T.C. Memo. 2008-155
UNITED STATES TAX COURT
GARY R. CLARK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 19473-06L, 8752-07L. Filed June 18, 2008.
Gary R. Clark, pro se.
Laurel M. Costen, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
HAINES, Judge: Pursuant to section 6330(d),1 petitioner
seeks review of respondent’s determinations to proceed with the
collection of petitioner’s unpaid Federal income tax liabilities
for 1998 through 2003 (years at issue). The issue is whether
1
Unless otherwise indicated, section references are to the
Internal Revenue Code, as amended.
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respondent abused his discretion in sustaining the proposed
collection actions.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulations of facts and the exhibits attached thereto are
incorporated herein by this reference. Petitioner resided in
California at the time his petition was filed.
Petitioner did not file Federal income tax returns for the
years at issue. On January 21, 2004, respondent mailed
petitioner separate notices of deficiency for 1998, 1999, 2000,
and 2001. On November 30, 2004, and June 7, 2005, respondent
mailed petitioner notices of deficiency for 2002 and 2003,
respectively. All the notices of deficiency were mailed to
petitioner’s correct address. Petitioner did not petition this
Court in response to the notices of deficiency.
The Hearing for 1998 Through 2002
On February 17, 2005, respondent issued petitioner a Final
Notice, Notice of Intent to Levy and Notice of Your Right to a
Hearing (notice of intent to levy) for 1998 through 2001. On
March 3, 2005, respondent issued petitioner a Final Notice,
Notice of Federal Tax Lien Filing and Your Right to a Hearing
Under IRC 6320 (notice of Federal tax lien) for 1998 through
2001. In response to the February 17 and March 3, 2005, notices
petitioner timely requested an Appeals hearing. On the hearing
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request form petitioner was asked to provide the specific reasons
he did not agree with the proposed collection actions.
Petitioner responded:
There are five points I request a hearing on.
1. There are points in the Tax Reformation Act of
1988.
2. Let it be known I do not agree with congress for
all the reasons that I have this meeting.
3. Details of this will be provided at the meeting.
4. I fully intend to tape record the meeting.
5. Therefore, I request a face to face meeting.
On October 26, 2005, respondent issued petitioner a notice
of intent to levy for 2002. On January 24, 2006, respondent
issued petitioner a notice of Federal tax lien for 2002. In
response to these notices, petitioner timely requested Appeals
hearings. As his reasons for disagreeing with the proposed
collection actions petitioner repeated the same five points he
had stated on his previous request.
The parties later agreed to handle all of the requests for
1998 through 2002 during a single hearing. On February 1, 2006,
respondent’s Appeals officer sent petitioner a letter responding
to petitioner’s request for a face-to-face conference, scheduling
a telephone conference, and stating:
If you are interested in receiving a face-to-face
conference, you must be prepared to discuss issues
relevant to paying your tax liability. These include,
for example, offering other ways to pay the taxes you
owe, such as an installment agreement or offer in
compromise. * * * If you wish to have a face-to-face
conference, please write me within 15 days from the
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date of this letter and describe the legitimate issues
you will discuss.
On March 1, 2006, petitioner sent the Appeals officer a
letter requesting a correspondence hearing. On March 14, 2006,
the Appeals officer sent petitioner a letter asking him to
identify any relevant issues that petitioner wanted considered
during the hearing. On March 31, 2006, petitioner sent the
Appeals officer a letter which questioned whether respondent had
recorded an assessment against him pursuant to section 6203,
requested several documents related to the assessment procedure,
alleged other procedural errors, and alleged that the proposed
collection actions would cause him hardship.
On July 7, 2006, the Appeals officer sent petitioner a
letter stating that petitioner could not challenge the underlying
liability during the hearing if he had received notices of
deficiency for the years at issue. The letter instructed
petitioner to provide any evidence that he had not received the
notices of deficiency and informed him that if he wished to have
a collection alternative considered, he had to file all
delinquent returns by July 28, 2006. The letter further advised
petitioner that he needed to provide details of the alleged
hardship before the issue could be considered. The letter also
included copies of Forms 4340, Certificate of Assessments,
Payments, and Other Specified Matters, for 1998 through 2002.
