                       T.C. Memo. 2001-300



                     UNITED STATES TAX COURT



                  ROBERT BAXTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7177-00L.             Filed November 13, 2001.



     Robert Baxter, pro se.

     John Y. Chinnapongse, for respondent.



                       MEMORANDUM OPINION



     DINAN, Special Trial Judge:   This case was called from the

calendar of the trial session at San Francisco, California, on

January 22, 2001, for hearing on respondent’s Motion to Dismiss

for Failure to State a Claim Upon Which Relief Can Be Granted,
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filed November 6, 2000, and petitioner’s Notice of Objection,

filed December 4, 2000.   The parties appeared and were heard.

Background

     In a statutory notice of deficiency dated April 29, 1998,

respondent determined a deficiency in petitioner’s Federal income

tax for the year 1995 in the amount of $9,076, and a penalty

pursuant to section 66621 in the amount of $640.

     The notice of deficiency was mailed, by certified mail, to

petitioner’s last known address: 359 Greenway Drive, Pacifica,

California, 94004-2920592.   The notice of deficiency, dated April

29, 1998, was returned to the Internal Revenue Service as

unclaimed, after the U.S. Postal Service had waited 15 days for

petitioner to claim the letter.   The U.S. Postal Service

attempted to deliver the notice of deficiency to petitioner on

May 1 and 6, 1998.

     At the January 22, 2001, hearing in this case, respondent

represented to the Court:

          In this case, the exhibits attached to our motion
     show that the IRS issue of the stat notice to the
     petitioner at his last known address, that the Post
     Office attempted delivery several times, and that
     petitioner did not pick up -- refused to pick up the
     statutory notice of deficiency.

          And apparently the reason as set forth in this
     objection, where he indicated he shouldn’t have to take


     1
          All section references are to the Internal Revenue Code
currently in effect.
                               - 3 -

     time off from work to pick up a rhetorical letter from
     the IRS.

          As petitioner had the prior opportunity to dispute
     the liability, and as he raises no other issue in his
     petition, the Court should grant the Government’s
     motion to dismiss for failure to state a claim upon
     which relief can be granted.

     The Court:   Thank you, Mr. Chinnapongse.   Mr. Baxter.
                  What did you want to say?

     Mr. Baxter: I didn’t realize the importance of the
                 letter they were sending me at the time,
                 and I did not take time off of work to pick
                 up.

     The Court:   How would you know whether it was important
                  or not unless you looked at it?

     Mr. Baxter: I’ve received many certified letters from
                 the IRS, all stating the same thing, that I
                 owe money with nothing else included. I
                 didn’t realize this certain letter was that
                 important.

     The Court:   You knew that it was down at that mailbox
                  waiting for you?

     Mr. Baxter: Yes, I did. But I put in a lot of hours at
                 that job when that came out and I could not
                 take time off from work.

     In Sego v. Commissioner, 114 T.C. 604 (2000), Steven Sego

and Davina Sego petitioned the Court in response to two Notices

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330, regarding the years 1993, 1994, and 1995. In

their petition, taxpayers sought to challenge their underlying

Federal income tax liabilities for 1993, 1994, and 1995.       The

Commissioner alleged that taxpayers were precluded from
                               - 4 -

challenging the underlying liabilities because they had received

statutory notices of deficiency for those liabilities.

     The Court found that statutory notices of deficiency with

respect to 1993, 1994, and 1995 were sent to each taxpayer on

August 13, 1997.   Duplicate originals were sent to Steven Sego,

one addressed to Spirit Lake, Idaho, and one addressed to

Rathdrum, Idaho.   The notice sent to Spirit Lake was returned

undelivered by the U.S. Postal Service.    The notice sent to

Rathdrum was returned to respondent.    Handwritten across the

first page of the returned notice were the words “This

presentment Dishonored at UCC 1-207".

     The notice of deficiency for 1993, 1994, and 1995 was sent

to Davina Sego at the Rathdrum, Idaho, address.    After two

notices of certified mail were left in the taxpayers’ Rathdrum

mailbox on August 18, 1997, and August 25, 1997, the notice was

returned to respondent by the U.S. Postal Service.

     A U.S. Postal Service employee responsible for the postal

route that includes taxpayers’ address testified that she

attempted delivery of certified mail to Davina Sego on August 18,

1997, and left a second notice of attempted delivery on August

25, 1997.

     The Court held, in Sego v. Commissioner, supra at 610:

     Steven Sego received the statutory notice of deficiency
     in time to file a petition but repudiated that right by
     returning to respondent the statutory notice of
     deficiency with frivolous language on it. He did not
                              - 5 -

     file a petition, and the express language of section
     6330(c)(2)(B) precludes de novo review of his tax
     liability in this proceeding.

