Olen W. and Gwendolyn Wilborn - Page 6

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          response to their 2000 petition; acknowledges that respondent               
          considered and allowed at the “Collection Due Process Hearing” a            
          portion of the disputed cost of goods sold; argues that                     
          respondent did not consider other issues that petitioners wished            
          to raise, such as deductions in 1997 for gambling losses, State             
          income taxes, and mortgage interest; and contends that “a levy              
          against petitioners’ current income would indeed be ‘more                   
          intrusive than necessary.’”  Petitioners then allude to several             
          items of real property and state:  “What the petitioners want is            
          for the levy against current earnings to be delayed until the               
          correct amount of deficit has been determined and until they can            
          sell the property or mortgage it to pay the deficit.”  The                  
          attachment also clarifies that “petitioners are not challenging             
          any of the $1,846 alleged to be owed for 1996”.                             
               Respondent on July 18, 2003, filed a Motion To Dismiss For             
          Lack of Jurisdiction As To Petitioners’ I.R.C. � 6330(a) Claim.             
          The Court granted respondent’s motion on grounds that                       
          petitioners’ request for a hearing as to the levy was not timely            
          submitted to respondent within the time period prescribed by                
          statute.  See sec. 6330(a)(3)(B); Kennedy v. Commissioner, 116              
          T.C. 255, 261-262 (2001).  Respondent on September 15, 2003,                
          filed the instant motion for summary judgment.  Petitioners were            
          ordered to file any response to this motion on or before October            
          6, 2003, but no such response has been received by the Court.               
                                     Discussion                                       




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