United States Tax Court

T.C. Memo. 2024-31

GEORGE MCDONALD WHITE,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 23133-22L. Filed March 14, 2024.

__________

George McDonald White, pro se. 

Ka (Matt) Tam, Nhi T. Luu, and Catherine J. Caballero, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

FRIED, Special Trial Judge: In a Notice of Determination 

Concerning Collection Action(s) Under Section 63201 and/or 6330 (notice 

of determination), dated September 20, 2022, respondent determined

that it was appropriate to collect by levy petitioner’s outstanding 2016

federal income tax liability (underlying liability).

The issue for decision is whether the Internal Revenue Service 

(IRS) Independent Office of Appeals (Appeals) abused its discretion in 

sustaining the proposed collection action.

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

Code, Title 26 U.S.C. (I.R.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.

Served 03/14/24
2

[*2] FINDINGS OF FACT

The absence of a stipulation of facts notwithstanding, see Rule 91, 

the relevant facts are relatively straightforward and easily summarized. 

Petitioner resided in Maryland when he timely filed his Petition.

Petitioner’s 2016 federal income tax return showed a balance due, 

which he did not pay when he filed the return. In due course, respondent 

assessed the tax shown on the return together with interest and an

addition to tax for failure to timely pay and notified petitioner of the 

balance due.

On August 16, 2021, respondent issued to petitioner a Notice 

CP90, Notice of Intent to Seize Your Assets and of Your Right to a 

Hearing, with respect to petitioner’s underlying liability. In response, 

petitioner timely submitted Form 12153, Request for a Collection Due 

Process or Equivalent Hearing. He requested consideration of an 

installment agreement and further requested “freezing collection 

proceedings until [his] circumstances improved.”

On May 26, 2022, an IRS Appeals Officer (AO), to whom 

petitioner’s case was assigned, sent to petitioner Letter 4837, Appeals 

Received Your Request for a Collection Due Process Hearing. The AO

requested a completed Form 433–A, Collection Information Statement 

for Wage Earners and Self-Employed Individuals, signed tax returns for 

tax years 2018 through 2021, proof of estimated tax payments, and 

financial documentation. Petitioner submitted Form 433–A and some of 

the requested financial documentation.

During the collection due process (CDP) proceeding, petitioner 

informed the AO that the primary reason for the liability was that the 

company he worked for erroneously failed to withhold federal taxes. The 

AO requested that if petitioner’s intent was to request reasonable cause 

penalty abatement on the basis of this error, then petitioner should 

submit his request in writing with supporting documentation. Petitioner 

did not do so. The AO also advised petitioner on several occasions that a 

collection alternative could not be pursued until petitioner had filed the 

missing tax returns for tax years 2018 through 2021.

After a financial analysis, the AO determined that petitioner 

could make monthly payments toward an installment agreement.

Alternatively, the AO determined that petitioner had sufficient equity 

in both his primary residence and rental property to fully pay the 

underlying liability. Because of petitioner’s failure to demonstrate 
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[*3] current compliance with the filing of tax returns or estimated tax 

payments and his failure to submit requested documentation, the AO

determined that petitioner was not eligible for a collection alternative.

On September 20, 2022, respondent issued the notice of 

determination upholding the proposed levy with respect to petitioner’s

underlying liability. An attachment to the notice stated, among other 

things, that petitioner had not challenged his underlying liability at any 

time during the CDP proceeding.

OPINION

I. Standard of Review

We have jurisdiction to review a determination by Appeals 

pursuant to section 6330(d)(1). Where the validity of the underlying tax 

liability is properly at issue, we review the determination regarding the 

underlying tax liability de novo. Sego v. Commissioner, 114 T.C. 604, 

610 (2000); Goza v. Commissioner, 114 T.C. 176, 181–82 (2000). We 

review all other determinations for abuse of discretion. Sego, 114 T.C. 

at 610; Goza, 114 T.C. at 182. In reviewing for abuse of discretion, we 

uphold the determination of Appeals unless it is arbitrary, capricious, 

or without sound basis in fact or law. Murphy v. Commissioner, 125 T.C. 

301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006); Taylor v. 

