                              T.C. Memo. 2008-91



                           UNITED STATES TAX COURT



                       ANDREW MCCOY, Petitioner v.
              COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 5777-06.                      Filed April 9, 2008.



        Andrew McCoy, pro se.

        Orsolya Kun and Peggy J. Gartenbaum, for respondent.



                 MEMORANDUM FINDINGS OF FACT AND OPINION


        HALPERN, Judge:     By notice of deficiency dated January 5,

2006 (the notice), respondent determined deficiencies in,

additions to, and a penalty with respect to petitioner’s Federal

income taxes as follows:
                                         Additions to Tax/Penalty
 Year     Deficiency   Sec. 6651(a)(1)   Sec. 6651(a)(2)    Sec. 6654   Sec. 6662
 1999     $17,270.00      $3,885.75          $4,317.50       $835.78        --

 2000      14,615.00       3,288.38          3,653.75        780.65         --

 2002       1,046.00         --                --              --        $209.20
                                    - 2 -


     All section references are to the Internal Revenue Code in

effect for the years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

     Respondent has conceded the deficiency in tax and the

section 6662 penalty with respect to 2002.        The issues remaining

for decision are:        (1) Whether respondent is barred from

assessing tax for 1999 and 2000 on account of the running of the

period of limitations on assessment for those years; and (2) if

not, whether respondent is estopped from pursuing petitioner’s

liabilities for those years because of his written and oral

communications with petitioner.

                              FINDINGS OF FACT1

     1
         In part, Rule 151 provides as follows:

     RULE 151.       BRIEFS

           (e)       Form and Content: * * *

                 *       *     *     *      *     *    *

          (3) * * * In an answering or reply brief, the
     party shall set forth any objections, together with the
     reasons therefor, to any proposed findings of any other
     party, showing the numbers of the statements to which
     the objections are directed; in addition, the party may
     set forth alternative proposed findings of fact.

     At the conclusion of the trial, the Court directed
petitioner to Rule 151 and its requirements with respect to
briefs. Petitioner has filed an answering brief, but he has
failed to set forth objections to respondent’s proposed findings
of fact. Accordingly, we must conclude that petitioner has
conceded respondent’s proposed findings of fact as correct except
to the extent that respondent has failed to direct us to any
evidence in the record supporting those proposed findings or
those findings are clearly inconsistent with either evidence in
the record or petitioner’s proposed findings of fact that we do
not disregard. See, e.g., Jonson v. Commissioner, 118 T.C. 106,
                                                   (continued...)
                               - 3 -

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

The stipulation of facts, with accompanying exhibits, is

incorporated herein by this reference.

     Petitioner resided in the State of Washington at the time

the petition was filed.

     Petitioner is a calendar year taxpayer.    He timely filed a

Form 1040, U.S. Individual Income Tax Return, for 2002.      In March

2004, respondent selected that return for audit.      The audit

process revealed that petitioner had failed to file returns for

1999 and 2000.   The audit was extended to those years.     On

October 18, 2004, respondent issued to petitioner a notice CP-

2005 (the closing notice).   The identifying information at the

top of the closing notice references:    “TAX FORM:    1040 TAX YEAR:

2002”.   In pertinent part, the body of the closing notice reads

as follows:

                          CLOSING NOTICE

          Thank you for providing us with additional
     information about the issue we recently wrote to you
     about. We are pleased to tell you that, with your
     help, we were able to clear up the differences between
     your records and your payers’ records. If you sent us
     a payment based on our proposed changes, we will refund
     it to you if you owe no other taxes or have no other
     debts the law requires us to collect.

          If you have already received a notice of
     deficiency, you may disregard it. You won’t need to
     file a petition with the United States Tax Court to
     reconsider the tax you owe. If you have already filed
     a petition, the Office of the District Counsel will
     contact you on the final closing of this case.


     1
      (...continued)
108 n.4 (2002), affd. 353 F.3d 1181 (10th Cir. 2003).
                                 - 4 -

      The audit for 1999 and 2000 was assigned to respondent’s

Revenue Agent Andrew D. Menck.    Petitioner participated in the

audit for 1999 and 2000.   He set forth his position relative to

respondent’s adjustments and provided pertinent documents and

information.   On January 11, 2005, petitioner submitted to

respondent a 1999 Federal income tax return.

                              OPINION

I.   Introduction

      By amended petition, petitioner assigns error to the

determinations in the notice as follows:

           I request that the US Tax Court dismiss the IRS’s
      claims that I owe additional tax for the tax years
      listed above and that the court grant me relief from
      future IRS collection activities for the above tax
      years for the following reasons:
      1) The IRS reviewed my 2002 return, and I provided
      additional detailed information to the IRS. On
      10/18/2004, the IRS issued me a Closing Notice for Tax
      Year 2002 which clearly stated that I do not owe any
      additional tax and instructed me to ignore any Notice
      of Deficiency. The Closing Notice also informed me
      that I do not need to petition the Tax Court to
      reconsider any tax that I owe. I reasonably relied on
      this letter.
      2) The IRS ignored their own Closing Notice and
      improperly expanded their examination of my Tax Year
      2002 return to 1999 and 2000. These years are clearly
      beyond the statutory limits for bringing a case against
      me.

      Petitioner assigns no error to respondent’s adjustments

giving rise to the deficiencies, nor does he assign error to

respondent’s determinations of additions to tax or penalty.

Issues not raised in the assignments of error are deemed
                                  - 5 -

conceded.   See Rule 34(b)(4).2    Petitioner raises the affirmative

defenses of statute of limitations and estoppel.     See Rule

142(a).

