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T.C. MEMO 2005-257
JAMES MURDEN WILCOX, Petitioner v. COMMISSIONER OF INTERNAL
REVENUE, Respondent
No. 5444-04L
UNITED STATES TAX COURT
T.C. Memo 2005-257; 2005 Tax Ct. Memo LEXIS 255
November 1, 2005, Filed
COUNSEL: [*1] James Murden Wilcox, pro se.
Marty J. Dama, for respondent.
JUDGES: Vasquez, Juan F.
OPINIONBY: JUAN F. VASQUEZ
OPINION:
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Petitioner filed a petition in response
to respondent's
Notice of Determination Concerning Collection Action(s) Under Section
6320
and/or 6330 (Notice of Determination). n1 The sole issue for decision
is whether
respondent's determination to proceed with collection was an abuse of
discretion.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Unless otherwise indicated, all section references
are to the Internal
Revenue Code as amended, and all Rule references are to the Tax Court
Rules of
Practice and Procedure.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
FINDINGS OF FACT
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 he filed the petition, petitioner resided in Dallas, Texas.
In 1976, petitioner was hit by a car while riding his
bicycle and suffered
numerous permanent and irreversible injuries. Petitioner was diagnosed
[*2] in
1998 with a broken back.
Petitioner was self-employed during 1995, 1996, 1997,
and 1998, the years in
issue. Before and after the years in issue, petitioner was employed full
time at
Fusch-Serold and Partners. Since Fusch- Serold and Partners withheld a
sufficient amount from petitioner's pay, petitioner did not owe any additional
amounts of tax for the years he was employed at Fusch-Serold and Partners.
Respondent assessed the following amounts, which are in dispute:
Additions to Tax
________________
Year Interest Sec. 6651(a)(1)
Sec. 6651(a)(2) Sec. 6654(a)
____ ________ _______________
_______________ ____________
1995 $ 4,459.61 $ 1,630.13
$ 289.80 $ 384
1996 6,874.01 2,173.95
676.34
428
1997 5,406.61
0.00 104.74
470
1998 825.40
0.00 91.96
66
On June 11, 2003, respondent mailed to petitioner a
Final Notice of Intent To
Levy [*3] for 1995, 1996, 1997, and 1998. On July 10, 2003, petitioner
timely
filed a Form 12153, Request for a Collection Due Process Hearing (section
6330
hearing). In a letter attached to the Form 12153, petitioner stated:
I have paid the taxes in question. I can't afford
to pay the
penalties and interest, because my income is limited
due to my
physical disabilities and limitations (see attached).
Any
further collection of monies by the IRS will deprive
me of
obtaining medical help to cope with my physical condition
and
cause long-term and permanent effects.
As of December 8, 2003, petitioner's total account
balances for 1995, 1996,
1997, 1998 were $ 4,459.61, $ 22,808.61, $ 19,061.33, and $ 3,879.23,
respectively.
A section 6330 hearing was held by telephone on January
20, 2004. Petitioner
did not submit a Form 433-A, Collection Information Statement, to the
hearing
officer as requested.
On February 20, 2004, respondent mailed to petitioner
a Notice of
Determination. In an attachment to the Notice of Determination, respondent
described the section 6330 hearing as follows:
During the telephone hearing with you and your therapist,
[*4] we
discussed your case. I explained to you that you did
not meet
the reasonable cause criteria for abatement of the
penalties.
Your therapist stated you could not complete the Collection
Information Statement, Form 433-A, due to your medical
condition. You cannot concentrate for long periods
of time. I
explained to both of you that the form requires your
monthly
income and expenses. You explained to me that you are
able to
pay your monthly living expenses and you are currently
employed.
Your therapist offered to assist you in completing
the Form 433-
A. You refused her assistance. It was explained to
you that the
form had to be completed to determine your ability
to pay the
taxes. You were provided ample time and opportunity
to complete
the Form 433-A. You stated you previously file [sic]
an Offer in
Compromise that was rejected because you had the ability
to full
pay the taxes. I referred you to the Taxpayer Advocate
Office;
you stated they would not help you. It was explained
to you that
a Determination Letter would be issued sustaining the
issuance
[*5] of the levy.
