                       T.C. Memo. 2001-305



                     UNITED STATES TAX COURT



                  BARRY L. MOORE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11675-00L.               Filed November 27, 2001.



     E. Kenneth Wall, for petitioner.

     Taylor Cortright, for respondent.



                       MEMORANDUM OPINION



     ARMEN, Special Trial Judge:   This matter is before the Court

on respondent's Motion for Partial Summary Judgment, as

supplemented, filed pursuant to Rule 121.1   Respondent contends


     1
        All Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to the
Internal Revenue Code, as amended.
                              - 2 -

that petitioner received notices of deficiency for each of the

taxable years 1987 and 1989 through 1995 and, therefore, that

petitioner is precluded by statute from contesting his liability

for the underlying taxes for those years in this collection

review proceeding.

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Rule 121 states that

either party may move, with or without supporting affidavits, for

a summary adjudication in the moving party’s favor on all or any

part of the legal issues in controversy if the pleadings, answers

to interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

decision may be rendered as a matter of law.   Rule 121(a) and

(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992),

affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90

T.C. 753, 754 (1988); Naftel v. Commissioner, 85 T.C. 527, 529

(1985).

     Rule 121(d), which addresses the adverse party’s response to

a motion for summary judgment, states in pertinent part:

     When a motion for summary judgment is made and
     supported as provided in this Rule, an adverse party
     may not rest upon the mere allegations or denials of
     such party's pleading, but such party's response, by
     affidavits or as otherwise provided in this Rule, must
     set forth specific facts showing that there is a
                                   - 3 -

      genuine issue for trial. If the adverse party does not
      so respond, then a decision, if appropriate, may be
      entered against such party.

King v. Commissioner, 87 T.C. 1213, 1217 (1986).     The moving

party, however, bears the burden of proving that there is no

genuine issue of material fact, and factual inferences will be

read in a manner most favorable to the adverse party.     Dahlstrom

v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).     As explained in detail

below, we shall grant respondent's motion.

I.   Background

      A.   Notices Of Deficiency

            1.    1987 and 1989

      On September 11, 1991, respondent mailed to petitioner a

notice of deficiency determining a deficiency of $12,680 in

petitioner’s Federal income tax for 1987 and additions to tax

under sections 6651(a)(1) and 6653(a)(1)(A) and (B).     Respondent

mailed the notice to petitioner at 13931 N. Central Exp. 318,

Dallas, Texas 75243-1099 (the N. Central address).

      By letter dated October 30, 1991, petitioner wrote to

respondent acknowledging receipt of the above-described notice of

deficiency and citing the Uniform Commercial Code (UCC) for the

proposition that “the Notice of Deficiency, a presentment on your

behalf, is dishonored.”     Petitioner failed to file a petition

with this Court challenging the notice of deficiency for 1987.
                                 - 4 -

     On April 22, 1992, respondent mailed to petitioner a notice

of deficiency determining a deficiency of $15,494 in petitioner’s

Federal income tax for 1989 and additions to tax under sections

6651(a)(1) and 6654(a).    Respondent mailed the notice to

petitioner at the N. Central address.

     By letter dated June 1, 1992, petitioner wrote to respondent

acknowledging receipt of the above-described notice of deficiency

and again citing the UCC for the proposition that “the Notice of

Deficiency, dated April 22, 1992, a presentment on your behalf,

is dishonored.”    Petitioner failed to file a petition with the

Court challenging the notice of deficiency for 1989.

          2.     1990 Through 1992

     On February 2, 1995, respondent issued to petitioner (at the

N. Central address) a so-called 30-day letter with respect to

petitioner’s tax liabilities for 1990 through 1992.

     By letter dated February 17, 1995, John B. Kotmair, Jr. (Mr.

Kotmair) of Westminster, Maryland, wrote to respondent

challenging petitioner’s tax liability for the taxable years 1990

through 1992.2    Mr. Kotmair’s letter listed petitioner’s address

as #43 Richardson Heights Village, Richardson, Texas 75080 (the

Richardson Heights address).    Mr. Kotmair’s letter included as an

attachment a copy of the above-described 30-day letter dated


     2
       The gist of Mr. Kotmair’s letter was that respondent
lacked authority to examine the taxable years 1990 through 1992
because petitioner did not file income tax returns for those
years.
                                 - 5 -

February 2, 1995.     Mr. Kotmair’s letter also included as an

attachment a document entitled “PRIVACY ACT RELEASE FORM AND

POWER OF ATTORNEY”, executed by petitioner under oath before a

notary public on January 23, 1995, by which petitioner granted

Mr. Kotmair the authority to “represent, inquire of and procure

from the Internal Revenue Service any and all of the records,

pertaining to income taxes that agency alleges I owe”.3    This

latter document listed petitioner’s address as the N. Central

address.

