                                                   ERIC ONYANGO, PETITIONER v. COMMISSIONER
                                                       OF INTERNAL REVENUE, RESPONDENT

                                               Docket Nos. 27788–11L, 19081–12L.                       Filed June 24, 2014.

                                                 On several occasions the U.S. Postal Service (Postal Service)
                                               attempted, albeit unsuccessfully, to deliver to P a notice of
                                               deficiency that R had mailed to him by certified mail, return
                                               receipt requested, and addressed to his legal residence. On at
                                               least two occasions the Postal Service left notices of attempted
                                               delivery of the certified mail which contained the notice of
                                               deficiency at the address of P’s legal residence. In those
                                               notices, the Postal Service informed P that it had certified
                                               mail to deliver to him and that he had to sign a receipt for

                                                                                                                                  425




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                                     426                 142 UNITED STATES TAX COURT REPORTS                                    (425)

                                               that mail before the Postal Service would deliver it to him. P
                                               declined to check on a regular basis his mailbox at his legal
                                               residence and to retrieve on a regular basis any Postal Service
                                               mail items delivered there. After several unsuccessful
                                               attempts to deliver the certified mail in question to P at his
                                               legal residence, the Postal Service returned it to R. Held: P
                                               may not decline to retrieve his Postal Service mail, when he
                                               was reasonably able and had multiple opportunities to do so,
                                               and thereafter successfully contend that he did not receive for
                                               purposes of I.R.C. sec. 6330(c)(2)(B) a notice of deficiency.
                                               Held, further, we reject P’s contention that he is entitled
                                               under I.R.C. sec. 6330(c)(2)(B) to dispute the underlying tax
                                               liability to which that notice of deficiency pertained.

                                           Eric Onyango, pro se.
                                           Lauren N. May and K. Elizabeth Kelly, for respondent.
                                        CHIECHI, Judge: These cases arise from petitions filed in
                                     response to respective notices of determination concerning
                                     collection action(s) under section 6320 and/or 6330 1 dated
                                     November 3, 2011, and June 25, 2012, with respect to peti-
                                     tioner’s taxable years 2006, 2007, 2008, and 2009.
                                        The only issue presented here is whether petitioner is enti-
                                     tled under section 6330(c)(2)(B) to dispute the underlying tax
                                     liability for his taxable year 2006. 2 We hold that he is not.
                                        1 All section references are to the Internal Revenue Code in effect at all

                                     relevant times. All Rule references are to the Court’s Rules of Practice and
                                     Procedure.
                                        2 The parties stipulated in pertinent part as follows: ‘‘The only aspect of

                                     the determinations set forth in the notices of determination [dated Novem-
                                     ber 3, 2011, and June 25, 2012] that petitioner disputes in these cases is
                                     petitioner’s correct tax liability for tax year 2006.’’ At the beginning of the
                                     trial in these cases, petitioner advised the Court that he was unable to tes-
                                     tify about matters relating to claimed expenses that he asserted would es-
                                     tablish his correct Federal income tax (tax) liability for his taxable year
                                     2006. In the light of petitioner’s claimed inability to present any such evi-
                                     dence and the significant delays that had already occurred in the disposi-
                                     tion of these cases, the Court decided to conduct a partial trial in order
                                     to determine the threshold issue of whether petitioner is entitled to dis-
                                     pute the underlying tax liability for his taxable year 2006. The Court in-
                                     formed the parties at the beginning of that partial trial that if it were to
                                     find on the basis of the evidence adduced at that partial trial that peti-
                                     tioner is entitled to dispute the underlying tax liability for his taxable year
                                     2006, a further trial would be required at which petitioner would be able
                                     to present evidence to establish what he claims is his correct tax liability
                                     for that year. The Court further informed the parties that if it were to find
                                     on the basis of the evidence adduced at the partial trial that petitioner is




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                                     (425)                         ONYANGO v. COMMISSIONER                                        427


