                        T.C. Memo. 2003-279



                     UNITED STATES TAX COURT



               CURTIS J.L. MCINTOSH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10131-01L.             Filed September 25, 2003.


     Curtis J.L. McIntosh, pro se.

     Stephen J. Neubeck, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     THORNTON, Judge:   Pursuant to section 6330(d), petitioner

seeks review of respondent’s determination to proceed with

collection of his 1990 income tax.1




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

                         FINDINGS OF FACT

      The parties have stipulated most of the facts, which we

incorporate herein by this reference.    When petitioner filed his

petition, he resided in Hamilton, Ohio.

A.   1990 Notice of Deficiency

      Petitioner filed no tax return for the 1990 tax year.     On

November 25, 1992, respondent mailed to petitioner a notice of

deficiency in regard to his 1990 income tax.    Respondent mailed

the notice to 2325 Anderson Road, Apartment 240, Crescent

Springs, Kentucky (the Kentucky address).    This was the address

listed on petitioner’s 1988 Federal income tax return, his then

most recently filed return.

      On December 10, 1992, the notice of deficiency was returned

to respondent marked “Not Deliverable”.     Respondent inquired of a

credit bureau and obtained an address for a Curtis McIntosh at

2036 Parkamo Avenue, Hamilton, Ohio (the Ohio address).    On

January 19, 1993, respondent verified the Ohio address with the

postmaster.   On February 19, 1993, respondent sent petitioner a

letter requesting that he verify the Ohio address.    Respondent

received no response to this request and did not resend the

notice of deficiency.

B.   Notice and Demand for Payment

      On April 26, 1993, respondent mailed to petitioner, at the

Kentucky address, a notice of balance due and demand for payment
                                 - 3 -

with regard to his 1986, 1990, and 1991 tax liabilities.     This

notice was returned marked “No Longer At This Address/Addressee

Unknown”.

       On September 22, 1993, respondent sent petitioner a Final

Notice (Notice of Intent to Levy) by certified mail to the Ohio

address.    On September 27, 1993, petitioner signed for the

notice.    In October of 1993, petitioner’s address in respondent’s

master file was changed to the Ohio address after a collection

officer verified that the address was valid.

C.   First Levy and Sale

      On July 24, 1995, respondent levied upon petitioner’s home

and vehicle (the property).     On October 6, 1995, respondent sold

the property by sealed bid to Alum Cliff Industries (ACI).

Petitioner was never personally served with notice of the sale.

Respondent applied $10,583.24 of the sale proceeds to

petitioner’s unpaid 1990 tax liability.

D.   Reversal of Sale and of Credit to Petitioner’s Tax Account

      In 1995, petitioner brought suit in the U.S. District Court

for the Southern District of Ohio against various defendants,

including the Internal Revenue Service (IRS) and ACI.     See

McIntosh v. United States, 82 AFTR 2d 98-6501 (S.D. Ohio 1998).

In this suit petitioner sought, among other things, to quiet

title to the property.     Admitting procedural irregularities in

failing to provide petitioner with notice of the sale of the
                                - 4 -

property, the IRS repurchased the property from ACI and in early

1998 returned title to petitioner.      Respondent also reversed the

$10,583.24 credit to petitioner’s 1990 tax account that had been

generated by the prior seizure and sale of the property.

E.   Renewed Collection Activity

      On March 23, 1998, respondent notified petitioner of a

$13,133.52 balance due on his 1990 tax assessment and demanded

payment.    On April 13, 1998, respondent sent petitioner notice

that the property would be levied upon again if he did not pay

his outstanding 1990 tax liability.

F.    Petitioner’s Unsuccessful Effort To Enjoin Collection
      Activity

      Petitioner’s aforementioned suit in the District Court was

still pending when the IRS returned the property to him and

notified him that it intended to levy upon the property again.

Petitioner moved the District Court for a temporary restraining

order and a preliminary injunction to prevent the IRS from

proceeding in this collection activity.     As a basis for this

motion, petitioner alleged that the IRS had failed to mail a

notice of deficiency for 1990 to his last known address and to

mail a statutory notice of assessment and demand for payment to

his last known address within 60 days of assessment, pursuant to

section 6303(a).    The District Court denied petitioner’s motion.

