United States Tax Court

T.C. Memo. 2024-53

ELIZABETH WHITE,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 10218-23L. Filed April 29, 2024.

__________

Elizabeth White, pro se.

Alexis T. Locklear, Victoria E. Cvek, and Nancy M. Gilmore, for 

respondent.

MEMORANDUM OPINION

LAUBER, Judge: In this collection due process (CDP) case petitioner seeks review pursuant to section 6330(d)(1)1 of the determination 

by the Internal Revenue Service (IRS or respondent) to uphold a notice 

of intent to levy. The notice relates to petitioner’s income tax liability 

for 2019. Respondent has filed a Motion for Summary Judgment under 

Rule 121, contending that there are no disputes of material fact and that 

the settlement officer (SO) did not abuse his discretion in sustaining the 

proposed levy. We agree and accordingly will grant the Motion.

1 Unless otherwise indicated, statutory references are to the Internal Revenue 

Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the 

Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and 

Rule references are to the Tax Court Rules of Practice and Procedure. We round all 

monetary amounts to the nearest dollar.

Served 04/29/24
2

[*2] Background

The following facts are based upon the pleadings, the parties’ Motion papers, Declarations, and attached Exhibits, which include the Administrative Record of the CDP proceeding along with a Certificate of 

Genuineness of the Administrative Record. See Rule 121(c). Petitioner 

resided in Maryland when she filed her Petition.

Petitioner filed a delinquent Federal income tax return for 2019. 

On December 14, 2020, the IRS sent her a “math error” notice. See

§ 6213(b)(1). This notice informed petitioner that her tax for 2019 was 

being adjusted upward on account of two errors on her return: 

overstated withholding credits and miscalculation of her taxable Social 

Security benefits. Although the notice informed petitioner of her right 

to dispute these adjustments, she did not do so. As of August 2021, her 

unpaid liability for 2019 (including additions to tax and interest) totaled 

$6,924; she also had unpaid balances for other tax years.

On August 16, 2021, in an effort to collect petitioner’s 2019 liability, the IRS sent her a Notice of Intent to Seize Your Assets and of Your 

Right to a Hearing (levy notice). This notice stated that it was addressed 

to petitioner’s unpaid liability for the “[t]ax period ending December 31, 

2019.” She timely requested a CDP hearing.

In her hearing request petitioner checked the box for “Offer in 

Compromise.” She listed the tax periods at issue as “2017–2019,” 

although the levy notice concerned her liability for 2019 only. She indicated that she had recently “paid over $7,000 to settle any taxes owed,” 

referring to $7,141 of payments she had made between September 2019 

and January 2020. But as the IRS had informed her in a letter dated 

January 23, 2020, the IRS had applied the first $2,141 of those payments 

against her 2017 liability (discharging it in full) and applied the remaining $5,000 against her 2018 liability (reducing but not eliminating that 

balance due). None of those payments served to reduce her 2019 liability, the subject of the levy notice.2

2 Petitioner has also submitted CDP hearing requests relating to her 

2015–2018, 2020, and 2021 tax years. But at the time she did so, the IRS had not yet 

taken or proposed any collection action for any of those years. Taxpayers may request 

a CDP hearing only in response to a specific notice of collection action. See Treas. Reg. 

§ 301.6330-1(a)(3), Q&A-A6; id. para. (c)(2), Q&A-C3; Internal Revenue Manual

8.22.4.2.2 (Aug. 26, 2020). Petitioner’s hearing requests for years other than 2019 are 

outside the scope of this case and are not before us. See Andre v. Commissioner, 127 

T.C. 68, 74 (2006).
3

[*3] On October 3, 2022, the IRS mailed petitioner a letter confirming 

receipt of her request, advising that it would be forwarded to the IRS 

Independent Office of Appeals (Appeals). On December 22, 2022, the

case was assigned to an SO in Appeals, who reviewed petitioner’s account and verified that all requirements of applicable law and administrative procedure had been satisfied. Specifically, he verified that the 

tax for 2019 had been properly assessed, that notice and demand for 

payment had been properly mailed to petitioner’s last known address,

that payments of $7,141 had been properly applied for other tax years,

and that petitioner’s balance for 2019 remained unpaid.

