                  T.C. Memo. 2010-30



                UNITED STATES TAX COURT



              JAMES BARNES, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 8219-07L.             Filed February 22, 2010.



     R determined to proceed with collection of P’s
income tax liability for 2002 without allowing P to
challenge the underlying tax liability at a sec. 6330,
I.R.C., hearing before the Office of Appeals. R moved
for summary judgment.

     Held: Pursuant to sec. 6330(c)(2)(B), I.R.C., P
is entitled to raise the existence or amount of the
underlying tax liability at an Appeals hearing, unless
P has previously received a notice of deficiency or
otherwise had an opportunity to dispute the liability.
P did not receive the notice of deficiency for 2002,
and R has failed to allege or show that P deliberately
refused delivery of the notice of deficiency. R’s
motion for summary judgment will be denied and this
case will be remanded to the Office of Appeals for
further hearing.
                                - 2 -

     James Barnes, pro se.

     Alisha M. Harper, for respondent.



                         MEMORANDUM OPINION


     RUWE, Judge:    The petition in this case was filed in

response to a Notice of Determination Concerning Collection

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

determination).1    This case is before the Court on respondent’s

motion for summary judgment.    We must decide whether the

determination by respondent’s Appeals Office to proceed with

collection action with respect to petitioner’s unpaid income tax

liability for tax year 2002 was proper.

                             Background

     At the time the petition was filed, petitioner resided in

Kentucky.

     Respondent sent to petitioner a Letter 1058, Final Notice of

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

September 10, 2005, regarding petitioner’s unpaid tax for 2002.

Petitioner submitted to respondent a Form 12153, Request for a

Collection Due Process Hearing, dated September 30, 2005.     In the

Form 12153 petitioner requested a face-to-face hearing (section


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
                                - 3 -

6330 hearing) and informed the Appeals Office that he would be

audio recording the section 6330 hearing.    Petitioner also

indicated that one of the issues he wanted to address was whether

respondent had followed proper procedures in making the

assessment against him.

     By letter dated December 20, 2005, respondent’s Appeals

Office acknowledged receipt of petitioner’s request to audio

record the section 6330 hearing but denied his request for a

face-to-face conference, stating:   “Face-to-face conferences are

not allowed if the only items that a taxpayer raises are

frivolous or groundless.”   Respondent did not identify which of

petitioner’s arguments were considered frivolous or groundless.2

     By letter dated January 9, 2006, petitioner asserted that he

had relevant, nonfrivolous issues to discuss at the section 6330

hearing and that it had to be a face-to-face hearing so that he

might audio record it.    Petitioner also raised the issue of the

underlying tax liability and stated:    “I have no idea as to how

or where the IRS got these numbers.     [A]lthough you claim that I

have had an opportunity to dispute the liability, I don’t even

recall ever receiving any notification or explanation from the


     2
       It appears that petitioner did not file a return for 2002.
Internal Appeals Office records indicate that the Appeals Office
had identified petitioner as a “frivolous filer”. Form 12153-A,
Referral Request for CDP Hearing and Request for CDPTS Input,
dated “11-2-5” indicates that petitioner “mentions frivolous
arguments in the past, although DI does not show any frivolous
filer information.”
                                - 4 -

IRS that explains how they came up with these numbers against

me.”

       Almost 9 months later, respondent’s Appeals Office sent to

petitioner a letter dated September 30, 2006, which states, in

pertinent part:

       You requested a face-to-face conference in order to
       dispute the underlying liability: A Notice of
       Deficiency for tax year ended 12/2002 was mailed to you
       on November 30, 2004 at * * * Louisville, KY 40272-
       2342040. (You apparently elected not to claim the
       Notice.) The Notice afforded you the opportunity to
       dispute the liability in Tax Court prior to its
       assessment. Therefore, you may not raise challenges to
       the existence or amount of the tax liability specified
       on the CDP Notice.

