                            T.C. Memo. 2009-198



                          UNITED STATES TAX COURT



                      THOMAS BUTTI, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7403-07L.                   Filed September 3, 2009.



     Thomas Butti, pro se.

     Frederick C. Mutter, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


        VASQUEZ, Judge:    Respondent sent a Decision Letter

Concerning Equivalent Hearing Under Section 6320 and/or 6330 of

the Internal Revenue Code (decision letter) to petitioner with

respect to a notice of Federal tax lien filed to collect

petitioner’s unpaid income tax liabilities for 1991, 1992, and

1993.    The parties and the Court agree that the decision letter
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shall be treated as a notice of determination consistent with

Craig v. Commissioner, 119 T.C. 252 (2002).   In response to the

decision letter petitioner timely filed a petition pursuant to

section 6330(d)1 seeking review of respondent’s determination.

The issues for decision are:   (1) Whether respondent properly

issued a notice of deficiency to petitioner for 1991, 1992, and

1993; (2) whether petitioner received the notice of deficiency

for 1991, 1992, and 1993; and (3) whether respondent may proceed

with collection of the above-mentioned unpaid income tax

liabilities.

                         FINDINGS OF FACT

     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.   At the time he filed the

petition, petitioner resided in New York.

The Statutory Notice of Deficiency

     Respondent audited petitioner’s income tax returns for 1991,

1992, and 1993.   Petitioner signed Forms 872, Consent to Extend

the Time to Assess Tax, for the tax periods ending December 31,

1991 through   1993, extending the time to assess income tax for

1991, 1992, and 1993 to December 31, 1998.



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code.
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     A notice of deficiency was prepared for the deficiencies in

petitioner’s income tax for 1991, 1992, and 1993.   As standard

operating procedure, the Commissioner makes a file copy of each

notice of deficiency.   A file copy of a notice of deficiency

(which is kept by the Commissioner) differs from an original

notice of deficiency (which is mailed to the taxpayer) in that

the original notice of deficiency is stamped with a manager’s

name and initialed by a technical service reviewer, while the

file copy is initialed and dated by the technical service

reviewer on the date that the original notice of deficiency is

prepared.

     After a technical service reviewer prepared petitioner’s

original notice of deficiency and the file copy of the notice of

deficiency, Tax Examining Technician Jessie Lewis (Ms. Lewis)

received:   (1) The original notice of deficiency for mailing

addressed to petitioner in care of the Gowanda Correctional

Facility, P.O. Box 311, Gowanda, NY 14070 (Gowanda); (2) the file

copy of the notice of deficiency; and (3) a separate mailing

envelope for the original notice of deficiency.

     Before mailing the original notice of deficiency, Ms. Lewis

(1) ensured that the notice of deficiency contained petitioner’s

Social Security number, was signed by a manager, was properly

addressed to petitioner, and showed the correct amount of tax due

from petitioner; (2) stamped the date “December 30, 1998” onto
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the original and the file copy of the notice of deficiency; and

(3) wrote “Z 009 132 170” on the top of page 1 of the file copy

of the notice of deficiency.

     The envelope sent to petitioner at Gowanda contained the

original notice of deficiency, the Tax Advocate letter, and a

return envelope.   The original notice of deficiency was sent by

certified mail, article No. Z 009 132 170, on December 30, 1998,

by Ms. Lewis to petitioner in care of Gowanda.   The notice of

deficiency included petitioner’s inmate number, 97R6402.    On

December 30, 1998, Ms. Lewis walked the original notice of

deficiency to the U.S. post office and mailed it to petitioner to

ensure it was mailed before December 31, 1998.

     In addition to mailing the original notice of deficiency to

petitioner on December 30, 1998, Ms. Lewis prepared a U.S. Postal

Service Form 3877, Acceptance of Registered, Insured, C.O.D. and

Certified Mail, or its equivalent, a certified mail list, for

December 30, 1998 (PS Form 3877).   The PS Form 3877 states in the

first entry “Statutory Notice of Deficiency for the years

indicated have been sent to the following taxpayers”.   The PS

Form 3877 lists article No. Z 009 132 170 as mailed by certified

mail to Thomas A. Butti, DIN: 97R6402, c/o Gowanda Correctional

Facility, P.O. Box 311, Gowanda, NY 14070.   In the remarks column

associated with article No. Z 009 132 170 is the following:

“9112, 9212, 9312”.   The PS Form 3877 indicates that the mail
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listed on the form, including article No. Z 009 132 170 mailed to

petitioner, was sent by the “District Director of IRS” from the

address “P.O. Box 4645, Grand Central Station, New York, New York

10163”.   Next to this was typed “By J. Lewis”, and Ms. Lewis

initialed the PS Form 3877 to indicate that she had prepared it.

