February 5, 2007.

John E. Hunter, II, and Alma E. Hunter, pro sese in docket

No. 23649-04.

John Erwin Hunter, II, pro se in docket No. 14984-05L.

A. Gary Begun, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

COHEN, Judge: Pursuant to section 7443A and Rules 180 and

183, these cases were assigned to and heard by Chief Special
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Trial Judge Peter J. Panuthos. His recommended findings of fact

and conclusions of law were filed and served upon the parties on

October 5, 2006. There were no objections filed as provided in

Rule 183(c). Unless otherwise indicated, all section references

are to the Internal Revenue Code as amended and in effect for the

years in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

Rule 183(d) provides that due regard shall be given to the

circumstance that the Special Trial Judge had the opportunity to

evaluate the credibility of witnesses, and the findings of fact

recommended by the Special Trial Judge shall be presumed to be

correct. None of the issues in these cases, however, turns on

the credibility of witnesses. We have given appropriate

deference to the Chief Special Trial Judge’s recommended factual

findings. After consideration of the evidence and the record in

these cases, we have made minor, clarifying, stylistic, and

editorial changes to his recommended findings of fact and

conclusions of law. We conclude that the recommended findings of

fact and conclusions of law of Chief Special Trial Judge Peter J.

Panuthos, which are hereinafter set forth as modified, should be

adopted as the report of the Court.

These cases were consolidated by Order of this Court dated

February 13, 2006. The case at docket No. 23649-04 arises from a

petition filed in response to a notice of deficiency issued on
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October 8, 2004. The case at docket No. 14984-05L arises from a

petition filed in response to a Determination Letter Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination) issued on August 2, 2005. Mrs. Hunter is not a

party to the case at docket No. 14984-05L.

The first issue for decision is whether John E. Hunter, II,

and Alma E. Hunter (the Hunters) are liable for $976 of

alternative minimum tax (AMT) for the taxable year 2002. The

remaining issues for decision are whether the Hunters are

entitled to a credit against their tax liability for 2002 and

whether Mr. Hunter was denied an adequate opportunity for an

administrative hearing regarding a notice of Federal tax lien

filing and a proposed levy action against him.

FINDINGS OF FACT

Some of the facts have been stipulated, and the stipulated

facts are incorporated as our findings by this reference. The

record consists of the stipulation of facts with attached

exhibits for each case, additional exhibits introduced at trial,

and the testimony of Mr. Hunter. The Hunters are married and

resided in Ann Arbor, Michigan, at all relevant times.

Each case before us involves the taxable year 2002. Because

a primary source of dispute concerns the taxable year 2001,

however, we begin by describing the facts relevant to that year.
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1. The Taxable Year 2001

On their joint 2001 Federal income tax return, the Hunters

reported $700,725.97 of adjusted gross income and zero tax. The

Commissioner erroneously assessed $135,924.49 of tax against the

Hunters, as well as penalties and interest. The assessment was

erroneous because the Commissioner had not issued a notice of

deficiency to the Hunters.

The Commissioner abated the assessment for 2001 and issued a

notice of deficiency. The Commissioner determined a $131,093

deficiency in the Hunters’ 2001 income tax and a $26,218.60

penalty under section 6662. Although the Hunters sought judicial

review of that determination, their case was dismissed for

failure to state a claim upon which relief may be granted, and a

decision was entered for the full deficiency and addition to tax. 

See Hunter v. Commissioner, T.C. Memo. 2005-219. No appeal from

the decision in that case was taken, and it is now final.

2. The Taxable Year 2002 Collection Case

On their joint 2002 Federal income tax return, the Hunters

reported $63,427.60 of tax and claimed $136,137.65 of tax

payments for a claimed overpayment of $72,710.05. According to

the return, the payments consist of $213.16 of withholding

credits and $135,924.49 of payments applied from the taxable year

2001. The latter figure reflects the amount of the premature

assessment for 2001 that was abated. The Hunters apparently
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believed the abatement represented an overpayment of tax or other

tax benefit that could be applied to future years.

