T.C. Memo. 2009-131
UNITED STATES TAX COURT
CRAIG J. CASEY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16436-03L. Filed June 9, 2009.
Craig J. Casey, pro se.
Karen Nicholson Sommers, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GALE, Judge: Pursuant to section 6330(d)(1),1 petitioner
seeks review of respondent’s determination to proceed with a levy
to collect unpaid income tax for petitioner’s 1998 taxable year.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended.
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FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the accompanying exhibits are
incorporated herein by this reference. Petitioner resided in
California when he filed the petition.
On November 3, 2002, respondent issued petitioner a Final
Notice of Intent to Levy and Notice of Your Right to a Hearing
with respect to unpaid income taxes for 1998. Petitioner timely
submitted a request for a hearing, in which he contended that he
was not liable for the tax, that no notice of deficiency had been
sent, and that an improper assessment had been made.
Respondent’s Appeals Office sent petitioner a letter on
June 12, 2003, scheduling a face-to-face conference for July 2,
2003. In the letter, the Appeals officer informed petitioner
that she would not consider challenges to the underlying tax
liability in connection with petitioner’s hearing because she had
determined that petitioner had received a notice of deficiency
with respect to 1998 and had failed to petition the Tax Court.
The Appeals officer further informed petitioner that he would not
be allowed to make an audio or stenographic recording of his
face-to-face conference.
The Appeals officer examined petitioner’s administrative
file. According to the Appeals officer’s contemporaneous
handwritten notes and her entries in the case activity record,
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the administrative file contained copies of a notice of
deficiency for 1998 dated January 24, 2002, addressed to
petitioner at 7107 Broadway, Unit 333, Lemon Grove, California
91945 (the Lemon Grove address) and at P.O. Box 444, Jacumba,
California 91934-0444 (the Jacumba address), as well as an
original of the notice of deficiency sent to the Jacumba address.
The original notice of deficiency addressed to the Jacumba
address had its mailing envelope attached, which bore U.S. Postal
Service (USPS) markings indicating that it had been returned
unclaimed after three notifications were made on January 25,
February 8, and February 18, 2002.
Petitioner requested that his conference be postponed, and
the Appeals officer rescheduled it for August 4, 2003.
Petitioner advised the Appeals officer of the Tax Court Opinion
in Keene v. Commissioner, 121 T.C. 8 (2003), and informed the
Appeals officer of his intention to bring a court reporter to his
conference. The Appeals officer advised petitioner that the
Appeals Office was aware of Keene but had not changed its policy
and that recording of petitioner’s conference would not be
permitted.
Petitioner, accompanied by a witness but not a court
reporter, appeared for the scheduled conference on August 4,
2003. At the conference, petitioner submitted to the Appeals
officer a copy of his Individual Master File (IMF) and a five-
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page list of “relevant issues” related to the proposed collection
action (agenda). The agenda stated:
Relevant Issues:
I am disputing several material facts in regards to my tax
liability, errors on my official transcript, the
appropriateness of the determination and collection actions
and the 6702 penalty. * * *
Below is why I believe my transcript and the resulting
assessment is defective and prejudicial. * * *
The agenda then outlined why petitioner believed the assessment
of his 1998 liability was defective and prejudicial. Petitioner
contended in the agenda that he should be allowed to challenge
the underlying liability. He maintained that he was entitled to
do so because of the presence or absence of certain codes in his
IMF or because of respondent’s failure to provide him with
detailed explanations of these codes. Specifically, the agenda
stated that an “SCS-1” code on petitioner’s IMF indicated that
two taxpayers were using the same Social Security number, that a
“VAL-1” code indicated that his Social Security number could be
“permanently invalid” for the taxpayer using it, that the absence
of a “TC 494” code indicated that no notice of deficiency had
been issued to petitioner, and that several other codes on
petitioner’s IMF had similar meanings, all of which petitioner
contended made the assessment invalid. Petitioner also argued
that he was entitled to record the conference.
