                        T.C. Memo. 2008-155



                      UNITED STATES TAX COURT



                  GARY R. CLARK, Petitioner v.
         COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 19473-06L, 8752-07L.     Filed June 18, 2008.



     Gary R. Clark, pro se.

     Laurel M. Costen, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   Pursuant to section 6330(d),1 petitioner

seeks review of respondent’s determinations to proceed with the

collection of petitioner’s unpaid Federal income tax liabilities

for 1998 through 2003 (years at issue).    The issue is whether


     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code, as amended.
                                -2-

respondent abused his discretion in sustaining the proposed

collection actions.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulations of facts and the exhibits attached thereto are

incorporated herein by this reference.   Petitioner resided in

California at the time his petition was filed.

     Petitioner did not file Federal income tax returns for the

years at issue.   On January 21, 2004, respondent mailed

petitioner separate notices of deficiency for 1998, 1999, 2000,

and 2001.   On November 30, 2004, and June 7, 2005, respondent

mailed petitioner notices of deficiency for 2002 and 2003,

respectively.   All the notices of deficiency were mailed to

petitioner’s correct address.   Petitioner did not petition this

Court in response to the notices of deficiency.

The Hearing for 1998 Through 2002

     On February 17, 2005, respondent issued petitioner a Final

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

Hearing (notice of intent to levy) for 1998 through 2001.    On

March 3, 2005, respondent issued petitioner a Final Notice,

Notice of Federal Tax Lien Filing and Your Right to a Hearing

Under IRC 6320 (notice of Federal tax lien) for 1998 through

2001.   In response to the February 17 and March 3, 2005, notices

petitioner timely requested an Appeals hearing.   On the hearing
                                 -3-

request form petitioner was asked to provide the specific reasons

he did not agree with the proposed collection actions.

Petitioner responded:

     There are five points I request a hearing on.

     1.     There are points in the Tax Reformation Act of
            1988.
     2.     Let it be known I do not agree with congress for
            all the reasons that I have this meeting.
     3.     Details of this will be provided at the meeting.
     4.     I fully intend to tape record the meeting.
     5.     Therefore, I request a face to face meeting.

     On October 26, 2005, respondent issued petitioner a notice

of intent to levy for 2002.    On January 24, 2006, respondent

issued petitioner a notice of Federal tax lien for 2002.    In

response to these notices, petitioner timely requested Appeals

hearings.    As his reasons for disagreeing with the proposed

collection actions petitioner repeated the same five points he

had stated on his previous request.

     The parties later agreed to handle all of the requests for

1998 through 2002 during a single hearing.    On February 1, 2006,

respondent’s Appeals officer sent petitioner a letter responding

to petitioner’s request for a face-to-face conference, scheduling

a telephone conference, and stating:

     If you are interested in receiving a face-to-face
     conference, you must be prepared to discuss issues
     relevant to paying your tax liability. These include,
     for example, offering other ways to pay the taxes you
     owe, such as an installment agreement or offer in
     compromise. * * * If you wish to have a face-to-face
     conference, please write me within 15 days from the
                                -4-

     date of this letter and describe the legitimate issues
     you will discuss.

     On March 1, 2006, petitioner sent the Appeals officer a

letter requesting a correspondence hearing.    On March 14, 2006,

the Appeals officer sent petitioner a letter asking him to

identify any relevant issues that petitioner wanted considered

during the hearing.   On March 31, 2006, petitioner sent the

Appeals officer a letter which questioned whether respondent had

recorded an assessment against him pursuant to section 6203,

requested several documents related to the assessment procedure,

alleged other procedural errors, and alleged that the proposed

collection actions would cause him hardship.