See id.    In its opinion, issued September 17, 1998, the District

Court found, among other things, that respondent mailed a timely
                                 - 5 -

notice of deficiency for 1990 to petitioner’s last known address.

Id. at 98-6510.2

G.   Final Notice

      On April 7, 1999, respondent sent petitioner a Final Notice-

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

with respect to petitioner’s unpaid 1986 and 1990 tax

liabilities.

H.   Appeals Office Hearing

      On May 7, 1999, petitioner timely filed a Form 12153,

Request for a Collection Due Process Hearing, with respect to his

1986 and 1990 taxes.   In the Form 12153, petitioner indicated

that he disagreed with the notice of intent to levy with respect

to his 1986 tax liability because, among other reasons, no notice

of deficiency had been issued.    With respect to his 1990 tax

liability, petitioner indicated that he disagreed with the notice

of intent to levy for the following reasons:    “No notice of

assessment and demand for payment sent to last known address

within 60 days of assessment, IRS received payment, lien is

invalid, IRS lacks authority to conduct administrative seizure.”




      2
       Although it would appear to have been unnecessary for its
disposition of petitioner’s motion, the U.S. District Court for
the Southern District of Ohio also found that no notice of
deficiency was issued to petitioner for 1986 or 1991. McIntosh
v. United States, 82 AFTR 2d 98-6501, at 98-6503 (S.D. Ohio
1998).
                                   - 6 -

     On March 9, 2000, petitioner attended an Appeals Office

hearing in Cincinnati, Ohio, conducted by Appeals Officer William

C. Roll.   On July 21, 2000, the Appeals Office mailed to

petitioner a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of

determination).       The notice of determination states in pertinent

part:

     The assessments for 1986 are invalid, and no collection
     action will be enforced.

     For 1990, the assessments are valid. In your appeal,
     you did not raise any alternative collection method to
     enforce collection, and the proposed levy should be
     enforced.

An attachment to the notice of determination states in pertinent

part:

     A valid notice of deficiency [for 1990] was issued, and
     assessments were made in accordance with legal and
     procedural requirements. The deficiency notice was
     mailed to your last known address, at the time the
     notice was mailed. Your failure to file current
     returns prevented an update of your address, so that
     you failed to receive notices of demand for payment.
     Your failure to receive the notices mailed to your last
     known address does not invalidate the assessments. The
     legal and procedural requirements for 1990 have been
     met.

                  *      *    *    *       *   *   *

     It is determined that a deficiency notice for 1990 was
     mailed timely to your last known address. Your failure
     to file any tax return after 1989, and failure to
     cooperate in acknowledging your new address,
     contributed to the lack of your current address being
     in the files of the Internal Revenue Service. Because
     notices were issued to your last known address as of
                               - 7 -

      the date they were issued, the assessments for 1990 are
      valid.

I.   Petitioner Seeks Review in Wrong Court

      On August 18, 2000, petitioner filed a complaint in the

District Court seeking review of respondent’s determination to

proceed with collection of his 1990 taxes.    On July 11, 2001, the

District Court dismissed the complaint with prejudice for lack of

subject matter jurisdiction.

J.   Tax Court Petition

      On August 14, 2001, petitioner timely petitioned this Court

to review respondent’s determination to proceed with collection

of his 1990 taxes.   In his petition, petitioner claims that:   (1)

No one representing the IRS attended the Appeals Office hearing;3

(2) the Appeals officer “did not obtain verification at the

hearing from the Secretary indicating that the requirements of

any applicable law or administrative procedure had been met as

required by 26 U.S.C. §6330(c)(1), nor was petitioner shown any

such evidence”; (3) respondent did not issue a notice of

assessment and demand for payment as required by section 6303;

and (4) respondent has already received payment for petitioner’s

1990 tax liabilities.



      3
       Petitioner did not raise this issue at trial or on brief;
therefore, we deem petitioner to have abandoned it. See Burbage
v. Commissioner, 82 T.C. 546, 547 n.2 (1984), affd. 774 F.2d 644
(4th Cir. 1985); Wolf v. Commissioner, T.C. Memo. 1992-432, affd.
13 F.3d 189 (6th Cir. 1993).
                                 - 8 -

                                OPINION

A.   Applicable Law

      If any person neglects or refuses to make payment of any

assessed Federal tax liability within 10 days of notice and

demand, the Secretary is authorized to collect the assessed tax

by levy on the person’s property.    Sec. 6331(a).   At least 30

days before taking such action, however, the Secretary generally

must provide the person with a written final notice of intent to

levy that describes, among other things, the administrative

appeals available to the person.    Sec. 6331(d)(1), (4).   The

written final notice must be given in person, left at the

person’s dwelling or usual place of business, or sent by

certified or registered mail to the person’s last known address.