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Shortly after the conference, petitioner sent several
letters to respondent’s Appeals Office. Petitioner’s letters
included written statements, styled as affidavits, executed by
petitioner and by the witness petitioner had brought to the
conference. The statements reflected petitioner’s and the
witness’s accounts of what had transpired at the conference.
Both described the conference in detail and stated that
petitioner attempted to raise various points relating to his IMF
and the presence or absence of certain code entries thereon,
which were substantially identical to the arguments listed in the
agenda petitioner submitted at the conference. The Appeals
officer also recorded her account of what had occurred at the
hearing in her case activity records. The case activity records
likewise record that petitioner argued that proper administrative
procedures had not been met, that the notice of deficiency was
invalid, and that the presence or absence of various codes on his
IMF established the foregoing.
The Appeals officer subsequently issued petitioner a Notice
of Determination Concerning Collection Action(s) Under Section
6320 and/or 6330 (notice of determination) sustaining the
proposed levy. The notice of determination reasoned that
petitioner’s challenge to the underlying liability was not
permitted because (1) petitioner failed to claim the notice of
deficiency mailed to him at the Jacumba address (described in the
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notice of determination as P.O. Box “144”), the notice of
deficiency having been returned to the Internal Revenue Service
with USPS markings indicating three notifications to petitioner,
and (2) there was no indication that the notice of deficiency
mailed to petitioner at the Lemon Grove address had been
returned, which created a presumption that petitioner received
it. The notice of determination stated that petitioner had asked
to record his hearing and was denied permission, that petitioner
had raised several points to the effect that the codes on his IMF
indicated that his tax was incorrectly assessed, and that the
Appeals officer had verified that all assessments were properly
made by consulting a Form 4340, Certificate of Assessments,
Payments, and Other Specified Matters, for petitioner’s 1998
taxable year. Finally, the notice of determination stated that
the Appeals officer had determined that the proposed levy
balanced the interests of efficient collection of taxes with
petitioner’s legitimate concern that any collection action be no
more intrusive than necessary.
Petitioner filed a timely petition seeking review of the
determination.
OPINION
Petitioner contends that he should have been permitted to
challenge his underlying tax liability for 1998 during his
hearing and that respondent’s Appeals officer abused her
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discretion in determining that the proposed levy should be
sustained.
I. Background
Section 6331(a) authorizes the Secretary to levy upon
property and property rights of any person liable for taxes
(taxpayer) who fails to pay those taxes after notice and demand
for payment is made. Section 6331(d) provides that the levy
authorized by section 6331(a) may be made with respect to any
unpaid tax only if the Secretary has given written notice to the
taxpayer 30 days before levy. Section 6330(a) further requires
that the notice advise the taxpayer of the amount of the unpaid
tax and of the taxpayer’s right to a hearing.
If a hearing is requested, the hearing is to be conducted by
an officer or employee of the Commissioner’s Appeals Office with
no prior involvement with respect to the unpaid tax at issue.
Sec. 6330(b)(1), (3). The Appeals officer shall at the hearing
obtain verification that the requirements of any applicable law
or administrative procedure have been met. Sec. 6330(c)(1). The
taxpayer may raise at the hearing “any relevant issue relating to
the unpaid tax or the proposed levy”. Sec. 6330(c)(2)(A). The
taxpayer may also raise challenges to the existence or amount of
the underlying tax liability at the hearing if the taxpayer did
not receive a statutory notice of deficiency with respect to the
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underlying tax liability or did not otherwise have an opportunity
to dispute that liability. Sec. 6330(c)(2)(B).
At the conclusion of the hearing, the Appeals officer must
determine whether and how to proceed with collection and shall
take into account (1) the verification that the requirements of
any applicable law or administrative procedure have been met; (2)
the relevant issues raised by the taxpayer; (3) challenges to the
underlying tax liability by the taxpayer, where permitted; and
(4) whether any proposed collection action balances the need for
the efficient collection of taxes with the legitimate concern of
the taxpayer that the collection action be no more intrusive than
necessary. Sec. 6330(c)(3).
