T.C. Memo. 2002-224

UNITED STATES TAX COURT

TERRI ARMSTRONG, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10744-01L. Filed September 9, 2002.

Terri Armstrong, pro se.

Inga C. Plucinski, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

CHIECHI, Judge: The petition in this case was filed in

response to a “NOTICE OF DETERMINATION CONCERNING COLLECTION

ACTION(S) UNDER SECTION 6320 and/or 6330" (notice of determination).

We must consider whether respondent abused respondent’s

discretion in determining in the notice of determination to
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1Mr. Armstrong is not a party in the instant case. At an

undisclosed time after Oct. 12, 1996, but before Aug. 8, 2000,

petitioner and Mr. Armstrong divorced. 

2During July 1996 through at least Oct. 1996, petitioner and

Mr. Armstrong were in the Dominican Republic. On Oct. 12, 1996,

petitioner and Mr. Armstrong executed Form 2848, Power of Attorney and Declaration of Representative (power of attorney), in

which they appointed Richard W. Souther (Mr. Souther) as their

attorney-in-fact and authorized him to sign and file Form 1040

with respect to their taxable year 1995. Pursuant to that power

of attorney, Mr. Souther executed and filed the 1995 return for

petitioner and Mr. Armstrong. 

proceed with collection with respect to each of petitioner’s

taxable years 1992 and 1995. We hold respondent did not.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

Petitioner resided in Orem, Utah (Orem), at the time she

filed the petition in this case. 

On October 18, 1996, petitioner and her then husband, John

Armstrong (Mr. Armstrong),1 filed jointly Form 1040, U.S. Individual Income Tax Return (Form 1040), for their taxable year 1995

(1995 return).2 On October 28, 1998, they filed jointly Form

1040 for their taxable year 1992 (1992 return). Although petitioner and Mr. Armstrong reported Federal income tax (tax) due in

each of their 1992 and 1995 returns, at the time that they filed

each of those returns, petitioner and Mr. Armstrong did not pay

the tax shown due in each such return. 

As reflected in Form 4340, Certificate of Assessments,

Payments, and Other Specified Matters (Form 4340), with respect
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3For convenience, we shall hereinafter refer to respective

Forms 4340 with respect to taxable years 1992 and 1995 of petitioner and Mr. Armstrong as respective Forms 4340 with respect to

petitioner’s taxable years 1992 and 1995.

to taxable years 1992 and 1995 of petitioner and Mr. Armstrong,3

respondent assessed on the dates shown the following amounts of

tax, an addition to tax, and interest:

Year

Date of

Assessment Tax

Addition

 to Tax Interest

Total

Liability

1992 2/22/1999 $8,604.00 --- $4,808.21 $13,412.21

1995 11/25/1996 300,609.00 $9,758.24 13,278.23 1323,659.47

1Form 4340 for taxable year 1995 of petitioner and Mr.

Armstrong also reflects a $14 charge for “FEES AND COLLECTION

COSTS”, making the total liability for that year $323,659.47.

As reflected in Form 4340 with respect to petitioner’s

taxable year 1992, respondent credited $1,000 of tax withheld to

the account of petitioner and Mr. Armstrong for their taxable

year 1992, thereby reducing their unpaid liability for that year

to $12,412.21. 

As reflected in Form 4340 with respect to petitioner’s

taxable year 1995, respondent credited $6,653 of tax withheld, an

estimated tax payment of $50,000, and a payment of $49,995.94 to

the account of petitioner and Mr. Armstrong for their taxable

year 1995, thereby reducing their unpaid liability for that year

to $217,010.53. 

On August 8, 2000, respondent issued to petitioner a final

notice of intent to levy (notice of intent to levy) with respect
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to petitioner’s taxable years 1992 and 1995. That notice stated

in pertinent part:

Your Federal tax is still not paid. We previously

asked you to pay this, but we still haven’t received

your payment. This letter is your notice of our intent

to levy under Internal Revenue Code (IRC) Section 6331

and your right to receive Appeals consideration under

IRC Section 6330.