On December 22, 2022, the SO sent petitioner a letter scheduling 

a telephone conference for January 18, 2023. The SO informed her that

Appeals could consider a collection alternative only if she supplied a 

completed Form 433–A, Collection Information Statement for Wage 

Earners and Self-Employed Individuals, with supporting financial information. If petitioner wished to propose an offer-in-compromise (OIC), 

she was instructed to submit Form 656, Offer in Compromise.

On January 12, 2023, six days before the scheduled conference

call, petitioner spoke with the SO’s supervisor and requested copies of 

the administrative file and other documents. During this conversation 

petitioner requested a face-to-face (FTF) hearing; the SO’s supervisor 

noted that an FTF hearing might be convened if petitioner submitted a

completed Form 433–A to enable consideration of a collection alternative. When petitioner replied that she was not interested in a collection 

alternative, the supervisor informed her that the conference would take 

place by telephone, to which she assented. Later that day, the supervisor relayed this information to the SO, who sent petitioner the documents she had requested.

The telephone conference was rescheduled to April 13, 2023. As 

of that date, petitioner had indicated no intention to challenge her underlying liability for 2019, had proposed no collection alternative, and 

had submitted no financial documentation. During the call petitioner 

stated that “she was going to submit another [hearing request] to cover 

all the years that have balances due.” The SO explained that the current 

hearing was limited to the 2019 tax year. He confirmed the dollar 

amounts of her balances due for 2015, 2016, 2018, 2020, and 2021 but 

advised that, before requesting another CDP hearing, “she has to receive 

final notices for the tax years she wants to discuss.”
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[*4] On May 8, 2023, the SO decided to close the case. Petitioner had 

not challenged her underlying liability for 2019, had stated that she was 

not interested in a collection alternative for that year, and had declined 

to supply the financial information necessary to consider a collection alternative. On May 23, 2023, Appeals sent petitioner a notice of determination sustaining the proposed levy. It explained that, although petitioner had checked the box for an OIC, Appeals could not consider that 

collection alternative because she “did not submit an offer.”

Petitioner timely petitioned this Court, asserting that the SO had 

improperly denied her request for an FTF hearing and had neglected to 

send her a copy of the administrative file as she had requested. She did 

not challenge her underlying tax liability for 2019, apart from asserting 

that she “had paid the current amount.” She asked that the “current 

tax year [2019] be held in abeyance until all tax years in which a hearing 

was requested be brought before the Court.” On February 14, 2024, respondent filed a Motion for Summary Judgment, to which petitioner 

timely responded.

Discussion

I. Summary Judgment

The purpose of summary judgment is to expedite litigation and 

avoid unnecessary and time-consuming trials. FPL Grp., Inc. & Subs. 

v. Commissioner, 116 T.C. 73, 74 (2001). We may grant summary judgment when there is no genuine dispute as to any material fact and a 

decision may be rendered as a matter of law. Rule 121(a)(2); Sundstrand 

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th 

Cir. 1994). In deciding whether to grant summary judgment, we construe factual materials and inferences drawn from them in the light 

most favorable to the nonmoving party. Sundstrand Corp., 98 T.C. 

at 520. Where the moving party makes and properly supports a motion 

for summary judgment, “the nonmovant may not rest on the allegations 

or denials in that party’s pleading” but must set forth specific facts, by 

affidavit or otherwise, showing that there is a genuine dispute for trial. 

Rule 121(d). Finding that there exist no genuine disputes of material 

fact, we conclude that summary adjudication is appropriate.

II. Standard of Review

Section 6330(d)(1) does not prescribe the standard of review that 

this Court should apply in reviewing an IRS administrative determination in a CDP case. The general parameters for such review are marked 
5

[*5] out by our precedents. Where the taxpayer’s underlying tax liability is properly at issue, we review the IRS’s determination de novo. Sego 

v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 

T.C. 176, 181–82 (2000). Where the taxpayer’s underlying liability is 

not properly in dispute, we review the IRS’s determination for abuse of 

discretion only. Jones v. Commissioner, 338 F.3d 463, 466 (5th Cir. 

2003); Goza, 114 T.C. at 182. A taxpayer may challenge her underlying 

liability at a CDP hearing only if she did not receive a statutory notice 

of deficiency or did not have a prior opportunity to dispute the liability. 