With respect to determinations made before October 17,
2006,2 we have jurisdiction to review the Appeals Office’s
determination where we have jurisdiction over the type of tax
involved in the case. Sec. 6330(d)(1)(A); see Iannone v.
Commissioner, 122 T.C. 287, 290 (2004). Generally, we may
consider only those issues that the taxpayer raised during the
section 6330 hearing. See sec. 301.6330-1(f)(2), Q&A-F5, Proced.
& Admin. Regs.; see also Giamelli v. Commissioner, 129 T.C. 107
(2007); Magana v. Commissioner, 118 T.C. 488, 493 (2002).
2
Pursuant to the Pension Protection Act of 2006, Pub. L.
109-280, sec. 855, 120 Stat. 1019, this Court has exclusive
jurisdiction to review determinations under sec. 6330, effective
for determinations made after the date which is 60 days after the
Aug. 17, 2006, date of enactment, or Oct. 16, 2006.
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However, the Appeals officer’s mandated verification under
section 6330(c)(1) that the requirements of any applicable law or
administrative procedure have been met is subject to review
without regard to a challenge by the taxpayer at the hearing.
Hoyle v. Commissioner, 131 T.C. ___ (2008). Where it is properly
at issue, we review the underlying tax liability de novo. E.g.,
Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). Where the
underlying tax liability is not properly at issue, we review the
Appeals officer’s determination of collection issues for abuse of
discretion. Id. at 182. Whether an abuse of discretion has
occurred depends upon whether the exercise of discretion was
arbitrary, capricious, or without sound basis in fact or law.
See Trout v. Commissioner, 131 T.C. ___, ___ (2008) (slip op. at
10); Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
II. Petitioner’s Arguments
Petitioner argues that the Appeals officer erred in refusing
to allow petitioner to challenge the underlying liability for
1998, including a penalty under section 6702(a), because,
petitioner claims, he did not receive a notice of deficiency for
1998. Petitioner further argues that the Appeals officer abused
her discretion by refusing to permit petitioner to record the
hearing. Petitioner also maintains that he raised other issues
at the hearing, including spousal defenses, collection
alternatives, and interest abatement, which the Appeals officer
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improperly failed to consider in her determination. Finally,
petitioner argues that the Appeals officer failed to verify that
the requirements of applicable law or administrative procedure
were met.
A. Challenges to the Underlying Tax Liability
Petitioner contends that he should have been permitted to
challenge the underlying tax liability for 1998 in connection
with the hearing because he did not receive a notice of
deficiency for 1998. Respondent contends that petitioner was
precluded under section 6330(c)(2)(B) from challenging the
underlying liability because petitioner either received a notice
of deficiency or deliberately refused delivery. The Court’s
determination of whether a taxpayer has received a notice of
deficiency so as to preclude a challenge to the underlying tax
liability under section 6330(c)(2)(B) is made “On the
preponderance of the evidence”. Sego v. Commissioner, 114 T.C.
604, 611 (2000); see also Figler v. Commissioner, T.C. Memo.
2005-230.
The preclusion of a challenge to the underlying liability
pursuant to section 6330(c)(2)(B) generally requires actual
receipt of the notice of deficiency by the taxpayer. See Sego v.