     Ms. Lewis followed proper procedures in mailing the original

notice of deficiency to petitioner on December 30, 1998.

     Gowanda’s incoming certified, registered, and express mail

log for January 4, 1999 (mail log), shows that on that date

Gowanda received two pieces of certified mail on petitioner’s

behalf.   The return address on the mail log for both letters is

“IRS P.O.B. 4645 Grand Central St., NYC”.   The mail log shows

that one of the pieces of mail bore the certified mail number

“Z009132170”.

     On January 4, 1999, petitioner was not at Gowanda.

Petitioner was out to court and was housed at various other

correctional facilities between October 22, 1998, and January 20,

1999.   Mail petitioner received at Gowanda between October 22,

1998, and January 20, 1999, would have been held for him until he

returned to Gowanda.

     On January 21, 1999, petitioner signed the legal mail

logbook for two pieces of mail from “Internal Rev Grand Central”.

     Between December 1998 and March 1999 petitioner received at

Gowanda only two articles of certified mail from respondent.
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One of the articles of certified mail petitioner received was

article No. “Z 009 132 170”.

Collection

     On November 5, 2002, the Internal Revenue Service (IRS)

filed a notice of Federal tax lien (NFTL) with respect to

petitioner’s 1991, 1992, and 1993 income tax liabilities with the

County Clerk, Westchester County, White Plains, New York.

     On November 8, 2002, respondent sent to petitioner a Notice

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

6320, with respect to petitioner’s income tax liabilities for

1991, 1992, and 1993.   Petitioner filed a timely Form 12153,

Request for a Collection Due Process Hearing (collection

hearing).

     Appeals Officer Federico Lawrence (AO Lawrence) was assigned

to petitioner’s case.   In accordance with petitioner’s wishes, AO

Lawrence conducted the collection hearing by correspondence.

Petitioner did not offer any collection alternatives during the

collection hearing.   Petitioner did not complete Form 433-A,

Collection Information Statement for Wage Earners and

Self-Employed Individuals, as requested by AO Lawrence.

     AO Lawrence reviewed transcripts and the case file for 1991,

1992, and 1993 and determined that respondent had satisfied the

legal and administrative requirements in filing the NFTL.   On the

basis of his review of the case file and transcripts AO Lawrence
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also determined that:   (1) The assessment period had not expired

for 1991, 1992, and 1993 before the issuance of the notice of

deficiency sent to petitioner on December 30, 1998; (2)

petitioner did not petition the Tax Court in response to the

notice of deficiency; (3) respondent timely assessed petitioner’s

tax liabilities for 1991, 1992, and 1993; (4) respondent made

proper notice and demand for payment after assessment of the

taxes; and (5) the collection period had not expired for 1991,

1992, and 1993.

     On March 3, 2007, respondent mailed the decision letter

sustaining the filing of the NFTL with respect to petitioner’s

tax liabilities for 1991, 1992, and 1993.

                               OPINION

     Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice of the

filing of a notice of lien under section 6323.   Section 6320

further provides that the taxpayer may request administrative

review of the matter (in the form of a hearing) within a 30-day

period.    The hearing generally shall be conducted consistent with

the procedures set forth in section 6330(c), (d), and (e).    Sec.

6320(c).

     Pursuant to section 6330(c)(2)(A), a taxpayer may raise at

the section 6330 hearing any relevant issue with regard to the

Commissioner’s collection activities, including spousal defenses,
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challenges to the appropriateness of the Commissioner’s intended

collection action, and alternative means of collection.     Sego v.

Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner, 114

T.C. 176, 180 (2000).   In addition to considering issues raised

by the taxpayer under section 6330(c)(2), the Appeals officer

must also verify that the requirements of any applicable law or

administrative procedure have been met.   Sec. 6330(c)(1), (3);

Hoyle v. Commissioner, 131 T.C. ___, ___ (2008) (slip op. at 5).

     Petitioner questioned whether respondent issued a notice of

deficiency to him for 1991, 1992, and 1993 (i.e., whether the

requirements of applicable law and administrative procedure have

been met).   In Butti v. Commissioner, T.C. Memo. 2008-82 (Butti

I), we were faced with the same issue regarding the same

taxpayer’s 1989 and 1990 income tax liabilities.   In Butti I, as

in the case at bar, respondent contended that a notice of

deficiency was issued to petitioner.    In Butti I we held that it

was not.