In the petition, petitioner states as his reason as
to why he should be
entitled to relief:
In March of 1976, I was in an accident, in which
I was hit by a
car while riding my bicycle. I suffered numerous permanent
and
irreversible injuries. I have been injured, handicapped
and
limited every [sic] since. I certainly expect relief
from the
insurmountable penalty & interest charges. * *
*
OPINION
Section 6331(a) provides that, if any person liable
to pay any tax neglects
or refuses to do so within 10 days after notice and demand, the Secretary
can
collect such tax by levy upon property belonging to such person. Pursuant
to
section 6331(d), the Secretary is required to give the taxpayer notice
of his
intent to levy and within that notice must describe the administrative
review
available to the taxpayer, before proceeding with the levy. See also sec.
6330(a).
Section 6330(b) describes the administrative review
process, providing that a
taxpayer can request an Appeals hearing with regard to a levy notice.
At the
Appeals hearing, the taxpayer may raise certain matters set forth in section
6330(c)(2), which provides, in [*6] pertinent part:
SEC. 6330(c). Matters Considered at Hearing. -- In
the case of
any hearing conducted under this section --
* * * * * * *
(2) Issues at
hearing. -- %
(A) In general. -- The person may raise at the hearing
any relevant issue relating to the unpaid tax or
proposed levy, including --
(i) appropriate spousal defenses;
(ii)
challenges to the appropriateness of
collection
actions; and
(iii)
offers of collection alternatives, which
may
include the posting of a bond, the
substitution
of other assets, an installment
agreement,
or an offer-in-compromise.
(B) Underlying liability. -- The person may also raise
at the hearing challenges to the existence or amount
of the underlying tax liability for any tax period if
[*7]
the person did not receive any statutory notice of
deficiency for such tax liability or did not otherwise
have an opportunity to dispute such tax liability.
Pursuant to section 6330(d)(1), within 30 days of the
issuance of the notice
of determination, the taxpayer may appeal that determination to this Court
if we
have jurisdiction over the underlying tax liability. Van Es v. Commissioner,
115 T.C. 324, 328 (2000).
Although section 6330 does not prescribe the standard
of review that the
Court is to apply in reviewing the Commissioner's administrative determinations,
we have stated that, where the validity of the underlying tax liability
is
properly at issue, the Court will review the matter de novo. Sego v.
Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C.
176, 181
(2000). Where the validity of the underlying tax liability is not properly
at
issue, however, the Court will review the Commissioner's administrative
determination for abuse of discretion. Sego v. Commissioner, supra; Goza
v.
Commissioner, supra. The term "underlying tax liability" [*8]
in section
6330(d)(1) includes any amounts allegedly owed by a taxpayer pursuant
to the tax
laws. Katz v. Commissioner, 115 T.C. 329 (2000). This includes the tax
deficiency, additions to tax, and interest. Id. As petitioner does not
dispute
the validity of the underlying tax liability, we review respondent's
determination for an abuse of discretion.
Petitioner's claim regarding his inability to pay bears
upon issues such as
collection alternatives or the appropriateness of the collection action
that the
Court reviews for abuse of discretion. An action constitutes abuse of
discretion
where it is arbitrary, capricious, or without sound basis in fact or law.
Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
The record reflects no abuse of discretion by respondent.
We have found that
in the face of allegations of undue hardship, a taxpayer must submit complete
and current financial data to enable the Commissioner to evaluate a taxpayer's
qualification for collection alternatives or other relief. Picchiottino
v.
Commissioner, T.C. Memo. 2004-231.
Petitioner had completed a Form 433-A and had turned
it into a revenue
officer in 1998. Petitioner contends [*9] that respondent's Appeals officer
failed to consider petitioner's entire history as she would not look at
the 1998
form. Petitioner alleges that he should not have to complete another Form
433-A
as the Appeals officer should have the 1998 form. However, the form completed
in
1998 does not represent current financial information, and as petitioner
did not
give respondent current financial information, it cannot be said that
respondent
acted arbitrarily or capriciously in determining to proceed with collection.
See
id.; Newstat v. Commissioner, T.C. Memo. 2004-208.
Petitioner also did not assert in the petition any
spousal defenses, any
challenges to the appropriateness of the collection actions, or any offers
of
collection alternatives other than an offer-in-compromise that was going
to be
submitted at an unspecified future date but was neversubmitted. See sec.
6330(c)(2)(A). The issues not raised in the pleadings are now deemed conceded.
Rule 331(b)(4). Therefore, we sustain respondent's determination regarding
the
proposed collection action.
To reflect the foregoing,
Decision will be entered for respondent. [*10]