T.C. Memo. 2011-287
UNITED STATES TAX COURT
EZEKIEL KAMPS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22655-09L. Filed December 14, 2011.
Ezekiel Kamps, pro se.
Kevin R. Erskine, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
HAINES, Judge: Petitioner filed a petition with this Court
in response to a Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 (notice of
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determination) for 2002 through 2005 (years at issue).1 Pursuant
to section 6330(d), petitioner seeks review of respondent’s
determination. The issue for decision is whether respondent
may proceed with the proposed collection actions.
FINDINGS OF FACT
Some of the facts have been stipulated. The stipulation of
facts and the accompanying exhibits are incorporated by this
reference. Petitioner resided in Michigan at the time of filing
his petition.
Petitioner received a Form W-2, Wage and Tax Statement, from
Ron Miedema Concrete, Inc. (Ron Miedema), reporting his wages for
each of the years at issue. Petitioner also received a Form
1099-MISC, Miscellaneous Income, reporting his miscellaneous
income from Ron Miedema for 2005. Petitioner did not file income
tax returns for the years at issue. Consequently, respondent
prepared a substitute for return for petitioner for each of the
years at issue pursuant to section 6020(b). Petitioner also
failed to file income tax returns for 2006-08.
Respondent did not introduce into evidence the original or a
copy of the notice of deficiency for each of the years at issue,
and petitioner denies ever receiving any. Respondent did
1
All section references are to the Internal Revenue Code, as
amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure. Amounts are rounded to the nearest
dollar.
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introduce Substitute U.S. Postal Service Form 3877 (Form 3877), a
mailing list form of the Postal Service that is prepared for and
used by the Internal Revenue Service (IRS) to identify items
mailed by certified mail or registered mail. Form 3877 indicates
that respondent mailed petitioner a notice of deficiency for each
of the years at issue to his last known address.
On January 9, 2009, Letter 1058, Final Notice of Intent to
Levy and Your Right to a Hearing (notice of levy), was mailed to
petitioner with respect to the years at issue. On February 9,
2009, petitioner submitted a request for a collection due process
or equivalent hearing (CDP hearing). He requested a face-to-face
meeting and stated that he had not previously had the chance to
challenge the underlying tax liabilities.
On April 23, 2009, Settlement Officer Denise Williams
(Williams) sent petitioner a letter scheduling a telephone
conference for May 19, 2009, which, among other things, warned
petitioner that a failure to participate in the telephone
conference or to respond to the letter would result in a
determination based on the information in the administrative
file. The letter also informed petitioner that his request for a
face-to-face CDP hearing was denied because he had failed to file
all required tax returns. Petitioner did not participate in the
telephone conference. On May 20, 2009, Williams sent petitioner
a letter informing him that a determination would be made on the
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basis of the administrative file and that he had 14 days to send
in any information he would like to have considered.
On May 28, 2009, Williams received an undated letter from
petitioner stating that the May 19, 2009, telephone conference
was scheduled without contacting him regarding his availability.
Petitioner stated that he did not receive a notice of deficiency
with respect to the underlying tax liabilities and again
requested a face-to-face conference. On June 15, 2009, Williams
responded that petitioner’s arguments either were frivolous or
reflected a desire to delay or impede the administration of
Federal tax laws. Williams asked petitioner to amend his CDP
hearing request within 30 days by stating, in writing, legitimate
issues and withdrawing the frivolous and/or desire-to-delay
issues. Williams warned petitioner that if he failed to submit a
nonfrivolous argument, she would disregard his hearing request
and return his case to the Collections Division. She further
stated that if he submitted a legitimate reason for his dispute,
she would schedule his hearing. Petitioner did not respond to
this letter.
On July 15, 2009, Williams sent petitioner another letter,
scheduling a telephone conference for August 12, 2009. The
letter attributed petitioner’s underlying tax liability to income
earned from Ron Miedema during the years at issue. Williams
again warned petitioner that his failure to participate in the
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telephone conference or to respond to the letter would result in
a determination based on the information in the administrative
file. Petitioner did not participate in the telephone
conference. Rather, on August 6, 2009, petitioner sent Williams
a response, again claiming that he did not receive a notice of
deficiency for each of the years at issue and asking for a face-
to-face CDP hearing. Petitioner’s response did not state any
other reason for disputing his underlying tax liability.