     On July 7, 2006, the Appeals officer sent petitioner a

letter stating that petitioner could not challenge the underlying

liability during the hearing if he had received notices of

deficiency for the years at issue.    The letter instructed

petitioner to provide any evidence that he had not received the

notices of deficiency and informed him that if he wished to have

a collection alternative considered, he had to file all

delinquent returns by July 28, 2006.    The letter further advised

petitioner that he needed to provide details of the alleged

hardship before the issue could be considered.    The letter also

included copies of Forms 4340, Certificate of Assessments,

Payments, and Other Specified Matters, for 1998 through 2002.
                                 -5-

     Petitioner did not respond, and on August 23, 2006, the

Appeals Office issued a notice of determination sustaining in

full the notices of Federal tax lien and the notices of intent to

levy.   The notice of determination verified that all legal and

procedural requirements were met, balanced the need for efficient

collection with the concern that collection be no more intrusive

than necessary, and addressed the relevant issues petitioner

raised.

The Hearing for 2003

     On March 7, 2006, respondent issued petitioner a notice of

intent to levy for 2003.    Petitioner requested an Appeals hearing

in response.    As his reasons for disagreeing with the proposed

collection action petitioner repeated the same five points

(although phrased slightly differently) that he had stated on his

previous requests.    The case was assigned to a different Appeals

officer from the officer for petitioner’s previous hearing.    The

Appeals officer mailed petitioner a letter on October 3, 2006,

which stated:

     You will be allowed a face-to-face conference on any
     nonfrivolous issue; however you will need to provide
     the nonfrivolous issue in writing or by calling me
     within 14 days from the date of this letter before a
     face-to-face conference will be scheduled.

The letter also stated that for the Appeals Office to consider

collection alternatives, petitioner would need to provide

financial information and submit all unfiled returns.    Petitioner
                                 -6-

did not respond.   On October 23, 2006, the Appeals officer sent

petitioner another letter informing him that if he did not

provide the requested information within 7 days, a notice of

determination would be issued.

     On October 30, 2006, petitioner and the Appeals officer

discussed petitioner’s case by telephone.   The Appeals officer

advised petitioner that a face-to-face conference would only be

scheduled if petitioner identified a specific nonfrivolous issue

and that the issues raised in his request for a hearing were not

relevant.   Later that day petitioner sent the Appeals officer a

letter which repeated the same five points listed on his hearing

request.

     On March 15, 2007, the Appeals Office issued a notice of

determination sustaining in full the notice of intent to levy.

The notice of determination verified that all legal and

procedural requirements were met, balanced the need for efficient

collection with the concern that collection be no more intrusive

than necessary, and addressed the relevant issues petitioner

raised.

                              OPINION

     Before the Commissioner may levy on any property or property

right of a taxpayer, the taxpayer must be provided written notice

of the right to request a hearing, and such notice must be

provided no less than 30 days before the levy is made.    Sec.
                                 -7-

6330(a).    Section 6320(a) requires that the Commissioner furnish

the taxpayer with written notice of the filing of a Federal tax

lien within 5 business days after the lien is filed.     Section

6320 further provides that the taxpayer may request an Appeals

hearing within 30 days beginning on the day after the 5-day

period described above.    Sec. 6320(a)(3)(B), (b)(1).   If the

taxpayer requests a hearing under either section 6320 or 6330, an

Appeals officer of the Commissioner must hold the hearing.      Secs.

6320(b)(1), 6330(b)(1).    Within 30 days of the issuance of the

Appeals officer’s determination, the taxpayer may seek judicial

review of the determination.    Sec. 6330(d)(1).

     Section 6330(c) prescribes the matters that a person may

raise at the hearing.    Section 6330(c)(2)(A) provides that a

person may raise relevant issues such as spousal defenses, the

appropriateness of the Commissioner’s intended collection action,

and possible alternative means of collection.      See Montgomery v.

Commissioner, 122 T.C. 1, 5 (2004); Sego v. Commissioner, 114

T.C. 604, 609 (2000); Goza v. Commissioner, 114 T.C. 176, 181-183

(2000).    In addition, section 6330(c)(2)(B) provides that a

person may challenge the existence or amount of the underlying

tax liability if the person did not receive a notice of

deficiency for the relevant period or did not otherwise have an

opportunity to dispute the liability.
                                -8-

Whether Petitioner Was Entitled To Dispute the Underlying
Liabilities

     Petitioner argues that he was entitled to dispute the

underlying liabilities during his hearings.    Respondent counters

that petitioner was precluded from disputing the liabilities

during his hearings because he received notices of deficiency for

the years at issue.

