internal_revenue_service number release date index number ------------------------------------------ ---------------------------------- ------------------------------- -------------------------------------- department of the treasury washington dc third party communication none date of communication not applicable_person to contact -------------------- id no ------------- telephone number --------------------- refer reply to cc psi b01 plr-142767-08 date date legend x ------------------------------------------- ---------------------------------------- d1 ----------------- dear ----------------- this responds to the letter dated date submitted on behalf of x requesting relief under sec_1362 of the internal_revenue_code facts x was incorporated on d1 the shareholder of x intended that x be treated as an s_corporation effective on d1 but the election to be treated as an s_corporation was not timely filed accordingly x requests a ruling that it will be treated as an s_corporation effective d1 law and analysis sec_1362 provides that a small_business_corporation may elect to be an s_corporation sec_1362 provides the rule on when an s election will be effective sec_1362 provides in relevant part that if an s election is made within the first two and one-half months of a corporation's taxable_year then the corporation will be treated as an s_corporation for the year in which the election is made under sec_1362 however if an s election is made after the first two and one-half months of plr-142767-08 a corporation's taxable_year then that corporation will not be treated as an s_corporation until the taxable_year after the year in which the s election is filed sec_1362 provides that if no sec_1362 election is made for any taxable_year and the secretary determines that there was reasonable_cause for the failure to timely make such election then the secretary may treat such an election as timely made for such taxable_year and sec_1362 shall not apply x did not timely file an election to be treated as an s_corporation under '1362 a x has however established reasonable_cause for not making a timely s election and is entitled to relief under sec_1362 conclusion based solely on the facts submitted and the representations made and provided that x otherwise qualifies as an s_corporation we conclude that x will be treated as an s_corporation effective d1 within days from the date of this letter x should submit a properly completed form_2553 with a copy of this letter attached to the appropriate service_center except as specifically set forth above no opinion is expressed or implied as to the federal tax consequences of the facts described above under any other provision of the code specifically no opinion is expressed concerning whether x is in fact an s_corporation for federal tax purposes this ruling is directed only to the taxpayer requesting it sec_6110 provides that it may not be used or cited as precedent pursuant to the power_of_attorney on file with this office a copy of this letter will be sent to x’s authorized representatives sincerely dianna k miosi dianna k miosi chief branch office of the associate chief_counsel passthroughs and special industries enclosures copy of this letter copy for ' purposes


t c memo united_states tax_court faramarz fayeghi and shelli fayeghi petitioners v commissioner of internal revenue respondent docket no filed date richard f armknecht iii for petitioners paul l dixon and deborah swann for respondent memorandum opinion dawson judge this case was assigned to chief special_trial_judge peter j panuthos pursuant to the provisions of sec_7443a and rule sec_180 sec_181 and sec_183 the court all section references are to the internal_revenue_code continued agrees with and adopts the opinion of the chief special_trial_judge which is set forth below opinion of the special_trial_judge panuthos chief special_trial_judge this case is before the court on petitioners' motion to restrain collection as supplemented filed pursuant to sec_6213 and rule because we conclude that we lack jurisdiction to restrain collection in this case we will deny petitioners' motion background on or about date petitioners filed a joint federal_income_tax return for in which they reported tax in the amount of dollar_figure tax withholding in the amount of dollar_figure and tax owing in the amount dollar_figure petitioners did not remit payment of the tax with their return on date respondent assessed the following against petitioners with respect to their tax_liability for item amount tax dollar_figure late payment penalty dollar_figure interest dollar_figure on date petitioners submitted to respondent an amended tax_return for form 1040x in which they claimed continued in effect for the years in issue unless otherwise indicated all rule references are to the tax_court rules_of_practice and procedure that their correct_tax liability was dollar_figure that they had paid dollar_figure and that they were entitled to a refund in the amount of dollar_figure petitioners' claim that they had paid dollar_figure in tax for was incorrect respondent did not accept petitioners' amended_return to the contrary respondent treated petitioners' amended_return as a claim_for_abatement with respect to dollar_figure of the dollar_figure amount that respondent had assessed on date on or about date following an examination of petitioners' tax_liability for respondent issued a so- called 30-day_letter to petitioners proposing a deficiency in their tax_liability for in the amount of dollar_figure specifically respondent proposed to determine that petitioners failed to report dollar_figure of ordinary_income attributable to petitioners' investment in an s_corporation known as gmf inc an examination_report attached to the 30-day_letter states on you filed claim form 1040x or an informal claim for an abatement of dollar_figure for as a result of our examination we have disallowed your claim gmf inc was owned by taxpayer in and was an s_corporation at that time the internal_revenue_code has no provision for filing tax abatement claims if you do not agree with our determination you may after paying the additional tax due file an amended_return or claim_for_refund there is no provision for appealing this unless the original balance due is paid on date and date respondent applied overpayment credits of dollar_figure and dollar_figure associated with petitioners' tax returns for and respectively to partially offset the assessment made against petitioners for after making an additional_assessment against petitioners in the amount of dollar_figure for collection costs the assessment made against petitioners for totaled dollar_figure on date respondent issued to petitioners a final notice_of_intent_to_levy listing dollar_figure as the amount purportedly due from petitioners for the taxable_year the dollar_figure amount is identified as dollar_figure assessed amount unpaid from prior notices and dollar_figure additional penalty and interest on date respondent issued a notice_of_deficiency to petitioners determining a deficiency in their federal_income_tax for in the amount of dollar_figure and an accuracy-related_penalty pursuant to sec_6662 in the amount of dollar_figure the notice_of_deficiency is based on the proposed adjustments that were outlined in respondent's 30-day_letter described above also on date respondent issued a notice_of_deficiency to petitioners determining deficiencies in and additions to their federal income taxes for and on date petitioners filed a timely petition for redetermination contesting the notices of deficiency for and after respondent filed an answer to the petition petitioners filed a motion to restrain collection relying on 99_tc_466 petitioners maintain that respondent is engaged in improper collection efforts respecting their income_tax_liability for respondent filed an objection to petitioners' motion arguing that respondent's collection efforts are directed at the tax that petitioners reported due on their original tax_return relying on meyer v commissioner 97_tc_555 respondent contends that the amount of tax that petitioners reported due on their original return is subject_to immediate collection respondent denies any effort to collect the tax_deficiency for is at issue in this case petitioners filed a supplement to their motion to restrain collection attaching a copy of their amended_return petitioners also filed a response to respondent's objection in which they contend