                  T.C. Summary Opinion 2006-193



                     UNITED STATES TAX COURT



                  DANIEL HUBBARD, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8207-05S.           Filed December 21, 2006.



     Daniel Hubbard, pro se.

     Steven Josephy, for respondent.



     GOLDBERG, Special Trial Judge:    This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.

     This matter is before the Court on respondent’s Motion for

Summary Judgment filed pursuant to Rule 121, Tax Court Rules of
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Practice and Procedure.   Unless otherwise indicated, subsequent

section references are to the Internal Revenue Code in effect for

the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.   In his motion, respondent moves

for adjudication of all legal issues in controversy and argues,

pursuant to section 6330(c)(2)(B), that petitioner’s receipt of a

notice of deficiency should preclude him from challenging the

underlying income tax liability for the 2000 taxable year, the

only error assigned in the underlying petition.     Petitioner has

not denied receiving a notice of deficiency but rather maintains

that he is not required by law to pay income taxes.     The only

issue for determination, therefore, is whether petitioner can

contest the merits of the tax liability determined in the notice

of deficiency and subsequently assessed by respondent.

                            Background

     The parties’ stipulation of facts is incorporated by this

reference.   At the time that the underlying petition was filed in

this case, petitioner resided in Centennial, Colorado.

     During the taxable year at issue, petitioner worked as a

school bus driver for the Denver Public Schools.     Petitioner

submitted to respondent a Form 1040, U.S. Individual Income Tax

Return, for the taxable year 2000.     On the return, petitioner

entered zeros on all lines requesting information regarding his

income (specifically, line 7), and claimed a refund of all of his
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Federal income tax withheld.

     Petitioner attached to the return a 2-page typewritten

statement containing frivolous and groundless tax protester

arguments such as: (1) No section of the Internal Revenue Code

establishes an income tax liability or requires that he pay taxes

on the basis of a return; (2) the Privacy Act provides that he is

not required to file a return; (3) a Form 1040 with zeros is a

valid return; (4) he has no income under the definition of income

in Merchants Loan & Trust Co. v. Smietanka, 255 U.S. 509 (1921);

(5) his return is not frivolous; (6) no Internal Revenue Service

employee has been delegated authority to determine whether a

return is frivolous or to impose a frivolous return penalty; (7)

the frivolous return penalty may not be applied to him because no

legislative regulation implements it; (8) no statute allows the

IRS to prepare a return for him because he has filed a “return”;

and (9) income, for purpose of the Federal income tax, “can only

be a derivative of corporate activity.”

     In a letter dated August 13, 2002, respondent advised

petitioner that although he had received petitioner’s 2000

return, it could not be processed.     Respondent informed

petitioner in this letter that his arguments were frivolous and

without merit.   Respondent prepared a substitute return for

petitioner.   On August 13, 2002, respondent sent petitioner a 30-

day letter, in which respondent adjusted petitioner’s income tax
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liability for 2000.     Petitioner responded to this letter on

October 20, 2002, by filing a Form 1040X, Amended U.S. Individual

Income Tax Return.    Across lines 1-10 of the Form 1040X,

petitioner wrote the words, “Not Liable.”     He also wrote “Not

Liable” on line 19 of the Form 1040X.     On line 23, the amount

that petitioner wanted as a refund, he wrote “$317.”     In Part II

of the Form 1040X, petitioner wrote the following as an

explanation of the changes he made on the Form 1040X:

     “Not Liable! (Explanation!) Not Liable!
     Not Liable! I discovered after reading your 1040
     instruction book that I’m not liable because line
     #7 ask [sic] for my foreign source income; since I
     had no foreign source income I’m not liable for
     any tax you claim that I owe. Please refund my
     overpayment in the amount of $317 that was
     withheld.”

     Respondent, by means of certified mail dated June 18,

2003, sent a notice of deficiency (the notice) to

petitioner, determining an income tax deficiency and

proposing additions to tax for the taxable year 2000 as

follows:

           Deficiency                 Additions to tax
                                Sec. 6651(a)(1) Sec. 6654(a)
             $6,419                 $1,525.50       $324.07

     The deficiency in income tax is based on respondent’s

determination that in 2000 petitioner received, but failed

to report on an income tax return for that year, income from

the following sources:
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       Source                                     Amount

       Labor Ready Central, Inc.                    $36
       The Denver Post                            8,009
       DPS Production                            12,438
       JC Penney Company, Inc.                    1,045
       State of Colorado                            395
       U.S. Office of Personnel Management       12,540
       Colorado Lottery                             657

       The addition to tax under section 6651(a)(1) is based

on respondent’s determination that petitioner failed to file

a valid income tax return for 2000.     The addition to tax

under section 6654(a) is based on respondent’s determination

that petitioner, having avoided the proper amount of

withholding of tax from his wages, failed to pay estimated

tax.

       Respondent mailed the notice to petitioner’s last known

address, 20734 E. Dorado Place in Centennial, Colorado.

Petitioner lived at this address at the time that the notice

was sent by respondent up to and through the time that this

Court held a hearing on respondent’s present motion on

November 14, 2005.

       Petitioner did not claim the notice from his local

United States Post Office.    The envelope indicates that the

United States Postal Service attempted delivery on June 20,

2003, June 27, 2003, and July 5, 2003.     Sometime after July

5, 2003, the notice was returned to respondent with the word

“unclaimed” stamped across the face of the envelope.
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Petitioner has neither admitted nor denied that he ever

received the notice.    Petitioner did not file a petition for

redetermination with the Tax Court.     See sec. 6213(a).

     On November 17, 2005, respondent assessed the

determined deficiency of $6,419 “per default of 90 day

letter,” the addition to tax for failure to file under

section 6651(a)(1) in the lesser amount of $1,372.95, and

the addition to tax for failure to pay estimated tax under

section 6654(a) in the lesser amount of $976.