     There is ample evidence in the record that respondent

properly mailed the deficiency notices.    The record contains

copies of the notices and U.S. Postal Service Forms 3877

reflecting the timely mailing of the notices to petitioner at his

correct address by certified mail.    A properly completed Form

3877, absent evidence to the contrary, establishes that the

notice was properly mailed to the taxpayer.    United States v.

Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v.

Commissioner, 94 T.C. 82, 90-91 (1990).    Furthermore, compliance

with certified mail procedures raises a presumption of official

regularity in delivery with respect to notices sent by the

Commissioner.   See United States v. Zolla, supra at 810.

     Petitioner presented no evidence that he did not receive the

deficiency notices despite being given the opportunity to present

such evidence at his hearings and before this Court.    Therefore,
                                 -9-

petitioner was not entitled to challenge the underlying

liabilities at his hearings.2

Whether Petitioner Was Entitled to Face-To-Face Conferences

     Petitioner argues that the Appeals officers improperly

denied him face-to-face conferences.    Although a section 6330

hearing may consist of a face-to-face conference, a proper

hearing may also occur by telephone or by correspondence under

certain circumstances.    See Katz v. Commissioner, 115 T.C. 329,

337-338 (2000); sec. 301.6330-1(d)(2), Q&A-D6, Proced. & Admin.

Regs.    Petitioner was offered telephone hearings or

correspondence hearings.    With respect to the 1998 through 2002

liabilities, petitioner chose to proceed only by correspondence.

With respect to 2003, petitioner had a telephone conference and

submitted correspondence.

     Petitioner was offered a face-to-face conference if he would

first identify a relevant issue he intended to discuss.    Despite

being given a reasonable opportunity by the Appeals officers to

present any relevant issue he wanted considered, petitioner

presented no such issue.    Under these circumstances, respondent

was not required to offer petitioner face-to-face conferences.

See Lunsford v. Commissioner, 117 T.C. 183 (2001).


     2
      Petitioner’s argument that under Weimerskirch v.
Commissioner, 596 F.2d 358 (9th Cir. 1979), revg. 67 T.C. 672
(1977), respondent has the burden of proving unreported income in
this Court proceeding is without merit. Where the taxpayer is
precluded from challenging the underlying liability by sec.
6330(c)(2)(B), Weimerskirch is inapplicable.
                               -10-

Whether the Appeals Officers Complied With the Section 6330(c)(1)
Verification Requirement

     Petitioner argues that rather than obtaining verification

from the Internal Revenue Service office collecting the tax that

the requirements of any applicable law or administrative

procedure were met as required by section 301.6330-1(e)(1),

Proced. & Admin. Regs., the Appeals officers themselves made the

verification.

     The record indicates that to comply with section 6330(c)(1)

the Appeals officers relied on Forms 4340, which are a valid

verification that the requirements of any applicable law or

administrative procedures have been met.    See Roberts v.

Commissioner, 118 T.C. 365 (2002), affd. 329 F.3d 1224 (11th Cir.

2003).   It was not an abuse of discretion for the Appeals

officers to rely on Forms 4340 to verify that legal and

procedural requirements were met as required by section

6330(c)(3)(A) and section 301.6330-1(e)(1), Proced. & Admin.

Regs.3   See Craig v. Commissioner, 119 T.C. 252, 261-263 (2002);

Nestor v. Commissioner, 118 T.C. 162, 166 (2002).

Conclusion

     Petitioner has given no bona fide basis for his claim that

the collection actions are inappropriate.   Therefore, respondent


     3
      Petitioner was provided copies of the Forms 4340 for the
years at issue, and he has not identified any irregularity in the
assessment procedure that would raise a question about the
validity of the assessments or the information contained in the
Forms 4340.
                                 -11-

did not abuse his discretion by determining to proceed with the

collection of petitioner’s unpaid Federal income tax liabilities

at issue.

     In reaching our holdings herein, we have considered all

arguments made, and to the extent not mentioned above, we find

them to be moot, irrelevant, or without merit.

     To reflect the foregoing,


                                        Decisions will be entered

                                 for respondent.
