ERIC ONYANGO, PETITIONER v. COMMISSIONER
OF INTERNAL REVENUE, RESPONDENT
Docket Nos. 27788–11L, 19081–12L. Filed June 24, 2014.
On several occasions the U.S. Postal Service (Postal Service)
attempted, albeit unsuccessfully, to deliver to P a notice of
deficiency that R had mailed to him by certified mail, return
receipt requested, and addressed to his legal residence. On at
least two occasions the Postal Service left notices of attempted
delivery of the certified mail which contained the notice of
deficiency at the address of P’s legal residence. In those
notices, the Postal Service informed P that it had certified
mail to deliver to him and that he had to sign a receipt for
425
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426 142 UNITED STATES TAX COURT REPORTS (425)
that mail before the Postal Service would deliver it to him. P
declined to check on a regular basis his mailbox at his legal
residence and to retrieve on a regular basis any Postal Service
mail items delivered there. After several unsuccessful
attempts to deliver the certified mail in question to P at his
legal residence, the Postal Service returned it to R. Held: P
may not decline to retrieve his Postal Service mail, when he
was reasonably able and had multiple opportunities to do so,
and thereafter successfully contend that he did not receive for
purposes of I.R.C. sec. 6330(c)(2)(B) a notice of deficiency.
Held, further, we reject P’s contention that he is entitled
under I.R.C. sec. 6330(c)(2)(B) to dispute the underlying tax
liability to which that notice of deficiency pertained.
Eric Onyango, pro se.
Lauren N. May and K. Elizabeth Kelly, for respondent.
CHIECHI, Judge: These cases arise from petitions filed in
response to respective notices of determination concerning
collection action(s) under section 6320 and/or 6330 1 dated
November 3, 2011, and June 25, 2012, with respect to peti-
tioner’s taxable years 2006, 2007, 2008, and 2009.
The only issue presented here is whether petitioner is enti-
tled under section 6330(c)(2)(B) to dispute the underlying tax
liability for his taxable year 2006. 2 We hold that he is not.
1 All section references are to the Internal Revenue Code in effect at all
relevant times. All Rule references are to the Court’s Rules of Practice and
Procedure.
2 The parties stipulated in pertinent part as follows: ‘‘The only aspect of
the determinations set forth in the notices of determination [dated Novem-
ber 3, 2011, and June 25, 2012] that petitioner disputes in these cases is
petitioner’s correct tax liability for tax year 2006.’’ At the beginning of the
trial in these cases, petitioner advised the Court that he was unable to tes-
tify about matters relating to claimed expenses that he asserted would es-
tablish his correct Federal income tax (tax) liability for his taxable year
2006. In the light of petitioner’s claimed inability to present any such evi-
dence and the significant delays that had already occurred in the disposi-
tion of these cases, the Court decided to conduct a partial trial in order
to determine the threshold issue of whether petitioner is entitled to dis-
pute the underlying tax liability for his taxable year 2006. The Court in-
formed the parties at the beginning of that partial trial that if it were to
find on the basis of the evidence adduced at that partial trial that peti-
tioner is entitled to dispute the underlying tax liability for his taxable year
2006, a further trial would be required at which petitioner would be able
to present evidence to establish what he claims is his correct tax liability
for that year. The Court further informed the parties that if it were to find
on the basis of the evidence adduced at the partial trial that petitioner is
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(425) ONYANGO v. COMMISSIONER 427
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
At all relevant times, including when he filed the respec-
tive petitions in these cases, petitioner’s legal residence was
222 North Columbus Drive, No. 1507, Chicago, Illinois 60601
(Columbus Drive apartment). 3
Petitioner timely filed a tax return for his taxable year
2006. In that return, petitioner reported total tax of $1,606
for that year.
At a time not established by the record, petitioner sub-
mitted to respondent an amended tax return for his taxable
year 2006 (September 23, 2008 amended 2006 return) that
his return preparer had signed and dated September 23,
2008. In that amended return, petitioner reported, inter alia,
an increase of $2,168 in his tax liability for his taxable year
2006 or total tax of $3,774 (petitioner’s reported increased
2006 tax liability). Respondent filed and processed peti-
tioner’s September 23, 2008 amended 2006 return and
changed petitioner’s tax liability in respondent’s records to
reflect petitioner’s reported increased 2006 tax liability of
$3,774.
At a time not established by the record, but after
respondent issued to petitioner a notice of deficiency for his
taxable years 2006 and 2007 (discussed below), petitioner
submitted to respondent a second amended tax return for his
taxable year 2006 (June 23, 2011 amended 2006 return) that
his return preparer had signed and dated June 23, 2011. In
that amended return, petitioner reported, inter alia, an
increase of $11,255 in his tax liability for his taxable year
2006 or total tax of $15,029. Respondent did not file and
process petitioner’s June 23, 2011 amended 2006 tax return,
which, as noted above, petitioner filed after respondent
issued the notice of deficiency for his taxable years 2006 and
2007.
not entitled to dispute the underlying tax liability for his taxable year
2006, no further trial would be required in the light of the parties’ stipula-
tion as to what is petitioner’s only dispute in these cases.