that their amended_return for serves to bar respondent from attempting to collect the tax that at the time the petition was filed petitioners resided at las vegas nevada petitioners reported due in their original tax_return petitioners' response states in pertinent part first the amended_return on its face clearly indicates that a taxpayer will change the original return by filing the amended_return second an amended_return constitutes a claim_for_refund where the amount of tax_liability reported on the amended_return is less than the amount reported on the original return where the tax was not paid with the original return as petitioners did not do in this case the irs cannot of course refund what was not initially paid however the reduced_amount of tax reported constitutes a rebate as such term is defined at sec_6211 of the internal_revenue_code essentially the taxpayer effects a repayment of a previous liability by either rationale the amended_return filed by petitioners reduced the amount that they had self assessed if respondent asserts that petitioners owe more than the amount of such self assessment then the difference constitutes a deficiency see sec_6211 of the irc respondent filed a response to petitioners' response citing dover corp v commissioner tcmemo_1997_339 affd per curiam f 3d ___ 2d cir date for the proposition that the commissioner's rejection of a taxpayer's amended_return does not convert the disallowed claim_for_refund or abatement into a tax_deficiency within the meaning of sec_6211 petitioners subsequently filed a response to respondent's response citing 592_f2d_1069 9th cir and arguing that respondent should be barred from attempting to collect any amounts for because the court has jurisdiction to decide the entire gamut of possible issues that controlled the determination of the amount of tax_liability for the year in question this matter was called for hearing at the court's motions session in washington d c counsel for respondent appeared at the hearing and presented argument in opposition to petitioners' motion although no appearance was made by or on petitioners' behalf at the hearing petitioners did file a written_statement with the court pursuant to rule c discussion sec_6213 provides that the commissioner generally is precluded from assessing or collecting a deficiency until a notice_of_deficiency authorized under sec_6212 is mailed to the taxpayer with respect to the deficiency and until the expiration of the 90-day or 150-day period for filing a timely petition for redetermination with this court upon the filing of a petition for redetermination contesting the notice_of_deficiency the commissioner is further precluded from assessing or collecting the deficiency until the decision of the court becomes final powerstein v commissioner supra pincite 96_tc_707 the term deficiency is defined in sec_6211 which provides in pertinent part sec_6211 in general --for purposes of this title in the case of income estate_and_gift_taxes imposed by subtitles a and b the term deficiency means the amount by which the tax imposed by subtitle a or b exceeds the excess of-- the sum of a the amount shown as the tax by the taxpayer upon his return plus b the amounts previously assessed or collected without assessment as a deficiency over-- the amount of rebates as defined in subsection b made in short a deficiency arises when respondent determines that the amount of tax imposed exceeds the sum of the amount of tax_shown_on_the_return and the amount of tax previously assessed although the commissioner must issue a notice_of_deficiency and respect the deficiency procedures prior to the assessment and collection of a deficiency the commissioner is required to immediately assess all taxes determined by the taxpayer or by the secretary as to which returns or lists are made under this title sec_6201 as explained in meyer v commissioner supra pincite the commissioner is authorized to immediately assess and collect the amount of taxes that are computed and shown due on a taxpayer's original income_tax return as well as the amount of any additional taxes computed and shown due on a subsequently filed amended income_tax return the commissioner likewise is authorized to immediately assess and collect the addition_to_tax under sec_6651 and the addition_to_tax under sec_6651 if such additions are measured by the amount of tax shown on the taxpayer's return meyer v commissioner supra pincite and cases cited therein such summary assessments are not subject_to the normal deficiency procedures id pincite sec_6213 was amended effective with respect to orders entered after date to extend to this court jurisdiction to restrain assessment and collection of a deficiency in cases where a timely petition for a redetermination of the deficiency has been filed and then only in respect of the deficiency that is the subject of such petition technical_and_miscellaneous_revenue_act_of_1988 publaw_100_647 sec a 102_stat_3749 94_tc_11 consistent with the court's statutorily prescribed jurisdiction in this area resolution of petitioners' motion to restrain collection depends upon whether respondent has assessed and is attempting to collect the deficiency that is the proper subject of petitioners' timely filed petition for redetermination powerstein v commissioner t c pincite and cases cited therein in the instant case it is clear that the amount that respondent has assessed and is attempting to collect consists of the tax that petitioners reported due on their original income_tax return for as well as statutory interest and penalties imposed as a consequence of petitioners' failure to remit payment of such tax with their return it follows that the disputed amount does not constitute a deficiency within the meaning of sec_6211 and that respondent is free to collect the disputed amount pursuant to sec_6201 consistent with the foregoing respondent was not required to and indeed did not include the disputed amount in the notice_of_deficiency for in this regard the instant case is virtually indistinguishable from meyer v commissioner 97_tc_555 in an effort to avoid the conclusion that the court lacks the authority under sec_6213 to bar respondent's collection efforts in this case petitioners maintain that their amended_return for provides a basis for the court to grant their motion to restrain collection we disagree petitioners contend that a taxpayer is free to change the amount of tax that has been self-assessed by filing an amended_return and that the commissioner should be obliged to accept amended tax returns regardless of whether the taxpayer is reporting an increase or a decrease in tax_liability we are not persuaded by petitioners' position see dover corp v commissioner supra an amended_return constitutes a claim_for_refund that the commissioner may review and adjust either by way of an immediate rejection of the refund claim see mccabe v commissioner tcmemo_1983_325 and cases discussed therein or by tentative allowance subsequent audit and if necessary issuance of a notice_of_deficiency see 91_tc_85 50_tc_577 and cases cited therein here respondent treated petitioners' amended_return as an informal claim_for_abatement further following an examination of petitioners' tax_return respondent considered and rejected the merits of the claim as evidenced by the discussion of the matter in the 30-day_letter that respondent issued to petitioners on date we agree with respondent that the rejection of a claim_for_refund or abatement in an amended_return does not convert the disallowed claim into a deficiency see 561_f2d_1115 4th cir see also 774_f2d_852 n 7th cir petitioners further contend that the court could treat their amended_return as the equivalent of a rebate within the meaning of sec_6211 petitioners suggest that their amended_return essentially effects a repayment of a previous liability we disagree considering the reality that the term rebate is defined in sec_6211 as follows the term rebate means so much of an abatement credit refund or other payment as was made on the ground that the tax imposed by subtitle a or b or chapter or was less than the excess of the amount specified in subsection a over the rebates previously made petitioners have failed to pay the tax reported due on their original return and respondent's rejection of their amended_return there is no basis for finding an abatement credit or refund in this case petitioners' reliance on powerstein v commissioner supra