T.C. Memo. 2004-255
UNITED STATES TAX COURT
MICHAEL E. VIEROW, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 19406-03L. Filed November 8, 2004.
Michael E. Vierow, pro se.
Rebecca Duewer-Grenville, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Pursuant to section 6330(d),1 petitioner
seeks review of respondent’s determination to proceed with
collection of his 1994, 1995, 1996, 1997, and 1998 tax
liabilities.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. At the time he filed the
petition, petitioner resided in Crescent City, California.
In 2000, respondent and petitioner exchanged correspondence
regarding petitioner’s failure to file income tax returns and his
obligation to pay income tax and file income tax returns.
On February, 23, 2001, respondent sent petitioner, via
certified mail to the address where petitioner resided, a notice
of deficiency for 1994, 1995, and 1996 and a notice of deficiency
for 1997 and 1998.
On August 13, 2001, respondent assessed petitioner’s tax
liabilities for 1994, 1995, 1996, 1997, and 1998. That same day,
respondent sent petitioner statutory notices of balance due for
1994, 1995, 1996, 1997, and 1998.
On September 17, 2001, respondent sent petitioner notices of
balance due for 1994, 1995, 1996, 1997, and 1998.
On October 22, 2001, respondent sent petitioner statutory
notices of intent to levy for 1994, 1995, 1996, 1997, and 1998.
On September 19, 2002, respondent sent petitioner via
certified mail a Final Notice--Notice of Intent to Levy and
Notice of Your Right to a Hearing (hearing notice).
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On October 18, 2002, petitioner filed a Form 12153, Request
for a Collection Due Process Hearing, regarding his 1994, 1995,
1996, 1997, and 1998 tax years (hearing request). Petitioner
attached the hearing notice and a 12-page letter to the hearing
request. Petitioner argued that respondent failed to follow the
requirements of applicable law and administrative procedure.
On February 24, 2003, respondent’s San Francisco Appeals
Office sent petitioner a letter stating that it had received his
hearing request and explaining the hearing process.
On May 7, 2003, Appeals Officer James Chambers sent
petitioner a letter requesting that petitioner contact him to
schedule a section 6330 hearing (hearing). Appeals Officer
Chambers advised petitioner that the hearing could be held in
person, by telephone, or by correspondence.
On May 19, 2003, petitioner sent Appeals Officer Chambers a
letter requesting an in-person hearing closer to his home than
San Francisco, California. Petitioner suggested that the hearing
be held at respondent’s office in Eureka, California.2
On June 16, 2003, Appeals Officer Chambers sent petitioner a
letter stating that the San Francisco Appeals Office was the
closest option for an in-person hearing. Appeals Officer
Chambers again offered petitioner the option of a telephone
2
From the record, it is unclear whether respondent had an
Appeals Office in Eureka, California.
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hearing or to continue his hearing by correspondence. Petitioner
chose to have his hearing conducted via correspondence.
As part of the hearing, Appeals Officer Chambers reviewed
the administrative file, which included the notices of deficiency
and Forms 4340, Certificate of Assessments, Payments, and Other
Specified Matters. Appeals Officer Chambers also reviewed a
certified mail list, which was not part of the administrative
file, to determine whether respondent mailed the notices of
deficiency via certified mail to petitioner at his correct
address.
On July 28, 2003, petitioner sent Appeals Officer Chambers a
letter in which he argued that in order to meet the verification
requirement of section 6330(c)(1) respondent needed to establish
that respondent properly (1) issued statutory notices of
deficiency for the years in issue, (2) made the assessments for
the years in issue, (3) issued notices and demand for payment,
(4) issued notice of intent to levy, and (5) issued notice of
petitioner’s right to a hearing. Petitioner also claimed he had
not received any “assessment notices” from respondent for the
years in issue.
On October 8, 2003, respondent sent petitioner a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (notice of determination) for the years in issue.
Appeals Officer Chambers determined that the requirements of
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applicable law and administrative procedure had been met and that
collection could proceed.
OPINION
Pursuant to section 6330(c)(2)(A), a taxpayer may raise at
the section 6330 hearing any relevant issue with regard to the
Commissioner’s collection activities, including spousal defenses,
challenges to the appropriateness of the Commissioner’s intended
collection action, and alternative means of collection. Sego v.
Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner, 114
T.C. 176, 180 (2000). When the Commissioner issues a
determination regarding a disputed collection action, section
6330(d) permits a taxpayer to seek judicial review with the Tax
Court or a U.S. District Court, as is appropriate. Petitioner
did not challenge the underlying tax liability. Accordingly, we
review respondent’s determination for an abuse of discretion.