       The Appeals Office does not provide a face-to-face
       conference if the only items a taxpayer wishes to
       discuss are frivolous or, may otherwise not be raised
       in the hearing. During the hearing, we must consider
       whether the IRS met all the requirements of any
       applicable law or administrative procedure, and any
       non-frivolous issues you wish to discuss. * * *

       In response, by letter dated October 13, 2006, petitioner

disputed the determination not to grant him a face-to-face

conference and the determination that he had been given a prior

opportunity to dispute his underlying tax liability.    In a letter

dated October 30, 2006, the Appeals officer stated that

petitioner’s request had been transferred to the nearest Appeals

Office “for a face-to-face hearing.”    Thereafter, the newly

assigned settlement officer (whose office was in South Bend,

Indiana) sent to petitioner (at his Louisville, Kentucky,

address) a followup letter, dated December 7, 2006, indicating
                                - 5 -

that petitioner would not be allowed a face-to-face hearing and

scheduling a telephone conference call for December 21, 2006.

The letter did, however, advise petitioner that he might be

allowed a face-to-face section 6330 hearing if he were to provide

to the Appeals Office the nonfrivolous issue in writing within 14

days from the date of the letter.

     By letter dated December 14, 2006, petitioner responded to

the settlement officer, stating that he would not be able to

participate in the telephone conference3 and explaining again

that he had no knowledge of ever receiving a notice of

deficiency.    The Appeals Office did not receive petitioner’s

letter until December 29, 2006.    Before receipt of petitioner’s

letter, however, the settlement officer had sent to petitioner a


     3
         Petitioner’s letter states in part:

     Regretfully, I will not be able to participate in this
     telephone conference. The Appeals Office where my pre-
     scheduled hearing is to be held, is located in Indiana,
     I currently reside in Kentucky. But I am certain we
     can agree on a mutually convenient date and location,
     sometime in the near future. Knowing that I requested
     for a FACE-TO-FACE hearing, why did the IRS appoint
     someone in the South Bend, IN Office to conduct my CDP
     Hearing? The South Bend, IN Office is miles away from
     my place of residence. That’s hours worth of driving
     alone, which I can not afford. This is most
     inconvenient and unacceptable. I find it hard to
     believe that the IRS does not have a local office in
     Louisville, KY. Please understand that I am NOT
     refusing to participate in my CDP Hearing. I am just
     asking the IRS to assist in making this process a
     little bit more convenient for me that I may be able to
     attend the FACE-TO-FACE Hearing that I initially
     requested.
                                - 6 -

letter dated December 21, 2006, which indicated that petitioner

neither called for his scheduled telephone conference nor

indicated that the date and/or time were inconvenient.     The

letter also afforded petitioner an additional 14 days to provide

information for consideration by the Appeals Office before making

a determination.

     In response to the settlement officer’s letter dated

December 21, 2006, petitioner, in a letter dated January 3, 2007,

took exception to the settlement officer’s statement that

petitioner had not indicated that the scheduled date for the

telephone conference was inconvenient, but otherwise did not

provide any further information for the Appeals Office to

consider before making its determination.

     Respondent’s Appeals Office issued to petitioner a notice of

determination dated March 7, 2007.      On April 9, 2007, petitioner

filed an incomplete petition in which he generally contested the

determination made by the Appeals Office and requested assistance

from the Court.    In an amended petition, filed on October 12,

2007, petitioner alleged that “Respondent did not meet all the

applicable requirements during the Collection Due Process

Hearing” and that he was not allowed the “opportunity to

challenge the liability of the assessed tax.”
                               - 7 -

                            Discussion

     This case is before us on respondent’s motion for summary

judgment, to which petitioner objects.   Summary judgment is

intended to expedite litigation and avoid unnecessary and

expensive trials.   See FPL Group, Inc. v. Commissioner, 116 T.C.

73, 74 (2001).   Rule 121(a) provides that either party may move

for summary judgment upon all or any part of the legal issues in

controversy.   Full or partial summary judgment is appropriate

where there is no genuine issue as to any material fact and a

decision may be rendered as a matter of law.   See Rule 121(b);

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994).   Respondent, as the moving party,

bears the burden of proving that no genuine issue exists as to

any material fact and that he is entitled to judgment as a matter

of law.   See Bond v. Commissioner, 100 T.C. 32, 36 (1993); Naftel

v. Commissioner, 85 T.C. 527, 529 (1985).   In deciding whether to

grant summary judgment, the factual materials and the inferences

drawn from them must be considered in the light most favorable to

the nonmoving party.   See Bond v. Commissioner, supra at 36;

Naftel v. Commissioner, supra at 529.

