     JOHN CHASE LEE, PETITIONER v. COMMISSIONER                  OF
            INTERNAL REVENUE, RESPONDENT
         Docket No. 21556–11L.         Filed January 21, 2015.

       R filed an NFTL and sent P a notice of lien filing and a
     notice of intent to levy with respect to trust fund recovery
     penalties assessed against P for all periods of 2007 and 2008.
     P requested a CDP hearing pursuant to I.R.C. secs. 6320 and
     6330. In the notice of determination sent to P after the

40
(40)                     LEE v. COMMISSIONER                             41


       hearing the Appeals Officer sustained R’s filing of the NFTL
       and the proposed levy. P petitioned this Court for review.
       After a supplemental hearing on remand, R determined in a
       supplemental notice of determination that P could not chal-
       lenge the underlying tax liabilities because he had previously
       had an opportunity to do so in response to a Letter 1153.
       Because R did not mail the Letter 1153 to P’s last known
       address, R was required to serve Letter 1153 on P personally
       in order for the assessment to be valid. P contends that the
       Letter 1153 was never served on him. Before the Court is R’s
       motion for summary judgment in which R contends that there
       are no disputed issues of material fact. Held: R’s motion for
       summary judgment will be denied because the issue of
       whether the Letter 1153 was properly issued to P by personal
       service remains a genuine dispute as to a material fact for
       trial. Held, further, the issue of whether a Letter 1153 has
       been properly issued to a taxpayer by mailing or by personal
       service pursuant to I.R.C. secs. 6672 and 6212(b) is a require-
       ment of applicable law or administrative procedure that this
       Court will review pursuant to I.R.C. sec. 6330(c)(1) without
       regard to whether P raised the issue at the CDP hearing.

  John Chase Lee, pro se.
  Wendy Dawn Gardner, for respondent.

                                 OPINION

   WELLS, Judge: Petitioner seeks review pursuant to sections
6330 and 6320 of respondent’s determination to uphold a
notice of Federal tax lien (NFTL) filing and a notice of intent
to levy for section 6672 trust fund recovery penalties (trust
fund recovery penalties). 1 The instant case is before the
Court on respondent’s motion for summary judgment pursu-
ant to Rule 121 contending that there are no disputed issues
of material fact and that the NFTL and the proposed levy
should be sustained as a matter of law. Respondent filed,
pursuant to Rule 121(d), a declaration of the settlement
officer with attachments that constitute the hearing record.
Petitioner, who is appearing pro se, did not submit a declara-
tion but makes statements in his response filed in opposition
to respondent’s motion. The parties’ moving papers form the
basis of the facts we rely upon to decide respondent’s motion.
  1 Unless   otherwise indicated, section and Internal Revenue Code ref-
erences are to the Internal Revenue Code of 1986, as amended and as in
effect at all relevant times, and Rule references are to the Tax Court Rules
of Practice and Procedure.
42            144 UNITED STATES TAX COURT REPORTS                       (40)


   Respondent contends that petitioner was personally served
with a Letter 1153, Proposed Assessment of Trust Fund
Recovery Penalty (Letter 1153) by respondent’s revenue
officer. 2 Petitioner contends that the Letter 1153 was never
served on him and that he should not be liable for the under-
lying trust fund recovery penalties. We must decide whether
respondent is entitled to summary judgment. In reaching our
decision, we must decide whether the requirements of any
applicable law and administrative procedure have been met.