Sego v. Commissioner, supra at 610.
1. Evidentiary Issue
At trial, petitioner objected to the introduction of the
certified mail list, which was not part of the administrative
file. We overruled petitioner’s objection. On brief, petitioner
argues that in section 6330 cases the Court is subject to the
provisions of the Administrative Procedure Act and limited to
reviewing the administrative record, and it was an error to
conduct a trial de novo.
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This case was tried before our Opinion in Robinette v.
Commissioner, 123 T.C. 85 (2004). In Robinette, we held that
when reviewing the Commissioner’s determination pursuant to
section 6330, our review is not limited by the Administrative
Procedure Act, the evidence we may consider is not limited to the
administrative record, and we conduct trials de novo. See also
Holliday v. Commissioner, T.C. Memo. 2002-67 (Commissioner
permitted to present documents, records, and testimony at trial
that were not part of administrative record), affd. 57 Fed. Appx.
774 (9th Cir. 2003).
2. Procedural Issue--Location of the Hearing
Petitioner argues that he was entitled to a hearing at the
Appeals Office closest to his home and the San Francisco Appeals
Office was not the closest Appeals Office to his home. If a
taxpayer receives a notice of lien or intent to levy and requests
a hearing at the Commissioner’s Appeals Office, the taxpayer must
be offered an opportunity for a hearing at the Appeals Office
closest to the taxpayer’s residence. Parker v. Commissioner,
T.C. Memo. 2004-226; see Katz v. Commissioner, 115 T.C. 329, 335-
336 (2000); sec. 301.6320-1(d)(2), Q&A-D7, Proced. & Admin. Regs.
Assuming arguendo that there was an Appeals Office closer to
petitioner’s home than San Francisco, California, we do not think
it is necessary or productive to remand this case to Appeals.
See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001); Kemper v.
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Commissioner, T.C. Memo. 2003-195. Petitioner’s arguments--in
the hearing request, during the correspondence hearing, and at
trial--were limited to the verification requirement in section
6330(c)(1). Petitioner’s presence was not required in order for
respondent to verify whether the requirements of any applicable
law or administrative procedure had been met.
3. Abuse of Discretion
As noted supra, petitioner’s arguments regard the
verification requirement in section 6330(c)(1). Petitioner
contends that Appeals Officer Chambers did not verify that
respondent (1) properly assessed the taxes for the years in issue
and (2) issued petitioner notices of deficiency, notice and
demand for payment, notice of intent to levy, and notice of his
right to a hearing.
Section 6330(c)(1) does not require the Commissioner to rely
on a particular document to satisfy the verification requirement
imposed therein. E.g., Schnitzler v. Commissioner, T.C. Memo.
2002-159. We have repeatedly held that the Commissioner may rely
on Forms 4340 or transcripts of account to satisfy the
verification requirement of section 6330(c)(1). Lindsey v.
Commissioner, T.C. Memo. 2002-87, affd. 56 Fed. Appx. 802 (9th
Cir. 2003); Tolotti v. Commissioner, T.C. Memo. 2002-86, affd. 70
Fed. Appx. 971 (9th Cir. 2003). Petitioner has not alleged any
irregularity in the assessment procedure that would raise a
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question about the validity of the assessments or the information
contained in the Forms 4340. See Davis v. Commissioner, 115 T.C.
35, 41 (2000); Mann v. Commissioner, T.C. Memo. 2002-48.
Petitioner’s testimony, the notices of deficiency, the
certified mail receipts, and the certified mail list establish
that respondent mailed the notices of deficiency via certified
mail to petitioner at his correct address. The Forms 4340
establish a proper assessment and that respondent sent petitioner
notice and demand for payment and notice of intent to levy. A
certified mail return receipt for the hearing notice and the fact
that petitioner attached the hearing notice to his hearing
request establish that petitioner received the hearing notice.
Accordingly, we hold that the Appeals officer satisfied the
verification requirement of section 6330(c)(1). Cf. Nicklaus v.
Commissioner, 117 T.C. 117, 120-121 (2001).
Petitioner has failed to raise a spousal defense, make a
valid challenge to the appropriateness of respondent’s intended
collection action, or offer alternative means of collection.
These issues are now deemed conceded. See Rule 331(b)(4).
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In reaching all of our holdings herein, we have considered
all arguments made by the parties, and to the extent not
mentioned above, we conclude they are irrelevant or without
merit.
To reflect the foregoing,
Decision will be entered
for respondent.