Respondent determined that the Hunters did not have an

overpayment of tax in 2001 that could be applied to their 2002

tax liability. Respondent also determined that the Hunters’ 2002

tax return contained mathematical errors. After adjustments,

respondent determined that the Hunters’ 2002 tax liability was

$55,686.75. Respondent assessed that amount, as well as interest

and related costs, and filed a notice of Federal tax lien against

the Hunters on January 13, 2004. Respondent issued a Notice of

Federal Tax Lien Filing and Your Right to a Hearing under IRC

6320 (notice of lien) on January 16, 2004. On or about the same

day, respondent issued a Final Notice of Intent to Levy and

Notice of Your Right to a Hearing (notice of intent to levy).

Mr. Hunter timely submitted a Form 12153, Request for a

Collection Due Process Hearing. The Form 12153 states in part:

The IRS is responsible for authorizing selective

enforcement concurrent with mistaken identity. The

offense is part of a pattern of annual audits since

1988. Those annual audits do include the use of

insufficient or inadequate notice of tax liability or

tax owing, which is false and misleading.

 * * * * * * *

The IRS is responsible for ignoring or overlooking the

issues regarding that of proper identity. The correct

SSN for John Erwin Hunter, II is [XXX-XX-XXXX]. The

correct SSN for Alma Esteban Hunter is exactly the

opposite of Mr. Hunter’s. This error shows up three

consecutive times * * * and most recently on the tax
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levy notice of 16 January 04, which is unfair practice

[sic] requiring legal remedy.

Mr. Hunter’s case was assigned to respondent’s settlement

officer. The settlement officer sent Mr. Hunter a letter in

April 2005 requesting a Form 433-A, Collection Information

Statement for Wage Earners and Self-Employed Individuals, which

instructs the taxpayer to provide certain financial information.

Mr. Hunter sent a letter to the settlement officer in May

2005, which states:

We offer three issues relevant to our CDP [hearing]

* * *:

 (1) Collection Alternatives--Our Assets and Income

substantially outweigh our Expenses and Liabilities for

tax year 2002.

 (2) Appropriateness of Collection Action--We strongly

and urgently object to the Lein [sic] Determination. 

Because our 2002 tax form and supporting materials were

sent via certified mail, which was postmarked 09 April

2003. That being 6 days prior to the 15 April 2003

deadline. * * * Furthermore, our tax filing date was

erroneously reported as 07-07-03. This constitutes an

82 to 88 day time gap, which allowed us to be hit with

a $55,686.75 tax assessment plus interest and

penalties. Thus amounting to an overall tax liability

of $56,107.87 or more. Again, We respectfully disagree

with the ambiguous nature of said procedure.

 (3) Spousal Defenses–Mrs. Alma Esteban Hunter, my

Wife, is a Permanent Resident of The United States. 

She has a valid Green Card, A valid Social Security

Number, and legitimate employment. This has been duly

reported to the appropriate agencies. [Emphasis

omitted.]
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There is no indication that Mr. Hunter provided the settlement

officer with a Form 433-A or the financial information requested

therein.

The settlement officer and Mr. Hunter scheduled a telephone

hearing for June 1, 2005. Mr. Hunter called the settlement

officer on that day, but the settlement officer had stepped out

of her office. Mr. Hunter left a message, and the settlement

officer returned his call shortly thereafter. The settlement

officer left a message with a person who identified himself as

Mr. Hunter’s father, asking Mr. Hunter to return her call. It is

not clear whether Mr. Hunter received this message. In any

event, the settlement officer and Mr. Hunter did not speak by

telephone.

In August 2005, respondent issued a notice of determination

denying Mr. Hunter relief from the notice of Federal tax lien

filing and the proposed levy action. The notice of determination

states: (1) Mr. Hunter failed to provide requested financial

information; (2) the settlement officer determined, on the basis

of the best information available, that the requirements of

applicable law or administrative procedures had been met; and

(3) respondent’s proposed collection actions balance the need for

efficient collection of tax with the intrusiveness of the

actions. Mr. Hunter timely petitioned the Court for review of

the notice of determination.
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In September 2005, the Court issued its opinion in docket

No. 1397-05, involving the Hunters’ taxable year 2001. As

mentioned above, the Court dismissed the Hunters’ case for

failure to state a claim upon which relief may be granted. Thus,

the Commissioner’s determination with respect to 2001 was

sustained in full. See Hunter v. Commissioner, T.C. Memo. 2005-

219.