                              Background
   At the time the petition was filed petitioner resided in
Piscataway, New Jersey.
   Since 2005 petitioner has intermittently been the CEO of
Wi-Tron, Inc. (Wi-Tron). For every quarter during 2007 and
2008 Wi-Tron incurred employment tax liabilities. During a
meeting with petitioner on December 18, 2009, the revenue
officer in charge of collecting Wi-Tron’s employment taxes
requested a ‘‘4180 interview’’ (4180 interview) 3 with both
petitioner and Tarlochan Bains, the chief operating officer of
Wi-Tron. Petitioner refused the revenue officer’s 4180 inter-
view request because he wanted to seek legal counsel. Before
concluding the meeting the revenue officer advised that he
would be making his determination of trust fund recovery
penalties ‘‘shortly’’ and would mail any proposed assess-
ments. Respondent does not contend and has not provided
any evidence that a 4180 interview was ever held with peti-
tioner. Proposed assessments of the trust fund recovery pen-
alties against petitioner were not mailed to petitioner.
   On March 30, 2010, the revenue officer, his manager, peti-
tioner, and Mr. Bains met in person. Respondent contends
that at the meeting the revenue officer hand delivered to
petitioner a Letter 1153 proposing assessment of the trust
fund recovery penalties against petitioner and providing an
  2 Respondent   does not contend that the Letter 1153 was properly sent
to petitioner by mail pursuant to secs. 6672 and 6212(b).
   3 The purpose of a 4180 interview is to determine whether an individual

is responsible for paying an entity’s employment taxes (responsible per-
son). The determination that an individual is a responsible person is a pre-
requisite for the Commissioner to assess trust fund recovery penalties pur-
suant to sec. 6672, which permits recovery of the employment tax liabil-
ities from the responsible person’s assets.
(40)                 LEE v. COMMISSIONER                      43


opportunity for petitioner to challenge the assessment before
an Appeals officer. The Integrated Collection System History
Transcript (ICS Transcript) that respondent submitted with
the declaration shows a March 30, 2010, entry which does
not refer to the Letter 1153. Instead, an entry on March 31,
2010, the day after the meeting, states: ‘‘In addition to GM
entry above * * * both Bains and Lee were personally served
1153’’. Petitioner did not request an appeal to challenge the
proposed assessment of the trust fund recovery penalties. On
July 14, 2010, the trust fund recovery penalties were
assessed against petitioner for all periods of 2007 and 2008.
   On August 12, 2010, respondent issued a Final Notice—
Notice of Intent to Levy and Notice of Your Right to a
Hearing to petitioner for the penalties. On August 24, 2010,
respondent also issued a Notice of Federal Tax Lien Filing
and Your Right to a Hearing Under IRC 6320 for all of the
trust fund recovery penalties. On September 3, 2010, peti-
tioner submitted Form 12153, Request for a Collection Due
Process or Equivalent Hearing, requesting a hearing.
   Petitioner’s appeal was assigned to Settlement Officer
Charlette Jacobi (SO Jacobi). Beginning in October 2010 peti-
tioner and SO Jacobi corresponded and spoke regularly about
petitioner’s individual and business finances. They
exchanged substantial information, including petitioner’s
offer-in-compromise. Another item discussed was whether
respondent had incorrectly applied a September 3, 2010, pay-
ment of $10,000 toward the non-trust-fund portion of Wi-
Tron’s employment taxes. After several months of reviewing
and updating financial information, SO Jacobi issued the
notice of determination sustaining the collection action
because petitioner was not current with his estimated tax
payments. The notice of determination did not address the
application of the $10,000 payment.
   In his petition, petitioner states that the failure to pay the
underlying employment taxes in issue arose because of the
‘‘absense [sic] of * * * [Mr. Bains] who took care of taxes
* * * due to his ill health with 3 stents’’. On August 1, 2012,
respondent moved for summary judgment and contended,
among other things, that petitioner had not challenged the
underlying liabilities in Form 12153 or the petition. In his
response to the motion for summary judgment petitioner
explicitly contended that he was not responsible for the
44         144 UNITED STATES TAX COURT REPORTS             (40)


