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was exempt property, and petitioner’s interest in the pension
plan was not treated as an asset in the bankruptcy case. On
October 30, 2000, petitioner received a discharge in bankruptcy.
Appeals Office Hearing
On November 30, 2000, the Commissioner mailed to petitioner
a Final Notice - Notice of Intent to Levy and Notice of Your
Right to a Hearing (notice of levy). The notice of levy was
mailed to petitioner at an address in Los Angeles, California.
Petitioner timely filed a Form 12153, Request for a Collection
Due Process Hearing (hearing). In the request, petitioner
challenged the notice of levy stating:
The taxpayer filed a chapter 7 bankruptcy petition
on July 19, 2000 * * * taxpayer received a discharge on
October 30, 2000. The federal tax lien recorded in
Florida in 1996 may not now be used to levy on
Mr. Fusaro’s property. * * *
Petitioner’s request for hearing was assigned to Appeals
Officer William Hsieh (Hsieh). Prior to the hearing, on
February 16, 2001, petitioner’s representative, who was also his
bankruptcy attorney, Wesley H. Avery (Avery), mailed a letter to
Hsieh describing petitioner’s position as follows:
In order to have a perfected security interest in
the Pension Plan, prepetition the IRS would have had to
file a Notice of Tax Lien in the one office within the
state, as designated by the laws of such state, in
which the property subject to the lien is situated.
* * * Under California law, which is the situs of the
Pension Plan, it was necessary for the IRS to file
prepetition a Notice of Federal Tax Lien with the
California Secretary of State. * * * However, the IRS
failed to file prepetition a federal tax lien against
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