See § 6330(c)(2)(B); Montgomery v. Commissioner, 122 T.C. 1, 9 (2004).

Petitioner did not receive a statutory notice of deficiency with respect to her 2019 tax liability but rather received a “math error” notice. 

We generally lack deficiency jurisdiction to review adjustments relating 

to mathematical errors. See § 6213(b)(1). But we have held that we 

may, in a CDP case, review underlying liabilities arising from adjustments not subject to our deficiency jurisdiction. See McNeill v. Commissioner, 148 T.C. 481, 489 (2017). 

In determining whether the taxpayer had an opportunity to dispute her underlying liability, the regulations distinguish between liabilities that are subject to deficiency procedures and those that are not. 

See Treas. Reg. § 301.6330-1(e)(3), Q&A-E2. Liabilities stemming from 

mathematical errors are not generally subject to deficiency procedures. 

See § 6213(b)(1). Thus, we assume arguendo that petitioner could have 

challenged her 2019 liability at the CDP hearing. See § 6330(c)(2)(B);

Montgomery, 122 T.C. at 9.

To preserve an underlying tax liability challenge in this Court, a 

taxpayer must properly raise that challenge during the CDP hearing. 

Thompson v. Commissioner, 140 T.C. 173, 178 (2013); see Giamelli v. 

Commissioner, 129 T.C. 107, 113 (2007). “An issue is not properly raised 

if the taxpayer fails . . . to present to Appeals any evidence with respect 

to that issue after being given a reasonable opportunity to [do so].” 

Treas. Reg. § 301.6330-1(f)(2), Q&A-F3; see Giamelli, 129 T.C. 

at 112–16. In other words, the taxpayer must explain what she believes 

her correct tax liability to be and supply the SO with some evidence to 

support that position. See Giamelli, 129 T.C. at 112–16; Fleming v. 

Commissioner, T.C. Memo. 2017-155, 114 T.C.M. (CCH) 180, 182 (citing 

McRae v. Commissioner, T.C. Memo. 2015-132, 110 T.C.M. (CCH) 89, 

91); Treas. Reg. § 301.6330-1(f)(2), Q&A-F3.
6

[*6] Petitioner did not submit to Appeals any evidence to dispute the 

existence or amount of her 2019 tax liability, which stemmed from overclaimed withholding credits and a miscalculation of taxable Social Security benefits. Rather, she referred to $7,141 in payments she had recently made and urged that these payments “settle[d] any taxes owed.” 

But a dispute as to whether a payment was properly credited to the taxpayer’s account for a particular tax year is not a challenge to her underlying tax liability. See Melasky v. Commissioner, 151 T.C. 89, 92 (2018), 

aff’d, 803 F. App’x 732 (5th Cir. 2020). In any event, as the IRS had 

informed her in January 2020, the payments to which she referred had 

been credited against her outstanding tax liabilities for 2017 and 2018.3

The record includes a copy of her account transcript for 2019, which 

shows that none of the payments in question was applied against her 

2019 liability. In the absence of conflicting evidence, IRS account transcripts are sufficient to establish specific facts. See Triola v. Commissioner, T.C. Memo. 2014-166, 108 T.C.M. (CCH) 185, 187 (finding account transcript sufficient to establish a balance); Lenihan v. Commissioner, T.C. Memo. 2006-259, 92 T.C.M. (CCH) 463, 470 (finding account 

transcript sufficient to establish nonpayment of estimated tax).

In sum, petitioner did not properly raise an underlying liability 

challenge to her 2019 tax liability during the CDP hearing. Rather, she 

contended that her tax for 2019 had been paid. That contention did not 

constitute a challenge to her underlying liability, and the contention in 

any event was incorrect. We accordingly review the SO’s action for 

abuse of discretion only.

III. Abuse of Discretion

Abuse of discretion exists when a determination is arbitrary, capricious, or without sound basis in fact or law. See Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006). In 

deciding whether the SO abused his discretion, we consider whether he 

(1) properly verified that the requirements of applicable law or administrative procedure were met, (2) considered relevant issues petitioner 

3 It is standard IRS practice to apply tax payments against the taxpayer’s oldest outstanding liabilities, unless the taxpayer specifically designates the payments to 

a particular tax year. See Estate of Adell v. Commissioner, T.C. Memo. 2014-89, 107 

T.C.M. (CCH) 1463, 1466 (citing Davis v. United States, 961 F.2d 867, 878 (9th Cir. 