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Petitioner did not respond, and on August 23, 2006, the
Appeals Office issued a notice of determination sustaining in
full the notices of Federal tax lien and the notices of intent to
levy. The notice of determination verified that all legal and
procedural requirements were met, balanced the need for efficient
collection with the concern that collection be no more intrusive
than necessary, and addressed the relevant issues petitioner
raised.
The Hearing for 2003
On March 7, 2006, respondent issued petitioner a notice of
intent to levy for 2003. Petitioner requested an Appeals hearing
in response. As his reasons for disagreeing with the proposed
collection action petitioner repeated the same five points
(although phrased slightly differently) that he had stated on his
previous requests. The case was assigned to a different Appeals
officer from the officer for petitioner’s previous hearing. The
Appeals officer mailed petitioner a letter on October 3, 2006,
which stated:
You will be allowed a face-to-face conference on any
nonfrivolous issue; however you will need to provide
the nonfrivolous issue in writing or by calling me
within 14 days from the date of this letter before a
face-to-face conference will be scheduled.
The letter also stated that for the Appeals Office to consider
collection alternatives, petitioner would need to provide
financial information and submit all unfiled returns. Petitioner
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did not respond. On October 23, 2006, the Appeals officer sent
petitioner another letter informing him that if he did not
provide the requested information within 7 days, a notice of
determination would be issued.
On October 30, 2006, petitioner and the Appeals officer
discussed petitioner’s case by telephone. The Appeals officer
advised petitioner that a face-to-face conference would only be
scheduled if petitioner identified a specific nonfrivolous issue
and that the issues raised in his request for a hearing were not
relevant. Later that day petitioner sent the Appeals officer a
letter which repeated the same five points listed on his hearing
request.
On March 15, 2007, the Appeals Office issued a notice of
determination sustaining in full the notice of intent to levy.
The notice of determination verified that all legal and
procedural requirements were met, balanced the need for efficient
collection with the concern that collection be no more intrusive
than necessary, and addressed the relevant issues petitioner
raised.
OPINION
Before the Commissioner may levy on any property or property
right of a taxpayer, the taxpayer must be provided written notice
of the right to request a hearing, and such notice must be
provided no less than 30 days before the levy is made. Sec.
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6330(a). Section 6320(a) requires that the Commissioner furnish
the taxpayer with written notice of the filing of a Federal tax
lien within 5 business days after the lien is filed. Section
6320 further provides that the taxpayer may request an Appeals
hearing within 30 days beginning on the day after the 5-day
period described above. Sec. 6320(a)(3)(B), (b)(1). If the
taxpayer requests a hearing under either section 6320 or 6330, an
Appeals officer of the Commissioner must hold the hearing. Secs.
6320(b)(1), 6330(b)(1). Within 30 days of the issuance of the
Appeals officer’s determination, the taxpayer may seek judicial
review of the determination. Sec. 6330(d)(1).
Section 6330(c) prescribes the matters that a person may
raise at the hearing. Section 6330(c)(2)(A) provides that a
person may raise relevant issues such as spousal defenses, the
appropriateness of the Commissioner’s intended collection action,
and possible alternative means of collection. See Montgomery v.
Commissioner, 122 T.C. 1, 5 (2004); Sego v. Commissioner, 114
T.C. 604, 609 (2000); Goza v. Commissioner, 114 T.C. 176, 181-183
(2000). In addition, section 6330(c)(2)(B) provides that a
person may challenge the existence or amount of the underlying
tax liability if the person did not receive a notice of
deficiency for the relevant period or did not otherwise have an
opportunity to dispute the liability.
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Whether Petitioner Was Entitled To Dispute the Underlying
Liabilities
Petitioner argues that he was entitled to dispute the
underlying liabilities during his hearings. Respondent counters
that petitioner was precluded from disputing the liabilities
during his hearings because he received notices of deficiency for
the years at issue.
