                      T.C. Summary Opinion 2008-3


                        UNITED STATES TAX COURT



                  MARCO E. BROWN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 275-07S.                Filed January 7, 2008.



     Marco E. Brown, pro se.

     Laura Price, for respondent.


     RUWE, Judge:     This case was heard pursuant to the provisions

of section 74631 of the Internal Revenue Code in effect when the

petition was filed.    Pursuant to section 7463(b), the decision to

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

shall not be treated as precedent for any other case.

     This is an appeal from respondent’s determination upholding

the proposed use of a levy to collect petitioner’s unpaid Federal

     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
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income tax liability for 2004.    In his petition and at trial,

petitioner’s only challenge concerned the existence and amount of

the underlying tax liability.    Respondent argues that

petitioner’s underlying tax liability for 2004 is not an issue

that can be raised in this case because the unpaid tax to be

collected consists of a deficiency that was determined in a

previous notice of deficiency that was received by petitioner.

Whether the Underlying Tax Liability Can Be Challenged

     Before the Commissioner may levy on any property or property

right, the taxpayer must be provided written notice of the right

to request a hearing during the 30-day period before the first

levy.   Sec. 6330(a).   If the taxpayer requests a hearing, an

Appeals officer of the Commissioner must hold the hearing.    Sec.

6330(b)(1).   At the hearing, the taxpayer 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) limits the taxpayer’s ability to

challenge the underlying tax liability during the hearing.

Specifically, the taxpayer may “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
                               - 3 -

of deficiency for such tax liability or did not otherwise have an

opportunity to dispute such tax liability.”   Id.

     The administrative record compiled by the Appeals officer

contains copies of the notice of deficiency and the U.S. Postal

Service Form 3877 mailing certificate showing that the notice of

deficiency was mailed to petitioner at 2915 Kelvington Drive,

Orlando, Florida, on August 15, 2005.2   In the absence of

evidence to the contrary, the presumption of regularity and of

delivery justify the conclusion that the notice of deficiency was

delivered to petitioner.   Sego v. Commissioner, 114 T.C. 604, 611

(2000).   Petitioner testified that he did not know whether he

received a notice of deficiency.   The administrative file

contains documents that petitioner submitted to the IRS that show

petitioner’s address as 2915 Kelvington Drive on and after August

15, 2005.   Petitioner testified that he had moved from the 2915

Kelvington Drive address sometime during 2005, but he finally

agreed that he moved from 2915 Kelvington Drive in December 2005.

     Petitioner has failed to overcome the presumption of

regularity and of delivery referred to in Sego.     Based on this

record, we conclude that petitioner received the notice of

deficiency for his taxable year 2004 and therefore is precluded



     2
       At trial, we reserved ruling on the admission of the
administrative record. See Fed. R. Evid. 902(11). Upon
consideration, we hold that it is admissible for purposes of
establishing these facts.
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from contesting the existence or amount of the underlying

liability in this section 6330 proceeding.3    Since that is the

only challenge that petitioner has made to the proposed

collection action, respondent’s determination to proceed with

collection is upheld.


                                           Decision will be entered

                                      for respondent.




     3
       The underlying liability arose from respondent’s rejection
of petitioner’s claims for head of household filing status,
personal exemptions, and earned income and child tax credits.
Even though petitioner did not have the right to raise the
existence or amount of the underlying liability before the
Appeals officer, the Appeals officer did give petitioner a
telephonic hearing and considered and rejected petitioner’s
claims regarding the underlying liability.

     In respondent’s pretrial memorandum and statements at trial,
respondent’s counsel stated that petitioner failed to provide any
of the documents that the Appeals officer requested. Petitioner
and his son’s mother (Ms. Chung) testified that they did provide
documents. The administrative file contains some documents that
petitioner submitted in attempting to prove that he supported his
son and Ms. Chung and that they both lived with him during 2004.
After conducting a telephonic hearing, the Appeals officer
rejected petitioner’s position on the grounds that he did not
submit any documentation and that the testimony of petitioner was
not credible. We had the opportunity to see and hear the
testimony of petitioner and Ms. Chung and found their testimony
to be credible. Because, as previously explained, petitioner
received a notice of deficiency, see sec. 6330(c)(2)(B), he has
no “right” to further consideration of the underlying liability
by an Appeals officer. However, we believe it might be in the
best interests of good tax administration for respondent to give
further consideration to petitioner’s claims. In any event,
petitioner still has the option of paying the tax and instituting
a refund claim.