     Section 6330(a)(1) provides that no levy may be made on any

property or right to property of any person unless the Secretary

has notified such person in writing of the right to a hearing

under this section before such levy is made.   The notice must
                               - 8 -

include in simple and nontechnical terms the right of the person

to request a hearing to be held by the Internal Revenue Service

(IRS) Office of Appeals.   Sec. 6330(a)(3).    Section 6330(c)

governs the conduct of a requested hearing.     At the hearing the

person may raise any relevant issue relating to the unpaid tax or

the proposed levy, including appropriate spousal defenses,

challenges to the appropriateness of collection actions, and

offers of collection alternatives.     Sec. 6330(c)(2)(A).   Section

6330(c)(2)(B) further provides that 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 the tax liability

or did not otherwise have an opportunity to dispute the tax

liability.   Under section 6330(c)(2)(B), the receipt of a notice

of deficiency, not its mailing, is the relevant event.4

Kuykendall v. Commissioner, 129 T.C. 77, 80 (2007); Conn v.

Commissioner, T.C. Memo. 2008-186.

     Among the attachments to respondent’s motion for summary

judgment were a declaration by the settlement officer who handled

petitioner’s case in the Appeals Office, a copy of the notice of


     4
       By contrast, for purposes of assessing a deficiency in
tax, a notice of deficiency mailed to the taxpayer at his last
known address is sufficient regardless of receipt or nonreceipt.
Sec. 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 735-736
(1989), affd. without published opinion 935 F.2d 1282 (3d Cir.
1991); Shelton v. Commissioner, 63 T.C. 193 (1974); Tatum v.
Commissioner, T.C. Memo. 2003-115 n.4.
                                - 9 -

deficiency for 2002 dated November 30, 2004, and the envelope

that respondent alleges contained the notice of deficiency mailed

to petitioner on November 30, 2004.     The face of the envelope

shows that it was returned to respondent and was stamped

unclaimed.    Thus, there is no dispute that petitioner did not

actually receive the notice of deficiency.     Because it is

undisputed that petitioner did not actually receive the notice of

deficiency, he would normally have been entitled to challenge the

underlying tax liability at the section 6330 hearing.      See

Kuykendall v. Commissioner, supra; Conn v. Commissioner, supra.

     Even if the taxpayer did not actually receive the notice of

deficiency, we have held that the taxpayer cannot dispute the

underlying tax liability where there is a showing that he

deliberately refused delivery of a notice of deficiency.         Sego v.

Commissioner, 114 T.C. 604 (2000).      But absent sufficient

evidence that a taxpayer deliberately refused delivery of the

notice of deficiency, proof that the notice of deficiency was not

actually received will be sufficient to entitle a taxpayer to

dispute the underlying tax liability in a section 6330

proceeding.    Conn v. Commissioner, supra; Calderone v.

Commissioner, T.C. Memo. 2004-240; Tatum v. Commissioner, T.C.

Memo. 2003-115; Carey v. Commissioner, T.C. Memo. 2002-209.

     The notice of determination sent by the Appeals Office on

March 7, 2007, alleged that the U.S. Postal Service attempted
                               - 10 -

delivery but that petitioner failed to pick up the notice of

deficiency and that petitioner’s conduct “constituted deliberate

refusal of delivery”.    In his answer to petitioner’s amended

petition, respondent alleges “that Respondent sent a notice of

deficiency for the year 2002 to Petitioner at his current address

on November 30, 2004 and that Petitioner refused to claim said

notice from the postal service.”    However, in his motion for

summary judgment, respondent has not alleged that petitioner

deliberately refused delivery of the notice of deficiency.    On

the record before us, we cannot conclude that petitioner

deliberately refused its delivery or otherwise had an opportunity

to dispute the liability for 2002 so as to preclude him from

challenging his underlying tax liability at a hearing before the

IRS Office of Appeals.