     By letter dated May 26, 1995, Mr. Kotmair wrote to

respondent, again challenging petitioner’s tax liabilities for

1990 through 1992 and referring to matters discussed at an

Appeals Office conference conducted on May 19, 1995, concerning

those liabilities.4    This letter listed petitioner’s address as

the Richardson Heights address.     Mr. Kotmair’s letter included as

an attachment a copy of the above-described 30-day letter dated

February 2, 1995.     Mr. Kotmair’s letter also included as an

attachment a second document entitled “PRIVACY ACT RELEASE FORM



     3
        The above-described “PRIVACY ACT RELEASE FORM AND POWER
OF ATTORNEY” identified John B. Kotmair, Jr., as a fiduciary for
Save-A-Patriot Fellowship and stated that petitioner was a member
of the group. Save-A-Patriot Fellowship has been identified as
an organization that is opposed to the Federal income tax. See
Save-A-Patriot Fellowship v. United States, 962 F. Supp. 695 (D.
Md. 1996).
     4
        The gist of Mr. Kotmair’s letter was that petitioner, “a
citizen of Texas living and working within its boundaries”, is
not subject to the Federal income tax.
                                 - 6 -

AND POWER OF ATTORNEY”, executed by petitioner under oath before

a notary public on May 7, 1995.     This latter document listed

petitioner’s address as the Richardson Heights address.

        On October 25, 1995, respondent mailed to petitioner a

notice of deficiency determining deficiencies in petitioner’s

Federal income taxes for 1990, 1991, and 1992, in the amounts of

$16,605, $21,569, and $20,786, respectively, and additions to tax

under sections 6651(a)(1) and 6654(a) for each of those years.

Respondent provided the Court with U.S. Postal Service Form 3877

(certified mail list) showing that respondent mailed the

foregoing notice to petitioner at the following three addresses:

(1) the N. Central address; (2) the Richardson Heights address;

and (3) 397 DalRich Village #291, Richardson, Texas 75080 (the

DalRich Village address).5    A copy of the notice was also mailed

to Mr. Kotmair.

     Respondent has no record that the notice of deficiency for

1990 through 1992 was returned to respondent by the U.S. Postal

Service undelivered.     Petitioner failed to file a petition with

the Court challenging the notice of deficiency for 1990 through

1992.



        5
       Respondent erroneously stated in the supplement, filed
Sept. 18, 2001, to his pending motion that the notice of
deficiency for 1990 through 1992 was mailed to petitioner on Oct.
15, 1995. We rely on the postmark on U.S. Postal Service Form
3877 as proof that the notice was mailed on Oct. 25, 1995. See
Magazine v. Commissioner, 89 T.C. 321 (1987). We note further
that the notice itself is dated Oct. 25, 1995.
                                - 7 -

           3.   1988 and 1993 Through 1995

     On July 9, 1997, respondent mailed to petitioner a notice of

deficiency determining deficiencies in petitioner’s Federal

income taxes for 1988, 1993, and 1994, in the amounts of $9,615,

$24,730, and $27,424, respectively, and additions to tax under

sections 6651(a)(1) and 6654(a) for 1993 and 1994.      On July 9,

1997, respondent also mailed to petitioner a notice of deficiency

determining a deficiency in petitioner’s Federal income tax for

1995 in the amount of $29,506 and additions to tax under sections

6651(a)(1) and 6654(a).    Both of the foregoing notices of

deficiency were mailed to petitioner at the DalRich Village

address.

     On July 9, 1997, respondent mailed to Mr. Kotmair a copy of

the two above-described notices of deficiency issued to

petitioner.

     By letter dated August 28, 1997, Mr. Kotmair wrote to

respondent acknowledging that petitioner had received the notices

of deficiency for 1988 and 1993 through 1995.      Mr. Kotmair’s

letter listed petitioner’s address as the DalRich Village

address.   Mr. Kotmair’s letter included as an attachment a third

document entitled “PRIVACY ACT RELEASE FORM AND POWER OF

ATTORNEY”, executed by petitioner under oath before a notary

public on July 23, 1997.    This document listed petitioner’s

address as the DalRich Village address.      Petitioner failed to
                                   - 8 -

file a petition with the Court challenging the notices of

deficiency for 1988 and 1993 through 1995.