In October 2005, Mr. Hunter filed an amended petition in

this case that states in part: “I respectfully request case

remand or return to Appeals under Rule 34(b), IRC 6330, and

Erickson v. United States. (2002) [sic] * * * Appeals rejected

proof of my receiving $237,734.82 in * * * tax abatements for tax

years 2000 & 2001.”

Respondent filed a motion to dismiss the collection case for

failure to state a claim upon which relief can be granted. At a

hearing on the motion on January 4, 2006, Mr. Hunter was present. 

Respondent’s counsel noted the Court’s recent decision in Hunter

v. Commissioner, supra, with respect to the taxable year 2001. 

In light of that decision, the Court allowed respondent to

withdraw his motion and ordered Mr. Hunter to file a second

amended petition to clarify his position with respect to the

effect of the abatement of premature assessments. Mr. Hunter did

not file a second amended petition.
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At trial, respondent introduced a Form 4340, Certificate of

Assessments, Payments, and Other Specified Matters, showing the

assessment of tax, interest, and costs for 2002. The Form 4340

indicates that Mr. Hunter made no payments toward the 2002 tax

liability other than $213.16 of withholding credits.

3. The Taxable Year 2002 Deficiency Case

While the above-described events were taking place,

respondent also examined the Hunters’ 2002 tax return. The

Hunters had reported $233,862.08 of gross income consisting of

the following items: (1) $1,953.47 of wages; (2) $18.30 of

taxable interest; (3) $10.06 of ordinary dividends; (4) $100,000

of business income from Mr. Hunter’s sole proprietorship; and

(5) $131,880.25 of capital gain. The Hunters claimed a $3,000

deduction from adjusted gross income for “tuition and fees.” The

Hunters reported $63,427.60 of regular tax and zero AMT. They

also reported $136,137.65 of tax payments for a claimed

overpayment at $72,710.

Respondent determined a $976 deficiency attributable to AMT

and issued a notice of deficiency in October 2004. On a page

labeled “2002 - Personal Exemption Worksheet”, the notice of

deficiency refers to “the total number of exemptions claimed on

Form 1040, line 6e”. The Form 1040, U.S. Individual Income Tax

Return, for 2002 does not contain a line 6e. It does contain,

however, a line 6d for “Total number of exemptions claimed”. The
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Hunters’ return as filed erroneously claimed only one exemption

on line 6d, but the computation assumed that they are entitled to

two exemptions.

In December 2004, the Hunters timely filed a petition for

review of the notice of deficiency.

On March 18, 2005, respondent filed a motion to dismiss for

failure to state a claim upon which relief can be granted. The

motion came on for hearing in Detroit, Michigan, on June 6 and

10, 2005. The Hunters were present at the hearings. 

Respondent’s counsel and the Court explained the issue in the

case with respect to computation of the alternative minimum tax

and advised the Hunters to file an amended petition. The Court

explained that the abatement of 2000 and/or 2001 taxes was simply

correction of a premature assessment of taxes that could later

be–-and in fact were--the subject of a timely notice of

deficiency for 2001. An amended petition was thereafter filed,

and the motion to dismiss was denied.

In March 2006, the Hunters sent respondent’s counsel a

letter stating that the notice of deficiency contained an error

and should refer to line 6d, rather than to line 6e.

OPINION

Section 6320 provides that a taxpayer shall be notified in

writing by the Secretary of the filing of a notice of Federal tax

lien and provided with an opportunity for an administrative
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hearing. Sec. 6320(b). An administrative hearing under section

6320 is conducted in accordance with the procedural requirements

of section 6330. Sec. 6320(c).

Section 6331(a) authorizes the Secretary to levy upon

property and property rights of a taxpayer liable for taxes who

fails to pay those taxes within 10 days after a notice and demand

for payment is made. Section 6331(d) provides that the levy

authorized in section 6331(a) may be made with respect to unpaid

tax only if the Secretary has given written notice to the

taxpayer 30 days before the levy. Section 6330(a) requires the

Secretary to send a written notice to the taxpayer of the amount

of the unpaid tax and of the taxpayer’s right to a section 6330

hearing at least 30 days before the levy is begun.

