NESTOR v. COMMISSIONER

2002 T.C. Memo. 251, 84 T.C.M. 410, 2002 Tax Ct. Memo LEXIS 260
United States Tax Court·Decided October 1, 2002·No. No. 5372-00L·Unpublished

Opinion

MICHAEL E. NESTOR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent *
NESTOR v. COMMISSIONER
No. 5372-00L
United States Tax Court
T.C. Memo 2002-251; 2002 Tax Ct. Memo LEXIS 260; 84 T.C.M. (CCH) 410;
October 1, 2002, Filed

*260 Respondent's determination to proceed with collection with respect to petitioner's tax years 1990-91 sustained. Court ordered petitioner to pay respondent penalty award of $ 5,000.

Michael E. Nestor, pro se.
David C. Holtz, for respondent.
Colvin, John O.

COLVIN

SUPPLEMENTAL MEMORANDUM FINDINGS OF FACT AND OPINION

COLVIN, Judge: Petitioner filed the petition in this case under section 6330(d) seeking our review of respondent's determination that collection by levy was appropriate. The sole issue for decision is whether respondent's determination to proceed with collection with respect to petitioner's tax years 1990-91 was an abuse of discretion. We hold that it was not.

Section references are to the Internal Revenue Code as amended.

FINDINGS OF FACT

Petitioner resided in California when he filed the petition in this case.

A. Petitioner's Tax Returns and the Notices of Deficiency

Petitioner filed purported Federal income tax returns for 1990-96 in May 1997, and he timely filed a purported 1997 return. On each return, he reported that he had no wages, other income, or tax liability. After petitioner filed those tax returns and before October 1999 (when respondent issued the notice of intent to levy discussed at paragraph B, below), respondent*261 assessed the frivolous return penalty under section 6702 1 for 1990-97.

Respondent issued notices of deficiency to petitioner for each of his 1990-97 tax years determining deficiencies and additions to tax as follows:

Additions to tax
YearDeficiencySec. 6651(a)Sec. 6654
1990$ 2,006$ 493.00$ 129.46
19911,834455.75104.73
19922m201550.25-0-
19932,021493.75-0-
19941,954254.02-0-
19952,899202.93-0-
19962,95129.49156.93
19972,99689.88-0-

Petitioner received the notices of deficiency for 1992-97, but not for 1990 or 1991.

B. The Lien and Levy Proceeding

On October 21, 1999, respondent issued to petitioner a Notice of Intent to Levy and Notice of Your Right*262 to a Hearing relating to petitioner's 1990-97 tax years. On November 17, 1999, petitioner filed a Form 12153, Request for a Collection Due Process Hearing, for tax years 1990-98 2 and contended that: (1) There was no valid assessment of taxes; (2) he did not receive the statutory notice and demand for payment of the taxes at issue; (3) he did not receive a valid notice of deficiency; and (4) the amount of the underlying tax liability was incorrect.

C. The Section 6330 Hearing and Respondent's Notice of Determination

On December 28, 1999, respondent's Appeals Office conducted a hearing in petitioner's case for tax years 1990-97. Petitioner attended the hearing. He was not given an opportunity to challenge his underlying tax liability for 1990-97 at the hearing. At the hearing, petitioner did not challenge the appropriateness of the intended method of collection, offer an alternative means of collection, or raise a spousal defense to collection.

On April 7, 2000, respondent sent petitioner a Notice of Determination Concerning Collection Action(s) Under Sections 6320 and/or 6330 (the lien or levy determination), in which respondent determined to proceed with collection of deficiencies in petitioner's income tax, additions to tax, interest, and the frivolous return penalty for 1990-97. On May 8, 2000, petitioner filed a petition for lien or levy action under section 6320(c) or 6330(d).

D. The Prior Proceedings and Remand of Petitione

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NESTOR v. COMMISSIONER, 2002 T.C. Memo. 251, 84 T.C.M. 410, 2002 Tax Ct. Memo LEXIS 260 (tax 2002).

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