SUBSTITUTION FOR APPEALS OFFICER IN SECTION 6330 HEARING IS NO ABUSE OF DISCRETION.

UNITED STATES TAX COURT

Filed December 13, 2001

Hilton Lee Strickland, pro se.

Brandi B. Darwin, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

[1] LARO, Judge: Petitioner petitioned the Court under section 6330(d) to review respondent's determination on a proposed levy. We must decide whether to sustain that determination. We shall. Section references are to the Internal Revenue Code as applicable herein.

FINDINGS OF FACT

[2] Most facts were stipulated. We incorporate herein by this reference the parties' stipulation of facts and the accompanying exhibits. We find the stipulated facts accordingly. Petitioner resided in Florida when his petition was filed.

[3] On September 26, 1998, respondent mailed to petitioner notices of deficiency in his 1995 and 1996 Federal income taxes. Petitioner never petitioned the Court with respect to either notice. On June 9, 1999, respondent's examination office in Holly Hill, Florida (Holly Hill), issued to petitioner for those years and 1997 a document that read in relevant part as follows:

                               FINAL NOTICE

[5] Appeals assigned petitioner's request for a hearing to Settlement Officer Roger Cable, an Appeals officer, and Mr. Cable sent the case to Michael Generazio, a revenue agent in the Holly Hill examination office, for the purpose of holding the hearing.¹ Mr. Generazio held the hearing with petitioner in Holly Hill; as respondent's counsel explained at trial, "there wasn't an appeals officer there that could meet with Petitioner for the due process matter, but -- so he was referred to an examiner there, who he did meet with." Following the hearing, Mr. Cable telephoned petitioner to notify him that Mr. Generazio had concluded that petitioner's Federal income tax liabilities (overpayments) for 1995, 1996, and 1997 were:

    Year             Liability/(overpayments)

[6] On November 3, 1999, Appeals mailed to petitioner a Notice of Determination Concerning Collection Action(s) under Section 6320 and/ or 6330. The notice stated that petitioner's Federal income tax liability for the subject years was the $8,422.16 referenced above.

[7] Petitioner petitioned the Court on December 2, 1999, to review respondent's determination. The petition contains no allegation of error as to respondent's determination. Petitioner alleges in the petition that he has already paid his income tax liability for the subject years (exclusive of interest and penalties), that he lives on a "fixed income", and that he has "taken out a second mortgage to clear this debt, which has caused me to be over-extended and behind with all my creditors". Petitioner requested in his petition that the Court waive the $8,422.16. Petitioner asked the Court at trial, as an alternative to waiving that amount, to allow him to meet with a collection officer to discuss that amount.

OPINION²

[8] Section 6330 was added to the Code as part of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA), Pub. L. 105-206, 112 Stat. 685. The passage of the RRA culminated a year of congressional investigations and hearings over the future of the IRS, resulting in highly publicized criticisms of the agency's collection methods. The RRA contains over 60 provisions fortifying taxpayer rights and improving customer service, and its passage establishes new taxpayer rights. Section 6330, in particular, "establishes formal procedures * * * where the IRS seeks to collect taxes by levy". S. Rept. 105-174, at 67 (1998), 1998-3 C. B. 537, 603. The Senate Finance Committee explained in its report that "taxpayers are entitled to protections in dealing with the IRS that are similar to those they would have in dealing with any other creditor." Id.

[9] Section 6330 provides in relevant part as follows:

     SEC. 6330. NOTICE AND OPPORTUNITY FOR HEARING BEFORE LEVY.

[11] As to the first of the two issues possibly raised in the petition, it is well settled in this Court that the taxpayer cannot challenge the amount and/ or existence of an underlying tax liability where the taxpayer receives a notice of deficiency. Id. at ___ (slip op. at 3). As to the second issue, it is well settled in this Court that we review that issue under an abuse of discretion standard. Id. at ___ (slip op. at 6). Because the judicial record at hand does not support our finding of any abuse of discretion on the part of IRS Appeals, we sustain respondent's determination in full.³

[12] Decision will be entered for respondent.

² On the basis of the Court's holding in Lunsford v. Commissioner, 117 T.C. (2001) ___ (Lunsford I), we conclude that we have jurisdiction in this case.

³ As to petitioner's request to allow him to meet with a collection officer to discuss the $8,422.16, petitioner has not set forth in his petition any bona fide argument that makes it "either necessary or productive to remand this case to IRS Appeals to consider" that amount. Lunsford v. Commissioner, 117 T.C. __, __ (2001) (slip op. at 11) (Lunsford II). We reject that request on the basis of Lunsford II.