likewise is misplaced in powerstein v commissioner supra the commissioner issued a notice_of_deficiency to the taxpayers for the taxable years through after filing a petition with the court and after the commissioner filed an answer the taxpayers filed amended returns for the years in dispute in an apparently misguided effort to generate a net tax_refund the commissioner accepted the amended returns in which the taxpayers reported increased tax_liabilities and rejected the amended returns in which the taxpayers reported reduced tax_liabilities under the particular facts of that case we concluded that the commissioner had erred in treating the increased taxes reported in the amended returns as amounts shown upon his return within the meaning of sec_301_6211-1 proced admin regs to the contrary we held that the additional taxes represented amounts that the taxpayers were protesting rather than admitting within the meaning of the same regulation id pincite the facts presented in the instant case are readily distinguishable from those presented in powerstein v commissioner supra most notably unlike powerstein respondent is attempting to collect the tax that petitioners reported as due on their original return--an amount that is properly characterized as an amount shown upon his return within the meaning of sec_301_6211-1 proced admin regs finally petitioners contend that the court may bar respondent's collection efforts based on russell v united_states f 2d pincite which petitioners cite for the proposition that the court has jurisdiction to decide the entire gamut of possible issues that controlled the determination of the amount of tax_liability for the year in question although russell v united_states supra pincite correctly states that the court has broad jurisdiction to decide the correct amount of tax_liability for a taxable_year properly before the court russell does not address the question of the scope of the court's jurisdiction to restrain collection as previously discussed sec_6213 expressly limits the court's authority to restrain collection to the deficiency that is the subject of a timely filed petition however we have concluded that respondent is not attempting to collect the deficiency that is the subject of the petition filed in this case consistent with 592_f2d_1069 9th cir we do observe that if petitioners were to pay the amount that respondent seeks to collect petitioners may seek leave to file an amended petition with the court which includes continued in conclusion we are satisfied that respondent has not assessed and is not attempting to collect the deficiency for in dispute in this case because we lack the authority to bar collection under the circumstances presented we will deny petitioners' motion to restrain collection as supplemented to reflect the foregoing an order will be entered denying petitioners' motion to restrain collection as supplemented continued allegations invoking the court's jurisdiction to determine an overpayment pursuant to sec_6512 see eg dover corp v commissioner tcmemo_1997_339 affd per curiam f 3d ___ 2d cir date


t c summary opinion united_states tax_court tommy dale carder and alma r carder petitioners v commissioner of internal revenue respondent docket no 7422-07s filed date tommy dale carder and alma r carder pro sese daniel n price for respondent vasquez judge this case was heard pursuant to the provisions of section of the internal_revenue_code in effect when the petition was filed pursuant to sec_7463 the decision to be entered is not reviewable by any other court unless otherwise indicated all section references are to the internal_revenue_code in effect for the year in issue and all rule references are to the tax_court rules_of_practice and procedure and this opinion shall not be treated as precedent for any other case the issue for decision is whether petitioners are liable for the 10-percent additional tax pursuant to sec_72 for background some of the facts have been stipulated and are so found the stipulation of facts and the attached exhibits are incorporated herein by this reference at the time they filed the petition petitioners resided in texas alma r carder mrs carder invested in a qualified_retirement_plan with the teacher retirement_system of texas retirement_plan in mrs carder withdrew her balance from the retirement_plan the distribution at the time of the distribution mrs carder wa sec_51 years old and tommy dale carder mr carder wa sec_45 years old mrs carder received a form 1099-r distributions from pensions annuities retirement or profit-sharing_plans iras insurance contracts etc for reflecting the distribution petitioners reported the distribution but not any additional tax due on the distribution on their federal_income_tax return during mr carder was on active_duty in the u s army during this time he received orders to move to hawaii and petitioners promptly moved from texas to hawaii during petitioners used the distribution to pay their unreimbursed moving costs and their unreimbursed living costs until they were housed permanently associated with relocating to hawaii discussion petitioners have neither claimed nor shown that they satisfied the requirements of sec_7491 accordingly petitioners bear the burden_of_proof see rule a sec_72 provides for a 10-percent additional tax on early distributions from a qualified_retirement_plan mrs carder’s retirement_plan was a qualified_retirement_plan the 10-percent additional tax does not apply to certain distributions see sec_72 petitioners concede that they do not fit within a statutory exception however they contend that they should be excepted from the 10-percent additional tax on account of the financial hardship imposed by mr carder’s military service and related relocation although we are sympathetic to petitioners’ plight none of the exceptions set forth in sec_72 apply in this case accordingly respondent’s determination is sustained to reflect the foregoing decision will be entered for respondent regardless of whether the sec_72 additional tax is an additional_amount for which respondent would have the burden of production pursuant to sec_7491 respondent has met that burden see milner v commissioner tcmemo_2004_111 n


internal_revenue_service number release date index number ----------------------- -------------------------------------------- ------------------------------------ ------------------------------------------- -------------------------------------- ty ------- ty ------- legend department of the treasury washington dc third party communication none date of communication not applicable_person to contact ---------------- id no ------------- telephone number --------------------- refer reply to cc ita b03 plr-154717-09 date march subsidiaries ------------------------------------------- ------------------------------------------------------------------------- ------------------------------------------------------------------ ------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------- --------------------------------------------------------------------- --------------------------------------------------------------------- taxpayer --------------------------------------- date -------------------------- date --------------------------- date -------------------------- date --------------------------- dear ------------------ this letter responds to a letter dated -------------------------- submitted by taxpayer on behalf of subsidiaries requesting an extension of time under sec_301_9100-3 of the procedure and administration regulations to file form_3115 application_for change in accounting_method facts taxpayer is the parent_corporation of a consolidated_group of corporations that includes subsidiaries taxpayer filed a signed duplicate copy of a form_3115 to change plr-154717-09 subsidiaries’ method_of_accounting for advance_payments under section dollar_figure of revproc_2008_52 2008_36_irb_587 as described under section dollar_figure of revproc_2004_34 2004_22_irb_991 with the irs national_office on date because taxpayer was under examination by the internal_revenue_service the filing was made in accordance with the director consent provisions pursuant to section of revproc_2008_52 on date three days prior to date the examining agent had provided a signed statement to taxpayer indicating that the requested accounting_method change was not an issue under consideration and that she did not object to taxpayer’s filing of the