We may file a Notice of Federal Tax Lien at any

time to protect the government’s interest. A lien is a

public notice to your creditors that the government has

a right to your current assets, including any assets

you acquire after we file the lien.

If you don’t pay the amount you owe, make alternative arrangements to pay, or request Appeals consideration within 30 days from the date of this letter, we

may take your property, or rights to property, such as

real estate, automobiles, business assets, bank accounts, wages, commissions, and other income. * * *

* * * * * * *

The amount you owe is * * *

Form

Number

Tax

 Period 

Unpaid Amount

 from Prior 

 Notices 

Additional

Penalty & Interest Amount You Owe

 1040 12/31/1992 

[1]12412.21 [2]3005.76 15417.97

1040 12/31/1995 

[1]217010.53 [2]148214.35 365224.88

 Total: 380642.85

1The amount shown for each of the years 1992 and 1995 under

the heading “Unpaid Amount from Prior Notices” is the same as the

amount of the balance shown due in Form 4340 with respect to each

of petitioner’s taxable years 1992 and 1995.

2The amount shown for each of the years 1992 and 1995 under

the heading “Additional Penalty & Interest” is the additional

amount of penalties and/or interest for each such year that is not

reflected in Form 4340 with respect to each of petitioner’s

taxable years 1992 and 1995.

In response to the notice of intent to levy, on September 7,

2000, petitioner filed Form 12153, Request for a Collection Due
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Process Hearing (Form 12153). Petitioner attached the following

statement to Form 12153:

I. NOTICE OF INTENT TO LEVY - Explanation for Disagreement

Income. (1) There was a failure to issue

Notices of Deficiency; (2) There was a failure to

generate an assessment list; (3) There was a failure of

the Commissioner to certify and transmit the assessment

list; (4) There was a failure to record the assessment;

(5) There was a failure to provide record of assessment; and, (6) There was a failure to send Notice of

Assessment.

On May 17, 2001, the Internal Revenue Service (IRS) Appeals

officer (Appeals officer) assigned to petitioner’s case sent

petitioner a letter (May 17, 2001 letter) in response to petitioner’s Form 12153. That letter stated in pertinent part:

I have received your Request for a Collection Due

Process Hearing dated September 7, 2000, and I have

reviewed the information in the administrative file.

The assessments for both the 1992 and 1995 returns are

based upon returns that were either signed by you and

Mr. Armstrong (1992) or by an authorized representative

because you were out of the country (1995). No liability questions exist for these two years. If you believe either assessment is incorrect you should file an

amended Form 1040X for these years correcting the tax

liability.

As part of IRC § 6330 two items that need to be addressed as part of a collection due process hearing are

alternative and least intrusive means of collection. 

In order to facilitate the resolution of your Request

for a Collection Due Process Hearing, provide the

following information no later than June 1, 2001.

 1. A completed Form 433A, Collection Information

Statement for Individuals.

 2. A completed Form 433B, Collection Information

Statement for Businesses (if self employed)[.]

 3. Copies of your last six months bank statements.
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 4. Information regarding any higher than normal or

unusual expenses.

 5. Information regarding the real property you own.

i.e. appraised value, purchase price, mortgage

holders, balance due, equity.

I have scheduled a telephone Appeals hearing for

Wednesday, June 6, 2001, at 09:00 a.m. Please let me

know if you are unable to hold your hearing at this

date and time. * * *

* * * * * * *

If you have any questions or concerns, please contact

me at telephone number, * * *, or address, Internal

Revenue Service-Appeals, * * *, Denver, Colorado,

80204.

Petitioner did not respond to the May 17, 2001 letter and

did not provide the Appeals officer with the information requested in that letter. Nor did petitioner advise the Appeals

officer that she objected to the telephonic hearing scheduled on

June 6, 2001, and that she wanted a face-to-face hearing. 

