                        T.C. Memo. 2003-334



                      UNITED STATES TAX COURT



                  ANTHONY SCIOLA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11876-02L.            Filed December 4, 2003.


     Anthony Sciola, pro se.

     Louise R. Forbes, for respondent.



                        MEMORANDUM OPINION


     GOLDBERG, Special Trial Judge:   This case arises from a

petition for judicial review filed in response to a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330.1   The issue for decision is whether respondent may



     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code, as amended.
                               - 2 -

proceed with collection of tax liabilities for the years 1995 and

1996.

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.   Petitioner resided in

Wenham, Massachusetts, on the date the petition was filed in this

case.

     Petitioner did not file Federal income tax returns for the

years 1995 and 1996.   On March 31, 1999, respondent sent to

petitioner, via certified mail, two notices of deficiency.     The

notices determined deficiencies and additions to tax totaling

$21,364.19 for 1995 and $34,649.48 for 1996.   Respondent provided

the Court with a copy of the certified mailing list, stamped

March 31, 1999, showing that respondent mailed the notices to

petitioner at his residential address.   Petitioner did not

petition this Court with respect to either of the notices of

deficiency.   On August 30, 1999, respondent assessed the 1995 and

1996 tax liabilities as determined in the notices of deficiency.

On June 11, 2001, respondent mailed to petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320 for the years 1995 and 1996.   The notice reflected unpaid

tax liabilities for 1995 and 1996 in the amounts of $1,506.92 and

$39,576.66, respectively.   In response to this notice, petitioner

filed a Request for a Collection Due Process Hearing.    The only
                               - 3 -

disagreement with the lien notice which petitioner listed on the

request for a hearing was that “The amounts of the taxes due are

incorrect.”   After conducting the hearing, respondent issued a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330, in which respondent found the Notice of

Federal Tax Lien to be proper and determined that collection of

the tax liabilities should proceed.    The notice of determination

states that the following issues were raised by petitioner and

considered by Appeals:

     Taxpayer [petitioner] stated on Form 12153 “The amount of
     the taxes due are incorrect”, during telephone contact with
     Appeals on February 20, 2002 the taxpayer stated that he had
     a previous opportunity to address the liability and he
     understood that he would be precluded under IRC 6330 from
     raising liability issue at this time. During telephone
     conference on March 27, 2002 taxpayer was told that Income
     Tax Returns have not been filed for 1997, 1998, 1999, 2000
     and as such it would be impossible to consider alternative
     collection action. Mr. Sciola was given an additional 30
     days to provide copies of filed returns. Mr. Sciola has
     failed to provide copies of filed returns requested or
     contact Appeals to explain the failure. Appeals was unable
     to consider any collection alternative as taxpayer was not
     in compliance.

     Section 6321 imposes a lien in favor of the United States

upon all property and rights to property of a taxpayer where

there exists a failure to pay any tax liability after demand for

payment.   Within 5 business days after filing notice of a lien

pursuant to section 6323, the Secretary must notify the taxpayer

of his right to a fair hearing before an impartial Appeals

officer, generally to be conducted in accordance with the
                                - 4 -

procedures described in section 6330(c), (d), and (e).   Sec.

6320.

     Section 6330(c) addresses the matters to be considered at a

section 6320 hearing:

          SEC. 6330(c). Matters Considered at Hearing.--In the
     case of any hearing conducted under this section--

               (1) Requirement of investigation.--The appeals
          officer shall at the hearing obtain verification from
          the Secretary that the requirements of any applicable
          law or administrative procedure have been met.

               (2) Issues at hearing.--

                    (A) In general.--The person may raise at the
               hearing any relevant issue relating to the unpaid
               tax or the proposed levy, including--

                         (i) appropriate spousal defenses;

                         (ii) challenges to the appropriateness
                    of collection actions; and

                         (iii) offers of collection alternatives,
                    which may include the posting of a bond, the
                    substitution of other assets, an installment
                    agreement, or an offer-in-compromise.

                    (B) Underlying liability.--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
               such tax liability or did not otherwise have an
               opportunity to dispute such tax liability.