form_3115 taxpayer timely filed its federal_income_tax return for the taxable_year ending date on date through an electronic_filing taxpayer’s return reflected a change in subsidiaries’ method_of_accounting for advance_payments pursuant to section dollar_figure of revproc_2008_52 as reflected on the date duplicate filing and as reflected in the statement provided by the examining agent however taxpayer inadvertently attached an incorrect form_3115 to the electronically filed federal_income_tax return a member of taxpayer’s federal consolidation group was responsible for scanning the original form_3115 into the electronically filed federal_income_tax return and scanned in the wrong form_3115 however the duplicate copy of the correct form_3115 was properly submitted to the irs national_office on date approximately six weeks later taxpayer discovered the error while assembling a file for documentation purposes soon thereafter taxpayer requested this relief ruling requested accordingly taxpayer requests that the service grant an extension of time to file the signed original form_3115 in accordance with revproc_2008_52 and that the form_3115 be considered timely-filed under the authority contained in sec_301_9100-1 and sec_301_9100-3 of the procedure and administration regulations law and analysis revproc_2008_52 2008_2_cb_587 as amplified clarified and modified by revproc_2009_39 and announcement provides the procedures by which a taxpayer may obtain automatic consent to change certain methods_of_accounting described in the appendix thereto section of revproc_2008_52 requires a taxpayer making a change under the automatic consent procedures to complete and file an application in duplicate the original must be attached to the taxpayer's timely filed including extensions original federal_income_tax return for the year_of_change and a copy with signature of the form_3115 must be filed with the irs national_office no earlier than the first day of the year_of_change and no later than when the original is filed with the federal_income_tax return for the year_of_change under sec_301_9100-1 the commissioner has discretion to grant a reasonable extension of time under the rules set forth in sec_301_9100-2 and sec_301_9100-3 to make a regulatory election plr-154717-09 sec_301_9100-1 through provide the standards the commissioner will use to determine whether to grant an extension of time to make an election sec_301_9100-2 provides automatic extensions of time for making certain elections sec_301_9100-3 provides extensions of time for making elections that do not meet the requirements of sec_301_9100-2 sec_301_9100-3 provides that requests for relief under sec_301_9100-3 will be granted when the taxpayer provides evidence to establish to the satisfaction of the commissioner that the taxpayer acted reasonably and in good_faith and that granting relief will not prejudice the interests of the government conclusions based solely on the facts and the representations submitted we conclude that the requirements of sec_301_9100-1 and sec_301_9100-3 have been met accordingly taxpayer is granted calendar days from the date of this letter to file the original of the form_3115 with signature in accordance with revproc_2008_52 except as specifically ruled upon above no opinion is expressed or implied concerning the federal_income_tax consequences of the facts described above specifically no opinion is expressed or implied concerning i whether taxpayer is qualified to file the form_3115 for the change in method_of_accounting for advance_payments under revproc_2008_52 or ii whether the change in method_of_accounting that is the subject of such form_3115 qualifies under section dollar_figure of revproc_2008_52 this ruling is directed only to the taxpayer requesting it sec_6110 of the code provides that it may not be used or cited as precedent in accordance with the power_of_attorney on file with this office a copy of this letter is being sent to your authorized representative the rulings contained in this letter are based upon information and representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party while this office has not verified any of the material submitted in support of the request for rulings it is subject_to verification on examination sincerely christopher f kane branch chief branch income_tax accounting


internal_revenue_service number release date index number -------------------------------------------- ----------------------------- ---------------------------------- ------------------------------------ department of the treasury washington dc third party communication none date of communication not applicable_person to contact ------------------------- ------------------ telephone number -------------------- refer reply to cc psi b2 plr-105064-11 date date legend x ------------------------------------------------------------------------------------------------------ ----------------------- state ----------------- d1 ----------------- dear --------------------- this responds to the letter dated date and subsequent correspondence submitted on behalf of x by x's authorized representative requesting a ruling under sec_1362 of the internal_revenue_code the information submitted states that x was incorporated in state on d1 it was intended for x to be an s_corporation effective d1 however no form_2553 election by a small_business_corporation was timely filed for x accordingly x requests a ruling that it will be treated as an s_corporation effective d1 sec_1362 provides that a small_business_corporation may elect to be an s_corporation sec_1362 provides the rule on when an s election will be effective generally if an s election is made within the first two and one-half months of a corporation's taxable_year then the corporation will be treated as an s_corporation for the year in which the election is made sec_1362 provides that if an s election is made after the first two and one-half months of a corporation's taxable_year then the plr-105064-11 corporation will not be treated as an s_corporation until the taxable_year after the year in which the s election is made sec_1362 provides that if a an election under sec_1362 is made for any taxable_year after the date prescribed by sec_1362 for making the election for the taxable_year or no sec_1362 election is made for any taxable_year and b the secretary determines that there was reasonable_cause for the failure to timely make the election then the secretary may treat the election as timely made for such taxable_year and sec_1362 shall not apply based solely on the facts and the representations submitted we conclude that x has established reasonable_cause for failing to make a timely election to be an s_corporation effective d1 accordingly provided that x makes an election to be an s_corporation by filing a completed form_2553 with the appropriate service_center effective d1 within days following the date of this letter then such election will be treated as timely made for x's taxable_year beginning d1 a copy of this letter should be attached to the form_2553 except as specifically set forth above no opinion is expressed concerning the federal tax consequences of the facts described above under any other provision of the code including whether x was or is a small_business_corporation under sec_1361 this ruling is directed only to the taxpayer who requested it sec_6110 provides that it may not be used or cited as precedent pursuant to a power_of_attorney on file with this office a copy of this letter is being sent to x's authorized representative sincerely melissa liquerman branch chief branch office of the associate chief_counsel passthroughs special industries enclosures copy of this letter copy for sec_6110 purposes