On May 31, 2001, the Appeals officer unsuccessfully attempted to contact petitioner by telephone in order to reschedule

petitioner’s telephonic hearing that had been scheduled for June

6, 2001. When petitioner did not answer her telephone, the

Appeals officer left a message on petitioner’s answering machine

informing her that he had rescheduled petitioner’s telephonic

hearing to June 7, 2001, at 9 a.m. 

Although petitioner received the message that the Appeals

officer had left on her answering machine on May 31, 2001,

petitioner did not contact him to object to the telephonic
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hearing rescheduled for June 7, 2001, nor did she inform him that

she wanted a face-to-face hearing. 

On June 7, 2001, the Appeals officer unsuccessfully attempted to contact petitioner in order to conduct the telephonic

hearing that he had rescheduled for that day. 

On June 14, 2001, the IRS Appeals Office sent petitioner

another letter (June 14, 2001 letter). That letter restated

certain portions of the May 17, 2001 letter and further stated in

pertinent part:

You failed to be available for our rescheduled Due

Process telephone hearing. Because the time for the

hearing was rescheduled you are advised that you have

30 calendar days from the date of this letter to contact me to schedule a mutually convenient time to hold

your Due Process Hearing. Please contact me at the

above telephone number between 8:00 a.m. and 4:00 p.m.,

Monday through Friday. If I should be unavailable to

answer the telephone please leave a message with several times when you will be available for my return

call. Please also advise me of the number you can be

reached at when I call back.

If I do not hear from you I will make a determination

on your request for a due process hearing based upon

the available information contained in your administrative file. A Notice of Determination would then be

issued providing you with an opportunity to pursue this

matter in the appropriate Federal Court.

I would like to restate the information that was in my

May 17, 2001, letter to you. * * *

* * * * * * *

If you have any questions or concerns, please contact

me at telephone number, * * *, or address, Internal

Revenue Service-Appeals, * * *, Denver, Colorado,

80204.
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4The record does not disclose that Mr. Armstrong had a power

of attorney or similar document signed by petitioner authorizing

him to represent petitioner before the IRS Appeals Office. 

5Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect at all relevant times.

Petitioner did not respond to the June 14, 2001 letter and

did not provide the IRS Appeals Office with the information

requested in that letter. 

On July 14, 2001, Mr. Armstrong, who at the time was no

longer married to petitioner,4 called the Appeals officer and

left a message on his answering machine that petitioner and he

would be filing an amended tax return for each of their taxable

years 1992 and 1995. Mr. Armstrong did not indicate that petitioner wanted to schedule a face-to-face hearing with the Appeals

officer. In fact, Mr. Armstrong did not indicate that petitioner

wanted to schedule any type of hearing with the Appeals officer

and did not indicate any times when petitioner would be available

to speak to the Appeals officer. 

Petitioner declined the opportunities offered to her by the

IRS Appeals Office to have a hearing with respect to respondent’s

notice of intent to levy.

On July 24, 2001, the IRS Appeals Office issued to petitioner under section 63305 a notice of determination with respect

to petitioner’s taxable years 1992 and 1995. That notice stated

in pertinent part: 
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Summary of Determination

It is Appeals determination that Collection is allowed

to proceed with enforced collection actions.

Attached to the notice of determination was a document entitled

“ENCLOSURE TO NOTICE OF DETERMINATION”. That document stated in

pertinent part: 

• All provisions of IRC § 6330 and IRC § 6320 have

been met. The Secretary has provided sufficient

verification that the requirements of applicable

law or administrative procedures have been met.

• Your request for a Collection Due Process Hearing

was made under IRC § 6330 to prevent proposed

collection action and to question the underlying

assessment. You alleged that the assessment was

invalid for various and sundry reasons, none of

which addressed the actual tax liability. The

returns were reviewed and it was found the taxes

are based upon returns that you filed and thus the

correctness of the assessed tax is not an issue. 

