                        T.C. Memo. 2006-66



                      UNITED STATES TAX COURT



                   THOMAS BUTTI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11084-02L.         Filed April 5, 2006.



     Thomas Butti, pro se.

     Kevin M. Murphy, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Respondent sent a Notice of Determination

Concerning Collection Action(s) Under Section 63201 (Lien) and/or

6330 (Levy) to petitioner in which respondent determined that it

was appropriate to sustain respondent’s collection action with


     1
        Section references are to the Internal Revenue Code as
amended and in effect for the years in issue.
                                 -2-

respect to petitioner’s unpaid income taxes for 1989, 1990, and

1999.2

     The parties dispute whether respondent provided petitioner

an opportunity for a hearing as required by section 6330(b) and

whether petitioner received a notice of deficiency for 1989,

1990, and 1999.    We conclude that respondent did not provide

petitioner an opportunity for a hearing and that petitioner did

not receive the notice of deficiency.    We will remand the case to

respondent to provide an opportunity for a hearing as required by

section 6330(b).

                          FINDINGS OF FACT

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

A.   Petitioner

     Petitioner was incarcerated in the Wyoming Correctional

Facility, Attica, New York, when the petition was filed.    He

lived in the State of New York before and after he was

incarcerated.

     Before he was incarcerated, petitioner was a licensed

chiropractor practicing in Yonkers, New York.    On August 18,

1994, he pleaded guilty to offering a false instrument for filing

in the first degree, insurance fraud in the second degree, grand




     2
         Petitioner’s tax liability for 1999 is no longer at
issue.
                                -3-

larceny in the second degree, and attempted grand larceny in the

third degree.

B.   The Notice of Deficiency for 1989 and 1990

     Respondent sent Article No. Z 009 132 166 by certified mail

to petitioner at the Gowanda Correctional Facility, P.O. Box 311,

Gowanda, NY 14070 (Gowanda) and Article No. Z 009 132 167 by

certified mail to petitioner at 47 Malverne Road, Scarsdale, NY

10583, on December 30, 1998.   Respondent recorded the mailing on

a U.S. Postal Service Form 3877, Acceptance of Registered,

Insured, C.O.D. and Certified Mail, or its equivalent, a

certified mail list, which stated at the top:   “Statutory Notice

of Deficiency for the years indicated have been sent to the

following taxpayers”.   Gowanda received that item on January 4,

1999.   Petitioner was not housed at Gowanda from October 22, 1998

to January 20, 1999.

     Gowanda maintained a log for mail pertaining to inmates’

legal proceedings.   Petitioner signed that log in order to

receive two items of certified mail on January 21, 1999.    The log

does not state the certified mail numbers of the items he

received.   Petitioner received various articles of certified mail

from respondent while he was incarcerated at Gowanda.
                                 -4-

C.   The Section 6330 Hearing

     Respondent issued a Final Notice, Notice of Intent to Levy

and Notice of Your Right to a Hearing, on November 8, 2000.   In

the Final Notice, respondent stated that petitioner owed

$270,087.60 for 1989, $108,044.26 for 1990, and $5,507.84 for

1999.

     On December 1, 2000, petitioner sent to respondent a Form

12153, Request for a Collection Due Process Hearing.   Petitioner

was incarcerated at the Wyoming Correctional Facility at that

time.   He attached an explanation in which he said he had not

received the notice of deficiency and that he was not liable for

tax in the amounts stated in the notice.

     One of respondent’s Appeals officers was assigned to

petitioner’s case on February 12, 2002.    The Appeals officer kept

an activity log for the case in which he said:   (1) The case is

very complex; (2) petitioner claims that he had no prior

opportunity to contest the underlying liability and he did not

receive the notice of deficiency; and (3) the “administrative

file indicates that a defaulted * * * [notice of deficiency] is

in [the administrative] file”.

     On May 1, 2002, the Appeals officer sent a letter to

petitioner at the Wyoming Correctional Facility stating in part:

          We scheduled the conference you requested on this
     case for * * * [9:30 a.m., May 21, 2002, at room 1137,
     290 Broadway, New York, New York]. Please let me know
     within 10 days from the date of this letter whether
                                  -5-

     this is convenient. If it is not, I will be glad to
     arrange another time.

          Our meeting will be informal and you may present
     facts, arguments, and legal authority to support your
     position. If you plan to discuss new material, please
     send me copies at least five days before our meeting.
     You should prepare statements of fact as affidavits, or
     sign them under penalties of perjury. * * *.

The Appeals officer knew that petitioner was incarcerated when he

sent that letter.   On May 15, 2002, petitioner wrote the

following to the Appeals officer:

          I received your May 1, 2002, correspondence
     affixed hereto, and I respond accordingly. I was
     transferred to the facility listed below and * * *
     Wyoming did not forward your correspondence
     expeditiously. Therefore, I apologize for the delayed
     response, but it is with just cause.

          I commence by thanking you for scheduling a
     conference on this case. Unfortunately, I am faced
     with two challenges: (1) I am confined to solitary
     until July 16, 2002 and I do not have access to a
     telephone, legal documents, and/or transportation to
     even meet with you at this time. Furthermore and due
     to my indigency status as granted by both Federal and
     State courts, I am unable to retain an attorney,
     certified public accountant or person enrolled to
     practice before the Internal Revenue Service. I am
     currently petitioning a professional willing to assist
     pro bono.