internal_revenue_service department of the treasury washington dc person to contact telephone number refer reply to cc intl 1-plr-108533-00 date date number index number release date do ty re a country b country c date d date e date f year g year h dear this is in response to a letter dated date as supplemented by letters dated date and date submitted by a’s authorized representative requesting a ruling under sec_877 of the internal_revenue_code_of_1986 code that a’s loss of long-term_resident status did not have for one of its principal purposes the avoidance of u s taxes under subtitle a or subtitle b of the code the information submitted for consideration is substantially as set forth below the ruling contained in this letter is based upon information and representations submitted by the taxpayer and accompanied by penalty of perjury statements executed by an appropriate party while this office has not verified any of the material submitted in support of the request for rulings it is subject_to verification on examination a a former long-term_resident of the united_states within the meaning of sec_877 relinquished her u s lawful permanent resident status expatriated on date d a is a citizen of country c by reason of her birth on date e in country c a's parents were also plr-108533-00 born in country c a became a citizen of country b on date f a has lived primarily in country b since year g a became a permanent resident of the u s and obtained her green card during year h on the date of a’s expatriation her net_worth exceeded the applicable_threshold in sec_877 sec_877 generally provides that a citizen who loses u s citizenship or a u s long- term resident who ceases to be taxed as a lawful permanent resident individuals who expatriate within the 10-year period immediately preceding the close of the taxable_year will be taxed under sec_877 and the special rules of sec_877 for such taxable_year unless such loss did not have for one of its principal purposes the avoidance of u s taxes sec_2107 and sec_2501 provide special estate and gift_tax regimes respectively for individuals who expatriate with a principal purpose to avoid u s taxes a former citizen or former long term-resident will be presumed to have expatriated with a principal purpose to avoid u s taxes for purposes of sec_877 sec_2107 and sec_2501 if the individual's average income_tax_liability or the individual's net_worth on the date of expatriation exceeds certain thresholds see sec_877 sec_2107 and sec_2501 a former u s citizen whose net_worth or average tax_liability exceeds these thresholds however will not be presumed to have a principal purpose of tax_avoidance if that former citizen is described within certain statutory categories and submits a request for a ruling within one year of the date of loss of u s citizenship for the secretary's determination as to whether such loss had for one of its principal purposes the avoidance of u s taxes see sec_877 sec_2107 and sec_2501 under notice_98_34 1998_27_irb_30 modifying notice_97_19 1997_1_cb_394 an eligible former long-term_resident whose net_worth or average tax_liability exceeds the applicable thresholds will also not be presumed to have a principal purpose of tax_avoidance if that former long-term_resident is described within certain categories and submits a complete and good_faith request for a ruling as to whether such loss had for one of its principal purposes the avoidance of u s taxes notice_98_34 requires that certain information be submitted with a request for a ruling that an individual's expatriation did not have for one of its principal purposes the avoidance of u s taxes a is eligible to request a ruling pursuant to notice_98_34 because a was not present in the united_states for more than days during each year of the 10-year period prior to expatriation a submitted all the information required by notice_98_34 including any additional information requested by the service after review of the submission accordingly based solely on the information submitted and the representations made it is held that a has made a complete and good_faith submission in accordance with sec_877 and notice_98_34 and therefore a will not be presumed to have expatriated plr-108533-00 with a principal purposes of tax_avoidance it is further concluded that a will not be treated under sec_877 as having as one of her principal purposes of expatriating the avoidance of u s taxes because the information submitted clearly established the lack of a principal purpose to avoid taxes under subtitle a or b of the code a copy of this letter must be attached to a’s u s income_tax return for the year in which a obtained the ruling whether or not a is otherwise required to file a return this ruling is directed only to the taxpayer requesting it sec_6110 of the code provides that it may not be used or cited as precedent in accordance with the power_of_attorney on file with this office a copy of this letter is being sent to a’s authorized representative sincerely ed williams senior technical reviewer cc intl br1


t c memo united_states tax_court duane e hudspath petitioner v commissioner of internal revenue respondent docket no 5865-04l filed date duane e hudspath pro_se jeffrey e gold for respondent memorandum opinion chiechi judge this case is before the court on respon- dent’s motion for summary_judgment respondent’s motion we shall grant respondent’s motion background the record establishes and or the parties do not dispute the following at the time he filed the petition in this case petitioner petitioner or mr hudspath who is legally blind and must rely on others to read to him resided in stephens city virginia in petitioner purchased a chiropractic business and operated it as a sole_proprietor in the mid-1990s petitioner changed the form of the business and formed stephens city chiropractic scc a limited_liability_company fair hollow trust a domestic_trust and fair exit trust a foreign_trust petitioner transferred percent of his interest in scc to fair hollow trust and retained a 10-percent interest in scc petitioner subsequently transferred his interest in fair hollow trust to fair exit trust in date petitioner formed win enterprise lc win a retail sales business petitioner transferred percent of his interest in win to fair hollow trust and retained a 10-percent interest in win a third person laurie eakes owned the remain- ing 10-percent interest in win according to respondent’s records petitioner was the tax_matters_partner for both scc and win on date the internal_revenue_service irs sent to petitioner as the tax_matters_partner of win a notice of beginning of administrative_proceeding on date the irs sent by certified mail 1respondent’s records do not disclose when the irs sent to petitioner as the tax_matters_partner of scc a notice of begin- continued to petitioner as the tax_matters_partner of scc a notice of final_partnership_administrative_adjustment fpaa with respect to the taxable years and of scc scc-fpaa in the scc-fpaa the irs notified petitioner as the tax_matters_partner of scc that scc was a sham_partnership because fair hollow trust one of its partners was a sham trust and that consequently scc was invalid because petitioner was the only partner on date the irs sent by certified mail to peti- tioner as the tax_matters_partner of win an fpaa with respect to the taxable years and of win win-fpaa in the win- fpaa the irs notified petitioner as the tax_matters_partner of win that fair hollow trust one of the partners of win was a sham trust created by petitioner and that consequently fair hollow trust’s share of the partnership items of win was allo- cated to him on date the same date on which the irs issued the respective scc-fpaa and win-fpaa to mr hudspath as the tax_matters_partner of each entity the commissioner sent him a notice_of_deficiency for his taxable years and continued ning of administrative_proceeding 2the irs mailed the scc-fpaa to main street stephens city virginia which is the address for petitioner listed in the petition in the instant case and notice that notice made certain determinations relating to the adjustments resulting from the irs’s respective examinations of scc and win tefra determinations as well as certain other unrelated determinations non-tefra determina- tions in response to the and notice on date mr hudspath filed a petition with the court thereby commencing hudspath v commissioner docket no peti- tioner’s non-tefra case at docket no in response to the respective scc-fpaa and win-fpaa on date jimmy c chisum mr chisum filed a petition with the court purportedly on behalf of scc and win thereby commencing stephens city chiropractic plc v commissioner docket no tefra case at docket no or partnership-level pro- ceeding on date the tax_court granted the motion of the commissioner to dismiss the tefra case at docket no for lack of jurisdiction because mr chisum the purported trustee and the purported tax_matters_partner of scc and of win failed to establish his authority to act on behalf of those respective entities on date the court granted the commissioner’s motion to dismiss for lack of jurisdiction and to strike peti- tioner’s