You did not respond to the correspondence sent you

or to be available for a scheduled hearing. You

did not advise Appeals of your inability to be

available for the hearing or of a better time to

hold the hearing. You did not respond to an attempt to reschedule the hearing. You refused to

provide any financial information, including the

financial information necessary to make a determination of least intrusive and alternative means of

collection. Therefore:

• It is Appeals determination that the proposed

collection action balances the need for efficient

collection of taxes with the taxpayer’s legitimate

concern that any collection action be no more

intrusive than necessary because of the lack of

financial information to explore alternative collection resolutions and your failure to be available for the Collection Due Process Hearing.

As of the time of the trial in the instant case, petitioner

and Mr. Armstrong had not filed an amended tax return for taxable
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6As discussed below, petitioner objects to the admissibility

into evidence of, inter alia, certain documents that she refers

to as the “Individual Master File Transcripts” (IMF transcripts).

We assume that petitioner is referring to the documents entitled

“Internal Revenue Service transcript(s)” (IRS transcripts) that

were part of a joint exhibit that the parties attached to, and

incorporated into, the stipulation of facts that they offered

into evidence at the beginning of the trial in this case. The

Court admitted into evidence and made part of the record in this

case the stipulation of facts together with the exhibits attached

thereto. Consistent with the parties’ stipulation of facts in

the instant case, we shall refer to those transcripts as IRS

transcripts. 

7Petitioner raises no other issues on brief. We conclude

that petitioner has abandoned any other issues that she raised in

the petition and at trial. See Rybak v. Commissioner, 91 T.C.

524, 566 n.19 (1988). Assuming arguendo that we had not concluded that petitioner abandoned any other issues that she raised

in the petition and at trial, on the record before us, we find no

merit in such other issues.

year 1992 or taxable year 1995. 

OPINION

Where, as is the case here, the validity of the underlying

tax liability is not placed at issue, the Court will review the

administrative determination of the IRS Appeals Office for abuse

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

Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

In petitioner’s opening brief, petitioner asks us to consider the following issues: (1) Whether “petitioner was entitled

to an in person hearing” and (2) whether “the Individual Master

File Transcripts[6] * * * [and] Certificates of Assessments and

Payments were admissible in evidence?”7 

We turn first to the evidentiary issues that petitioner
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raises. With respect to the admissibility into evidence of the

IRS transcripts, as noted above, those transcripts were part of a

joint exhibit that the parties attached to, and incorporated

into, the stipulation of facts that they offered into evidence at

the beginning of the trial. At that time, the Court admitted

into evidence and made part of the record in this case that

stipulation of facts together with the exhibits attached thereto. 

Although petitioner failed to preserve in the stipulation of

facts any objection to the IRS transcripts, she objected at trial

to the admissibility into evidence of those transcripts because

“they appear that they are a form of the individual master file

and * * * those aren’t admissible * * * because it’s not readable.” The Court overruled petitioner’s objection at trial. On

brief, petitioner renews her objection. 

Petitioner contends on brief that the IRS transcripts are

“not admissible as a matter of law.” That is because, according

to petitioner, those transcripts are “indecipherable” and “To be

considered at all, it [sic] can only be considered when admitted

with the 6209 Manual.” In support of her contention that the IRS

transcripts are inadmissible “as a matter of law”, petitioner

relies on Huff v. United States, 10 F.3d 1440 (9th Cir. 1993),

and United States v. Buford, 889 F.2d 1406 (5th Cir. 1989). We

find those cases to be distinguishable from the instant case and

petitioner’s reliance on them to be misplaced. Neither Huff nor
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8We note that, even though the IRS transcripts are part of

the instant record, we have not relied on those transcripts in

reaching our findings and conclusions herein.