Sec. 6331(d)(2).

      Upon request, the person is entitled to an administrative

hearing before the Appeals Office of the IRS.     Sec. 6330(b)(1).

If dissatisfied with the Appeals Office determination, the person

may seek judicial review in the Tax Court or a Federal District

Court, as appropriate.   Sec. 6330(d).    Generally, the proposed

levy actions are suspended for the pendency of the hearing and

any judicial appeals therein.    Sec. 6330(e)(1).

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

raise at an Appeals Office hearing, including spousal defenses,

the appropriateness of the Commissioner’s intended collection
                                 - 9 -

action, and possible alternative means of collection.    A taxpayer

may contest the existence or amount of the underlying tax

liability at an Appeals Office hearing only if the taxpayer did

not receive any statutory notice of deficiency for the tax

liability or did not otherwise have an opportunity to dispute the

tax liability.   Sec. 6330(c)(2)(B); see Sego v. Commissioner, 114

T.C. 604, 609 (2000); Goza v. Commissioner, 114 T.C. 176, 180-181

(2000).   Moreover, except in certain limited circumstances, a

person is generally precluded from raising at the Appeals Office

hearing any issue raised and considered in any previous

administrative or judicial proceeding.    Sec. 6330(c)(4).

      Where the validity of the underlying tax liability is

properly at issue, we review that issue de novo.    See Sego v.

Commissioner, supra at 610.     Other issues we review for abuse of

discretion.   Id.   On brief, petitioner acknowledges that he “has

not challenged the validity of the tax liability” and that we

should review respondent’s determination in this collection

proceeding for abuse of discretion.

B.   Verification Requirement

      Petitioner contends that the Appeals officer failed to

obtain verification from the Secretary that the requirements of

all applicable laws and administrative procedures had been met as

required by section 6330(c)(1).

      Section 6330(c)(1) does not require the Commissioner to rely
                              - 10 -

on a particular document to satisfy the verification requirement

contained therein.   See, e.g., Hauck v. Commissioner, T.C. Memo.

2002-184, affd. 64 Fed. Appx. 492 (6th Cir. 2003).    It is well

established that the Commissioner may rely on transcripts of

account to satisfy the section 6330(c)(1) verification

requirement.   See id. (and cases cited therein).    Section

6330(c)(1) does not require the Appeals officer to provide the

taxpayer with a copy of the verification at the hearing.       Sec.

301.6330-1(e)(1), Proced. & Admin. Regs.; see Nestor v.

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

     The administrative file developed by respondent’s Appeals

Office in connection with petitioner’s request for a collection

hearing contains, among other things, transcripts of petitioner’s

account for taxable year 1990.   Among these transcripts are a so-

called IMFOLT file dated March 9, 2000, and a literal transcript

dated March 6, 2000.   These transcripts indicate, among other

things, that petitioner filed no 1990 Federal income tax return,

and that on April 26, 1993, respondent made a substitute for

return and assessed petitioner’s 1990 income tax liability (and

related penalties and interest).   The transcripts reflect no

payments on petitioner’s account other than the $10,583.24

credited to petitioner’s account on October 6, 1995 (the date

that respondent sold the property to ACI).   The literal

transcript shows that this credit was reversed in 1998
                              - 11 -

(retroactive to April 26, 1993) as a payment “processed in error”

(consistent with respondent’s return of the property to

petitioner in 1998).   Petitioner alleges no irregularity in these

transcripts that would raise a question about the information

contained therein.   Moreover, the record contains a copy of the

notice of deficiency issued to petitioner with respect to his

1990 taxes and shows that as part of his verification process the

Appeals officer appropriately considered the District Court’s

finding in McIntosh v. United States, 82 AFTR 2d 98-6501, at 98-

6510, that the notice of deficiency for 1990 was timely issued to

petitioner at his last known address.

