An appropriate order and decision will be entered.
VASQUEZ, Judge: This case arises from a petition for judicial review filed in response to Notices of Determination Concerning Collection Action(s) Under
Petitioner did not file Federal income tax returns for 2002-07 (years at issue). Consequently, the Internal Revenue Service (IRS) prepared a substitute for return for each of those years pursuant to
On November 7, 2005, October 23, 2006,2015 Tax Ct. Memo LEXIS 35">*36 and December 28, 2009, the IRS mailed petitioner notices of deficiency for 2002, 2003, and 2007, respectively. On December 29, 2008, the IRS mailed him notices of deficiency for 2004, 2005, and 2006. The notices of deficiency were addressed to his address in Sheridan, Wyoming. He did not file a petition with the Court contesting any of the
*31 deficiency determinations, and the IRS assessed his tax liabilities for the years at issue.
II. Petitioner's Collection Due Process (CDP) AppealPetitioner did not pay the assessed tax liabilities for any of the years at issue. On September 27, 2012, the IRS mailed petitioner a Letter 1058, Final Notice of Intent to Levy and Notice of Your Right to a Hearing (levy notice), with respect to his outstanding income tax liabilities for 2003-2007.22015 Tax Ct. Memo LEXIS 35">*37 On October 25, 2012, the IRS mailed petitioner a Letter 3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under
On October 26, 2012, petitioner submitted a Form 12153, Request for a Collection Due Process or Equivalent Hearing, in response to the levy notice. On November 30, 2012, petitioner submitted a Form 12153 in response to the NFTL. On both Forms 12153 petitioner requested a face-to-face CDP hearing and stated his intent to audio record the hearing. Petitioner also stated that he planned to: (1) verify that the IRS had followed proper procedures; (2) challenge the tax *32 liabilities and accrued penalties; and (3) discuss collection alternatives if it could be proven that he owed the tax.
On November 16, 2012, the IRS assigned petitioner's case to Settlement Officer Lynne McDermott of the IRS Office of Appeals (Appeals). As part of her review of petitioner's case, Settlement Officer McDermott examined the proposed assessments, the copies of notices of deficiency, and the certified mailing lists for the years at issue.
On December 11, 2012, Settlement Officer McDermott mailed petitioner a letter relating to the levy action. Settlement Officer McDermott informed petitioner that Appeals had received his request2015 Tax Ct. Memo LEXIS 35">*38 for a CDP hearing and scheduled a telephone CDP hearing for January 31, 2013. On January 14, 2013, Settlement Officer McDermott mailed petitioner a similar letter relating to the lien action.
In both letters Settlement Officer McDermott instructed petitioner to submit the following items: (1) a completed Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, including all required attachments, i.e., earnings statements, bills or statements for monthly recurring expenses, and statements for checking and savings accounts; (2) a completed Form 433-B, Collection Information Statement for Businesses; (3) signed Federal *33 income tax returns for 2008-11 (which had not been filed); and (4) proof that estimated tax payments had been paid in full.
Petitioner did not submit the requested information, nor did he call at the time designated for the telephone CDP hearing. Instead, he mailed Settlement Officer McDermott two letters both dated January 30, 2013. In each letter he requested a copy of the rules that govern CDP hearings, insisted on a face-to-face hearing, and stated that he had not received the notices of deficiency for the years at issue.
On January2015 Tax Ct. Memo LEXIS 35">*39 31, 2013, Settlement Officer McDermott mailed petitioner two "last chance letters" indicating that she would make a determination by reviewing the administrative file and any information he had previously submitted. She advised petitioner that if he wanted to provide additional information he should do so within 14 days from the date of the letter. Petitioner did not submit any additional information.
On February 27, 2013, the IRS issued petitioner two notices of determination sustaining the lien and levy actions at issue. Petitioner, while residing in Wyoming, timely petitioned this Court for review of the determinations. Petitioner appeared at trial but did not testify or proffer any evidence. He did submit a motion to impose sanctions on respondent's counsel, *34 which we denied. Respondent's counsel made an oral motion for sanctions under
If a taxpayer requests a hearing in response to an NFTL or a notice of levy pursuant to
A taxpayer is precluded from contesting the existence or amount of the underlying tax liability unless the taxpayer did not receive2015 Tax Ct. Memo LEXIS 35">*41 a notice of deficiency for the liability in question or did not otherwise have an earlier opportunity to dispute the liability.