9Assuming arguendo that petitioner had not waived her

claimed evidentiary objection to respective Forms 4340 with

respect to petitioner’s taxable years 1992 and 1995, we would

nonetheless overrule that objection. In support of her position

that Forms 4340 in question are not admissible into evidence,

petitioner asserts on brief in pertinent part: 

They [Forms 4340 in question] were generated after the

hearing date. The fact that the hearing itself didn’t

take place is irrelevant to the consideration. It is

clear that the statute places the burden on the Respondent to establish “at the hearing” compliance with the

(continued...)

Buford addressed the admissibility into evidence of the IMF

transcripts involved in those cases. We have considered petitioner’s renewed objection to the admissibility into evidence of

the IRS transcripts, and we decline to change our ruling at trial

with respect to those transcripts.8

With respect to the admissibility into evidence of respective Forms 4340 with respect to petitioner’s taxable years 1992

and 1995, respondent offered those forms into evidence at trial,

petitioner had no objection to them, and the Court admitted them

into evidence and made them part of the record in this case. On

brief, petitioner objects for the first time to the admissibility

into evidence of respective Forms 4340 with respect to petitioner’s taxable years 1992 and 1995. By failing to make a

timely objection at trial, petitioner has waived her objection to

the admissibility into evidence of those forms.9 
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9(...continued)

law and procedure. That would mean that the hearing

officer would have had some form of admissible evidence

available “at the hearing.” Since the Certificates

[Forms 4340 in question] the Respondent are [sic] now

trying to use were created after scheduled date of the

hearing, it is clear that they would not have been

available “at the hearing” had it taken place. 

Petitioner’s objection to Forms 4340 in question does not

appear to be an evidentiary objection. Petitioner seems to be

arguing that, because respective Forms 4340 with respect to

petitioner’s taxable years 1992 and 1995 were generated as of

Mar. 15, 2002, a date after the dates on which the Appeals

officer scheduled and rescheduled a telephonic hearing with

petitioner (i.e., June 6, 2001, and June 7, 2001, respectively),

those forms may not be used to establish compliance with the

requirement of sec. 6330(c)(1) that “The appeals officer * * * at

the hearing obtain verification from the Secretary that the

requirements of any applicable law or administrative procedure

have been met.” We reject any such argument. See Nestor v.

Commissioner, 118 T.C. 162 (2002). In this connection, petitioner’s objection to Forms 4340 in question appears to be based

on her misunderstanding as to what Form 4340 is. Form 4340 is a

document or transcript that shows as of a stated date the information as of that date with respect to a stated taxpayer regarding assessments, payments, and other specified matters that

appears as of that date in the official records of the IRS with

respect to that taxpayer. That Form 4340 is generated as of a

stated date does not mean that the information reflected in such

form did not appear in the official records of the IRS before

such date. In this regard, respective Forms 4340 with respect to

petitioner’s taxable years 1992 and 1995 reflect, and we have

found, that respondent assessed (1) on Nov. 25, 1996, tax, an

addition to tax, and interest with respect to petitioner’s

taxable year 1995, and (2) on Feb. 22, 1999, tax and interest

with respect to petitioner’s taxable year 1992. 

See Fed. R. Evid. 103(a)(1); United States v. Jamerson, 549 F.2d

1263, 1266-1267 (9th Cir. 1977); Fuller v. Commissioner, 20 T.C.

308, 314 (1953), affd. 213 F.2d 102 (10th Cir. 1954). 

We turn now to the only other issue that petitioner on brief

asks us to address, i.e., “Whether the petitioner was entitled to
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10See also Barnhill v. Commissioner, T.C. Memo. 2002-116.

11Consistent with Katz v. Commissioner, 115 T.C. 329 (2000),

Davis v. Commissioner, 115 T.C. 35 (2000), respondent issued

final regulations under sec. 6330, effective on Jan. 18, 2002,

with respect to any levy occurring on or after Jan. 19, 1999,

which provide, inter alia, that the formal hearing procedures

required under the Administrative Procedures Act, 5 U.S.C. secs.