Commissioner, supra at 610-611; see also Sapp v. Commissioner,
T.C. Memo. 2006-104; Calderone v. Commissioner, T.C. Memo. 2004-
240; Tatum v. Commissioner, T.C. Memo. 2003-115. However, where
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the Commissioner produces a certified mail list (USPS Form 3877)
recording that a notice of deficiency was sent by certified mail,
the presumption of official regularity creates a strong
presumption that the notice was mailed and that it was delivered
or offered for delivery at the address to which it was sent. In
the absence of clear evidence to the contrary, receipt of the
notice will be presumed. See Sego v. Commissioner, supra at 611;
Zenco Engg. Corp. v. Commissioner, 75 T.C. 318, 323 (1980), affd.
without published opinion 673 F.2d 1332 (7th Cir. 1981); see also
United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); United
States v. Ahrens, 530 F.2d 781, 784-786 (8th Cir. 1976). The
taxpayer’s self-serving claim that he did not receive a notice of
deficiency, standing alone, is generally insufficient to rebut
the presumption of official regularity. See Sego v.
Commissioner, supra at 611; Figler v. Commissioner, supra. In
addition, a taxpayer cannot defeat actual receipt by deliberately
refusing delivery. Sego v. Commissioner, supra at 610-611; Stein
v. Commissioner, T.C. Memo. 2004-124; Carey v. Commissioner, T.C.
Memo. 2002-209.
At trial respondent offered into evidence a USPS Form 3877
from his records that lists certified mailings of notices of
deficiency at the U.S. Post Office in Laguna Niguel, California,
on January 24, 2002, including two notices mailed to petitioner
for the taxable year 1998, one to the Jacumba address (at P.O.
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Box 444) and one to the Lemon Grove address.3 Respondent also
offered petitioner’s letter of December 18, 2001, to the
Secretary of the Treasury concerning the examination of
petitioner’s 1998 return and the examining agent’s decision to
issue a notice of deficiency. Attached to that letter was a
December 14, 2001, letter to petitioner from the examining agent
advising petitioner that a statutory notice of deficiency would
be issued for 1998 and confirming petitioner’s request that his
address be changed to the Lemon Grove address.4
The Appeals officer who conducted petitioner’s hearing
testified that she reviewed petitioner’s administrative file for
1998 in connection with his hearing request. According to the
Appeals officer, the administrative file contained copies of
duplicate notices of deficiency for petitioner’s 1998 taxable
year issued on January 24, 2002, one addressed to petitioner at
the Jacumba address and another addressed to petitioner at the
Lemon Grove address. The original of the notice of deficiency
sent to the Jacumba address was also in the file, having been
3
We deferred ruling on petitioner’s objection to the
admission of the certified mail list at trial, allowing the
parties to address the issue further on brief. Petitioner failed
to file a posttrial brief. We conclude that the mail list is
admissible under Fed. R. Evid. 803(6) and 902(11). Petitioner
was given a copy of the mail list (and accompanying declaration)
in advance of trial and had a fair opportunity to challenge them.
4
The Dec. 14, 2001, letter gave the city in the Lemon Grove
address as San Diego, but the ZIP code was the same as that used
for Lemon Grove.
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returned by the USPS as unclaimed. The envelope with this
original contained USPS notations indicating that delivery had
been attempted three times, on January 25, February 8, and
February 18, 2002. The foregoing testimony was corroborated by
the Appeals officer’s handwritten notes made when she reviewed
the administrative file and by her typed notations in the case
activity record made at about the same time.
Sometime between the issuance of the notice of determination
and the trial in this case, respondent lost or misplaced
petitioner’s administrative file for 1998.5 As a consequence,
the aforementioned copies and original of the notices of
deficiency are not in the record. Nonetheless, in appropriate
circumstances a USPS Form 3877 is sufficient to show that a
notice of deficiency was sent and delivered, where the evidence
to the contrary is insubstantial. See United States v. Zolla,
supra; Sego v. Commissioner, supra; Figler v. Commissioner,
supra. The Appeals officer’s testimony, fully corroborated by
contemporaneous notes, persuades us that a notice of deficiency
in final form existed. This evidence distinguishes this case
from Pietanza v. Commissioner, 92 T.C. 729 (1989), affd. without
published opinion 935 F.2d 1282 (3d Cir. 1991), and Butti v.
