Brad Daniel Clarke, Sr. - Page 14



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          account petitioner’s claims pertaining to the 2004 tax year, even           
          though petitioner’s arguments were clearly relevant in evaluating           
          the permissibility of the levy action in relation to the 1999               
          tax.                                                                        
               We hold that respondent’s application of petitioner’s tax              
          refund amount from 2005 to the year 2004, in the absence of                 
          respondent’s establishing that there was any tax liability for              
          2004, even though petitioner repeatedly asserted, and his 2004              
          return showed, that there was no such liability, was an error of            
          law.5  The Appeals officer’s verification that the requirements             
          of applicable law had been met was incorrect.  Accordingly, levy            
          to collect the 1999 assessment may not proceed.  We shall remand            
          the determination for 1999 to respondent’s Office of Appeals for            
          reconsideration of petitioner’s claim that he owed no taxes for             
          2004 and thus the amount of the refund due him for tax year 2005            
          should have been applied entirely to tax year 1999.                         






               5As explained supra note 3, we do not review respondent’s              
          imposition of an addition to tax under sec. 6651(a)(2) and (3)              
          for failure to pay income tax when it is due.  In the light of              
          our holding that respondent erred as a matter of law in pursuing            
          the levy action, the standard of review that we would employ in             
          evaluating the issue of petitioner’s liability for the addition             
          to tax makes no difference.  See Kendricks v. Commissioner, 124             
          T.C. 69, 75 (2005). On remand, respondent should determine                  
          whether he should have applied petitioner’s entire 2005 refund to           
          tax year 1999 and whether doing so would have reduced or                    
          extinguished the 1999 liability and the corresponding addition to           
          tax which was assessed in 2006.                                             



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