non-tefra case at docket no insofar as it pertained to the tefra determinations in the and notice respondent’s motion that was because such notice insofar as it pertained to such determinations was invalid and prohibited by section because of the partnership-level proceeding ie the tefra case at docket no the commissioner specifi- cally reserved in respondent’s motion the right to proceed under sec_6221 through in order to deal with flowthrough computational adjustments resulting from the respective scc-fpaa and win-fpaa and to issue any affected items notice of defi- ciency on date mr hudspath signed and on date the commissioner’s counsel signed a stipulated decision document and a stipulation parties’ stipulation in petitioner’s non-tefra case at docket no which they submitted to the court on date pursuant to the stipulation of the parties the court entered a decision in petitioner’s non-tefra case at docket no which stated inter alia that there were overpayments of dollar_figure and dollar_figure for mr hudspath’s taxable years and respectively and that he was not liable for either or for the accuracy-related_penalty under sec_6662 the parties’ stipulation in petitioner’s non- tefra case at docket no provided petitioner reported certain items on his and income_tax returns related on his investment 3all section references are to the internal_revenue_code in effect at all relevant times all rule references are to the tax_court rules_of_practice and procedure 4the overpayments were the result of increased deductions for interest_expenses paid_by mr hudspath on behalf of scc in and in win enterprise lc and stephens city chiropractic plc win enterprise lc and stephens city chiropractic plc are partnerships which are subject_to the unified partnership audit and litigation procedures set forth in sec_6221 et seq the tefra partner- ship procedures for purposes of computing the overpayment in this case petitioner’s partnership items relating to win enterprise lc and stephens city chiropractic plc have been treated as if they were correctly reported on petitioner’s income_tax returns for the and taxable years and they have not been adjusted as part of this docketed proceeding the tax treatment of petitioner’s partnership items relating to win enterprise lc and stephens city chiropractic plc will be resolved in a separate part- nership proceeding conducted in accordance with the tefra partnership procedures the adjustments necessary to apply the results of the tefra partnership proceeding described in sub- paragraph to petitioner shall be treated as computa- tional adjustments under sec_6231 and as- sessed credited or refunded accordingly to the extent that the computation of peti- tioner’s tax_liability which properly reflects the tax treatment of the partnership items relating to win enterprise lc and stephens city chiropractic plc as determined in the tefra partnership proceeding de- scribed in subparagraph would also result in a change in petitioner’s tax_liability attributable to nonpartnership_items as previously determined in this docketed proceeding such change may be treated as a computational adjustment under sec_6231 and assessed credited or refunded accordingly at the time the parties executed the parties’ stipulation in petitioner’s non-tefra case at docket no the court had already dismissed for lack of jurisdiction the tefra case at docket no ie the partnership-level proceeding on date the irs sent a written notice to mr hudspath date notice in which the irs notified him inter alia that there were certain adjustments set forth in the respective scc-fpaa and win-fpaa that the irs made during the examinations by the irs of the respective taxable years and of scc and win and that were the subject of the partnership- level proceeding the tefra case at docket no which affected petitioner’s taxable years and the date notice indicated that as a result of such adjustments there were flowthrough computational adjustments resulting in increases in petitioner’s income of dollar_figure and dollar_figure for his taxable years and respectively and his federal_income_tax tax of dollar_figure and dollar_figure for such respective years on or about date the irs assessed against peti- tioner additional tax of dollar_figure and interest of dollar_figure for his taxable_year and additional tax of dollar_figure and interest of dollar_figure for his taxable_year those assessments were attributable to the flowthrough computational adjustments resulting from the respective scc-fpaa and win-fpaa that are described in the preceding paragraph 5on date the court dismissed the partnership-level proceeding for lack of jurisdiction on date the irs sent a notice of balance due with respect to the above-described assessments on date the commissioner sent to mr hudspath an affected items notice_of_deficiency affected items notice in which the commissioner determined that there were respective increases in mr hudspath’s income for and attributable to flowthrough adjustments from the respective scc-fpaa and win- fpaa in the affected items notice the commissioner determined deficiencies in mr hudspath’s tax for his taxable years and of dollar_figure and dollar_figure respectively and an accuracy-related_penalty under sec_6662 for his taxable_year of dollar_figure in response to the affected items notice on date mr hudspath filed a petition with the court thereby commencing hudspath v commissioner docket no peti- tioner’s tefra-related case at docket no or peti- tioner’s affected items proceeding in that case petitioner made the same type of argument that he is advancing in the instant case viz the commissioner made material misrepresenta- tions with respect to the parties’ stipulation in petitioner’s non-tefra case at docket no in that that stipulation stated that the tax treatment of petitioner’s partnership items relating to win and scc will be resolved in a separate partnership proceeding conducted in accordance with the tefra partnership procedures emphasis added consequently according to mr hudspath the court should not sustain the determinations in the affected items notice hudspath v commis- sioner tcmemo_2004_75 the court rejected mr hudspath’s position in petitioner’s affected items proceeding petitioner’s tefra-related case at docket no and sustained the determinations in the affected items notice that there were additional deficiencies in petitioner’s tax of dollar_figure and dollar_figure for and respec- tively but did not sustain the determination in that notice that petitioner is liable for for the accuracy-related_penalty under sec_6662 id on or about date respondent issued to petitioner a final notice_of_intent_to_levy and notice of your right to a hearing notice_of_intent_to_levy with respect to petitioner’s respective unpaid liabilities for his taxable years and that were attributable to flowthrough computational adjustments resulting from the respective scc-fpaa and win-fpaa petitioner’s respective unpaid liabilities for and which had been the subject of the partnership-level proceeding the tefra case at docket no that the court dismissed for lack of jurisdiction on date 6the notice_of_intent_to_levy did not include the respective deficiencies of dollar_figure and dollar_figure for petitioner’s taxable years continued on or about date in response to the notice_of_intent_to_levy petitioner filed form request for a collection_due_process_hearing petitioner’s form and requested a hearing with respondent’s appeals_office appeals_office petitioner attached a document to petitioner’s form peti- tioner’s attachment to form in which he claimed that the notice_of_deficiency for and was facially void and advanced other statements contentions and arguments that the court finds to be frivolous and or groundless on date an appeals_office settlement officer settlement officer sent petitioner a letter date letter acknowledging receipt of petitioner’s form that letter stated in pertinent part based on my review of the case the assessments which are currently outstanding for collection as referenced on letter mentioned above were tefra flow- through adjustments from two tefra entities winn sic enterprises lc and stephens city chiropractic plc there are additional proposed assessments resulting from affected items from the tefra entities these proposed assessments were explained in a notice_of_deficiency which i can see you have petitioned to tax_court however please do not confuse the