5
The Appeals officer’s handwritten notes and the case
activity record pertaining to petitioner’s hearing request were
part of a “collection due process” file maintained by
respondent’s Appeals Office that was not a part of petitioner’s
administrative file that was lost.
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Commissioner, T.C. Memo. 2008-82, where the taxpayers’
administrative files had been lost and the Commissioner’s
evidence did not establish that notices of deficiency ever
existed.
The evidence that petitioner has adduced in contravention of
the presumption of official regularity is unpersuasive. He
contends that no notice of deficiency for 1998 was issued to him
because his IMF does not contain the code entry “TC 494”, which
indicates that a statutory notice of deficiency has been issued.
The Appeals officer, while acknowledging that a TC 494 entry so
indicates, nonetheless testified that such an entry is not
mandatory and that she rarely sees one.6
Petitioner makes much of the fact that the notice of
determination described the Jacumba address as “P.O. Box 141”
when the correct address was “P.O. Box 444”. The Appeals officer
testified that the notice of determination merely had a
typographical error and that the notice of deficiency she
examined contained the correct address. The documentary evidence
supports the Appeals officer’s position. Her testimony is
6
We note in this regard that the Internal Revenue Manual
(IRM) describes circumstances under which a statutory notice of
deficiency will be issued without entry of code TC 494 on the
taxpayer’s transcript of account. See IRM, pt. 2.4.35.1(4) (Jan.
1, 2009); see also Wiley v. United States, 77 AFTR 2d 640, 96-1
USTC par. 50,089 (S.D. Ohio 1995) (citing instances where notices
of deficiency are issued without entry of a TC 494 code on the
taxpayer’s transcript of account), affd. without published
opinion 108 F.3d 1378 (6th Cir. 1997).
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corroborated by her contemporaneous notes, which describe the
address on the notice of deficiency she examined as “P.O. Box
444”, and the USPS Form 3877 records the notice of deficiency as
having been mailed to “P.O. Box 444”.
Petitioner stipulated that he maintained a post office box
as noted at the Jacumba address during the first 6 months of
2002. The USPS Form 3877 records that a notice of deficiency for
1998 was sent to the Jacumba address on January 24, 2002. We
further note that petitioner was aware in December 2001 that
respondent had decided to issue a notice of deficiency to
petitioner for 1998. The Appeals officer’s contemporaneous notes
of her examination of the now-lost original notice of deficiency,
sent to the Jacumba address and returned, record that USPS
markings on the envelope indicated notifications to the address
on three occasions: January 25, February 8, and February 18,
2002. Petitioner denies receipt, testifying that he was away on
a 2-week vacation beginning January 21, 2002. Since a 2-week
vacation beginning January 21, 2002, ended on February 4, 2002,
petitioner’s explanation does not account for the latter two
notifications.
We find that petitioner’s evidence is insufficient to
overcome the presumption of regularity and of delivery arising
from the Form 3877, as corroborated by the Appeals officer’s
contemporaneous notes of the multiple USPS notifications to the
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addressee. Accordingly, the notice of deficiency sent to the
Jacumba address is sufficient to preclude petitioner’s challenge
to the underlying tax liability for 1998 pursuant to section
6330(c)(2)(B). See Sego v. Commissioner, 114 T.C. 604 (2000);
Figler v. Commissioner, T.C. Memo. 2005-230.
A like result arises from the notice of deficiency mailed to
the Lemon Grove address. The USPS Form 3877 in evidence likewise
records that a notice of deficiency for 1998 was sent by
certified mail to the Lemon Grove address on January 24, 2002.
In his testimony, petitioner denied receipt but was evasive
concerning when he commenced use of the Lemon Grove address.