          Davina Sego did not actually receive a statutory
     notice of deficiency. * * *

     In Sego v. Commissioner, supra at 611, the Court also held:

          The applicable legal principles with respect to
     Davina Sego are set forth in Erhard v. Commissioner, 87
     F.3d 273 (9th Cir. 1996), affg. T.C. Memo. 1994-344,
     and Patmon & Young Professional Corp. v. Commissioner,
     55 F.3d 216, 218 (6th Cir. 1995), affg. T.C. Memo.
     1993-143, which held that taxpayers cannot defeat
     actual notice by deliberately refusing delivery of
     statutory notices of deficiency. Petitioners’ conduct
     in this case constituted deliberate refusal of delivery
     and repudiation of their opportunity to contest the
     notices of deficiency in this Court, which provides the
     prepayment option for disputing tax liability. (They
     still have the option, however, of paying the tax and
     instituting suits for refund.) The provisions in
     section 6330(c)(2)(B) limiting in collection due
     process cases their right to contest the underlying tax
     liability are clearly intended to prevent the creation
     of a belated prepayment remedy in cases such as this
     one. The validity of the underlying tax liability is
     not properly before the Court.

     The facts in the instant case are substantially similar to

those pertaining to Davina Sego.

     Based upon the foregoing and considering the colloquy

between the Court and petitioner at the January 22, 2001, hearing

on respondent’s motion to dismiss, we find as a fact that

petitioner refused delivery of the statutory notice of deficiency

for 1995 mailed to him on April 29, 1998.

     On March 13, 1999, approximately 1 year after respondent

mailed to petitioner the notice of deficiency for the year 1995,
                                - 6 -

petitioner sent to the Internal Revenue Service an Amended U.S.

Individual Income Tax Return for 1995.    The address listed on the

amended return is 359 Greenway Drive, Pacifica, California 94044.

     On October 13, 1999, respondent mailed to petitioner a

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

pursuant to sections 6330(a) and 6331(d)(2), pertaining to

petitioner’s 1995 Federal income tax liability.   At a time not

specified in the record, petitioner requested a section 6330

hearing in this case, based upon the above-mentioned notice of

intent to levy, dated October 13, 1999.

     In a Notice of Determination Concerning Collection Action(s)

Under Section 6320 and/or 6330, dated May 22, 2000, the Appeals

Office of the Internal Revenue Service, San Jose, California,

advised petitioner:

     Summary of Determination

     The taxpayer questions the validity of the tax
     assessment because he feels that his employer provided
     two different W-2's when there should have only been
     one. However, there has been no evidence provided to
     show that his employer(s) made a mistake. The two W-
     2's were for different amounts and were sent in by two
     different business entities with different employer
     identification numbers. The taxpayer was provided an
     opportunity to file an administrative appeal of the tax
     adjustment but did not claim the Notice of Deficiency
     which was mailed certified to the correct address. The
     Problem Resolution Office also reviewed this case and
     advised the taxpayer that he needed to secure a
     corrected W-2 if in fact there was a mistake made. The
     taxpayer will not be provided with a reconsideration of
     the tax assessment by the Examination Division.
                               - 7 -

     Petitioner filed an Amended Petition for lien or levy action

under section 6320(c) or 6330(d) on September 19, 2000.

Discussion

     Section 6330(c)(2)(B) provides:

          (B) Underlying liability.--The person may also
     raise at the hearing challenges to the existence or
     amount of the underlying tax liability for any tax
     period if the person did not receive any statutory
     notice of deficiency for such tax liability or did not
     otherwise have an opportunity to dispute such tax
     liability.

     We have previously found as a fact that petitioner refused

delivery of the statutory notice of deficiency for 1995, mailed

to him on April 29, 1998.   Petitioner did not petition this Court

from the April 29, 1998, notice.   He is, therefore, by law,

prohibited from challenging his 1995 Federal income tax liability

in a section 6330 hearing or proceeding.   See Sego v.

Commissioner, supra.   Because petitioner is prohibited from

challenging his 1995 Federal income tax liability in such a

hearing or proceeding, his underlying 1995 Federal income tax

liability is not properly at issue in this case.   Goza v.

Commissioner, 114 T.C. 176 (2000).

Conclusion

     Because petitioner is prohibited from challenging his

underlying 1995 Federal income tax liability and penalty in this

proceeding, and because petitioner raises no other justiciable
                                 - 8 -

claim for relief in his petition, we hold that he has failed to

state a claim upon which relief can be granted.

     In view of the foregoing,

                                             An appropriate order

                                         and decision will be

                                         entered for respondent.