two issues the amounts addressed on letter for the tax years and do not include these additional proposed assessments included are only the amounts for which continued and that the court sustained in petitioner’s affected items proceeding hudspath v commissioner tcmemo_2004_75 consequently the assessments with respect to those respective deficiencies are not at issue in the instant case you have already been determined to be liable therefore the scope of this collection_due_process_hearing will focus only on a proposed collection alter- native to the proposed levy action on the and balances referenced in letter as a collection alternative to the lien or levy action proposed you may request consideration of either an offer in compro- mise or an installment_agreement however you must provide form 433a collection information statement for individuals or form 433b collection information statement for businesses and or form_656 offer_in_compromise package at the time of your scheduled hearing furthermore neither collection alternative will be considered if you are not in filing compliance at the time of your appeals_conference in response to the date letter petitioner sent the settlement officer a letter dated date date letter in the date letter petitioner inter alia informed respondent that he needed to reschedule the hearing with the settlement officer because of his disability and that he would be bringing a stenographer to record that hearing petitioner also sent respondent a letter dated date date letter in the date letter petitioner stated in pertinent part after our telephone conversations of november and november you have convinced me of the benefit to me of setting up an installment_plan with you rather than waiting to deal with a collections officer i will only enter into such an agreement with the documented understanding that i do not think i owe this money i am simply making this agreement as a conve- nience to myself i intend to pursue violation of due process and fraud on the court in this specific matter with subsequent court actions in order to protect my rights in this matter i must be able to bring a stenographer to the meeting so there is a third party written record of the proceed- ing on date the settlement officer held a hearing with petitioner that the settlement officer audiotaped and that petitioner’s stenographer recorded during that hearing the settlement officer explained the collection process to peti- tioner and petitioner submitted to the settlement officer form 433d installment_agreement on date the appeals_office issued to petitioner a notice_of_determination concerning collection action s under sec_6320 and or notice_of_determination the notice_of_determination stated in pertinent part summary of determination the taxpayer voluntarily entered into a streamline installment_agreement for dollar_figure month payable on the 26th of each month the taxpayer paid his first in- stallment payment and also the one-time user_fee of dollar_figure enforced collection action will not occur while this agreement is in place an attachment to the notice_of_determination stated in pertinent part summary and recommendation the taxpayer’s attachment to form states in summary that the notices of deficiency for and are facially void there was a failure to generate an assessment list for the assessments for and there was a failure of the commis- sioner to certify and transmit the assessment list for the and assessments there was a failure to record the assessments for the and assess- ments there was a failure to provide record of assessment for the and assessments and there was a failure to send notices of assessment for the and tax assessments after multiple telephone contacts and an in-office recorded conference the taxpayer voluntarily entered into an installment_agreement for dollar_figure month payable on the 26th of each month the taxpayer has made his first installment_payment and has also paid the one- time user_fee of dollar_figure placement of the taxpayer’s account into installment_agreement status will prevent enforced collection action from occurring therefore the issued notice_of_intent_to_levy has become moot the taxpayer is aware that a notice_of_federal_tax_lien may be filed if the agreement defaults and is also aware that interest will continue to accrue until the balances due are paid in full brief background of collection_due_process_hearing on date a conference letter was issued to the taxpayer scheduling the conference requested for date pincite p m this letter presented the taxpayer with an overview of how the liability arose and also defined for the taxpayer the scope of the actual collection_due_process conference the taxpayer responded via phone and mail correspon- dence that the conference would need to be rescheduled for a later time the taxpayer is legally blind and needed the additional time to make preparations for a conference--to include orchestrating travel accommoda- tions and having someone read him all correspondence on and again on detailed phone conferences were held with the taxpayer appeals learned the taxpayer’s position appeared to be that even though he acknowledged signing the decision docu- ment as referenced in detail above he was never advised how that would translate in terms of actual assessment amount appeals explained the collection process for the tax- payer streamline installment_agreement criteria were explained to the taxpayer in detail he qualifies for an installment_agreement for dollar_figure month payable on the 26th of each month the taxpayer understands that interest will continue to accrue on the balances owed until the amounts are paid in full the taxpayer also understands that a notice_of_federal_tax_lien may be filed if the agreement defaults the taxpayer verbally agreed to these terms and was provided form 433d installment_agreement for review however the tax- payer still desired an in-office conference to be recorded via court stenographer an in-office conference audio taped by appeals as well as recorded via court stenographer was held on date pincite a m at this conference the taxpayer supplied the signed form 433d installment_agreement agreeing to the terms as detailed above he also provided his first installment_payment as well as the one-time user_fee of dollar_figure he was provided with the opportunity to raise any and all other issues of concern to him again the underlying liability issue was raised and the irs’ position as stipulated in the decision document from hudspath v commissioner u s tax_court docket no was reiterated to the taxpayer the taxpayer again acknowledged receiving irs worksheets but did not realize that he could have disputed the amounts as determined by the irs the taxpayer was advised during the appeals_conference that if he possessed substantive information that would change the actual amounts of the computations ie proof of a math error made on the part of the irs etc that he could potentially pursue a request for abatement mr hudspath advised he possessed no such information he does not believe there should be any assessments at all the taxpayer advised that he would be petitioning tax_court to challenge the underlying liability even fur- ther however he would not be raising the issue of achieving a collection alternative because he is in agreement with the terms of his signed form 433d brief background of assessment the outstanding liabilities for and are the result of tefra flow-through adjustments from two tefra entities winn sic enterprises lc and stephens city chiropractic plc in a decision document from hudspath v commissioner us tax_court docket no agreed to and signed by both the taxpayer and the irs entered date into the us tax_court record the following items were stipulated petitioner reported certain items on his and income_tax returns related on his investment in win enterprises lc and stephens city chiropractic plc win enterprises lc and stephens city chiropractic plc are partnerships which are subject_to the unified_audit and litigation procedures set forth in sec_6221 et seq the tefra partnership procedures for purposes of computing the overpayment in this case petitioner’s partnership items relating to win enterprise lc and stephens city chiropractic plc have been treated as if they were correctly reported on petitioner’s income_tax returns for the and taxable years and they have not been adjusted as part of this docketed proceeding the tax