Petitioner testified that he had not advised respondent of the
Lemon Grove address until sometime after the 1998 notice of
deficiency had been mailed (in January 2002). Petitioner’s
testimony is contradicted by the attachment to his December 18,
2001, letter to the Secretary of the Treasury, which demonstrates
that petitioner had advised respondent by that time to use the
Lemon Grove address. Since petitioner’s testimony concerning the
Lemon Grove address was evasive and at best unreliable, he has
failed to overcome the presumption of official regularity and of
delivery arising from the USPS Form 3877. Accordingly, in the
alternative, the notice of deficiency sent to the Lemon Grove
address is sufficient to preclude petitioner’s challenge to the
underlying tax liability for 1998 pursuant to section
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6330(c)(2)(B). See Sego v. Commissioner, supra; Figler v.
Commissioner, supra. Therefore, the underlying tax liability is
not properly at issue.7
B. Refusal To Permit Petitioner To Record the Hearing
Petitioner contends that the Appeals officer abused her
discretion by refusing to permit him to make an audio recording
of his conference, contrary to the holding of this Court in Keene
v. Commissioner, 121 T.C. 8 (2003). He argues that the lack of
an audio recording of the conference precludes us from
determining what issues he raised in connection with his hearing.
A taxpayer is entitled under section 7521(a)(1) to make an
audio recording of a conference held as part of his section 6330
hearing. Keene v. Commissioner, supra at 19. In Keene, where
the taxpayer had refused to continue with the conference when the
permission to record was denied, we remanded the case to the
Appeals Office because there was no administrative record on
which to decide the relevant issues. However, we have declined
to remand cases where the taxpayer participated in the hearing,
even though unrecorded, and where all issues the taxpayer raised
could be properly decided from the existing record. Id. at 19-
20; Frey v. Commissioner, T.C. Memo. 2004-87; Durrenberger v.
7
In view of this conclusion, we sustain petitioner’s
objection to the admission of certain pages from the Web site of
petitioner’s purported insurance business, as this evidence of
petitioner’s income-producing activities in 1998 is irrelevant.
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Commissioner, T.C. Memo. 2004-44; Brashear v. Commissioner, T.C.
Memo. 2003-196; Kemper v. Commissioner, T.C. Memo. 2003-195.
Petitioner fully participated in his face-to-face
conference, accompanied by a third-party witness. Subsequently,
petitioner and his witness each prepared written statements
(styled as affidavits) memorializing what transpired at the
conference, which were submitted to the Appeals officer and are
part of the administrative record. The Appeals officer also made
entries in the case activity record to memorialize what took
place at the conference. These three roughly contemporaneous
written accounts agree in all material aspects regarding what
issues were raised. We are satisfied that the available evidence
in the administrative record establishes what transpired at the
face-to-face conference. It is therefore unnecessary and would
be unproductive to remand this case to the Appeals Office. See
Frey v. Commissioner, supra; Durrenberger v. Commissioner, supra;
Brashear v. Commissioner, supra; Kemper v. Commissioner, supra.
C. Validity of the Assessment of the Underlying Tax
Liability
Petitioner contends that the assessment of his 1998 tax
liability was invalid, as shown by the presence or absence of
certain codes from his IMF. We have already addressed
petitioner’s contention that the absence of a TC 494 code
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indicates that no notice of deficiency had been issued.8 With
respect to any other aspect of petitioner’s challenge to the
validity of the assessment, section 6330(c)(1) directs that the
hearing officer shall at the hearing obtain verification from the
Secretary that the requirements of any applicable law or
administrative procedure have been met, and section 6330(c)(3)(A)
provides that the determination shall take this verification into
account. See Hoyle v. Commissioner, 131 T.C. at ___ (slip op. at
8). Section 6330(c)(1) imposes on the hearing officer the
responsibility “to obtain verification that the legal and
administrative requirements for a proper assessment * * * have
been met.” Clough v. Commissioner, T.C. Memo. 2007-106.