3 The address of petitioner’s Columbus Drive apartment was his address
at the time respondent issued to petitioner the notice of deficiency for his
taxable years 2006 and 2007 (discussed below) as well as at the time peti-
tioner filed the petitions and at the time of the partial trial in these cases.
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428 142 UNITED STATES TAX COURT REPORTS (425)
An agent of respondent (examining agent) conducted an
examination of petitioner’s taxable years 2006 and 2007.
Respondent proposed certain adjustments to petitioner’s Sep-
tember 23, 2008 amended 2006 return on the basis of that
examination. A representative (Appeals officer) of respond-
ent’s Appeals Office in Chicago, Illinois, contacted petitioner
by letter addressed to his Columbus Drive apartment and
scheduled a meeting with him to discuss those proposed
adjustments. Petitioner did not appear at that scheduled
meeting. Thereafter, in the spring or early summer of 2010,
the Appeals officer sent petitioner another letter addressed to
his Columbus Drive apartment advising him that if he did
not contact the Appeals officer within 20 days, a notice of
deficiency would be issued to him for his taxable years 2006
and 2007.
On August 6, 2010, respondent issued to petitioner a notice
of deficiency for his taxable years 2006 and 2007 (2006–2007
notice of deficiency) that was addressed and mailed by cer-
tified mail, return receipt requested, to petitioner’s Columbus
Drive apartment. 4 In the 2006–2007 notice of deficiency,
respondent determined, inter alia, a deficiency in, and an
accuracy-related penalty under section 6662(a) on, peti-
tioner’s tax for his taxable year 2006 of $14,987 and
$2,997.40, respectively. 5 Petitioner did not timely file a peti-
tion with respect to the 2006–2007 notice of deficiency.
On several occasions the U.S. Postal Service (Postal
Service) attempted, albeit unsuccessfully, to deliver the
2006–2007 notice of deficiency to petitioner at the address of
his Columbus Drive apartment. On at least two occasions the
Postal Service left notices of attempted delivery of certified
mail at that address. In those notices, the Postal Service
informed petitioner that it had certified mail to deliver to
him and that he had to sign a receipt for that mail before
the Postal Service would deliver it to him.
At a time not established by the record that was not later
than late October or early November 2010, 6 petitioner
4 See
supra note 3.
5 The
determinations that respondent made in the 2006–2007 notice of
deficiency were made with respect to the various amounts that petitioner
reported in his September 23, 2008 amended 2006 return.
6 Petitioner testified that he found the notices from the Postal Service
‘‘around late October or early November’’ 2010 and went to his local Postal
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(425) ONYANGO v. COMMISSIONER 429
checked his mailbox at his Columbus Drive apartment and
found at least two notices of attempted delivery of certified
mail from the Postal Service. In those notices, the Postal
Service informed petitioner that it had certified mail from a
sender, who was not identified on those notices, and that he
should retrieve and sign for that certified mail at his local
Postal Service office. At the time not established by the
record 7 when petitioner went to his local Postal Service office
the certified mail to which the notices from the Postal
Service pertained had been returned to the sender as
unclaimed.
Petitioner spent around 30 to 40% of the period August to
December 2010, including sleeping overnight, at his Colum-
bus Drive apartment and the remainder of that period
staying with friends. He returned to and stayed at that
apartment during each of the months August through
October 2010.
At all relevant times, including during the period August
to December 2010, petitioner received certain bills online and
certain other bills through the Postal Service mail system at
his Columbus Drive apartment. Petitioner declined to check
on a regular basis his mailbox at that apartment and to
retrieve on a regular basis any Postal Service mail items
delivered there. He usually disregarded and rarely opened
the bills that he received through the Postal Service mail
system at his Columbus Drive apartment and did not depend
on that mail system as a reminder to pay bills that were sent
to him through that system. Instead, the reminder that he
often used to pay the utility bills that he received through
the Postal Service mail system was the utility companies’
disconnection of his utilities for failure to pay utility bills
that were due.
On May 24, 2011, respondent issued to petitioner a notice
of intent to levy and notice of your right to a hearing (notice
of intent to levy) for his taxable years 2006, 2007, and 2008.
Service office after he found those notices. As discussed below, we are un-
willing to rely on petitioner’s testimony to establish the date around which
petitioner checked his mailbox at his Columbus Drive apartment and
found the two notices in question from the Postal Service (discussed in the
text) and went to his local Postal Service office with those notices.