       *      *        *      *         *   *      *        *

     I humbly request a moratorium until I can either (1)
     access my complete file post July 16, 2002, (2) obtain
     a pro bono accountant or attorney or, (3) complete my
     due process right to a full and fair opportunity to
     appeal my criminal case. * * *.

     Petitioner did not meet with the Appeals officer in New York

on May 21, 2002.    On that day, the Appeals officer wrote in his
                                  -6-

activity log that he had reviewed respondent’s transcripts of

account for petitioner’s tax year 1989 and 1990, including Forms

4340, Certificates of Assessments, Payments, and Other Specified

Matters, and concluded that respondent had followed proper

administrative and procedural requirements.

     The Appeals officer received and read petitioner’s May 15,

2002, letter on May 22, 2002.    Even though he told petitioner he

would reschedule the hearing at petitioner’s request, the Appeals

officer did not do so.   On June 4, 2002, respondent issued a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.   In it, respondent determined that

respondent’s collection action with respect to petitioner’s tax

years 1989-90 and 1999 was proper.

                                OPINION

A.   Whether Respondent Provided Petitioner an Opportunity for a
     Hearing Under Section 6330(b)

     Respondent contends that petitioner was given an opportunity

to have a hearing in this case.    We disagree.   The Appeals

officer invited petitioner to attend a hearing and said he would

reschedule it if it were inconvenient for petitioner to attend.

Petitioner timely requested that it be rescheduled.

     As a result of telling petitioner he would reschedule the

hearing at petitioner’s request, and then not doing so, the

Appeals officer denied petitioner the opportunity for a hearing

on the issues petitioner had identified in his request for a
                                 -7-

hearing.   The Appeals officer knew that petitioner had raised

numerous issues, none of which the Appeals officer characterized

as frivolous.   We conclude that petitioner did not have an

opportunity for a hearing as required by section 6330(b).

B.   Whether Petitioner Received the Notice of Deficiency for
     1989 and 1990

      A taxpayer may challenge the existence or amount of the

underlying tax liability if he or she did not receive a notice of

deficiency or otherwise have an opportunity to dispute that tax

liability.    Sec. 6330(c)(2)(B); Goza v. Commissioner, 114 T.C.

176, 180-181 (2000).

     Petitioner contends that he did not receive the notice of

deficiency for 1989 and 1990 and that he is not liable for tax in

the amount stated in the notice of determination.

     Respondent points out that the Form 3877 states that

respondent mailed a notice of deficiency to petitioner, Gowanda

records state that Gowanda received the item of mail listed in

the Form 3877, and that petitioner signed for two articles of

certified mail on January 21, 1999.    Respondent contends, based

on the presumption of official regularity, that petitioner

received the notice of deficiency.

     Petitioner testified that he did not receive the notice of

deficiency.   Respondent asks us to disregard petitioner’s

testimony because he has a criminal record.   We disagree.

Petitioner’s habit is to aggressively assert his rights in
                                -8-

dealings with the U.S. Government.    It appears from his

litigating history that he responds to notices as required to

preserve his litigating rights.3   Respondent does not contend

otherwise.   We conclude that petitioner did not receive the

notice of deficiency or have any other opportunity to dispute his

underlying tax liability for 1989 or 1990.

C.   Conclusion

     In appropriate circumstances we may remand a case to the

Appeals Office to provide a hearing under section 6330(b).     See

Lunsford v. Commissioner, 117 T.C. 183, 189 (2001); Harrell v.

Commissioner, T.C. Memo. 2003-271.    We will remand this case with




     3
        Petitioner is litigious, frequently as the plaintiff or
appellant. See, e.g., Butti v. Goord, 769 N.Y.S.2d 200 (2003);
People v. Butti, 767 N.Y.S.2d 401 (2003); People v. Butti, 749
N.Y.S.2d 479 (2002); Butti v. Goord, 723 N.Y.S.2d 131 (2001);
Butti v. Goord, 716 N.Y.S.2d 38 (2000); People v. Butti, 680
N.Y.S.2d 464 (1998); U.S. Bank Trust Natl. Association Trustee v.
Butti, 792 N.Y.S.2d 505 (App. Div. 2005); U.S. Bank Trust Natl.
Association Trustee v. Butti, 790 N.Y.S.2d 390 (App. Div. 2005);
Butti v. Goord, 765 N.Y.S.2d 313 (App. Div. 2003); People v.
Butti, 761 N.Y.S.2d 529 (App. Div. 2003); Butti v. Goord, 760
N.Y.S.2d 377 (App. Div. 2003); State v. Butti, 757 N.Y.S.2d 644
(App. Div. 2003); Butti v. Goord, 753 N.Y.S.2d 908 (App. Div.
2003); People v. Butti, 742 N.Y.S.2d 570 (App. Div. 2002); Butti
v. Goord, 716 N.Y.S.2d 349 (App. Div. 2000); Butti v. Goord, 710
N.Y.S.2d 236 (App. Div. 2000); People v. Butti, 672 N.Y.S.2d 794
(App. Div. 1998); Butti v. Angiolillo, 664 N.Y.S.2d 947 (App.
Div. 1997); Butti v. Butti, 543 N.Y.S.2d 94 (App. Div. 1989).
Petitioner apparently vigorously asserted his rights in these
cases and appealed every adverse ruling.

     Petitioner also has tenaciously asserted his rights in this
case. If he received the notice of deficiency, as respondent
asserts, we believe he would have taken action to challenge it.
                                 -9-

instructions to respondent to offer petitioner an opportunity for

hearing under section 6330(b).


                                                   An appropriate

                                            order will be issued.