     Attached to respondent’s motion for summary judgment were

the settlement officer’s declaration and 19 exhibits, including

numerous items of correspondence between the Appeals Office and

petitioner, a copy of the administrative file relating to the

examination of petitioner’s income tax liability for 2002, and

various transcripts for several years.    Many of the exhibits

contained multiple unnumbered pages that seem to be in no

particular order.   Many of the documents in the administrative

file and most of the documents labeled as transcripts of

petitioner’s account are full of abbreviations, alphanumeric
                              - 11 -

codes, dates, and digits that are indecipherable and

unintelligible without additional explanation.    One page of the

transcript related to the year 2002 that was intelligible shows

entries for the substitute for return, withholding credits, and

the tax assessment, all dated April 25, 2005.    It also shows that

the “Intent To Levy Collection Due Process Notice” was issued on

September 10, 2005, and shows an entry dated September 19, 2005,

for “Intent To Levy Collection Due Process Notice Return Receipt

Signed 9-19/2005”.   Noticeably absent from this transcript is an

entry for the issuance of a notice of deficiency.

     One of the exhibits that respondent identified as the

administrative file regarding the examination of petitioner’s

2002 income tax liability included copies of the notice of

deficiency dated November 30, 2004; the envelope in which it was

allegedly mailed; a Form 12616, Correspondence Examination

History Sheet, showing “11/30/04 Send 90day letter with report”;

and a computer-generated printout for 2002 that shows “90-Day

Statutory Notice ll/18/2004”.5   This seemingly conflicting

information regarding the date of the notice of deficiency raises

a question about its mailing date.     The postmark on the photocopy

of the envelope, which respondent alleges was returned to him

unclaimed, is indecipherable as to its mailing date because of



     5
       The terms “notice of deficiency”, “90-day letter”, and
“90-day statutory notice” are often used synonymously.
                               - 12 -

what appears to be a label that has been marked “other” as the

reason it was returned to the sender.   The envelope has two

“windows”; one to reveal the name and address of petitioner that

was typed on the enclosed notice of deficiency, the other titled

“Certified Mail”.   The certified mail number that would appear in

this “window” is printed on the notice of deficiency.   This

indicates to us that the certified mail number was placed on the

notice of deficiency before it was put into the envelope for

delivery to the Post Office.   Absent from the documentation

respondent presented is a U.S. Postal Service Form 3877,

Certified Mailing List, showing the date on which the notice of

deficiency was mailed.   A properly completed Form 3877 certified

mailing list reflecting Postal Service receipt represents direct

documentary evidence of the date and fact of mailing.   Coleman v.

Commissioner, 94 T.C. 82, 90 (1990).6


     6
       In Hoyle v. Commissioner, 131 T.C. ___, ___ (2008) (slip
op. at 12), we stated:

     We have held that exact compliance with Postal Service
     Form 3877 mailing procedures raises a presumption of
     official regularity in favor of the Commissioner and is
     sufficient, absent evidence to the contrary, to
     establish that the notice was properly mailed. Coleman
     v. Commissioner, 94 T.C. 91 (1990); see also United
     States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984).
     * * *

We also noted that Chief Counsel Notice CC-2006-019 (Aug. 18,
2006) states that when an Appeals officer identifies an
irregularity in the assessment procedure, he may be required to
examine underlying documents, such as the certified mailing list.
                                                   (continued...)
                               - 13 -

     Also notably absent from the array of documents attached to

respondent’s motion for summary judgment is a Form 4340,

Certificate of Assessments, Payments, and Other Specified

Matters.   The IRS Web site describes Form 4340 as follows:

     The Certified Transcript Program (CERTS) produces a
     common language transcript that gives the history
     assessments and payments on taxpayers’ accounts. These
     transcripts are used in civil and criminal court cases.
     Form 4340, Certificate of Assessments, Payments, and
     Other Specified Matters, is used by the government in
     litigation to certify extracts from a taxpayer’s
     account. * * * [http://www.irs.gov/privacy/article/
     0,,id=174281,00.html.]

Unlike many of the printouts from respondent’s computer system

that were attached to respondent’s motion for summary judgment, a

Form 4340 is normally a readable and understandable history of

transactions and events concerning a taxpayer’s account for a

particular taxable period.   See Tufft v. Commissioner, T.C. Memo.