employment taxes and that the $10,000 payment issue was
not properly resolved.
   On March 4, 2013, the Court remanded the instant case
and ordered petitioner and respondent to hold a supple-
mental hearing for the purpose of reviewing: (1) whether
petitioner received a notice of intent to assess the trust fund
recovery penalties, (2) whether petitioner was allowed the
opportunity to challenge the assessment, and, if not, to allow
him the opportunity to do so, and (3) whether petitioner’s
payment of $10,000 on September 3, 2010, was properly
applied to the employment taxes.
   On May 29, 2013, petitioner and Settlement Officer Lisa
Wold (SO Wold) held the supplemental hearing. In anticipa-
tion of the supplemental hearing, SO Wold requested from
the revenue officer a copy of the $10,000 check dated Sep-
tember 3, 2010. The revenue officer had not retained a copy
of the check and had not noted in the ICS Transcript
whether the payment was designated for the non-trust-fund
portion of the employment taxes. Petitioner provided a copy
of the canceled check, and SO Wold ‘‘observed that there was
a hand-written statement on the check to apply the payment
to trust funds.’’ On the basis of the evidence petitioner pro-
vided, SO Wold agreed to apply the $10,000 payment toward
the trust funds owed by Wi-Tron.
   SO Wold also requested from the revenue officer
verification that petitioner had received the Letter 1153. The
revenue officer provided the ICS Transcript stating that peti-
tioner had been personally served with the Letter 1153 on
March 30, 2010. The revenue officer also faxed an unsigned
copy of a Letter 1153 dated March 30, 2010, and addressed
to petitioner. SO Wold determined that petitioner had
received the Letter 1153, that the Letter 1153 had afforded
petitioner appeal rights which he failed to exercise, and that
petitioner therefore could not raise at the supplemental
hearing the underlying liabilities for the trust fund recovery
penalties assessed against him.
   In his August 14, 2013 status report following the hearing,
petitioner continues to contest the assessment of the trust
fund recovery penalties. Petitioner contends he informed the
revenue officer both orally and in writing that he ‘‘had little
to do with payroll or payroll tax matters’’ and that there is
‘‘ample evidence’’ that the COO, Mr. Bains, took care of the
(40)                 LEE v. COMMISSIONER                     45


payroll and payroll tax matters. In his opposition to respond-
ent’s motion petitioner provides details about what he
remembers from the March 30, 2010, meeting and contends
that, if the Letter 1153 had been presented to him, he would
have noticed it. Petitioner contends that respondent’s collec-
tions file should show that, since he was made aware of Wi-
Tron’s employment tax liabilities, he has ‘‘religiously’’
responded by filing all requested forms.

                          Discussion
A. Summary Judgment
   Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). Summary judgment
may be granted with respect to all or any part of the legal
issues in controversy ‘‘if the pleadings, answers to interrog-
atories, depositions, admissions, and any other acceptable
materials, together with the affidavits or declarations, if any,
show that there is no genuine dispute as to any material fact
and that a decision may be rendered as a matter of law.’’
Rule 121(a) and (b); see Sundstrand Corp. v. Commissioner,
98 T.C. 518, 520 (1992), aff ’d, 17 F.3d 965 (7th Cir. 1994);
Zaentz v. Commissioner, 90 T.C. 753, 754 (1988); Naftel v.
Commissioner, 85 T.C. 527, 529 (1985).
   The moving party bears the burden of proving that there
is no genuine dispute of material fact; all factual inferences
will be read in the light most favorable to the nonmoving
party. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985);
Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). Nonethe-
less, the nonmoving party is required ‘‘to go beyond the
pleadings and by’’ his ‘‘own affidavits, or by the ‘depositions,
answers to interrogatories, and admissions on file,’ designate
‘specific facts showing that there is a genuine issue for
trial.’ ’’ Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(quoting Fed. R. Civ. P. 56(e)); see Rauenhorst v. Commis-
sioner, 119 T.C. 157, 175 (2002); FPL Grp., Inc. & Subs. v.
Commissioner, 115 T.C. 554, 559–560 (2000). The nonmoving
party need not ‘‘produce evidence in a form that would be
admissible at trial in order to avoid summary judgment.’’
Celotex Corp., 477 U.S. at 324.
46            144 UNITED STATES TAX COURT REPORTS                        (40)


B. Trust Fund Recovery Penalty
     Section 6672 provides in part as follows:
   SEC. 6672(a). GENERAL RULE.—Any person required to collect, truth-
 fully account for, and pay over any tax imposed by this title who will-
 fully fails to collect such tax, or truthfully account for and pay over such
 tax * * * shall * * * be liable to a penalty equal to the total amount
 of the tax evaded, or not collected, or not accounted for and paid over.
 * * *