There is ample evidence in the record that respondent
properly mailed the deficiency notices. The record contains
copies of the notices and U.S. Postal Service Forms 3877
reflecting the timely mailing of the notices to petitioner at his
correct address by certified mail. A properly completed Form
3877, absent evidence to the contrary, establishes that the
notice was properly mailed to the taxpayer. United States v.
Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v.
Commissioner, 94 T.C. 82, 90-91 (1990). Furthermore, compliance
with certified mail procedures raises a presumption of official
regularity in delivery with respect to notices sent by the
Commissioner. See United States v. Zolla, supra at 810.
Petitioner presented no evidence that he did not receive the
deficiency notices despite being given the opportunity to present
such evidence at his hearings and before this Court. Therefore,
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petitioner was not entitled to challenge the underlying
liabilities at his hearings.2
Whether Petitioner Was Entitled to Face-To-Face Conferences
Petitioner argues that the Appeals officers improperly
denied him face-to-face conferences. Although a section 6330
hearing may consist of a face-to-face conference, a proper
hearing may also occur by telephone or by correspondence under
certain circumstances. See Katz v. Commissioner, 115 T.C. 329,
337-338 (2000); sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin.
Regs. Petitioner was offered telephone hearings or
correspondence hearings. With respect to the 1998 through 2002
liabilities, petitioner chose to proceed only by correspondence.
With respect to 2003, petitioner had a telephone conference and
submitted correspondence.
Petitioner was offered a face-to-face conference if he would
first identify a relevant issue he intended to discuss. Despite
being given a reasonable opportunity by the Appeals officers to
present any relevant issue he wanted considered, petitioner
presented no such issue. Under these circumstances, respondent
was not required to offer petitioner face-to-face conferences.
See Lunsford v. Commissioner, 117 T.C. 183 (2001).
2
Petitioner’s argument that under Weimerskirch v.
Commissioner, 596 F.2d 358 (9th Cir. 1979), revg. 67 T.C. 672
(1977), respondent has the burden of proving unreported income in
this Court proceeding is without merit. Where the taxpayer is
precluded from challenging the underlying liability by sec.
6330(c)(2)(B), Weimerskirch is inapplicable.
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Whether the Appeals Officers Complied With the Section 6330(c)(1)
Verification Requirement
Petitioner argues that rather than obtaining verification
from the Internal Revenue Service office collecting the tax that
the requirements of any applicable law or administrative
procedure were met as required by section 301.6330-1(e)(1),
Proced. & Admin. Regs., the Appeals officers themselves made the
verification.
The record indicates that to comply with section 6330(c)(1)
the Appeals officers relied on Forms 4340, which are a valid
verification that the requirements of any applicable law or
administrative procedures have been met. See Roberts v.
Commissioner, 118 T.C. 365 (2002), affd. 329 F.3d 1224 (11th Cir.
2003). It was not an abuse of discretion for the Appeals
officers to rely on Forms 4340 to verify that legal and
procedural requirements were met as required by section
6330(c)(3)(A) and section 301.6330-1(e)(1), Proced. & Admin.
Regs.3 See Craig v. Commissioner, 119 T.C. 252, 261-263 (2002);
Nestor v. Commissioner, 118 T.C. 162, 166 (2002).
Conclusion
Petitioner has given no bona fide basis for his claim that
the collection actions are inappropriate. Therefore, respondent
3
Petitioner was provided copies of the Forms 4340 for the
years at issue, and he has not identified any irregularity in the
assessment procedure that would raise a question about the
validity of the assessments or the information contained in the
Forms 4340.
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did not abuse his discretion by determining to proceed with the
collection of petitioner’s unpaid Federal income tax liabilities
at issue.
In reaching our holdings herein, we have considered all
arguments made, and to the extent not mentioned above, we find
them to be moot, irrelevant, or without merit.
To reflect the foregoing,
Decisions will be entered
for respondent.