     The record also contains three copies of Form 4340,

Certificate of Assessments and Payments, of petitioner’s 1990

account dated April 16, 1996, May 29, 1998, and October 4, 2002.

Petitioner received these Forms 4340 at various times before and

after his Appeals Office hearing.   Such certificates of

assessments and payments “are generally regarded as being

sufficient proof, in the absence of evidence to the contrary, of

the adequacy and propriety of notices and assessments that have

been made.”   Gentry v. United States, 962 F.2d 555, 557 (6th Cir.

1992); see Schroeder v. Commissioner, T.C. Memo. 2002-190;

Kaeckell v. Commissioner, T.C. Memo. 2002-114.   Petitioner

contends that various circumstances show that the Forms 4340 lack
                              - 12 -

trustworthiness.   We are unpersuaded by petitioner’s arguments in

this regard.4

     We conclude that the various transcripts and other materials

in the administrative file, as well as the District Court’s

opinion in McIntosh v. United States, 82 AFTR 2d 89-6501 (S.D.

Ohio 1998), and the various Forms 4340 in evidence establish that

respondent properly assessed petitioner’s 1990 tax liability.

Petitioner has not shown any irregularity in respondent’s

assessment procedures that raises a question about the validity

of the 1990 assessment.

     In contesting the Appeals Office determination that the

legal and procedural requirements for 1990 have been met, the

only specific issues that petitioner has raised in this

proceeding relate to his contentions that notice and demand was

not sent to his last known address and that his 1990 tax

liability has previously been extinguished.   As discussed in


     4
        For example, petitioner contends that, contrary to
information contained in the Forms 4340, notice and demand was
not timely sent to his last known address–-a contention that we
address and reject in Sec. C of this opinion. As another
example, petitioner notes that his most recently received Form
4340, dated Oct. 4, 2002, fails to list the final notice of
intent to levy that he received in late September 1993. There is
nothing to suggest, however, that the issuance of a final notice
of intent to levy is an event that the Commissioner always
records in a Form 4340. Cf. Keene v. Commissioner, T.C. Memo.
2002-277 (omission of issuance of notice of deficiency from a
Form 4340 did not render the Form 4340 suspect). In any event,
the final notice of intent to levy is part of the administrative
file that the Appeals officer relied upon in making his
determination.
                                   - 13 -

detail below, these contentions are without merit.

C.   Notice and Demand--Last Known Address Requirement

      Petitioner contends that he received no notice and demand

for payment of his 1990 taxes at his last known address within 60

days of assessment as required by section 6303(a).5

Consequently, petitioner contends, respondent had no “authority

to collect an assessed tax through administrative proceedings.”

      As a general rule, the Commissioner is entitled to treat the

address on a taxpayer’s most recent return as the taxpayer’s last

known address, unless the taxpayer has given “clear and concise

notification of a different address.”        Abeles v. Commissioner, 91

T.C. 1019, 1035 (1988).     If the Commissioner learns that a

taxpayer is not residing at the address shown on the taxpayer’s

most recent return, the Commissioner must exercise reasonable

care and diligence in ascertaining the taxpayer’s new address.

See Keeton v. Commissioner, 74 T.C. 377, 382 (1980).




      5
          Sec. 6303(a) provides:

             SEC. 6303(a). General Rule.--

           Where it is not otherwise provided by this title,
      the Secretary shall, as soon as practicable, and within
      60 days, after the making of an assessment of a tax
      pursuant to section 6203, give notice to each person
      liable for the unpaid tax, stating the amount and
      demanding payment thereof. Such notice shall be left
      at the dwelling or usual place of business of such
      person, or shall be sent by mail to such person’s last
      known address.
                              - 14 -

     On his 1988 tax return, petitioner provided respondent the

Kentucky address.   Petitioner failed to file a 1989 or 1990 tax

return or otherwise to inform respondent of a new address.    After

the 1990 notice of deficiency was returned to respondent in

December 1992 marked “Not Deliverable”, respondent learned in

mid-January 1993 through U.S. Postal Service and credit bureau

information that a Curtis McIntosh lived at the Ohio address.

Petitioner failed to respond to respondent’s request, mailed to

the Ohio address, asking him to verify that this was his new

address.

