Calvin Earl Humphries v. Commissioner ( 2003 )


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  •                  T.C. Summmary Opinion 2003-111
    UNITED STATES TAX COURT
    CALVIN EARL HUMPHRIES, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket No. 14064-02S.              Filed August 8, 2003.
    Calvin Earl Humphries, pro se.
    John D. Faucher, for respondent.
    COUVILLION, Special Trial Judge:    This case was heard
    pursuant to section 7463 in effect when the petition was filed.1
    The decision to be entered is not reviewable by any other court,
    and this opinion should not be cited as authority.    Petitioner
    seeks a review under section 6330(d) of a determination by
    respondent's Appeals Office that respondent's action to collect
    1
    Unless otherwise indicated, section references
    hereafter are to the Internal Revenue Code as amended.
    - 2 -
    by levy Federal income taxes owing by petitioner for the years
    1992 and 1994 should proceed.   That determination was preceded by
    respondent's issuance to petitioner of a notice of intent to levy
    and of petitioner's right to a hearing in connection with an
    assessed balance of income taxes and statutory additions totaling
    $8,349.62, $4,717.20, and $2,881.40, respectively, for 1992,
    1994, and 1998.   In his petition for review, petitioner did not
    challenge respondent's determination to proceed with collection
    for the year 1998.
    Some of the facts were stipulated.   Those facts, with the
    exhibits annexed thereto, are so found and are made part hereof.
    At the time the petition for review was filed, petitioner was a
    legal resident of Houston, Texas.
    An attachment to the notice of determination prepared by
    respondent's Appeals officer states that, at the hearing,
    petitioner "only argues that he did not owe the proposed taxes"
    and that, under section 6330(c)(2)(B), "none of the three
    disputed liabilities are appropriate for consideration as a part
    of the Request for Collection Due Process Hearing".   The
    statement also states that "joint liability" was not at issue,
    that collection alternatives were not offered, and concludes that
    collection activity could proceed.
    As noted earlier, petitioner did not challenge the
    determination for the 1998 tax year in his petition to this
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    Court.    As to the 1992 tax year, petitioner alleged he had not
    filed a return for that year because he was not employed that
    year.    For the 1994 tax year, he alleged "nothing was wrong with
    this return", and the refund for overpayment he received for 1994
    "was due to me" and "why should I pay it back?"
    In a trial memorandum and at trial, counsel for respondent
    advised the Court that petitioner had filed an income tax return
    for 1992, and, based on that return, respondent had allowed
    petitioner a refund of $4,390, which was composed mostly of
    earned income and diesel fuel credits.    Thereafter, respondent
    reversed that action and assessed a liability of $5,541.89
    against petitioner for 1992.    Counsel acknowledged that
    respondent had no record of having issued a notice of deficiency
    to petitioner for 1992 to reflect this change.    Counsel agreed
    that, since petitioner had never been afforded an opportunity to
    challenge respondent's actions for that year, respondent
    "concedes the issue with respect to petitioner's 1992 liability
    and will abate that amount".    As a result of respondent's
    concession, the only remaining year before the Court is
    petitioner's 1994 tax year.
    With respect to the 1994 tax year, it appears (and the Court
    concludes) that no notice of deficiency was issued to petitioner
    for that year.    The parties stipulated into evidence the copy of
    Form 4549-CG, Income Tax Examination Changes, relating to
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    petitioner's 1994 tax return.    That form bears petitioner's
    signature along with stamped approvals by the Internal Revenue
    Service and reflects a balance of $3,055.72 of tax and interest
    owing by petitioner for the 1994 tax year.    The Form 4549-CG
    provides, just above petitioner's signature, the following:
    Consent to Assessment and Collection - I do not wish to
    exercise my appeal rights with the Internal Revenue Service
    or to contest in United States Tax Court the findings in
    this report. Therefore, I give my consent to the immediate
    assessment and collection of any increase in tax and
    penalties, and accept any decrease in tax and penalties
    shown above, plus additional interest as provided by law.
    It is understood that this report is subject to acceptance
    by the District Director.
    Petitioner acknowledged having signed the Form 4549-CG but
    contends he signed the form believing that he would be allowed to
    appeal the proposed changes to his 1994 return relating to the
    disallowance of two child dependency exemptions claimed on his
    1994 return.   He recalled having telephone conversations with a
    representative of the Internal Revenue Service and believed that,
    by signing the Form 4549-CG, his objection to the proposed
    changes would be considered.    Petitioner contends he had no
    intention of conceding the proposed changes to his 1994 return.
    On this scenario, it is evident to the Court that no notice of
    deficiency was issued to petitioner for 1994, and respondent
    assessed the amounts conceded by petitioner.
    Section 6331(a) provides that, if any person liable to pay
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    any tax neglects or refuses to pay such tax within 10 days of
    notice and demand for payment, the Secretary may collect such tax
    by levy upon the taxpayer's property.    Section 6330 generally
    provides that the Secretary cannot proceed with the collection of
    taxes by way of a levy until the taxpayer has been given notice
    and an opportunity for administrative review in the form of an
    Appeals Office hearing.   Section 6330(c) provides for an Appeals
    Office due process hearing to address collection issues
    including, among other things, alternative means of collection.
    In connection with matters to be considered at a collection
    due process hearing under section 6330, section 6330(c)(2)(B)
    states:
    (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 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.
    It is evident from the above that a notice of deficiency was
    never issued to petitioner for 1994; however, it is also evident
    that petitioner was otherwise provided an opportunity, before the
    assessment, to dispute his 1994 liability.     Aguirre v.
    Commissioner, 
    117 T.C. 324
     (2001).     He admitted so in his
    testimony.   Even if petitioner was not aware that he had waived
    his rights to challenge the determination because of the Form
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    4549-CG, there is no evidence that petitioner ever protested the
    effect of his waiver and agreement to an assessment in subsequent
    events, such as responding to collection notices, etc.     Moreover,
    there is no indication that this issue was brought up by
    petitioner at his hearing before the Appeals officer in
    connection with respondent's notice of intent to proceed with
    collection under section 6330.    The statement attached to the
    Notice of Determination by the Appeals officer provides no
    information that petitioner's contention as to the Form 4549-CG
    was even raised or considered at the hearing, nor did petitioner
    at trial claim that it was raised at his hearing before the
    Appeals officer.    The Court, therefore, rejects petitioner's
    claim that his prior consent to assessment and collection should
    be disregarded.    The validity of the underlying tax liability,
    therefore, is not properly at issue.     When, as here, the
    underlying liability is not at issue, this Court reviews the
    Commissioner's determination for abuse of discretion.     Sego v.
    Commissioner, 
    114 T.C. 604
    , 610 (2000).     Accordingly, the Court
    holds that there was no abuse of discretion by respondent in
    determining that collection could proceed with respect to
    petitioner's 1994 liability.
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    Reviewed and adopted as the report of the Small Tax Case
    Division.
    An appropriate order and
    decision will be entered.
    

Document Info

Docket Number: 14064-02S

Filed Date: 8/8/2003

Precedential Status: Non-Precedential

Modified Date: 11/14/2018