If an administrative hearing is requested in a lien or levy

case, the hearing is to be conducted by the Office of Appeals. 

Sec. 6330(b)(1). At the hearing, the Appeals officer conducting

it must verify that the requirements of any applicable law or

administrative procedure have been met. Sec. 6330(c)(1).

A taxpayer may raise any relevant issue relating to the

unpaid tax or the proposed levy, including a spousal defense or

collection alternatives such as an offer-in-compromise or an

installment agreement. Sec. 6330(b) and (c)(2); secs. 301.6320-

1(e)(1), 301.6330-1(e)(1), Proced. & Admin. Regs. A taxpayer

also may challenge the existence or amount of the underlying tax
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liability, including a liability reported on the taxpayer’s

original return, if the taxpayer “did not receive any statutory

notice of deficiency for such tax liability or did not otherwise

have an opportunity to dispute such tax liability.” Sec.

6330(c)(2)(B); see also Urbano v. Commissioner, 122 T.C. 384,

389-390 (2004); Montgomery v. Commissioner, 122 T.C. 1, 9-10

(2004).

At the conclusion of the hearing, the Appeals officer must

determine whether and how to proceed with collection, taking into

account, among other things, collection alternatives proposed by

the taxpayer and whether any proposed collection action balances

the need for the efficient collection of taxes with the

legitimate concern of the taxpayer that the collection action be

no more intrusive than necessary. See sec. 6330(c)(3).

Section 6330(d) provides for judicial review of the

administrative determination in the Tax Court or a Federal

District Court, as may be appropriate. Where the validity of the

underlying tax liability is properly at issue, the Court will

review the matter de novo. Where the validity of the underlying

tax liability is not properly at issue, however, the Court will

review the Commissioner’s administrative determination for abuse

of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 181-183 (2000). Whether an

abuse of discretion has occurred depends upon whether the
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exercise of discretion is without sound basis in fact or law. 

See Freije v. Commissioner, 125 T.C. 14, 23 (2005).

The Hunters timely petitioned the Court in response to a

notice of deficiency. The deficiency case was consolidated with

the collection case. The Hunters may challenge their underlying

tax liability in this consolidated proceeding. We review

respondent’s determination of the underlying tax liability de

novo, and we review the determination with respect to the

proposed collection actions for abuse of discretion. See Sego v.

Commissioner, supra; Goza v. Commissioner, supra.

1. The Deficiency in Tax

The Commissioner’s determination is presumed correct, and a

taxpayer generally bears the burden of proving otherwise. Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). The burden

may shift to the Commissioner if the taxpayer introduces credible

evidence and satisfies the requirements under section 7491(a)(2)

to substantiate items, maintain required records, and fully

cooperate with the Commissioner’s reasonable requests. Sec.

7491(a). The Hunters have neither argued that section 7491(a)

applies nor established that they complied with the requirements

of section 7491(a)(2). The Hunters therefore bear the burden of

proof.

Section 55 imposes, in addition to all other taxes imposed

by subtitle A, an AMT on noncorporate taxpayers. The
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determination of a noncorporate taxpayer’s AMT requires a

recomputation of taxable income, leading to a new tax base or an

alternative minimum taxable income. Sec. 55(b)(2). In making

the recomputation, the standard deduction and the deduction for

personal exemptions are not allowed. Sec. 56(b)(1)(E).

The Hunters challenge respondent’s determination on two

grounds. First, the Hunters contest the validity of the notice

of deficiency. As mentioned above, the notice of deficiency

refers to Form 1040, line 6e, when it should refer to line 6d,

and corrected the number of exemptions to which the Hunters were

entitled. The Hunters contend that, as a result, “the tax was

applied to a category outside the scope of the exhibits.” We

interpret this statement as an argument that the notice of

deficiency is invalid.

An error in a notice of deficiency does not necessarily

invalidate the notice. Anderten v. Commissioner, T.C. Memo.