     Respondent bears the burden of proving by competent and

persuasive evidence that the notice of deficiency was properly

mailed.    See Coleman v. Commissioner, 94 T.C. 82, 90 (1990);

August v. Commissioner, 54 T.C. 1535, 1536-1537 (1970).     The act

of mailing may be proven by documentary evidence of mailing or by

evidence of respondent’s mailing practices corroborated by direct

testimony.   See Coleman v. Commissioner, supra at 90.
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     Where the existence of the notice of deficiency is not in

dispute, a properly completed PS Form 3877 by itself is

sufficient, absent evidence to the contrary, to establish that

the notice was properly mailed to a taxpayer.     United States v.

Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v.

Commissioner, supra at 91.   However, where the existence of the

notice of deficiency is in dispute, we have previously rejected

the Commissioner’s reliance on the presumption of regularity

based solely on the PS Form 3877.      Pietanza v. Commissioner, 92

T.C. 729 (1989), affd. without published opinion 935 F.2d 1282

(3d Cir. 1991); see also Koerner v. Commissioner, T.C. Memo.

1997-144 (a PS Form 3877 does not by itself establish that the

Commissioner mailed a notice of deficiency); cf. Spivey v.

Commissioner, T.C. Memo. 2001-29 (the Commissioner produced a

copy of the notice of deficiency and witnesses described how

notices of deficiency are produced and mailed).

     In Butti I respondent contended that Pietanza was

distinguishable; however, respondent did not show that the facts

present in Butti I differed in any material way from those in

Pietanza.   In Pietanza, as in Butti I, the Commissioner:    (1)

Lost the administrative file, (2) had no copy of a notice of

deficiency, (3) did not establish that a final notice of

deficiency ever existed, (4) relied on PS Form 3877, and (5) did
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not introduce evidence showing how the Commissioner’s personnel

prepare and mail notices of deficiency.

     The case at bar is distinguishable from Pietanza and

Butti I.   Albeit belatedly, respondent found petitioner’s

administrative file.    Respondent introduced the file copy of the

notice of deficiency.   Respondent introduced testimonial evidence

establishing how respondent’s personnel prepare and mail notices

of deficiency.   Revenue Agent Robert Gruska, who for 20 years has

prepared notices of deficiency, credibly testified that as shown

by the file copy of the notice of deficiency, an original notice

of deficiency was prepared for the deficiencies in petitioner’s

income tax for 1991, 1992, and 1993.    Furthermore, respondent

called as a witness Ms. Lewis, the IRS employee who mailed the

original notice of deficiency to petitioner, and she credibly

testified as to the mailing of the original notice of deficiency.

     The original notice of deficiency sent to petitioner on

December 30, 1998, was properly prepared in accordance with

respondent’s policies and procedures.    Respondent has shown that

he timely issued the notice of deficiency before assessing

petitioner’s taxes.

     Petitioner contends that even if respondent issued the

notice of deficiency he never received it.    The documentary

evidence is to the contrary.
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     Receipt of a notice of deficiency means receipt in time to

petition the Tax Court for a redetermination of the deficiency.

Secs. 301.6320-1(e)(3), Q&A-E2, 301.6330-1(e)(3), Q&A-E2, Proced.

& Admin. Regs.   Respondent has established that on January 4,

1999, Gowanda received the original notice of deficiency and that

on January 21, 1999, petitioner acknowledged receipt of the

original notice of deficiency by signing the legal mail logbook

maintained by Gowanda.

     The original notice of deficiency sent to Gowanda was sent

by certified mail, article No. Z 009 132 170.    Certified mail,

article No. Z 009 132 170, is listed on the PS Form 3877 dated

December 30, 1998.    The sender’s address on the PS Form 3877 is

“P.O. Box 4645, Grand Central Station”.    Gowanda’s mail log lists

two certified mailings to petitioner received on January 4, 1999,

with certified mail article No. Z 009 132 170, being one of them

and lists a return address of “IRS P.O.B. 4645, Grand Central

St., NYC”.   Gowanda’s legal mail logbook shows that petitioner

picked up two pieces of mail on January 21, 1999, and each piece

of mail is listed in a row that shows the mail was from “Internal

Rev Grand Central”.

     Accordingly, we conclude that petitioner received the notice

of deficiency in time to petition the Tax Court for

redetermination of the deficiencies.    This means that petitioner

may not challenge his underlying tax liabilities and we review
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respondent’s administrative determination for abuse of

discretion.    See Sego v. Commissioner, 114 T.C. at 610.

     Petitioner did not offer any collection alternatives at his

collection hearing or in his petition.   AO Lawrence verified that

the requirements of any applicable law or administrative

procedure had been met.   Accordingly, we conclude that respondent

did not abuse his discretion in determining to proceed with

collection of petitioner’s 1991, 1992, and 1993 income tax

liabilities.

     To reflect the foregoing,


                                          Decision will be entered

                                     for respondent.