                                                                          FINDINGS OF FACT

                                        Some of the facts have been stipulated and are so found.
                                        At all relevant times, including when he filed the respec-
                                     tive petitions in these cases, petitioner’s legal residence was
                                     222 North Columbus Drive, No. 1507, Chicago, Illinois 60601
                                     (Columbus Drive apartment). 3
                                        Petitioner timely filed a tax return for his taxable year
                                     2006. In that return, petitioner reported total tax of $1,606
                                     for that year.
                                        At a time not established by the record, petitioner sub-
                                     mitted to respondent an amended tax return for his taxable
                                     year 2006 (September 23, 2008 amended 2006 return) that
                                     his return preparer had signed and dated September 23,
                                     2008. In that amended return, petitioner reported, inter alia,
                                     an increase of $2,168 in his tax liability for his taxable year
                                     2006 or total tax of $3,774 (petitioner’s reported increased
                                     2006 tax liability). Respondent filed and processed peti-
                                     tioner’s September 23, 2008 amended 2006 return and
                                     changed petitioner’s tax liability in respondent’s records to
                                     reflect petitioner’s reported increased 2006 tax liability of
                                     $3,774.
                                        At a time not established by the record, but after
                                     respondent issued to petitioner a notice of deficiency for his
                                     taxable years 2006 and 2007 (discussed below), petitioner
                                     submitted to respondent a second amended tax return for his
                                     taxable year 2006 (June 23, 2011 amended 2006 return) that
                                     his return preparer had signed and dated June 23, 2011. In
                                     that amended return, petitioner reported, inter alia, an
                                     increase of $11,255 in his tax liability for his taxable year
                                     2006 or total tax of $15,029. Respondent did not file and
                                     process petitioner’s June 23, 2011 amended 2006 tax return,
                                     which, as noted above, petitioner filed after respondent
                                     issued the notice of deficiency for his taxable years 2006 and
                                     2007.

                                     not entitled to dispute the underlying tax liability for his taxable year
                                     2006, no further trial would be required in the light of the parties’ stipula-
                                     tion as to what is petitioner’s only dispute in these cases.
                                        3 The address of petitioner’s Columbus Drive apartment was his address

                                     at the time respondent issued to petitioner the notice of deficiency for his
                                     taxable years 2006 and 2007 (discussed below) as well as at the time peti-
                                     tioner filed the petitions and at the time of the partial trial in these cases.




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                                     428                  142 UNITED STATES TAX COURT REPORTS                                    (425)


                                        An agent of respondent (examining agent) conducted an
                                     examination of petitioner’s taxable years 2006 and 2007.
                                     Respondent proposed certain adjustments to petitioner’s Sep-
                                     tember 23, 2008 amended 2006 return on the basis of that
                                     examination. A representative (Appeals officer) of respond-
                                     ent’s Appeals Office in Chicago, Illinois, contacted petitioner
                                     by letter addressed to his Columbus Drive apartment and
                                     scheduled a meeting with him to discuss those proposed
                                     adjustments. Petitioner did not appear at that scheduled
                                     meeting. Thereafter, in the spring or early summer of 2010,
                                     the Appeals officer sent petitioner another letter addressed to
                                     his Columbus Drive apartment advising him that if he did
                                     not contact the Appeals officer within 20 days, a notice of
                                     deficiency would be issued to him for his taxable years 2006
                                     and 2007.
                                        On August 6, 2010, respondent issued to petitioner a notice
                                     of deficiency for his taxable years 2006 and 2007 (2006–2007
                                     notice of deficiency) that was addressed and mailed by cer-
                                     tified mail, return receipt requested, to petitioner’s Columbus
                                     Drive apartment. 4 In the 2006–2007 notice of deficiency,
                                     respondent determined, inter alia, a deficiency in, and an
                                     accuracy-related penalty under section 6662(a) on, peti-
                                     tioner’s tax for his taxable year 2006 of $14,987 and
                                     $2,997.40, respectively. 5 Petitioner did not timely file a peti-
                                     tion with respect to the 2006–2007 notice of deficiency.
                                        On several occasions the U.S. Postal Service (Postal
                                     Service) attempted, albeit unsuccessfully, to deliver the
                                     2006–2007 notice of deficiency to petitioner at the address of
                                     his Columbus Drive apartment. On at least two occasions the
                                     Postal Service left notices of attempted delivery of certified
                                     mail at that address. In those notices, the Postal Service
                                     informed petitioner that it had certified mail to deliver to
                                     him and that he had to sign a receipt for that mail before
                                     the Postal Service would deliver it to him.
                                        At a time not established by the record that was not later
                                     than late October or early November 2010, 6 petitioner
                                           4 See
                                              supra note 3.
                                           5 The
                                               determinations that respondent made in the 2006–2007 notice of
                                     deficiency were made with respect to the various amounts that petitioner
                                     reported in his September 23, 2008 amended 2006 return.
                                        6 Petitioner testified that he found the notices from the Postal Service