Thus, section 6672 aids in the collection of the Federal Insur-
ance Contributions Act tax and income tax an employer is
required to withhold from employees’ wages and remit to the
Internal Revenue Service (Service). In Weber v. Commis-
sioner, 138 T.C. 348, 357–359 (2012), and Dinino v. Commis-
sioner, T.C. Memo. 2009–284, 2009 WL 4723652, at *4, we
set forth the trust fund recovery penalty scheme in great
detail. The withheld amounts are known as ‘‘trust fund
taxes’’ because they are held by the employer in trust for the
Service until the amounts are remitted. Id. As explained in
Dinino, employers facing financial difficulties may sometimes
be tempted to use these trust funds for other expenses. Id.
If the employer does not remit the trust fund taxes, the
Service nevertheless gives credit to the employees on their
tax returns for the amounts withheld. Id. The risk is there-
fore that employers fail to pay the past-due trust fund taxes
while the Service credits employees with funds never
received. Id.
  To discourage misuse of the trust fund taxes and to aid in
their collection, section 6672(a) imposes, as noted above, ‘‘a
penalty equal to the total amount of the tax * * * not
accounted for and paid over’’ to the Service. Trust fund
recovery penalties may be imposed on any person who meets
two requirements. The first requirement is that the person
must be what is referred to in the caselaw as a ‘‘responsible
person’’, that is, a ‘‘person required to collect, truthfully
account for, and pay over’’ employment taxes. Sec. 6672(a).
The second requirement is that the responsible person must
have ‘‘willfully fail[ed] to collect * * * truthfully account for,
and pay over’’ the employment taxes. Id.; see Slodov v.
United States, 436 U.S. 238 (1978).
  Although the Service must give the responsible person
notice of the proposed assessment of the trust fund recovery
(40)                    LEE v. COMMISSIONER                            47


penalty at least 60 days before assessing the penalty, see sec.
6672(b), the Service does not issue a notice of deficiency for
a section 6672(a) penalty, see Dinino v. Commissioner, 2009
WL 4723652, at *4; see also Wilt v. Commissioner, 60 T.C.
977, 978 (1973). That is because the deficiency notice require-
ments in sections 6212(a) and 6213(a) are limited to the
taxes imposed by subtitle A (income taxes), subtitle B (estate
and gift taxes), and chapters 41 through 44 (excise taxes).
See Dinino v. Commissioner, 2009 WL 4723652, at *4. The
trust fund recovery penalty is imposed by section 6672
(which appears in subtitle F) with respect to employment
taxes imposed by subtitle C. Id. Accordingly, when providing
the notice required by section 6672(b)(1), the Service instead
issues Letter 1153 for the purpose of such notice. 4 Mason v.
Commissioner, 132 T.C. 301, 317 (2009). To provide for
proper notice of the assessment of trust fund penalties, sec-
tion 6672 refers to the section 6212(b) instructions that pro-
vide for a properly mailed notice of deficiency. Sec. 6672(b);
see Mason v. Commissioner, 132 T.C. at 317. Alternatively,
section 6672 allows the Service to personally serve the notice
upon the responsible person. Sec. 6672(b)(1). Accordingly, in
order for the Service to properly assess trust fund recovery
penalties, the Letter 1153 must be either mailed to the
responsible person in the same manner as a notice of defi-
ciency that determines taxes due under subtitle A or B or
personally delivered to the responsible person.
   In the instant case, the revenue officer determined that
petitioner was a responsible person who had willfully failed
to pay over employment taxes. Respondent contends that the
revenue officer personally served petitioner with the Letter
1153 at the meeting on March 30, 2010. After 106 days,
during which petitioner did not file an appeal, respondent
assessed the trust fund recovery penalties in issue. See sec.
6672(b)(2).