     Respondent issued a Final Notice, Notice of Intent to

Levy and Notice of Your Right to a Hearing (which petitioner

admitted he did receive) on July 12, 2004.     On July 26,

2004, petitioner sent to respondent a Form 12153, Request

for a Collection Due Process Hearing (CDP hearing).     The CDP

hearing was held on March 21, 2005.

     At the CDP hearing, petitioner restated all of his

previous arguments that his income was not taxable according

to his interpretation of the Internal Revenue Code and other

materials.   No alternative collections options were

discussed at the hearing.

     Respondent sent to petitioner a Notice of Determination

on April 27, 2005.   Petitioner filed his petition with this

Court on May 5, 2005.    Respondent filed his motion for

summary judgment, and the motion was heard at the Court’s
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Trial Session in Denver, Colorado.       At the hearing,

petitioner filed a “PETITION TO WITHDRAWAL FOR LACK OF

JURISDICTION” that the Court filed as a Motion to Dismiss

for Lack of Jurisdiction.

                            Discussion

     Section 6331(a) authorizes the Commissioner to levy all

property and property rights of a taxpayer liable for taxes

who fails to pay them within 10 days after notice and demand

for payment.   Sections 6331(d) and 6330(a) require the

Secretary to send written notice to the taxpayer of the

intent to levy and to provide the taxpayer with a right to a

hearing prior to the collection activity.

     Section 6330(c)(2)(A) provides that the taxpayer may

raise at the hearing “any relevant issue relating to the

unpaid tax or the proposed levy” including spousal defenses,

challenges to the appropriateness of collection actions, and

alternatives to collection.    Section 6330(c)(1) further

requires that the Appeals officer obtain verification that

the requirements of any applicable law or administrative

procedure have been met.

     Notably, however, a taxpayer may challenge the assessed

amount of the deficiency and any additions to unpaid tax

only if he did not receive a notice of deficiency or

otherwise have an opportunity to dispute that tax liability.
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Sec. 6330(c)(2)(B); Goza v. Commissioner, 114 T.C. 176, 180-

181 (2000).    For purposes of section 6330(c)(2)(B), receipt

of a notice of deficiency means receipt in time to petition

this Court for redetermination of the deficiency determined

in such notice.    Sec. 301.6330-1(e)(3), Q&A-E2, Proced. &

Admin. Regs.

     The parties agree that respondent has the burden of

showing that petitioner either received the notice of

deficiency or otherwise had an opportunity to dispute the

tax liability.

     We now consider respondent’s Motion for Summary

Judgment.

     Respondent argues that the notice of deficiency was

sent to petitioner’s last known address by certified mail

and that petitioner refused to accept delivery for it at the

United States Postal Service branch where it was held.    As

evidence of mailing and attempted delivery, respondent has

produced a photocopy of the original notice of deficiency,

including the envelope in which the notice was sent.

     The envelope contains notations made by the United

States Postal Service showing that its employees attempted

delivery on no less than three separate occasions.    Absent

clear evidence to the contrary, United States Postal Service

employees are presumed to properly discharge their official
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duties, which justifies the conclusion that the notice of

deficiency was sent and that attempts to deliver the notice

were made in the manner contended by respondent.    Sego v.

Commissioner, 114 T.C. 604, 611 (2000).

     The record in this case contains a copy of a notice of

deficiency dated June 18, 2003, addressed to petitioner; a

Form 3877 indicating that the notice was sent on the date it

bears; and notations made by the United States Postal

Service showing that it attempted delivery on 3 separate

occasions over a 4-week span of time.   Accordingly, we

conclude that although petitioner did not accept delivery of

the notice of deficiency, his failure to receive the notice

actually stemmed from a deliberate effort to refuse such

delivery in furtherance of his ill-conceived line of

reasoning that he is exempt from any income tax liability.

It is well settled that a notice of deficiency mailed to the

taxpayer’s last known address in accordance with the

provisions of section 6212(b) is valid irrespective of

whether or not the taxpayer actually received it.   See Pyo

v. Commissioner, 83 T.C. 626, 632 (1984); Frieling v.

Commissioner, 81 T.C. 42, 48 (1983); Zenco Engg. Corp. v.

Commissioner, 75 T.C. 318, 321 (1980), affd. without

published opinion 673 F.2d 1332 (7th Cir. 1981).

     We find that petitioner’s conduct in this case
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constituted a deliberate refusal of delivery and repudiation

of his opportunity to contest the liability determined in

the notice of deficiency.   The provisions in section

6330(c)(2)(B) limiting in collection due process cases the

right to contest the underlying tax liability are clearly

designed to prevent the creation of a prepayment remedy in

cases like this one.   The validity of the underlying tax

liability therefore cannot be properly raised by petition in

this case.

     We will not spend time discussing petitioner’s Cross-

Motion to Dismiss on the grounds that the Tax Court lacks

jurisdiction “to address the particular notice of deficiency

upon which this Docket is based.”   In his motion, petitioner

continues on for pages making spurious and ridiculous

arguments in support of his motion.    We will not waste our

time addressing them as they are meritless, timeworn

protester arguments that have been rejected and discredited

by this Court and the other Federal courts.    For this

reason, petitioner’s motion will be denied.

     Respondent’s Motion for Summary Judgment filed on

August 11, 2005, will be granted and respondent’s

administrative determination to proceed with collection

against petitioner will be sustained.    Petitioner’s Motion

to Dismiss filed on November 14, 2005, will be denied.
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     Reviewed and adopted as the report of the Small Tax

Case Division.


                                      An appropriate order and

                                decision will be entered.