1992)); see also Rev. Proc. 2002-26, § 2.02, 2002-1 C.B. 746, 746 (stating that if no 

designation is made, the payments will be allocated by the IRS to periods in the order 

of priority that it deems will serve its best interest). Petitioner does not contend that 

she designated her payments of $7,141 to the 2019 tax year.
7

[*7] raised, and (3) considered “whether any proposed collection action 

balances the need for the efficient collection of taxes with the legitimate 

concern of [petitioner] that any collection action be no more intrusive 

than necessary.” See § 6330(c)(3). Our review of the record establishes 

that the SO properly discharged all of his responsibilities under these 

provisions.

The SO confirmed that all applicable legal and administrative requirements had been met. See § 6330(c)(1). He verified that the math 

error notice had been sent to petitioner’s last known address and that 

her 2019 tax liability had been properly assessed.4 He also verified that

petitioner had a balance due for 2019, noting that the $7,141 of payments to which she referred had been credited against her 2017 and 2018 

tax liabilities. The principal issue petitioner raised at the CDP hearing

was her desire to challenge her liabilities for other years. But the SO 

correctly explained that the only year before him was 2019 and that (in 

any event) no levy or lien notice had yet been issued for the other years.

Petitioner asserts that the SO did not provide her with copies of

the documents she requested, including the administrative file. But the 

SO’s case activity record shows that he mailed her a copy of the administrative record and the other requested documents on January 12, 2023. 

The record includes a signed letter, dated January 12, 2023, confirming 

that fact.

Petitioner contends that Appeals abused its discretion by not offering her an FTF hearing. But as the SO’s supervisor explained to her, 

an FTF hearing was unjustified once she disavowed any interest in a 

collection alternative for 2019. In any event, we have repeatedly held 

that section 6330 does not require an FTF hearing. See Katz v. Commissioner, 115 T.C. 329, 337–38 (2000); see also Treas. Reg. 

§ 301.6330-1(d)(2), Q&A-D6 (stating that a proper hearing may occur by 

telephone, correspondence, or review of documents). An SO’s denial of 

an FTF hearing does not constitute an abuse of discretion where (as 

4 The IRS may assess (and attempt to collect) tax in an amount greater than 

the amount reported on a return, without first issuing a notice of deficiency to the 

taxpayer, if that greater amount is based on mathematical or clerical errors found on 

the return. See § 6213(b)(1). If the taxpayer requests abatement of the assessment 

within 60 days of a notice of math error, the IRS must abate the assessment and use 

deficiency procedures to reassess. See § 6213(b)(2)(A). Petitioner received a math error 

notice and did not object to assessment of the adjustments therein. Thus, no statutory 

notice of deficiency was required for petitioner’s 2019 liability, and the SO was not 

required to verify the mailing of such a notice.
8

[*8] here) a taxpayer fails to present relevant evidence and neglects to 

provide requested documents. See McRae, 110 T.C.M. (CCH) at 92.

Despite indicating in her CDP hearing request that she was interested in an OIC, petitioner did not propose an OIC or any other specific collection alternative. Even if she had done so, she submitted none 

of the required forms or financial information. The SO could properly 

have rejected any proposed collection alternative on either ground. See 

Gentile v. Commissioner, T.C. Memo. 2013-175, 106 T.C.M. (CCH) 75, 

77 (no alternative proposed), aff’d, 592 F. App’x 824 (11th Cir. 2014); 

Coleman v. Commissioner, T.C. Memo. 2010-51, 99 T.C.M. (CCH) 1213, 

1215 (no financial information provided), aff’d, 420 F. App’x 663 (8th 

Cir. 2011).

The record shows that the SO performed a balancing test, finding 

that the proposed levy action adequately balanced the need for efficient 

tax collection with petitioner’s concerns. We conclude that the SO did 

not abuse his discretion in sustaining the proposed levy. We note that 

petitioner is free to submit to the IRS at any time, for its consideration 

and possible acceptance, a collection alternative in the form of an OIC 

or an installment agreement, supported by the requisite financial information. Such an offer could cover her liabilities for multiple tax years.

To reflect the foregoing,

An appropriate order and decision will be entered.