Following a hearing Appeals must determine whether to sustain the filing of the lien and whether proceeding with the proposed levy is appropriate. In making that determination Appeals is required to take into consideration: (1) the verification required by
*36
At the CDP hearing the taxpayer may raise any relevant issue relating to the unpaid tax or the proposed collection method.
Petitioner disputed the underlying liabilities on both Forms 12153. However, there is nothing in the record to show that petitioner provided any *37 evidence to Settlement Officer McDermott to dispute respondent's calculation of the underlying liabilities. Petitioner declined to participate in the telephone CDP hearing. He failed to submit tax returns for the years at issue or any other documents addressing his tax liabilities for those years. Although he sent some letters to Settlement Officer McDermott, none of them included so much as a summary of what he believed to be his true underlying liabilities. Accordingly, we find that petitioner did not properly raise his underlying liabilities during the CDP hearing, and therefore he cannot dispute the liabilities here.
III. VerificationOn brief petitioner argues that Settlement Officer2015 Tax Ct. Memo LEXIS 35">*43 McDermott failed to verify that the notices of deficiency for the years at issue were mailed to him.
In deficiency cases, we have said that the Commissioner bears the burden of proving by competent and persuasive evidence that the notice of deficiency was mailed to the taxpayer.
Petitioner correctly points out that respondent is not entitled to the presumption of official regularity in this case because the certified mailing lists are incomplete. Respondent may3 still prevail, however, if the evidence of mailing is otherwise sufficient. See
Although an incomplete certified mailing list that does not contain all of the information required by Form 3877 is insufficient to create a presumption of proper mailing, it nevertheless has some probative value. See
Furthermore, Settlement Officer McDermott did not rely solely on the certified mailing lists to verify that the notices of deficiency had been mailed to petitioner. Settlement Officer McDermott also reviewed the copies of notices of deficiency for the years at issue. Each notice of deficiency bears the same mailing date, mailing address, and certified mail article number as the corresponding certified mailing list.
Although respondent is not entitled to a presumption of mailing, we conclude that, in this case, the dated copies2015 Tax Ct. Memo LEXIS 35">*46 of the notices of deficiency, combined with the incomplete certified mailing lists, are sufficient to show that the notices of deficiency for the years at issue were mailed to petitioner at his last known address. Consequently, we hold that Settlement Officer McDermott properly verified, pursuant to
Petitioner argues that Settlement Officer McDermott abused her discretion in refusing to conduct a face-to-face CDP hearing. Respondent argues that petitioner was not entitled to a face-to-face CDP hearing because, among other things, petitioner failed to provide the requested information and file delinquent tax returns.
Appeals abuses its discretion if it acts "arbitrarily, capriciously, or without sound basis in fact or law."
The record demonstrates that a face-to-face hearing would not have been productive. Petitioner was given an opportunity to participate in a telephone CDP hearing but did not take advantage of that opportunity. Aside from his argument that he had not received a notice of deficiency for the years at issue, petitioner did not present any relevant arguments during his correspondence CDP hearing. Additionally, petitioner, although requested to do so on several occasions, failed to submit requested financial documentation (i.e., Form 433-A) and file past-due returns. Thus, Settlement Officer McDermott did not abuse her discretion in determining that petitioner was not entitled to a face-to-face hearing.
The record reflects that Settlement Officer McDermott verified that respondent satisfied all applicable legal and administrative requirements, considered all relevant issues petitioner raised, and balanced the intrusiveness of the proposed collection action against the need for effective2015 Tax Ct. Memo LEXIS 35">*48 tax collection. See
Respondent also asked the Court to impose a penalty on petitioner under
Petitioner neither cooperated with respondent before trial nor presented evidence at trial. The circumstances here suggest that petitioner may have instituted and maintained this proceeding primarily for purposes of delay. However, we will not now impose a penalty under
In reaching our holding, we have considered all arguments made, and to the extent not mentioned, we consider them irrelevant, moot, or without merit.
To reflect the foregoing,
An appropriate order and decision will be entered.
Footnotes
1. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Petitioner had previously received a levy notice and a notice of determination as to 2002 which he challenged in a prior case at docket No. 5584-11L. That case was dismissed for lack of jurisdiction upon the ground that the petition was not filed within the time prescribed by
secs. 6330(d)(1) ,7502 , and7503↩ .3. The certified mailing lists do not indicate the number of items received by the U.S. Postal Service office and are not signed or initialed by the IRS employees who issued the notices. These deficiencies render the presumption of official regularity inapplicable. See
Meyer v. Commissioner, T.C. Memo 2013-268↩ .