                                     ‘‘around late October or early November’’ 2010 and went to his local Postal




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                                     (425)                         ONYANGO v. COMMISSIONER                                        429


                                     checked his mailbox at his Columbus Drive apartment and
                                     found at least two notices of attempted delivery of certified
                                     mail from the Postal Service. In those notices, the Postal
                                     Service informed petitioner that it had certified mail from a
                                     sender, who was not identified on those notices, and that he
                                     should retrieve and sign for that certified mail at his local
                                     Postal Service office. At the time not established by the
                                     record 7 when petitioner went to his local Postal Service office
                                     the certified mail to which the notices from the Postal
                                     Service pertained had been returned to the sender as
                                     unclaimed.
                                       Petitioner spent around 30 to 40% of the period August to
                                     December 2010, including sleeping overnight, at his Colum-
                                     bus Drive apartment and the remainder of that period
                                     staying with friends. He returned to and stayed at that
                                     apartment during each of the months August through
                                     October 2010.
                                       At all relevant times, including during the period August
                                     to December 2010, petitioner received certain bills online and
                                     certain other bills through the Postal Service mail system at
                                     his Columbus Drive apartment. Petitioner declined to check
                                     on a regular basis his mailbox at that apartment and to
                                     retrieve on a regular basis any Postal Service mail items
                                     delivered there. He usually disregarded and rarely opened
                                     the bills that he received through the Postal Service mail
                                     system at his Columbus Drive apartment and did not depend
                                     on that mail system as a reminder to pay bills that were sent
                                     to him through that system. Instead, the reminder that he
                                     often used to pay the utility bills that he received through
                                     the Postal Service mail system was the utility companies’
                                     disconnection of his utilities for failure to pay utility bills
                                     that were due.
                                       On May 24, 2011, respondent issued to petitioner a notice
                                     of intent to levy and notice of your right to a hearing (notice
                                     of intent to levy) for his taxable years 2006, 2007, and 2008.

                                     Service office after he found those notices. As discussed below, we are un-
                                     willing to rely on petitioner’s testimony to establish the date around which
                                     petitioner checked his mailbox at his Columbus Drive apartment and
                                     found the two notices in question from the Postal Service (discussed in the
                                     text) and went to his local Postal Service office with those notices.
                                       7 See supra note 6.




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                                     430                  142 UNITED STATES TAX COURT REPORTS                                    (425)


                                        On June 6, 2011, respondent received from petitioner Form
                                     12153, Request for a Collection Due Process or Equivalent
                                     Hearing, with respect to the notice of intent to levy (Form
                                     12153 concerning proposed levy), in which petitioner
                                     requested a hearing with respect to that notice.
                                        The settlement officer in respondent’s Appeals Office
                                     assigned to petitioner’s Form 12153 concerning proposed levy
                                     spoke with petitioner by telephone about that matter.
                                        On November 3, 2011, respondent’s Appeals Office issued
                                     to petitioner a notice of determination concerning collection
                                     action(s) under section 6330, in which that office sustained
                                     the notice of intent to levy.
                                        On June 7, 2011, respondent issued to petitioner a notice
                                     of Federal tax lien filing and your right to a hearing under
                                     I.R.C. 6320 (notice of Federal tax lien filing) for his taxable
                                     years 2006, 2007, and 2008.
                                        On July 8, 2011, respondent received from petitioner Form
                                     12153 with respect to the notice of Federal tax lien filing
                                     (Form 12153 concerning tax lien filing), in which petitioner
                                     requested a hearing with respect to that notice.
                                        On June 5, 2012, after petitioner provided certain docu-
                                     mentation to the settlement officer in respondent’s Appeals
                                     Office assigned to petitioner’s Form 12153 concerning tax
                                     lien filing, that settlement officer spoke by telephone with
                                     petitioner about that matter.
                                        On June 25, 2012, respondent’s Appeals Office issued to
                                     petitioner a notice of determination concerning collection
                                     action(s) under section 6320 and/or 6330, in which that office
                                     sustained the tax lien filing.
                                                                                   OPINION