On August 17, 2009, respondent issued a notice of
determination sustaining the notice of levy for the years at
issue. On September 15, 2009, petitioner timely filed a petition
with this Court.2
OPINION
I. General Rules
Section 6321(a) provides that if any person liable to pay
any tax neglects or refuses to pay after demand, the Secretary
can collect such tax by placing a lien on the person’s property
2
On Sept. 25, 2009, the Court ordered petitioner to file an
amended petition on or before Nov. 9, 2009, to conform with the
Tax Court Rules of Practice and Procedure. On Dec. 9, 2009, the
Court extended petitioner’s deadline to file an amended petition
to Dec. 31, 2009. Petitioner failed to file an amended petition
on time. Thus, on Jan. 15, 2010, the Court dismissed this case
for lack of jurisdiction. On Feb. 22, 2010, petitioner filed a
motion to vacate the Court’s order dismissing this case.
Petitioner concurrently filed his amended petition. On Mar. 5,
2010, the Court vacated its order dismissing this case for lack
of jurisdiction and ordered the Clerk of the Court to file
petitioner’s amended petition.
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or rights to property. Section 6331(a) provides that, if any
person liable to pay any tax neglects or refuses to do so within
10 days after notice and demand, the Secretary can collect such
tax by levy upon property belonging to such person. However, the
Secretary is required to give the taxpayer written notice of his
intent to file a lien or to levy and must describe the
administrative review available to the taxpayer before
proceeding. Secs. 6320(a), 6330(a).
Section 6330(b) describes the administrative review process,
providing that a taxpayer can request a hearing with the Appeals
Office with regard to a levy notice. At the hearing the taxpayer
may raise certain matters set forth in section 6330(c)(2), which
include appropriate spousal defenses, challenges to the
appropriateness of collection actions, and offers of collection
alternatives. Further, a taxpayer may dispute the underlying tax
liability for any tax period if the taxpayer did not receive a
notice of deficiency for the tax liability or did not otherwise
have an opportunity to dispute the tax liability. Sec.
6330(c)(2)(B). Frivolous arguments, however, are not relevant
issues in a hearing. Pierson v. Commissioner, 115 T.C. 576
(2000). “A taxpayer’s position is frivolous or groundless if it
is contrary to established law and unsupported by a reasoned,
colorable argument for change in the law.” Smith v.
Commissioner, T.C. Memo. 2000-290.
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Following a hearing, the Appeals Office must make a
determination whether the proposed lien or levy action may
proceed. In so doing, the Appeals Office is required to take
into consideration the verification presented by the Secretary
that the requirements of applicable law and administrative
procedure have been met, the issues raised by the taxpayer, and
whether the proposed levy action appropriately balances the need
for efficient collection of taxes with a taxpayer’s concerns
regarding the intrusiveness of the proposed collection action.
Sec. 6330(c)(3).
Pursuant to section 6330(d)(1), within 30 days of the
issuance of the notice of determination the taxpayer may appeal
that determination to this Court. Although section 6330 does not
prescribe the standard of review that we are to apply in
reviewing the Commissioner’s administrative determinations, we
have stated that where the validity of the underlying tax
liability is properly at issue, we will review the matter de
novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza v.
Commissioner, 114 T.C. 176, 181-182 (2000). Where the validity
of the underlying tax liability is not properly at issue,
however, we will review the Commissioner’s administrative
determination for abuse of discretion. Sego v. Commissioner,
supra at 610; Goza v. Commissioner, supra at 182.
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II. CDP Hearing
Petitioner argues that he was entitled to dispute his
underlying tax liabilities at a CDP hearing. Respondent counters
that petitioner was precluded from disputing the liabilities
because he received a notice of deficiency for each of the years
at issue.
Section 6330(c)(2)(B) contemplates actual receipt of a
notice of deficiency by the taxpayer, Tatum v. Commissioner, T.C.
Memo. 2003-115, although a taxpayer may not avoid actual receipt
by deliberately refusing delivery, Sego v. Commissioner, supra at
610-611. The Commissioner has generally prevailed in foreclosing
challenges to the underlying liability under section
6330(c)(2)(B) where he establishes that a notice of deficiency
was mailed to the taxpayer’s last known address and no factors
are present that rebut the presumption of official regularity and
of delivery. See, e.g., id.; Clark v. Commissioner, T.C. Memo.
2008-155.
