Francis A. Morlino - Page 12

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          in determining whether Mr. O’Shea abused his discretion more or             
          less probable–-because he was never notified of the extenuating             
          circumstances that are the subject of the testimony.3                       
               Because the testimony is irrelevant, it is inadmissible.               
          See Fed. R. Evid. 402.                                                      
               D.  Conclusion                                                         
               Respondent’s objection to the testimony is sustained.                  
          V.  Abuse of Discretion                                                     
               A.  Introduction                                                       
               We are left to determine whether Mr. O’Shea abused his                 
          discretion in determining that respondent may proceed by levy to            
          collect the unpaid tax.  Petitioner claims that he did because he           
          prematurely concluded the hearing.                                          
               B.  Discussion                                                         
               In Clawson v. Commissioner, T.C. Memo. 2004-106, fewer than            
          3 months passed between the taxpayer’s filing a request for a               
          section 6330 hearing concerning a proposed levy and an adverse              
          determination by an Appeals officer.  Approximately 1 month                 
          passed after the Appeals officer’s offer of a telephonic hearing            

               3  Nor has petitioner offered any excuse for his failure to            
          explain to Mr. O’Shea his difficulties in complying with Mr.                
          O’Shea’s Sept. 2, 2003, deadline when compliance with that                  
          deadline became problematic.  Cf. Magana v. Commissioner, 118               
          T.C. 488, 494 (2002) (unusual illness or hardship or other                  
          special circumstances may justify an exception to the general               
          rule that, in reviewing for an abuse of discretion under sec.               
          6330(d)(1), the Court will not consider issues not raised at the            
          sec. 6330 hearing).                                                         

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