2009-59.   Form 4340 is “‘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.’”    Orum v. Commissioner, 123 T.C. 1, 9 (2004) (quoting

Gentry v. United States, 962 F.2d 555, 557 (6th Cir. 1992)),

affd. 412 F.3d 819 (7th Cir. 2005).     Generally, courts have held

that Form 4340 provides at least presumptive evidence that a tax

has been validly assessed under section 6203.     Davis v.



     6
      (...continued)
Id. at ___ n.7 (slip op. at 15).
                                  - 14 -

Commissioner, 115 T.C. 35, 40 (2000) (citing Huff v. United

States, 10 F.3d 1440, 1445 (9th Cir. 1993), Hefti v. IRS, 8 F.3d

1169, 1172 (7th Cir. 1993), Farr v. United States, 990 F.2d 451,

454 (9th Cir. 1993), Geiselman v. United States, 961 F.2d 1, 5-6

(1st Cir. 1992), Rocovich v. United States, 933 F.2d 991, 994

(Fed. Cir. 1991), United States v. Chila, 871 F.2d 1015, 1017-

1018 (11th Cir. 1989), and United States v. Miller, 318 F.2d 637,

638-639 (7th Cir. 1963)).

        A clear record of relevant transactions is very important in

a section 6330 court proceeding.       See Wright v. Commissioner, 381

F.3d 41 (2d Cir. 2004), vacating and remanding T.C. Memo. 2002-

312.7       This is especially true in cases submitted to the Court on



        7
       In Wright v. Commissioner, 381 F.3d 41, 44 (2d Cir. 2004),
vacating and remanding T.C. Memo. 2002-312, which was a sec. 6330
case, the Court of Appeals for the Second Circuit described the
unsatisfactory record before it as follows:

        Here, the record that has been presented to this Court
        by Wright and the IRS is unhelpful. Wright’s initial
        2002 complaint to the Tax Court expressed bewilderment
        as to the nature of the tax balances that have been
        calculated (and recalculated) against him by the IRS.
        At oral argument and in its briefs, the IRS seemed
        equally unsure about several basic and crucial facts.
        The parties’ confusion is understandable; the relevant
        timeline and tax amounts have been reconstructed using
        photocopied forms, computer screen printouts, and dot-
        matrix printouts of tax account balances. Many of
        these records have no supporting explanation (and
        therefore are inscrutable to any non-employee of the
        IRS), many are from time periods that are not the same,
        and even the documents that are from similar time
        periods often contain amounts that are inexplicably
        contradictory.
                              - 15 -

a motion for summary judgment, where there is no opportunity to

question witnesses about the meaning of coded computer

transcripts that might otherwise be indecipherable or

unintelligible to a reviewing court.   The Chief Counsel for the

IRS recognized this and has instructed his attorneys as follows:

     A certified copy of an updated Form 4340 transcript
     should also be submitted with all summary judgment
     motions. The Form 4340 transcript has been
     consistently requested by Tax Court judges in summary
     judgment cases. Even though this transcript is
     prepared after the issuance of the notice of
     determination, submission of the Form 4340 is not a
     violation of the record rule because it generally
     contains the same information originally reviewed by
     the appeals or settlement officer in making the CDP
     determination. See Bowman v. Commissioner, T.C. Memo.
     2007-114. * * * [Chief Counsel Notice CC-2009-010
     (Feb. 13, 2009).]

The Chief Counsel’s instructions also state:   “The Form 4340

should be reviewed thoroughly and any issues raised by entries on

the Form 4340, or inconsistencies with other documents, should be

explained in the motion.”   Id.

     We have recognized that Appeals officers are not required to

rely on any particular document, such as a Form 4340, when making

their determinations.   See Craig v. Commissioner, 119 T.C. 252,

261-262 (2002); Nestor v. Commissioner, 118 T.C. 162, 166-167

(2002).   However, a Form 4340 generated after the determination

by the Office of Appeals can properly be offered in subsequent

court proceedings to explain information used by the Appeals
                              - 16 -

officer.   See Dinino v. Commissioner, T.C. Memo. 2009-284; Med.

Practice Solutions, LLC v. Commissioner, T.C. Memo. 2009-214.

     On the basis of the record before us, we will deny

respondent’s motion for summary judgment and remand this case to

the Appeals Office for further hearing.

     To reflect the foregoing,


                                          An appropriate order will

                                    be issued.