     In McIntosh v. United States, supra at 98-6510, the District

Court decided, on the basis of essentially these facts, that

respondent had exercised due diligence in attempting to ascertain

petitioner’s last known address for purposes of mailing the 1990

notice of deficiency.   The District Court first concluded that

under relevant caselaw the IRS’s duty of diligence extended only

to the time that the 1990 notice of deficiency was mailed.

Applying that standard, the District Court held that “the only

reasonable conclusion” was that the IRS satisfied its duty,

inasmuch as petitioner had failed to notify the IRS that he had

moved from the Kentucky address.   Id.   Alternatively, the

District Court held that the same result would obtain even if the

IRS’s duty of diligence extended beyond the mailing of the notice

of deficiency.   Noting that petitioner had failed to respond to
                              - 15 -

the IRS’s address verification request sent to him at the Ohio

address, the District Court concluded:   “There is no probative

evidence that the IRS had actual notice” of petitioner’s Ohio

address, even though respondent had received an Ohio address

through a credit bureau and a postal tracer.    Id.   The District

Court stated:

     Accepting as true plaintiff’s allegation that he did
     not receive the request for verification, it was
     reasonable for the IRS to forego changing plaintiff’s
     address on the master file until after other
     verification had been obtained. Under these
     circumstances, it must be held that the IRS exercised
     reasonable care and diligence in ascertaining
     plaintiff’s correct address subsequent to the mailing
     of the Notice of Deficiency. The IRS cannot be held to
     have shirked its duty by failing to mail the notice a
     second time to an address which plaintiff did not
     provide to the IRS and which he did not verify after
     being extended the opportunity to do so. Accordingly,
     the Court finds that the only reasonable conclusion is
     that the IRS complied with 26 U.S.C. section 6212 prior
     to making its assessment for that year. [Id.; fn. ref.
     omitted.]

     On April 26, 1993, respondent mailed notice and demand to

petitioner at the Kentucky address.    It is undisputed that this

notice and demand was timely if mailed to petitioner’s last known

address.   The Appeals Office relied upon and adopted the District

Court’s reasoning to determine that the notice and demand was

sent to petitioner’s last known address.   On brief, petitioner

contends that the Appeals officer’s action in this regard was an

abuse of discretion because “The facts that existed at the time

of mailing the Notice of Deficiency did not exist at the time of
                              - 16 -

mailing the Notice and Demand.”   As just described, however, the

basis of the District Court’s decision was not limited to the

facts that existed at the time of the mailing of the notice of

deficiency.   Rather, as an alternative basis for its holding, the

District Court also considered facts arising after the mailing of

the notice of deficiency (i.e., the return of the notice of

deficiency as undeliverable, the IRS’s attempts at address

verification through credit bureau contacts and postal tracers,

and petitioner’s failure to respond to the IRS’s address

verification request).   Taking into account these additional

facts, the District Court decided that the “only reasonable

conclusion” is that the IRS satisfied its duty of diligence with

respect to the notice of deficiency.   McIntosh v. United States,

supra at 98-6510.

     In its opinion, the District Court stated:

          There is an issue as to whether the IRS complied
     with the statutory requirements for issuing a Notice
     and Demand for 1990 based on the government testimony
     presented at the hearing that the IRS sent notices of
     demand for payment for 1990 to the * * * [Kentucky
     address] after the Notice of Deficiency sent to that
     same address had been returned as undeliverable. * * *
     [Id. at 98-6511.]

Ultimately, however, the District Court did not decide this

issue, concluding that it lacked subject-matter jurisdiction over

the relief sought with respect to this matter.6   Id.


     6
         Petitioner contends that materials in the administrative
                                                    (continued...)
                              - 17 -