The Appeals officer examined copies and originals of notices
of deficiency issued to petitioner that were in the
administrative file. On the basis of the returned original with
the USPS markings indicating three notifications to the
addressee, she concluded that a notice of deficiency had been
mailed to petitioner on January 24, 2002, and that he had refused
8
Petitioner also argued that an “SCS-1” code on his IMF
indicated that another taxpayer might be using his Social
Security number and that a “VAL-1” code indicated that his Social
Security number was invalid. Petitioner’s arguments with respect
to these codes, apparently designed to engender doubt that
petitioner was the earner of some of the income reported to
respondent in connection with petitioner’s Social Security
number, are more properly characterized as challenges to the
underlying tax liability, which we have held are precluded in
this proceeding.
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to claim it. Given petitioner’s concession that he maintained
the Jacumba address post office box at this time, we are
satisfied with the Appeals officer’s verification of the mailing
of the notice of deficiency. The Appeals officer further
consulted a Form 4340 for petitioner’s 1998 tax year to verify
that petitioner’s 1998 tax liability was assessed on June 17,
2002, and that a notice and demand for payment letter was mailed
to petitioner within 60 days of assessment. Petitioner having
demonstrated no infirmity in the foregoing, we conclude that the
Appeals officer satisfied section 6330(c)(1), including verifying
that the assessment of the underlying liability was properly
made.
D. Petitioner’s Claim That Other Issues Were Raised at the
Hearing
Petitioner contends that he either raised or attempted to
raise collection alternatives, a section 66(c) spousal relief
claim, and respondent’s failure to abate interest under section
6404(g) in connection with his hearing.9
On the basis of the administrative record, as supplemented
by the testimony at trial, we are not persuaded that petitioner
9
Petitioner’s contentions also include claims more properly
characterized as challenges to the underlying tax liability, such
as a claim that his income for 1998 should be attributed in part
to his wife because of California’s community property laws. As
previously concluded, petitioner is precluded from challenging
the underlying liability pursuant to sec. 6330(c)(2)(B).
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raised or attempted to raise these other issues.10 Particularly
persuasive are the letters sent by petitioner and his witness to
the Appeals officer shortly after the conference, which
summarized the issues that had been raised. These
contemporaneous written statements lack any reference whatever to
the additional issues petitioner claims he attempted to raise at
the conference. Petitioner’s contention that both he and his
witness forgot to list these additional issues in the written
statements is not credible. The written statements are not only
detailed, but they are also consistent with the agenda petitioner
gave the Appeals officer at the conference, as well as the
Appeals officer’s contemporaneous notes of what took place at the
conference and her testimony at trial. Petitioner’s testimony at
trial with respect to several other matters was often evasive.
He was, as previously noted, evasive regarding when he notified
respondent to use the Lemon Grove address, which petitioner
understood was an important issue in the case. Under these
10
On the basis of the agenda and his postconference letters,
we find that petitioner did raise a challenge to a frivolous
return penalty under sec. 6702 for 1998. With respect to
determinations made before Oct. 17, 2006, we have held that we
lack jurisdiction over a sec. 6702 penalty. See Johnson v.
Commissioner, 117 T.C. 204, 208 (2001); Dunbar v. Commissioner,
T.C. Memo. 2006-184. But see Wagenknecht v. United States, 509
F.3d 729 (6th Cir. 2007). However, petitioner’s IMF, which is
part of the administrative record, records that the penalty was
assessed on Mar. 27, 2000, and paid by virtue of offset on the
same day. The penalty was therefore not a subject of the levy
and is not any part of the underlying tax liability at issue in
this case.
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circumstances, we do not accept petitioner’s self-serving
testimony that he raised other issues that were not addressed in
the notice of determination.
III. Other Requirements
As discussed supra, the Appeals officer verified that the
requirements of applicable law and administrative procedure had
been met. She further took into account whether the proposed
collection action balanced the need for the efficient collection
of taxes with the legitimate concern of petitioner that the
collection action be no more intrusive that necessary. See sec.
6330(c)(3). Petitioner has identified no specific infirmities in
the foregoing not heretofore addressed.
To reflect the foregoing,
Decision will be entered
for respondent.