551-559 (2000) (APA), do not apply to hearings under sec. 6330. 

Sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin. Regs. See also

sec. 301.6320-1(d)(2), Q&A-D6, Proced. & Admin. Regs., relating

to hearings under sec. 6320. 

an in person hearing”. As we understand her position, petitioner

contends that section 6330 entitled her to a formal face-to-face

hearing because there is “absolutely no doubt that Congress

intended that the Administrative Procedures Act govern [sic] (5

U.S.C. § 554 et. seq.) * * * would govern” and that therefore the

telephonic hearing that the Appeals officer offered her did not

comply with that section. We have previously held that hearings

under section 6330 are not formal adjudications. See Katz v.

Commissioner, 115 T.C. 329, 337-338 (2000); Davis v. Commissioner, 115 T.C. 35, 41 (2000).10 We concluded in Davis v.

Commissioner, supra, that Congress, in providing for a hearing

under section 6330, did not intend to depart from the informal

IRS Appeals Office process already provided for under section

601.106(c), Statement of Procedural Rules.11 See Katz v. Commissioner, supra. We reject petitioner’s contention that section

6330 entitled her to a formal face-to-face hearing under the APA.

Although not altogether clear, petitioner may also be
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12The record does not disclose why the Appeals officer

decided to schedule a telephonic hearing with petitioner. We

take judicial notice that the distance between Denver, Colorado,

where the Appeals officer was located, and Orem, Utah, where

petitioner resided, is approximately 500 miles. 

contending that even if section 6330 did not entitle her to a

formal face-to-face hearing under the APA, that section entitled

her to an informal face-to-face hearing, and the Appeals officer

rejected her request to have such a hearing. We have found that

the Appeals officer scheduled a telephonic hearing with petitioner on June 6, 2001,12 and rescheduled that telephonic hearing

to June 7, 2001. We have also found that petitioner never

advised the Appeals officer that she objected to the telephonic

hearing scheduled for June 6, 2001, or the telephonic hearing

rescheduled for June 7, 2001, or that she wanted a face-to-face

hearing. In fact, petitioner never responded to the various

letters sent to her by the IRS Appeals Office or the various

telephone messages left by the Appeals officer on her answering

machine. Although Mr. Armstrong telephoned the Appeals officer

on July 14, 2001, at a time when he was no longer married to

petitioner, and left a message on the Appeals officer’s answering

machine that petitioner and he would be filing an amended tax

return for each of the taxable years 1992 and 1995, Mr. Armstrong

did not indicate in that message that petitioner wanted to

schedule a face-to-face hearing with the Appeals officer. Nor

did Mr. Armstrong indicate that petitioner wanted to schedule any
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13Although not altogether clear, petitioner may also be

contending that sec. 6330 requires that a hearing between a

taxpayer and an Appeals officer take place in all events. We

reject any such contention. There is no requirement in sec. 6330

that an Appeals officer hold a hearing with a taxpayer who does

not want one. We have found in the instant case that the Appeals

officer provided petitioner with the opportunity to have a

telephonic conference with him, that she declined that opportunity, and that she never requested a face-to-face, instead of a

telephonic, hearing. 

Moreover, we are not persuaded that it would be necessary or

productive to remand this case to the IRS Appeals Office. 

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

type of hearing with the Appeals officer or indicate any times

when petitioner would be available to speak to the Appeals

officer. On the record before us, we reject any contention of

petitioner that section 6330 entitled her to a face-to-face,

albeit informal, hearing, which the Appeals officer refused to

grant her.13 

Based upon our examination of the entire record before us,

we find that respondent did not abuse respondent’s discretion in

determining in the notice of determination to proceed with

collection with respect to each of petitioner’s taxable years

1992 and 1995.

We have considered all of petitioner’s contentions and

arguments that are not discussed herein, and we find them to be

without merit and/or irrelevant.

To reflect the foregoing,

Decision will be entered

for respondent.