     As far as the record shows, the circumstances as of the date

respondent sent the notice and demand to the Kentucky address

were essentially unchanged from the circumstances considered by

the District Court in holding that the “the only reasonable

conclusion” was that respondent had sent the 1990 notice of

deficiency to petitioner’s last known address in Kentucky and had

not breached any duty of diligence by failing to resend it to the

Ohio address.   Id. at 98-6510.   In particular, the record does

not suggest that before mailing the notice and demand to the

Kentucky address respondent had received any additional

information from petitioner or from any other source that would

support a conclusion that respondent erred in failing to mail the

notice and demand to the Ohio address which petitioner had not

provided to respondent and which petitioner did not verify after

being extended the opportunity to do so.    Accordingly, on the

instant record, we conclude, consistent with the District



     6
      (...continued)
file show that the Appeals officer assumed, incorrectly, that the
District Court had found that the notice and demand, as well as
the 1990 notice of deficiency, was mailed to petitioner’s last
known address. No such mistake is manifest in the notice of
determination itself or the attachment thereto, which refers
simply to petitioner’s failure to cooperate in acknowledging his
new address as contributing to the lack of his current address in
the IRS files. But regardless of whether the notice of
determination was predicated in part on this alleged misreading
of the District Court’s opinion, we conclude, as explained in the
text above, that timely notice and demand was sent to
petitioner’s last known address.
                             - 18 -

Court’s reasoning, that respondent mailed the April 26, 1993,

notice and demand to petitioner’s last known address.

     In light of our holding in this regard, we need not and do

not decide the effect, if any, of respondent’s alleged failure to

provide petitioner notice and demand within 60 days pursuant to

section 6303(a).7


     7
       Sec. 301.6303-1(a), Proced. & Admin. Regs., provides that
notice under sec. 6303(a) shall be given “as soon as possible and
within 60 days. However, the failure to give notice within 60
days does not invalidate the notice.” In several cases, without
expressly addressing the effect of the IRS’s failure to give
notice within 60 days of the subject assessment, this Court has
treated notice that was provided more than 60 days after the
subject assessment as satisfying, in whole or part, the notice
requirement of sec. 6303(a). See Perez v. Commissioner, T.C.
Memo. 2002-274; Hack v. Commissioner, T.C. Memo. 2002-244; Hack
v. Commissioner, T.C. Memo. 2002-243; Mudd v. Commissioner, T.C.
Memo. 2002-204. These decisions are consistent with decisions of
various other courts holding that notice provided more than 60
days after the subject assessment date satisfies the sec. 6303(a)
notice requirement. See Ramos v. United States, 84 AFTR 2d 99-
6402, 99-2 USTC par. 50,878 (N.D. Cal. 1999); Schupp v. United
States, 71 AFTR 2d 93-917, 93-1 USTC par. 50,215 (E.D. Tex.
1993), affd. without published opinion 58 F.3d 636 (5th Cir.
1995); Erickson v. United States, 780 F. Supp. 733 (W.D. Wash.
1990), affd. without published opinion 952 F.2d 1399 (9th Cir.
1992). On the other hand, various other courts have held that
the IRS’s failure to give notice within 60 days of the subject
assessment date bars the IRS from exercising its nonjudicial
collection powers but does not preclude the IRS from reducing the
subject assessment to judgment in a civil action. See Blackston
v. United States, 778 F. Supp. 244 (D. Md. 1991); Behren v.
United States, 764 F. Supp. 180, 183 (S.D. Fla. 1991) (stating
that sec. 301.6303-1(a), Proced. & Admin. Regs., “insofar as it
directly controverts statutory and case authority, is without any
precedential value”), affd. on this issue without published
opinion 992 F.2d 328 (11th Cir. 1993), on remand 74 AFTR 2d 94-
6370 (S.D. Fla. 1994); Dewberry v. United States, 158 Bankr. 979,
982 (Bankr. W.D. Mich. 1993); cf. Jersey Shore State Bank v.
United States, 479 U.S. 442 (1987) (the Government is not
                                                   (continued...)
                                - 19 -

D.   Whether Payment Has Been Made

      Finally, petitioner alleges that the 1990 tax assessment was

extinguished when respondent seized and sold the property in

1995, notwithstanding that respondent subsequently returned the

property to petitioner.    Petitioner also argues that section

6343(b) prohibited respondent from repurchasing the property from

ACI and consequently prohibited respondent from reversing the

credit of the purchase price previously applied to petitioner’s

1990 tax liability.    As explained below, we reject both

arguments.

      1.   Extinguishment of Petitioner’s Assessment

      Petitioner relies on several cases, including Clark v.

United States, 63 F.3d 83 (1st Cir. 1995), for the proposition

that his 1990 tax assessment was extinguished by the Government’s

initial seizure of the property in 1995, even though the property

was subsequently returned to him.    The District Court in McIntosh

v. United States, 82 AFTR 2d 98-6501, at 98-6510, has previously

considered and rejected petitioner’s argument in this regard.