     B.    Collection Procedures

     On February 7, 2000, respondent mailed to petitioner a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing

requesting that petitioner pay his delinquent taxes for the years

1987 and 1989 through 1995.6   Two days later, on February 9,

2000, respondent filed a Notice of Federal Tax Lien with Dallas

County in Dallas, Texas, listing petitioner’s tax liabilities for

the taxable years 1993 through 1995.

     On March 7, 2000, respondent received from petitioner a Form

12153, Request for a Collection Due Process Hearing, challenging

respondent’s levy notice for the taxable years 1987 and 1989

through 1995.   On March 20, 2000, respondent received from

petitioner a second Form 12153, this one challenging respondent’s

lien notice for the taxable years 1993 through 1995.   Each of the

Forms 12153 listed petitioner’s address as the DalRich Village

address.

     On October 13, 2000, respondent’s Appeals Office issued to

petitioner a Notice of Determination Concerning Collection

Actions Under Section 6320 and 6330 stating that an

administrative hearing was conducted on August 17, 2000, and that

respondent would proceed with collection as set forth in the lien

     6
        The disputed collection action does not include
petitioner’s tax liability for 1988.
                               - 9 -

and levy notices described above.

     On November 14, 2000, petitioner filed with the Court a

petition for review of respondent's determination to proceed with

collection.   The petition lists petitioner’s address as the

DalRich Village address in Richardson, Texas.   The petition

includes allegations that petitioner is not liable for the

underlying taxes due to the expiration of the period of

limitations for assessment and collection.   Respondent filed an

answer to the petition.

     C.   Respondent’s Motion for Partial Summary Judgment

     On June 1, 2001, respondent filed a Motion for Partial

Summary Judgment asserting that petitioner received the notices

of deficiency for 1987 and 1989 through 1995 and, therefore, that

petitioner is precluded by statute from contesting his liability

for the underlying taxes for those years in this proceeding.

Respondent’s motion, which was supported by attached exhibits A

through J (the notices of deficiency issued to petitioner and

petitioner’s and Mr. Kotmair’s written responses thereto) was

duly served on petitioner’s counsel.   On June 4, 2001, the Court

issued a Notice of Filing, directing petitioner to file an

objection, if any, to respondent’s motion by June 25, 2001.

     On June 22, 2001, petitioner filed an objection to

respondent's motion citing Rule 121(e) and stating that

petitioner was unable to admit or deny the allegations in
                                - 10 -

respondent’s motion because respondent did not provide

petitioner’s counsel with any of the pertinent documents in

advance of filing the motion.    By Order dated August 3, 2001, the

Court notified the parties that respondent’s motion would be

called for hearing at the Court’s motions session to be held in

Washington, D.C., on September 5, 2001.

     Counsel for both parties appeared at the aforementioned

motions session and offered argument with respect to respondent's

motion.    During the hearing, the Court questioned petitioner’s

counsel whether petitioner denied that he actually received the

notices of deficiency in question or that he authored the letters

to respondent dated October 30, 1991, and June 1, 1992.    The

responses by petitioner’s counsel to the Court’s queries were

evasive and coy.   Consequently, the Court suggested that counsel

obtain an affidavit from petitioner addressing the Court’s

queries.   At the conclusion of the hearing, the Court orally

directed the parties to file written supplements.    The parties

complied with the Court’s Order.

     Petitioner’s written supplement includes assertions that

respondent failed to establish that petitioner actually received

the notices of deficiency and that respondent erred in mailing

notices to the DalRich Village address, which petitioner asserts

was an address for a Mail Boxes, Etc. business, instead of to

petitioner’s residential address (which petitioner failed to
                               - 11 -

specifically identify).    Petitioner failed to provide the Court

with an affidavit denying the pertinent allegations set forth in

respondent’s motion.   See Rule 121(e).

II.   Discussion

      Section 6321 provides that if any person liable to pay any

tax neglects or refuses to pay the same after demand, the unpaid

tax shall be a lien in favor of the United States upon all

property and rights to property belonging to such person.

Section 6322 provides that the lien imposed under section 6321

generally arises at the time of assessment.    However, section

6323 provides that the lien shall not be valid against any

purchaser, holder of a security interest, mechanic’s lienor, or

judgment lien creditor until the Secretary files a notice of lien

with the appropriate public official.     Section 6320(a) provides

that the Secretary shall provide the person described in section

6321 with written notice of the filing of a notice of lien under

section 6323, including notice of the administrative appeals

available to the person.

      Section 6331(a) provides that, if any person liable to pay

any tax neglects or refuses to pay such tax within 10 days after

notice and demand for payment, the Secretary is authorized to

collect such tax by levy upon property belonging to the person.