1993-2. Where the taxpayer is on notice of the nature of the

contested item and is not prejudiced or misled by the error, we

have held that the notice of deficiency is valid. Hegarty v.

Commissioner, T.C. Memo. 1992-143; see also Campbell v.

Commissioner, 90 T.C. 110 (1988) (notice of deficiency was valid

even where computational sheets of a different taxpayer had been

attached); Anderten v. Commissioner, supra (notice of deficiency
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was valid although it referred in some places to the wrong

taxable year).

As their March 2006 letter to respondent’s counsel

indicates, the Hunters were not misled by the error in the notice

of deficiency. The Hunters recognized that the notice should

have referenced line 6d rather than line 6e. At trial,

Mr. Hunter conceded that the computation of the AMT was otherwise

correct. Thus, it appears that the Hunters understood the nature

of the contested item and were not prejudiced by the error. The

notice of deficiency therefore is valid, and its computation of

the AMT is conceded to be correct. See Hegarty v. Commissioner,

supra. Although the Hunters do not specifically raise the issue,

we note that the Commissioner can issue a notice of deficiency

after he has adjusted a taxpayer’s return based on mathematical

or clerical errors. See sec. 6213(b)(1); Heasley v.

Commissioner, 45 T.C. 448, 457 (1966); Ciciora v. Commissioner,

T.C. Memo. 2003-202.

The Hunters’ second argument is that a portion of the income

they received in 2002 represents nontaxable veteran’s benefits. 

The Hunters provided two documents from the Department of

Veterans Affairs indicating that Mr. Hunter is entitled to

receive education benefits to attend law school. It is not clear

that Mr. Hunter received such benefits in 2002, however, or that

the Hunters reported such benefits as taxable income. As
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indicated above, the Hunters’ tax return does not list education 

benefits as an item of income. The only item identified in the

return pertaining to education is the unexplained $3,000

deduction that the Hunters claimed for tuition and fees. Other

categories of income were identified as included in the

$233,862.08 of gross income reported on the tax return, and

Mr. Hunter’s trial testimony on this point did not claim any

error in his reporting of income. Thus, any education benefits

that Mr. Hunter received have no effect on the deficiency. 

Respondent’s determination with respect to the deficiency is

sustained.

2. The Credit Claimed Against the Tax for 2002

Mr. Hunter argues that respondent has failed to credit his

account properly for tax payments he made. Mr. Hunter’s sole

contention in this regard is that the abated tax assessment of

$135,924.49 from 2001 represents a tax payment that applies to

2002.

Assessment is a term used to describe the formal act of

recording on the records of the Internal Revenue Service a tax

liability that has been reported on a tax return, sec.

6201(a)(1), or that otherwise has become assessable, sec.

6213(b), (c), and (d); see sec. 6203. Before assessing a

deficiency, the Commissioner generally must issue to the taxpayer

a notice of deficiency. Sec. 6213(a); Meyer v. Commissioner, 97
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T.C. 555, 560 (1991). If the Commissioner assesses a deficiency

before a notice of deficiency has been issued, a “premature

assessment” occurs, which the Commissioner is authorized to

“abate” or reverse. Sec. 6404(a)(3); see Pavich v. Commissioner,

T.C. Memo. 2006-167. The abatement of a premature assessment

does not represent an estimated tax payment or tax benefit, nor

does it prevent the Commissioner from later issuing a notice of

deficiency. See, e.g., Serv. Bolt & Nut Co. Profit Sharing Trust

v. Commissioner, 724 F.2d 519, 524 (6th Cir. 1983), affg. 78 T.C.

812 (1982); Connell Bus. Co. v. Commissioner, T.C. Memo.

2004-131.

The abatement of the premature assessment for 2001 does not

in any sense constitute a payment of tax that can be applied to

2002. Rather, the abatement reversed the erroneous recording of

a tax liability against the Hunters. The abatement did not

prevent the Commissioner from later determining a deficiency

against the Hunters, which the Commissioner did and which was

sustained in Hunter v. Commissioner, T.C. Memo. 2005-219.

Mr. Hunter’s position is wholly without merit.