II.   Period of Limitations
      Section 6501(a) sets forth the general rule that a tax shall

be assessed within 3 years after the return was filed (whether or

not that return was filed on or after the date prescribed).       The

period of limitations is suspended during the pendency of a case

to redetermine a deficiency in court.     See sec. 6503(a)(1).    If

no return is filed, the tax may be assessed at any time.     See

sec. 6501(c)(3).   Petitioner has failed to prove that assessment

of tax for 1999 or 2000 is barred by section 6501(a).     Petitioner

proposed no findings of fact relative to his timely filing of a

return for either 1999 or 2000.     There is no evidence in the

record that petitioner filed a return for 2000.     With respect to

1999, the parties have stipulated that, during the audit process,

petitioner submitted to the Internal Revenue Service (IRS) a Form

1040, U.S. Individual Income Tax Return, for that year.     The

return shows that it was received by the IRS on January 11, 2005.

It is, however, dated February 15, 2000.     Petitioner offers

nothing corroborating that it was mailed to the IRS or otherwise

submitted any earlier than January 11, 2005.     We need not, and do



      2
        The rule of concession found in Rule 34(b)(4) extends to
additions to tax and penalties, notwithstanding that, pursuant to
sec. 7491(c), in the case of individuals, the Secretary bears the
burden of production in any court proceeding with respect to such
amounts. Swain v. Commissioner, 118 T.C. 358, 363 (2002).
                                - 6 -

not, accept petitioner’s uncorroborated claim that his return was

received by the IRS any earlier than January 11, 2005.    See

Estate of Price v. Commissioner, T.C. Memo. 1984-613 (“In those

relatively few cases where a return is purportedly mailed but

never received, some courts have presumed receipt and subsequent

loss by respondent’s employees, where sufficiently precise proof

is provided as to the mailing of a missing tax return.”).

Petitioner has failed to prove that he filed any return for 2000

or that he filed a return for 1999 before January 11, 2005.      In

either case his affirmative defense of the statute of limitations

fails.    Respondent is not barred from assessing tax for either

1999 or 2000.

III.    Estoppel

       Petitioner does not by name raise a defense of estoppel.

Nevertheless, considering the nature of his claim, we think he

raises that defense.    “My argument presented at trial is that

Respondent cannot arbitrarily expand an audit that it has already

closed to include previous tax years.”    Petitioner relies in

particular on the closing notice to preclude any further

collection action by respondent:

       What is at issue is that the CLOSING NOTICE was indeed
       the end of the tax year 2002 audit, and Respondent is
       attempting [to] grant itself new powers to improperly
       not only re-open, but also expand the closed 2002 audit
       as a means to audit me for 1999 and 2000 after it had
       already sent the CLOSING NOTICE for that audit.

He also relies on telephone calls with IRS employees assuring him

“that I didn’t owe tax for 2002 or previous tax years, and that

the matter was closed and that once the IRS has issued a closing
                                - 7 -

notice there’s no way to expand an IRS audit to include previous

years.”    He claims a detriment:

      Respondent’s oral and written communications assuring
      me that my case was closed and instructing me to
      ‘ignore any letter of deficiency’ induced me to dispose
      of records, thus fundamentally damaging my position
      with respect to allegations of any deficiencies
      proposed by Respondent.

      “Equitable estoppel is a judicial doctrine that precludes a

party from denying that party’s own acts or representations that

induce another to act to his or her detriment.”     McCorkle v.

Commissioner, 124 T.C. 56, 68 (2005).    “It is to be applied

against the Commissioner only with utmost caution and restraint.”

Id.

      The essential elements of estoppel are: (1) There must
      be a false representation or wrongful misleading
      silence; (2) the error must be in a statement of fact
      and not in an opinion or a statement of law; (3) the
      person claiming the benefits of estoppel must be
      ignorant of the true facts; and (4) he must be
      adversely affected by the acts or statements of the
      person against whom estoppel is claimed. * * * [Id.]

      Petitioner fails to satisfy at least three of the four

elements.    The closing notice references only petitioner’s 2002

Form 1040.    It instructs him that, if he has already received a

notice of deficiency, he may disregard it, and he will not need

to file a petition with the Tax Court to redetermine the tax he

owes.   The closing notice references neither 1999 nor 2000, and

it was issued more than a year before the notice.    The closing

notice contains neither a false representation nor a misleading

silence.    It cannot serve as the basis for a defense of equitable

estoppel.
                               - 8 -

     Apparently with respect to respondent’s examination of 1999

and 2000, petitioner asks that we find that he received advice

from IRS employees he telephoned that--

     the examiner was mistaken and that the case was indeed
     closed and I had no obligation to respond to requests
     [from] the local IRS office. I noted the dates and
     times of these telephone calls and the employee numbers
     of the IRS representatives who re-assured me that I was
     under no obligation to respond.

Any advice that petitioner may have received that he had no

obligation to respond to requests from the local IRS office would

have constituted an opinion or a statement of law and not a

statement of fact.   As such, the advice could not serve as the

basis for a defense of equitable estoppel.

     Even were we to grant that either the closing notice or

telephone conversations otherwise satisfy the elements of

equitable estoppel, petitioner has failed to show detrimental

reliance.   We have found that petitioner participated in the

audit for 1999 and 2000, set forth his position relative to

respondent’s adjustments, and provided pertinent documents and

information.   He has failed to convince us that he suffered any

detriment from relying on the closing notice or any advice he

received by telephone.

     Petitioner’s defense of equitable estoppel fails.
                               - 9 -

IV.   Conclusion

      Except with respect to those for 2002, which respondent

concedes, we shall sustain respondent’s determinations of

deficiencies in, and additions to tax for, 1999 and 2000.



                                            An appropriate decision

                                       will be entered.