                                        The only issue presented here is whether petitioner is enti-
                                     tled under section 6330(c)(2)(B) to dispute the underlying tax
                                     liability for his taxable year 2006. 8 A person may dispute the
                                     existence or the amount of the underlying tax liability for
                                     any tax period if the person did not receive a notice of defi-
                                     ciency for that tax liability or did not otherwise have the
                                     opportunity to dispute that tax liability. Id.
                                        It is petitioner’s position that he is entitled under section
                                     6330(c)(2)(B) to contest the underlying tax liability for his
                                           8 See   supra note 2.




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                                     (425)                          ONYANGO v. COMMISSIONER                                        431


                                     taxable year 2006. In support of that position, petitioner con-
                                     tends that although respondent mailed to him by certified
                                     mail, return receipt requested, the 2006–2007 notice of defi-
                                     ciency that was addressed to his Columbus Drive apart-
                                     ment, 9 he did not receive that notice within the 90-day
                                     period during which he could have filed a petition with the
                                     Court with respect to that notice. In support of that conten-
                                     tion, petitioner relies on his testimony at the partial trial in
                                     these cases.
                                        Respondent counters that although the Postal Service
                                     returned to respondent the 2006–2007 notice after several
                                     unsuccessful attempts to deliver it to petitioner at the
                                     address of his Columbus Drive apartment, petitioner ‘‘chose
                                     not to accept delivery.’’ According to respondent, petitioner’s
                                     testimony to the contrary is not credible and ‘‘should be given
                                     no weight.’’
                                        We agree with respondent that petitioner’s testimony is
                                     not credible in certain material respects and thus is unreli-
                                     able. However, even if we accept petitioner’s testimony that
                                     he did not know until late October or early November 2010
                                     about the notices from the Postal Service of attempted
                                     delivery of certified mail (i.e., the 2006–2007 notice of defi-
                                     ciency) and that when he went to his local Postal Service
                                     office with those notices the Postal Service had already
                                     returned the certified mail to the sender, we nonetheless
                                     reject his contention that he is entitled under section
                                     6330(c)(2)(B) to dispute the underlying tax liability for his
                                     taxable year 2006. That is because petitioner’s testimony
                                     establishes that, even though he spent at his Columbus
                                     Drive apartment around 30 to 40% of the period August to
                                     December 2010, including staying and sleeping overnight
                                     there during each of the months August through October
                                     2010, he declined to check on a regular basis his mailbox at
                                     that apartment and to retrieve on a regular basis any Postal
                                     Service mail items delivered there. And petitioner did so
                                     despite the fact that on August 6, 2010, when respondent
                                     mailed to him the 2006–2007 notice of deficiency that was
                                     addressed to his Columbus Drive apartment, he knew that
                                     (1) respondent’s Appeals Office in Chicago was considering
                                     the adjustments that respondent’s examining agent had pro-
                                           9 See   supra note 3.




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                                     432                  142 UNITED STATES TAX COURT REPORTS                                    (425)


                                     posed with respect to his taxable years 2006 and 2007; (2) an
                                     Appeals officer in that office had contacted him by letter and
                                     scheduled a meeting with him to discuss those proposed
                                     adjustments; (3) he did not appear at that meeting; and (4)
                                     thereafter, in the spring or early summer of 2010, that
                                     Appeals officer sent him another letter advising him that if
                                     he did not contact the Appeals officer within 20 days, a
                                     notice of deficiency would be issued to him for his taxable
                                     years 2006 and 2007.
                                       On the record before us, we hold that petitioner may not
                                     decline to retrieve his Postal Service mail, when he was
                                     reasonably able and had multiple opportunities to do so, and
                                     thereafter successfully contend that he did not receive for
                                     purposes of section 6330(c)(2)(B) the 2006–2007 notice of defi-
                                     ciency. On that record, we reject petitioner’s contention that
                                     he is entitled under that section to dispute the underlying
                                     tax liability for his taxable year 2006.
                                       To reflect the foregoing, 10
                                                                          Decisions will be entered for respondent.
                                                                                f




                                           10 See   supra note 2.




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