  4 As previously stated, the Letter 1153 also provides an opportunity for

responsible persons to request an Appeals hearing for the purpose of chal-
lenging the proposed trust fund recovery penalty assessment. Mason v.
Commissioner, 132 T.C. 301, 317 (2009).
48          144 UNITED STATES TAX COURT REPORTS              (40)


C. Collection Due Process
   Section 6330 requires that, before levying on a taxpayer’s
property or right to property, the Service give the taxpayer
notice and the right to a fair hearing with an impartial
officer of the Appeals Office. Sec. 6330(a) and (b). Similarly,
the Service must notify a taxpayer of the right to request an
Appeals hearing within five days of filing an NFTL. Sec.
6320(a)(1), (3)(B), (b)(1). At the hearing, the Appeals officer
must make his or her determination on the three bases
described below. Secs. 6320(c), 6330(c)(3).
   The Appeals officer must verify that any requirements of
applicable law and administrative procedure have been met.
Sec. 6330(c)(1). In a hearing held pursuant to section 6330 to
collect trust fund recovery penalties, the basic requirements
the Appeals officer must verify include: (1) the Service’s
proper assessment of the trust fund recovery penalties, see,
e.g., secs. 6201(a)(1), 6672(b); (2) the responsible person’s
failure to pay the liability after notice and demand for pay-
ment of the liability, see secs. 6303, 6321, 6331(a); and (3) the
Service’s notice to the responsible person of the NFTL or the
intent to levy, see secs. 6320(a)(1), 6330(a)(1), 6331(d)(1), and
of the responsible person’s right to a hearing, see secs.
6320(a)(3)(B), 6330(a)(3)(B), 6331(d)(4)(C); see also Dinino v.
Commissioner, 2009 WL 4723652, at *7.
   Generally, in a hearing involving the collection of trust
fund recovery penalties, the Appeals officer must consider
any relevant issues raised by the responsible person, such as
a collection alternative. Sec. 6330(c)(2). One relevant issue a
responsible person may raise at the hearing is a challenge to
the underlying trust fund recovery penalties, but only if he
or she ‘‘did not receive any statutory notice of * * * [the pen-
alty] or did not otherwise have an opportunity to dispute
such * * * [penalty].’’ Sec. 6330(c)(2)(B). Whether a respon-
sible person had an opportunity to dispute the trust fund
recovery penalty is distinct from whether the Service issued
proper notice under section 6672, i.e., by properly issuing a
Letter 1153. See, e.g., Mason v. Commissioner, 132 T.C. 301
(finding that the Service provided proper section 6672(b)
notice by properly mailing the Letter 1153 but also that,
since the Letter 1153 was not received or deliberately refused
(40)                 LEE v. COMMISSIONER                     49


by the responsible person, it did not constitute an oppor-
tunity to dispute the trust fund recovery penalty).
   Moreover, the Appeals officer must balance the need for
the efficient collection of taxes with the concern that collec-
tion action be no more intrusive than necessary. Sec.
6330(c)(3)(C). This Court has jurisdiction with respect to the
Appeals officer’s determination. Sec. 6330(d)(1); see Sego v.
Commissioner, 114 T.C. 604 (2000).
D. Verification That All Requirements of Applicable Law and
   Administrative Procedure Have Been Met
   As discussed above, assessment of the trust fund recovery
penalties in the instant case requires prior notice to peti-
tioner. Sec. 6672(b). Because the Service uses Letter 1153 to
provide the required notice, the proper issuance of the Letter
1153 to petitioner is a requirement of law and administrative
procedure whose execution the Appeals officer must verify.
See sec. 6330(c)(1); Dinino v. Commissioner, 2009 WL
4723652, at *8. As we stated in Dinino, pursuant to our
holding in Hoyle v. Commissioner, 131 T.C. 197 (2008), this
Court will review any verification issue even if the taxpayer
did not raise the issue at the hearing. See sec. 6330(c)(2)(B);
Dinino v. Commissioner, 2009 WL 4723652, at *7–*8. In
Hoyle, the taxpayer asserted that the Service had failed to
properly mail a notice of deficiency before assessing the
income tax in issue. Hoyle v. Commissioner, 131 T.C. at 200.
In Hoyle, following the rule in Giamelli v. Commissioner, 129
T.C. 107 (2007), the Commissioner argued that the taxpayer
could not raise the issue of receipt of the notice of deficiency
because the taxpayer had not raised it at the hearing. Hoyle
v. Commissioner, 131 T.C. at 200.
   The Court explained in Hoyle that the Giamelli rule, which
prohibits taxpayers from raising in Court any issues not
raised at the hearing, applies only to ‘‘any relevant issue
relating to the unpaid tax’’ which the taxpayer ‘‘may raise’’
under section 6330(c)(2), not to the verification requirements
of section 6330(c)(1). Hoyle v. Commissioner, 131 T.C. at 201–
202. Section 6330(c)(2) issues such as spousal defenses or
collection alternatives cannot be a part of the Appeals offi-
cer’s determination unless raised by the taxpayer. Id. The
concern underpinning our holding in Giamelli is that liti-
50         144 UNITED STATES TAX COURT REPORTS             (40)