Commissioner, T.C. Memo. 2009-27, 2009 WL 275721, at *9. 

II. Underlying Liability

A taxpayer may challenge the underlying tax liability during a 

CDP proceeding if the taxpayer did not receive a statutory notice of 

deficiency for the liability or did not otherwise have the opportunity to 

dispute the liability. I.R.C. § 6330(c)(2)(B); see also Montgomery v. 

Commissioner, 122 T.C. 1, 8–9 (2004) (holding that taxpayers are

allowed to challenge the underlying liability where the taxpayers selfassessed their underlying liability and did not receive a statutory notice 

of deficiency). The Court may consider the challenge only if the taxpayer 

properly raised it during the CDP proceeding before the AO. Giamelli v. 

Commissioner, 129 T.C. 107, 115 (2007). An issue is not properly raised 

if the taxpayer fails to request Appeals consideration of the relevant 

issue or if the taxpayer requests consideration but fails to present any 

evidence after being given an adequate opportunity to do so. LG 

Kendrick, LLC v. Commissioner, 146 T.C. 17, 34 (2016), aff’d, 684 F. 

App’x 744 (10th Cir. 2017); Treas. Reg. § 301.6330-1(f)(2), Q&A-F3. 
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[*4] Because the assessment for 2016 was based upon a liability

reported as due on a return filed for that year, see I.R.C. § 6201(a)(1), 

and petitioner had no prior opportunity to dispute it, he was entitled to 

challenge the existence or amount of that liability during the CDP 

hearing, see Montgomery, 122 T.C. at 9–10. The record is unclear as to 

whether petitioner raised a challenge to the underlying liability during 

the CDP hearing. Even assuming arguendo that he did, during the CDP 

hearing petitioner did not “present to Appeals any evidence with respect 

to that issue after being given a reasonable opportunity to present such 

evidence.” Treas. Reg. § 301.6330-1(f)(2), Q&A-F3; see also LG Kendrick, 

LLC, 146 T.C. at 34 (holding that taxpayer did not properly raise issue 

of underlying liability where it failed to produce evidence regarding 

liabilities during CDP hearing). Moreover, petitioner did not raise the 

issue in the Petition or at trial. In view of the foregoing, we conclude 

that petitioner has not properly raised the issue before Appeals or this 

Court, and the underlying liability is not properly at issue. Accordingly, 

we will review respondent’s notice of determination for abuse of 

discretion. See Sego, 114 T.C. at 610; Goza, 114 T.C. at 182.

III. Abuse of Discretion

Petitioner bears the burden of proving that the AO’s actions 

constituted an abuse of discretion. See Rule 142(a); see also Woodral v. 

Commissioner, 112 T.C. 19, 23 (1999). This Court has consistently held 

that an AO does not abuse his discretion in rejecting a collection 

alternative where he finds that the taxpayer is not in current compliance 

with tax laws. See Balsamo v. Commissioner, T.C. Memo. 2012-109, 

2012 WL 1231985, at *4; see also Sullivan v. Commissioner, T.C. Memo. 

2019-153, at *11–12.

Upon review of petitioner’s IRS account transcripts, the AO 

ascertained that petitioner had not filed federal income tax returns for 

2018 through 2021 and was not current with his estimated tax 

payments. The record shows, and petitioner acknowledges, that the AO

repeatedly advised petitioner that he needed to cure these defects, but 

petitioner did not submit the requested returns or evidence that he had 

made his estimated tax payments. That being so, the AO’s refusal to 

accept collection alternatives proposed by petitioner during the CDP 

proceeding was not an abuse of discretion.

The record reflects that the AO satisfied the procedural 

requirements imposed by section 6330, and petitioner does not suggest 

otherwise. It follows that respondent’s determination to proceed with 
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[*5] collection of petitioner’s 2016 tax liability in accordance with the 

notice of determination is sustained.2

To reflect the foregoing, 

An appropriate decision will be entered.

2 We note that petitioner is free to come into filing compliance and submit to 

the IRS at any time, for its consideration and possible acceptance, a collection 

alternative in the form of an installment agreement or a request for currently not 

collectible status, supported by the requisite documentation and proof of compliance 

with tax laws.