Thus, under section 6330(c)(2)(B), a taxpayer who receives a

notice of deficiency is precluded from challenging an underlying

tax liability at the hearing.   For purposes of this provision,

receipt of a notice of deficiency means receipt in time to
                                 - 5 -

petition this Court for redetermination of the deficiency

asserted therein.   Sec. 301.6330-1(e)(3), Q&A-E2, Proced. &

Admin. Regs.   This implies that section 6330(c)(2)(B)

contemplates actual receipt of the notice of deficiency by the

taxpayer.   Id.; Tatum v. Commissioner, T.C. Memo. 2003-115.2

     Once an Appeals officer has issued a determination regarding

the disputed collection action, the taxpayer may seek judicial

review of the determination.   Sec. 6330(d)(1).   In considering

whether a taxpayer is entitled to any relief from the

Commissioner’s determination, this Court has established the

following standards of review:

     where the validity of the underlying tax liability is
     properly at issue, the Court will review the matter on a de
     novo basis. However, where the validity of the underlying
     tax liability is not properly at issue, the Court will
     review the Commissioner’s determination for abuse of
     discretion.

Sego v. Commissioner, 114 T.C. 604, 610 (2000).

     In his petition, petitioner’s arguments addressed only the

underlying tax liabilities.    Petitioner, however, did not allege

in the petition that he did not receive the notices of

deficiency.    Petitioner’s only argument concerning receipt of the




     2
      An exception is made where a taxpayer deliberately refuses
delivery of a notice of deficiency, in which case the taxpayer
may not contest the underlying tax liability in the hearing or
upon subsequent judicial review. Sego v. Commissioner, 114 T.C.
604, 611 (2000).
                               - 6 -

notices of deficiency was presented in his opening statement.    He

argues:

          While the IRS apparently had mailed a notice of
     deficiency or a tax lien to me, I was away from the
     residence on a protracted job assignment that was typical
     for the work that I had to do, like six months. Didn’t --
     did not default because not having the notification, I
     wasn’t aware that I had a time limitation. And so the
     default happened because of that situation, not that I, you
     know, knowingly ignored it.

We do not interpret this argument to be an affirmative denial

that petitioner received the notices of deficiency.   First,

petitioner does not argue that respondent mailed the notices of

deficiency to an incorrect address or that the notices otherwise

did not arrive at his residence in a timely manner.   Second, we

do not accept petitioner’s implication that a period of

employment away from his home would entail an inability to

receive mail.   Finally, petitioner did not offer testimony or

other evidence concerning any details of his receipt, or failure

to receive, the notices of deficiency.   Petitioner merely

testified that he was sometimes away from his residence for 6-

month periods of time, and he described the general nature of his

employment as the installation of digital cellular phone systems.

However, petitioner did not attempt to correlate any absences

from his residence with the time period when the notices of
                                 - 7 -

deficiency were mailed to him.     Nor did petitioner testify that

he did not receive the notices.3

     The parties have stipulated, and the record establishes,

that respondent mailed the notices of deficiency to petitioner at

his residence.   In the absence of sufficient evidence to the

contrary, and in the absence of an affirmative denial by

petitioner that he received the notices, we conclude that

petitioner, in fact, received the notices.       See Sego v.

Commissioner, supra at 611 (“In the absence of clear evidence to

the contrary, the presumptions of official regularity and of

delivery justify the conclusion that the statutory notice was

sent and that attempts to deliver were made in the manner

contended by respondent.”).

     In his petition and at trial, petitioner disputes only the

underlying 1995 and 1996 tax liabilities.       However, because

petitioner received the notices of deficiency, he is precluded

from contesting the underlying tax liabilities in this case.

Sec. 6330(c)(2)(B); Goza v. Commissioner, 114 T.C. 176 (2000).

Petitioner has not set forth any other arguments concerning

respondent’s determination, such as a spousal defense, a

challenge to the appropriateness of collection activities, or an

offer of a collection alternative.       Nor has petitioner alleged

     3
      Petitioner likewise offered no evidence concerning the
underlying tax liabilities, stating that he had been informed
that the underlying deficiencies would not be addressed at trial.
                                 - 8 -

that the Secretary failed to meet the requirements of any

applicable law or administrative procedure.       Consequently, there

are no grounds upon which we could conclude that respondent’s

determination to proceed with collection was an abuse of

discretion.   Lunsford v. Commissioner, 117 T.C. 183, 186 (2001);

Sego v. Commissioner, supra.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