gating new issues in Court without any prior consideration
by the Service would frustrate the administrative review
process created by section 6330. Id. In contrast, the section
6330(c)(1) verification requirements will always form part of
the determination because the statute requires their consid-
eration at the hearing regardless of whether the taxpayer
raises the issue. Id. Because section 6330 requires Appeals
officers to independently consider section 6330(c)(1) issues at
the hearing, they are not ‘‘new’’ when asserted in Court and
there is no danger of frustrating the administrative review
process. Id. at 202.
    In the instant case, SO Jacobi and SO Wold were obligated
to verify during the Appeals hearing that respondent had
met all ‘‘requirements of any applicable law or administrative
procedure’’ for collecting the trust fund recovery penalties.
Proper notice under section 6672(b) is one such requirement
for assessing, and therefore collecting, the trust fund
recovery penalties against petitioner. Accordingly, the proper
issuance of the Letter 1153 to petitioner should have been
considered in SO Jacobi’s original determination. See Hoyle
v. Commissioner, 131 T.C. at 202; Dinino v. Commissioner,
2009 WL 4723652, at *4. Indeed, SO Wold considered the
issuance of a Letter 1153 to petitioner and addressed its
delivery in the supplemental notice of determination by
stating that it was delivered to petitioner. Consequently,
petitioner’s argument is not ‘‘new’’, and there is no danger of
frustrating the administrative review process by considering
it.
    However, we conclude that the issue of whether petitioner
received the Letter 1153 presents a genuine dispute of mate-
rial fact that remains to be tried. Petitioner contends that he
did not receive the Letter 1153. Petitioner states specific
facts about the March 30, 2010, meeting in support of his
contention. Additionally, petitioner contends that he has a
history of diligently replying to respondent’s correspondence,
a contention for which we find some support in the record.
    We conclude that the record is not sufficient for us to
decide that the Letter 1153 was served on petitioner. For
example, respondent has not provided the Court with a copy
of the Letter 1153 that respondent contends was personally
delivered to petitioner. Nor has respondent provided a state-
ment, under oath, by the revenue officer, that he personally
(40)                    LEE v. COMMISSIONER                            51


served the Letter 1153 on petitioner on March 30, 2010.
Instead, the record contains only a copy of the ICS Tran-
script entry on March 31, 2010, the day after the meeting
was held, stating that the Letter 1153 had been previously
served on petitioner at the meeting. Indeed, the entry on
March 30, 2010, the date of the actual meeting, contains no
statement regarding the personal delivery of the Letter 1153
to petitioner. Moreover, neither entry, on either date, identi-
fies the person who respondent contends delivered the Letter
1153 to petitioner. Respondent, therefore, has failed to meet
his burden of showing that summary adjudication is war-
ranted, and a trial will be necessary to establish the facts
concerning the issue of personal delivery of the Letter 1153
to petitioner. 5 Accordingly, we will deny respondent’s motion
for summary judgment. 6
   To reflect the foregoing,
                               An appropriate order will be issued.

                            f




  5 As stated supra note 2, respondent does not contend the Letter 1153

was mailed to petitioner.
  6 The parties have raised additional issues in their motion papers that

we will decide after trial. This Opinion focuses on the issue of whether
there was proper service of the notice of the assessment of trust fund re-
covery penalties under sec. 6672.