Section 6331(d) provides that the Secretary is obliged to provide

the person with notice before proceeding with collection by levy
                              - 12 -

on the person's property, including notice of the available

administrative appeals.

     In the Internal Revenue Service Restructuring and Reform Act

of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress

enacted new sections 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide protections for taxpayers in

tax collection matters.   These provisions generally provide that

the Commissioner cannot proceed with the collection of taxes by

way of a lien or levy on a person's property until the person has

been given notice of, and the opportunity for, an administrative

review of the matter (in the form of an Appeals Office hearing)

and, if dissatisfied, with judicial review of the administrative

determination in either the Tax Court or a Federal district

court.

     In Goza v. Commissioner, 114 T.C. 176 (2000), we explained

that section 6330(c) provides for an Appeals Office hearing to

address collection issues such as spousal defenses, the

appropriateness of the Commissioner's intended collection action,

and possible alternative means of collection.   Section

6330(c)(2)(B) provides that neither the existence nor the amount

of the underlying tax liability can be contested at an Appeals

Office hearing unless the taxpayer did not receive a notice of

deficiency for the taxes in question or did not otherwise have an

earlier opportunity to dispute such tax liability.   The taxpayer
                               - 13 -

in Goza had received a notice of deficiency, yet failed to file a

petition for redetermination with the Court.    When the taxpayer

subsequently attempted to use the Court's collection review

procedure as a forum to assert frivolous and groundless

constitutional arguments against the Federal income tax, the

Court dismissed the petition for failure to state a claim upon

which relief can be granted.

       Based upon our review of the record in this case, we hold

that there is no dispute as to a material fact and that

respondent is entitled to partial summary judgment as a matter of

law.

       The record shows that petitioner wrote to respondent on

October 30, 1991, and June 1, 1992, and acknowledged receiving

the notices of deficiency for 1987 and 1989, respectively.

Petitioner failed to affirmatively deny that he authored these

letters.    See Sego v. Commissioner, 114 T.C. 604 (2000).

       The record also shows that respondent mailed duplicate

original notices of deficiency for 1990 through 1992 by certified

mail to petitioner’s last known address, including the N. Central

address, the Richardson Heights address, and the DalRich Village

address.7   Although petitioner did not write to respondent and

acknowledge receipt of the notice of deficiency for 1990 through

1992, respondent has no record that such notice was ever returned


       7
       In addition, a copy of the notice of deficiency was mailed
to Mr. Kotmair.
                                   - 14 -

to respondent undelivered.8       In addition, petitioner failed to

affirmatively deny that he actually received the notice of

deficiency for 1990 through 1992.

     The record also shows that Mr. Kotmair wrote to respondent

and confirmed that petitioner actually received the notices of

deficiency for 1988 and 1993 through 1995.        These notices were

mailed to petitioner at the DalRich Village address, the same

address used by petitioner when he filed the petition in this

case.       Petitioner failed to affirmatively deny that he actually

received the notices of deficiency for 1988 and 1993 through

1995.

     Petitioner failed to properly respond to respondent’s Motion

for Partial Summary Judgment.        In short, petitioner failed to

allege specific facts showing that there is a genuine issue for

trial regarding his receipt of the disputed notices of

deficiency.       Rule 121(d).   In the absence of any allegation

denying receipt of the notices of deficiency for 1987 and 1989

through 1995, the record establishes that petitioner actually

received each of those notices.        Therefore, consistent with

section 6330(c)(2)(B), petitioner is barred from contesting the

existence or amount of his tax liabilities for 1987 and 1989


        8
       The record also shows that by letters dated Feb. 17, 1995,
and May 26, 1995, Mr. Kotmair wrote to respondent, acknowledging
the 30-day letter for 1990 through 1992 and challenging
petitioner’s tax liabilities for those years on the ground that
petitioner is not a taxpayer who is subject to the Federal income
tax.
                              - 15 -

through 1995 in this collection review proceeding.    See Goza v.

Commissioner, supra.

     In particular, petitioner's claim that the period of

limitations for assessment and collection has expired for the

years in question represents an impermissible challenge to the

existence of the underlying tax liability.    Petitioner’s claim

constitutes an affirmative defense that should have been raised

in a petition for redetermination filed pursuant to section

6213(a).   See Rule 39; Badger Materials, Inc. v. Commissioner, 40

T.C. 1061, 1063 (1963).   Consistent with section 6330(c), we hold

that petitioner may not raise such claim in this proceeding.

     To reflect the foregoing,



                                      An appropriate order

                                 will be issued granting

                                 respondent’s Motion for

                                 Partial Summary Judgment,

                                 as supplemented.