The Commissioner bears the burden of proving by competent
and persuasive evidence that the notice of deficiency was
properly mailed. Coleman v. Commissioner, 94 T.C. 82, 90 (1990);
August v. Commissioner, 54 T.C. 1535, 1536-1537 (1970). The act
of mailing may be proven by documentary evidence of mailing or by
evidence of the Commissioner’s mailing practices corroborated by
direct testimony. Coleman v. Commissioner, supra at 90.
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In appropriate circumstances Form 3877 is sufficient to show
that a notice of deficiency was sent and delivered. United
States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Sego v.
Commissioner, supra at 611; Figler v. Commissioner, T.C. Memo.
2005-230. The Court of Appeals for the Sixth Circuit, the Court
to which an appeal in this case would be heard, has held that
Form 3877 is highly probative evidence that the notice of
deficiency was sent by certified mail and in the absence of
contrary evidence is sufficient to establish that fact. Wiley v.
United States, 20 F.3d 222 (6th Cir. 1994); Golsen v.
Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445 F.2d 985
(10th Cir. 1971).
For each of the years at issue, respondent has provided a
Form 3877 as proof of mailing. A Form 3877 creates a presumption
of mailing absent evidence to the contrary. Petitioner’s correct
address is noted on the Form 3877 for each year at issue, as is
the date of mailing. Petitioner has failed to present any
evidence to dispute mailing. Rather, petitioner has done nothing
but request affirmative proof of mailing from respondent. The
Form 3877 is sufficient proof.
On its face, this case appears to be similar to Pietanza v.
Commissioner, 92 T.C. 729 (1989), affd. without published opinion
935 F.2d 1282 (3d Cir. 1991), where we held that the Commissioner
could not rely on Form 3877 to prove mailing where the
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Commissioner failed to produce the taxpayers’ notice of
deficiency. In Pietanza, as here, the Commissioner (1) had no
copies of a notice of deficiency, (2) did not establish that a
final notice of deficiency ever existed, and (3) relied on Form
3877. In that case, however, we held that the taxpayers rebutted
the presumption of mailing created by Form 3877. Id. at 736.
Communications between the taxpayers and the IRS raised doubts as
to the accuracy of the date of mailing shown on the Form 3877.
Id. at 739. Petitioner has not presented similar evidence in
this case, and absent any such evidence, this case is clearly
distinguishable from Pietanza.
In the absence of clear evidence to the contrary, receipt of
the notice of deficiency will be presumed upon proof of mailing.
Sego v. Commissioner, supra at 611. Outside of petitioner’s and
his wife’s self-serving testimony denying receipt, petitioner has
failed to provide any evidence that the mailing procedures were
irregular. Therefore, the presumption of mailing has not been
rebutted, and petitioner was not entitled to contest his
underlying tax liabilities for the years at issue. See sec.
6330(c)(2)(B). Because petitioner was not entitled to contest
his underlying tax liabilities, we review respondent’s decision
to proceed with collection for abuse of discretion.
Petitioner argues that he was improperly denied a face-to-
face hearing for the years at issue. We disagree. We have held
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repeatedly that a hearing conducted under section 6330 is an
informal proceeding, not a formal adjudication. Generally, there
is no abuse of discretion in the IRS’ refusal of a face-to-face
hearing when a taxpayer fails to present nonfrivolous arguments,
file past-due returns, and submit financial statements as a
prerequisite to a collection alternative. See Zastrow v.
Commissioner, T.C. Memo. 2010-215; Rice v. Commissioner, T.C.
Memo. 2009-169; Summers v. Commissioner, T.C. Memo. 2006-219.
Therefore, a face-to-face hearing is not mandatory. Katz v.
Commissioner, 115 T.C. 329, 337-338 (2000); Davis v.
Commissioner, 115 T.C. 35, 41 (2000).
Outside of petitioner’s argument that he did not receive a
notice of deficiency for the years at issue, he has failed to
present a nonfrivolous issue for dispute throughout his dealings
with respondent or the Court. In fact, petitioner testified that
he did not file returns for the years at issue because of his
belief that the income tax is “voluntary” and “optional”. We are
satisfied that a face-to-face hearing would not have been
productive. Accordingly, we find there has not been an abuse of
discretion, and respondent may proceed with collection for the
years at issue.
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In reaching these holdings, the Court has considered all
arguments made and, to the extent not mentioned, concludes that
they are moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.