7 See supra note 6.
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430 142 UNITED STATES TAX COURT REPORTS (425)
On June 6, 2011, respondent received from petitioner Form
12153, Request for a Collection Due Process or Equivalent
Hearing, with respect to the notice of intent to levy (Form
12153 concerning proposed levy), in which petitioner
requested a hearing with respect to that notice.
The settlement officer in respondent’s Appeals Office
assigned to petitioner’s Form 12153 concerning proposed levy
spoke with petitioner by telephone about that matter.
On November 3, 2011, respondent’s Appeals Office issued
to petitioner a notice of determination concerning collection
action(s) under section 6330, in which that office sustained
the notice of intent to levy.
On June 7, 2011, respondent issued to petitioner a notice
of Federal tax lien filing and your right to a hearing under
I.R.C. 6320 (notice of Federal tax lien filing) for his taxable
years 2006, 2007, and 2008.
On July 8, 2011, respondent received from petitioner Form
12153 with respect to the notice of Federal tax lien filing
(Form 12153 concerning tax lien filing), in which petitioner
requested a hearing with respect to that notice.
On June 5, 2012, after petitioner provided certain docu-
mentation to the settlement officer in respondent’s Appeals
Office assigned to petitioner’s Form 12153 concerning tax
lien filing, that settlement officer spoke by telephone with
petitioner about that matter.
On June 25, 2012, respondent’s Appeals Office issued to
petitioner a notice of determination concerning collection
action(s) under section 6320 and/or 6330, in which that office
sustained the tax lien filing.
OPINION
The only issue presented here is whether petitioner is enti-
tled under section 6330(c)(2)(B) to dispute the underlying tax
liability for his taxable year 2006. 8 A person may dispute the
existence or the amount of the underlying tax liability for
any tax period if the person did not receive a notice of defi-
ciency for that tax liability or did not otherwise have the
opportunity to dispute that tax liability. Id.
It is petitioner’s position that he is entitled under section
6330(c)(2)(B) to contest the underlying tax liability for his
8 See supra note 2.
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(425) ONYANGO v. COMMISSIONER 431
taxable year 2006. In support of that position, petitioner con-
tends that although respondent mailed to him by certified
mail, return receipt requested, the 2006–2007 notice of defi-
ciency that was addressed to his Columbus Drive apart-
ment, 9 he did not receive that notice within the 90-day
period during which he could have filed a petition with the
Court with respect to that notice. In support of that conten-
tion, petitioner relies on his testimony at the partial trial in
these cases.
Respondent counters that although the Postal Service
returned to respondent the 2006–2007 notice after several
unsuccessful attempts to deliver it to petitioner at the
address of his Columbus Drive apartment, petitioner ‘‘chose
not to accept delivery.’’ According to respondent, petitioner’s
testimony to the contrary is not credible and ‘‘should be given
no weight.’’
We agree with respondent that petitioner’s testimony is
not credible in certain material respects and thus is unreli-
able. However, even if we accept petitioner’s testimony that
he did not know until late October or early November 2010
about the notices from the Postal Service of attempted
delivery of certified mail (i.e., the 2006–2007 notice of defi-
ciency) and that when he went to his local Postal Service
office with those notices the Postal Service had already
returned the certified mail to the sender, we nonetheless
reject his contention that he is entitled under section
6330(c)(2)(B) to dispute the underlying tax liability for his
taxable year 2006. That is because petitioner’s testimony
establishes that, even though he spent at his Columbus
Drive apartment around 30 to 40% of the period August to
December 2010, including staying and sleeping overnight
there during each of the months August through October
2010, he declined to check on a regular basis his mailbox at
that apartment and to retrieve on a regular basis any Postal
Service mail items delivered there. And petitioner did so
despite the fact that on August 6, 2010, when respondent
mailed to him the 2006–2007 notice of deficiency that was
addressed to his Columbus Drive apartment, he knew that
(1) respondent’s Appeals Office in Chicago was considering
the adjustments that respondent’s examining agent had pro-
9 See supra note 3.
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432 142 UNITED STATES TAX COURT REPORTS (425)
posed with respect to his taxable years 2006 and 2007; (2) an
Appeals officer in that office had contacted him by letter and
scheduled a meeting with him to discuss those proposed
adjustments; (3) he did not appear at that meeting; and (4)
thereafter, in the spring or early summer of 2010, that
Appeals officer sent him another letter advising him that if
he did not contact the Appeals officer within 20 days, a
notice of deficiency would be issued to him for his taxable
years 2006 and 2007.
On the record before us, we hold that petitioner may not
decline to retrieve his Postal Service mail, when he was
reasonably able and had multiple opportunities to do so, and
thereafter successfully contend that he did not receive for
purposes of section 6330(c)(2)(B) the 2006–2007 notice of defi-
ciency. On that record, we reject petitioner’s contention that
he is entitled under that section to dispute the underlying
tax liability for his taxable year 2006.
To reflect the foregoing, 10
Decisions will be entered for respondent.
f
10 See supra note 2.
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