The District Court concluded:

           Plaintiff’s position that the IRS cannot    now levy
      on his real property based on the same Notice    of
      Deficiency which preceded the initial seizure    of that
      property is not well-taken. Plaintiff relies     on Clark
      v. U.S., 63 F.3d 83 (1st Cir. 1985), for this


      7
      (...continued)
required to provide a lender with notice under sec. 6303(a)
before bringing a civil suit to collect a payroll borrower’s
unpaid withholding tax under sec. 3505).
                               - 20 -

     proposition. Clark held that an assessment may be
     extinguished only by payment tendered by the taxpayer
     and cannot be extinguished by an IRS error. Plaintiff
     has not tendered payment, but seeks to preclude the IRS
     from proceeding on the assessment for 1990 based on an
     alleged IRS error. The authority cited by plaintiff
     does not support his contention that in this situation,
     the IRS is precluded from proceeding. [Id. at 98-6510
     to 98-6511.]

     Petitioner is collaterally estopped from relitigating this

issue in this Court.   See Peck v. Commissioner, 90 T.C. 162,

166-167 (1988), affd. 904 F.2d 525 (9th Cir. 1990).   In addition,

section 6330(c)(4) bars petitioner from raising this issue in

this collection proceeding.8

     2.   Section 6343(b)

     Pursuant to section 6343(b), if the Secretary determines

that property was wrongfully levied upon, the Secretary is

authorized to return the property “at any time” or, if the

property has been sold, to return the amount of money received




     8
       With exceptions not relevant here, sec. 6330(c)(4) bars a
person from raising in a collection proceeding any issue that was
raised and considered at any other administrative or judicial
proceeding in which the person meaningfully participated. See
Katz v. Commissioner, 115 T.C. 329, 339 (2000). “Section
6330(c)(4) in effect codifies the legal doctrines of res judicata
and collateral estoppel in their application to collection
proceedings.” Wooten v. Commissioner, T.C. Memo. 2003-113.
                                  - 21 -

from the sale at any time within 9 months of the levy.9

Petitioner contends that under section 6343(b) respondent’s

repurchase of the property from ACI, occurring more than 9 months

after the initial sale to ACI, was “illegal” and that

consequently it was “illegal” for respondent to adjust his 1990

tax account by reversing the credit previously applied to his

account upon the sale of the property to ACI.    We disagree.

     Section 6343(b) was enacted as part of the Federal Tax Lien

Act of 1966, Pub. L. 89-719, sec. 104(i), 80 Stat. 1138.      The

relevant legislative history states that section 6343(b)

“[authorizes] the Secretary of the Treasury or his delegate to

return to its rightful owner any property which has been

wrongfully levied upon by the United States.”    H. Rept. 1884,

89th Cong., 2d Sess. (1966), 1966-2 C.B. 815, 860 (emphasis



     9
         Sec. 6343(b) provides:

          SEC. 6343(b). Return of Property.--If the Secretary
     determines that property has been wrongfully levied
     upon, it shall be lawful for the Secretary to return--

            (1) the specific property levied upon,

            (2) an amount of money equal to the amount of
         money levied upon, or

            (3) an amount of money equal to the amount of
         money received by the United States from a sale of
         such property.

     Property may be returned at any time. An amount equal
     to the amount of money levied upon or received from
     such sale may be returned at any time before the
     expiration of 9 months from the date of such levy.
                              - 22 -

supplied).   Respondent’s repurchase of the property from ACI did

not constitute a return of the property (or its monetary

equivalent) to its rightful owner (presumably, petitioner).

Accordingly, section 6343(b) has no application to the repurchase

of the property from ACI.   But even if we were to assume, for

sake of argument, that section 6343(b) should be given the

peculiar application that petitioner urges upon us, it would not

follow that, having returned petitioner’s property to him,

respondent would be barred from adjusting petitioner’s 1990 tax

account accordingly.

     At bottom, this is a classic case of petitioner’s wishing to

have his cake and eat it too, while pretending that the

Government got it.   The statute does not support this result;

logic, equity, and common sense oppose it.

     All other arguments raised by petitioner and not expressly

discussed herein are without merit or unnecessary to reach.

      To reflect the foregoing,


                                       Decision will be

                                    entered for respondent.
