Joseph Paul Freije - Page 38

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         the disallowance of the Freijes' miscellaneous deductions was                
         error as a matter of law and accordingly an abuse of discretion.             
         The Appeals officer's verification that the requirements of                  
         applicable law had been met was incorrect.  The statement in the             
         notice of determination that the tax owed for 1999 "is from the              
         original return" is wrong; it overlooks the adjustments to the               
         return improperly claimed as math errors under section                       
         6213(b)(1).  Accordingly, the levy to collect the foregoing                  
         portion of the 1999 assessment may not proceed.                              
         Conclusion                                                                   
              Respondent has conceded that the determination to proceed               
         with the levy for 1997 should not be sustained, and that the                 
         determination to proceed with the levy for 1998 failed to take               
         into account $4,094 in withholding credits.  With respect to the             
         levies for 1998 and 1999, we have found that $6,500 in                       
         remittances made by the Freijes in 1999 were unlawfully applied              
         to their 1997 account and should have been available to satisfy              
         liabilities for 1998 and/or 1999.27  Thus, the unpaid tax for                
         those years, upon which the levies are based, may not be correct.            
         Further, we have found that a portion of the 1999 assessment on              
         which the levy for 1999 is based is invalid.                                 


               27 If the $6,500 in 1999 remittances that was applied to the           
          1997 account is applied to the 1998 account, the result may be              
          that the $2,587 in 1999 remittances that was applied to 1998 may            
          be available to satisfy 1999 liabilities.                                   





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