treatment of petitioner’s partnership items relating to win enterprise lc and stephens city chiropractic plc will be resolved in a separate partnership proceeding conducted in accordance with the tefra part- nership procedures the adjustments necessary to apply the re- sults of the tefra partnership proceeding described in subparagraph to petitioner shall be treated as computational adjustments under sec_6231 and assessed cred- ited or refunded accordingly to the extent that the computation of peti- tioner’s tax_liability which properly re- flects the tax treatment of the partnership items relating to win enterprise lc and stephens city chiropractic plc as deter- mined in the tefra partnership proceeding described in subparagraph would also re- sult in a change in petitioner’s tax liabil- ity attributable to nonpartnership_items as previously determined in this docketed pro- ceeding such change may be treated as a computational adjustment under sec_6231 and assessed credited or re- funded accordingly hudspath v commissioner us tax_court docket no accordingly in june of the irs proceeded with computational adjustments as referenced above mr hudspath was issued copies of irs’ computations and ultimately mr hudspath was issued the notice_of_intent_to_levy upon which he requested the collection_due_process_hearing discussion and analysis applicable law and administrative procedures the letter notice_of_intent_to_levy and notice of your right to a hearing was mailed certi- fied return receipt requested on date to the taxpayer’s last_known_address the taxpayer was provided the opportunity to raise any relevant issue at the hearing this settlement officer has had no prior involvement with respect to these tax_liabilities relevant issues raised by the taxpayer all issues raised by the taxpayer have been discussed above per sec_6330 underlying liability challenges may only be raised if the person did not receive any statutory_notice_of_deficiency or did not otherwise have an opportunity to dispute such tax_liability appeals determined that a challenge to the underlying liability could not be raised here under the forum of this collection_due_process request mr hudspath had previous opportunities to dispute the tax_liability in this case balancing efficient collection and intrusiveness sec_6330 requires that the appeals_office consider whether any 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 the file indicates that the legal and procedural requirements pursuant to the issuance of the final notice notice_of_intent_to_levy were met and were not improper as stated placement of the taxpayer’s account into installment_agreement status will prevent enforced action from occurring therefore the issued notice_of_intent_to_levy will become moot should the agreement default the irs will issue cp523 notice of defaulted installment_agreement which will detail potential enforcement actions that may be taken against the taxpayer discussion the court may grant summary_judgment where there is no genuine issue of material fact and a decision may be rendered as a matter of law rule b 98_tc_518 affd 17_f3d_965 7th cir we conclude that there are no genuine issues of material fact regarding the questions raised in respondent’s motion in his response to respondent’s motion petitioner’s re- sponse petitioner frames the issue presented in the instant case as follows whether the misrepresentations by respondent’s counsel of the terms of the settlement agreement in hudspath v commissioner docket no should render the settlement agreement void and thus preclude any lien or levy action for assessments arising there- from petitioner takes the following position in petitioner’s response this court should not only deny respondent’s motion for summary_judgment but this court should also grant the petitioner summary_judgment there is no genuine issue with regard to the misrepresentations concerning the stipulated settlement in hudspath v commissioner docket no under the circumstances there is only one re- course open to this court for these material misrepre- sentations declare that the stipulated settle- ment in hudspath v commissioner docket no is void and thus the assessments arising therefrom are unenforceable respondent counters that the court should reject the posi- tion of petitioner in petitioner’s response we agree we note initially that the instant case does not involve assessments arising from petitioner’s non-tefra case at docket no nor does the instant case involve assessments arising from petitioner’s affected items proceeding petitioner’s tefra-related case at docket no see supra note the instant case involves only assessments for petitioner’s taxable years and that are attributable to flowthrough computational adjustments as defined in sec_6231 resulting from the respective scc-fpaa and win-fpaa which fpaas had been the subject of the partnership-level proceeding the tefra case at docket no that the court dismissed for lack of jurisdiction on date see sec_6223 sec_6225 sec_6226 a a see also 108_tc_1 in petitioner’s affected items proceeding petitioner’s tefra-related case at docket no petitioner took a position that is virtually the same as the position that he is taking in the instant case in petitioner’s affected items proceeding the court summarized petitioner’s position as fol- lows respondent’s determinations relating to this affected items proceeding should not be sustained because re- spondent informed petitioner that pursuant to the date stipulation in petitioner’s non-tefra case at docket no petitioner would have an opportunity to challenge the partnership items in support of his contention petitioner who is blind asserts that he justifiably relied on respondent to explain the terms of the stipulation hudspath v commissioner tcmemo_2004_75 the court rejected petitioner’s position in petitioner’s affected items proceeding in so doing the court concluded petitioner’s credible testimony and the plain language of the stipulation ie the tax treatment of petitioner’s partnership items will be re- solved in a separate partnership proceeding empha- sis added established that respondent misled peti- tioner these facts however do not override the mandate of sec_6221 that the tax treatment of any partnership_item shall be determined at the partnership level 87_tc_783 respondent complied with the partnership audit and litigation procedures and upon completion of the partnership-level proceeding assessed a computational adjustment against petitioner see sec_6223 sec_6225 a a 108_tc_1 petitioner had the opportunity in the partnership-level proceeding the tefra case at docket no to challenge the partnership items but he failed to do so accord- ingly petitioner is precluded from challenging those items in this petitioner’s affected items proceeding petitioner’s tefra-related case at docket no see sec_6221 sec_6226 brookes v commissioner supra pincite id for the same reasons on which we relied in rejecting peti- tioner’s position in petitioner’s affected items proceeding id we reject petitioner’s position in the instant case on the record before us we find that petitioner may not challenge the existence or the amount of petitioner’s respective unpaid liabil- ities for and see sec_6330 where as is the case here the validity of the underlying tax_liability is not properly placed at issue the court will review the determination of the commissioner for abuse of discre- tion 114_tc_604 114_tc_176 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 that as long as petitioner is in compliance with the installment_agreement into which he voluntarily entered with respect to petitioner’s respec- tive unpaid liabilities for and the notice_of_intent_to_levy is moot on that record we shall grant respondent’s motion we have considered all of petitioner’s statements conten- tions and arguments in petitioner’s response and in the petition in this case that are not discussed herein and we find them to be without merit irrelevant frivolous and or groundless to reflect the foregoing an appropriate order granting respondent’s motion and decision will be entered for respondent 7in addition to petitioner’s position in petitioner’s response that respondent misled him with respect to certain terms of the parties’ stipulation in petitioner’s non-tefra case at docket no petitioner advanced in the petition in the instant case certain contentions and arguments that the court finds to be frivolous and or groundless