3. Claimed Inadequacy of Administrative Hearing

Mr. Hunter’s next argument is that he was denied an

administrative hearing. He contends that respondent “obstructed”

his efforts to resolve the case and that “a bureaucratic book

* * * [was] slammed in * * * [his] face”.
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In Gougler v. Commissioner, T.C. Memo. 2002-185, the

taxpayer was issued a notice of intent to levy and requested a

face-to-face hearing. After the taxpayer failed to appear at the

scheduled hearing, the Commissioner issued a notice of

determination sustaining the proposed levy action. In his

petition, the taxpayer argued that he had attempted to contact

the Appeals officer about the hearing. At trial, the only

substantive issue raised by the taxpayer was his entitlement to a

refund, which, according to the Government’s records, had been

applied to outstanding liabilities for other years. Id.

In sustaining the Commissioner’s determination, the Court

stated:

There may have been a missed communication between

* * * [the taxpayer] and the Appeals officer concerning

the scheduled hearing. * * * The Appeals officer’s

determination was based on the materials in * * * [the

taxpayer’s] file and the transcripts of his account. 

See sec. 301.6330-(1)(d)(2), Q&A D7, Proced. & Admin.

Regs. At trial, * * * [the taxpayer] was unable to

identify any materials submitted by him to the Appeals

officer that were not duly considered or that would

have affected the result in this case.

Under the circumstances, the absence of a

face-to-face hearing has not affected * * * [the

taxpayer’s] rights. The case may be decided on the

present record. See Lunsford v. Commissioner, 117 T.C.

183, 189-190 (2001). * * * [Id.]

Like the taxpayer in Gougler, Mr. Hunter has failed to

identify any materials submitted by him to the settlement officer

that were not duly considered or that would have affected the

outcome of this case. Although Mr. Hunter’s May 2005 letter
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mentions collection alternatives, he did not propose an offer in

compromise or an installment agreement. Furthermore, Mr. Hunter

did not deny that he failed to provide respondent with requested

financial information. See Roman v. Commissioner, T.C. Memo.

2004-20 (Commissioner’s rejection of a collection alternative was

not abuse of discretion where taxpayer failed to provide current

financial information); Rodriguez v. Commissioner, T.C. Memo.

2003-153. While the letter also purports to raise a spousal

defense on behalf of Mrs. Hunter, no cognizable defense is

identified. In any event, she is not a party to the collection

case.

At trial, Mr. Hunter was asked repeatedly to identify the

information he wished to present to the settlement officer. 

Mr. Hunter nevertheless failed to identify any relevant

information. Accordingly, we conclude that the absence of a

telephone hearing has not affected Mr. Hunter’s rights, and the

case may be decided on the present record. See Gougler v.

Commissioner, supra; see also Carrillo v. Commissioner, T.C.

Memo. 2005-290 (“absent a showing by the taxpayer of some

irregularity * * *, a Form 4340 reflecting that tax liabilities

were assessed and remain unpaid is sufficient to support

collection action * * * . * * * it is not an abuse of discretion

for an Appeals officer to rely on Form 4340”).
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On the basis of our review of the record, we conclude that

respondent satisfied the requirements of section 6330(c) and did

not err or abuse his discretion in sustaining the notice of

Federal tax lien filing or the proposed levy action against

Mr. Hunter. Respondent’s determination therefore is sustained.

4. Section 6673

In the recommended findings of fact and conclusions of law,

Chief Special Trial Judge Panuthos cautioned petitioner about

section 6673. We repeat that warning here. Section 6673(a)(1)

provides for a penalty not in excess of $25,000 if (A)

proceedings in this Court have been instituted or maintained by

the taxpayer primarily for delay or (B) the taxpayer’s position

is frivolous or groundless. Mr. Hunter’s arguments have been

irrelevant, incoherent, unintelligible, and totally lacking in

merit. If he appears before this Court in the future and makes

similar groundless arguments, a penalty pursuant to section

6673(a) may be imposed.

In reaching our holding, we have considered all arguments

made, and, to the extent not mentioned, we conclude that they are

moot, irrelevant, or without merit.

To reflect the foregoing,

Decisions will be entered

for respondent.