                  T.C. Summary Opinion 2003-95



                     UNITED STATES TAX COURT



                  ALLAN L. BLANK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9158-02S.              Filed July 21, 2003.


     Allan L. Blank, pro se.

     John W. Strate, for respondent.



     PAJAK, Special Trial Judge:    This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   Unless otherwise

indicated, 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.   The decision to be

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

should not be cited as authority.
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     The sole issue this Court must decide is whether respondent

abused his discretion in denying petitioner’s request for

abatement of interest assessed with respect to petitioner’s 1992

and 1993 taxable years.

     Some of the facts in this case have been stipulated and are

so found.   Petitioner resided in Palo Alto, California, at the

time he filed his petition.

     For the taxable year 1992, petitioner received wages in the

amount of $14,500 from A. Gordon Enterprises Co., Inc.

Petitioner also received dividend income of $20 in 1992.

     For the taxable year 1993, petitioner received wages in the

amount of $26,900 from GTE Corporation.   Petitioner also received

dividend income of $22 in 1993.

     On February 27, 1995, respondent sent a Proposed Individual

Income Tax Assessment letter (30 day letter) to petitioner at an

address in Lauderhill, Florida (Florida address).   This letter

indicated that respondent had no record that petitioner filed a

1992 Federal income tax return and provided a tax calculation

summary.

     On May 22, 1995, respondent sent a Proposed Individual

Income Tax Assessment letter (30 day letter) to petitioner at the

Florida address.   This letter indicated that respondent had no

record that petitioner filed a 1993 tax return and provided a tax

calculation summary.
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     On May 24, 1995, respondent sent a notice of deficiency for

the 1992 taxable year to petitioner at the Florida address,

determining a deficiency of $1,294 and an addition to tax under

section 6651(a) of $323.

     On August 9, 1995, respondent sent a notice of deficiency

for the 1993 taxable year to petitioner at the Florida address

determining a deficiency of $3,135 and additions to tax under

sections 6651(a) and 6654(a) of $783 and $131, respectively.

     Apparently, petitioner did not receive the aforesaid notices

of deficiency.   Respondent conceded this and stated that this was

because petitioner had moved to New York in 1991 and the Internal

Revenue Service had no notice as to his new address.

     On September 25, 1999, respondent sent a letter to

petitioner at his Palo Alto, California, address which provided a

summary of the assessed taxes and additions to tax for each of

the taxable years at issue.

     On October 20, 2000, respondent sent petitioner a Letter

3172, Notice of Federal Tax Lien Filing And Your Right To A

Hearing.   Petitioner filed a Form 12153, Request for a Collection

Due Process Hearing with respondent on November 2, 2000.

Petitioner stated that he had not been contacted by respondent

prior to October 1999, that he had responded to all calls and

letters since that date, and that he was “never given a chance to

appear at an office”.   Petitioner did not dispute the amount of
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the tax liabilities or the additions to tax with respect to the

taxable years at issue.

     On August 29, 2001, petitioner attended a hearing in person

at respondent’s Appeals Office in San Jose, California.    At the

hearing, petitioner did not dispute the amount of the tax

liabilities and additions to tax.    Petitioner made a request for

interest abatement at the hearing.

     On August 30, 2001, respondent’s Appeals officer sent a

letter to petitioner which, in part, discussed petitioner’s claim

for an abatement of interest.

     On May 6, 2002, the Appeals Office issued to petitioner a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.   The Appeals Office determined in

relevant part, that interest should not be abated with respect to

petitioner’s 1992 and 1993 taxable years.

     Petitioner contends that respondent’s refusal to abate

interest was an abuse of discretion.

     If, as part of a section 6330 hearing, a taxpayer makes a

request for abatement of interest, we have jurisdiction over the

request for abatement of interest that is the subject of

respondent’s collection activities.     Katz v. Commissioner, 115
T.C. 329, 340-341 (2000); Wright v. Commissioner, T.C. Memo.

2002-312.   Generally, this Court considers only arguments,

issues, and other matters that were raised by the taxpayer at the

section 6330 hearing or otherwise brought to the attention of the
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Appeals Office.    Magana v. Commissioner, 118 T.C. 488, 493

(2002).

     As applicable to the taxable years before this Court,

section 6404(e)(1) provides, in pertinent part, that the

Commissioner may abate the assessment of interest on any

deficiency attributable to any error or delay by an officer or

employee of the Internal Revenue Service (acting in his official

capacity) in performing a ministerial act.     A ministerial act

means a procedural or mechanical act that does not involve the

exercise of judgment.    Lee v. Commissioner, 113 T.C. 145, 149-150

(1999).    An error or delay is taken into account only (1) if no

significant aspect of the error or delay can be attributed to the

taxpayer and (2) after the Internal Revenue Service has contacted

the taxpayer in writing with respect to the deficiency or

payment.    Sec. 6404(e)(1).

     If a taxpayer fails to file a return and fails to pay the

tax he owes, section 6404(e) would not apply to the interest that

accrues on unpaid taxes before the Commissioner contacts the

taxpayer in writing with respect to the tax.     Wright v.
Commissioner, T.C. Memo. 2002-312.

     Petitioner bears the burden of proving that respondent

abused his discretion by denying his request for interest

abatement.    Rule 142(a); Woodral v. Commissioner, 112 T.C. 19, 23

(1999).    In order to prevail, a taxpayer must prove that the

Commissioner exercised this discretion arbitrarily, capriciously,
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or without sound basis in fact or law.     Woodral v. Commissioner,

supra.

     Petitioner argues that respondent had petitioner’s correct

address at the time the notices of deficiency were sent.

     Generally, the IRS may not assess a deficiency in tax until

after a valid notice of deficiency has been sent to the taxpayer.

Hyler v. Commissioner, T.C. Memo. 2002-321.    For that purpose,

mailing a notice of deficiency is sufficient if it is sent to the

taxpayer at the taxpayer’s “last known address”.    Sec. 6212(b).

     In determining whether a notice was mailed to a taxpayer at

the taxpayer’s last known address, the relevant inquiry “pertains

to the Commissioner’s knowledge rather than to what may in fact

be the taxpayer’s most current address”.      Alta Sierra Vista,
Inc. v. Commissioner, 62 T.C. 367, 374 (1974), affd. without

published opinion 538 F.2d 334 (9th Cir. 1976).

     Petitioner testified that “The only thing I notified [sic]

was when I went for a passport in 1993, and that was submitted to
the Internal Revenue Service with my address.”    Petitioner’s

testimony lacks credibility, and we need not accept it.     Tokarski

v. Commissioner, 87 T.C. 74, 77 (1986).    Petitioner has not

demonstrated that, before the notices of deficiency for the

taxable years 1992 and 1993 were mailed, he provided the Internal

Revenue Service with clear and concise notice of a change of

address.   Nor has he shown that, prior to the mailing of the

notices of deficiency, the Internal Revenue Service knew of a
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change in petitioner’s address and did not exercise due diligence

in ascertaining petitioner’s correct address.

     If petitioner had filed tax returns for 1992 and 1993,

respondent would have been able to assess the taxes petitioner

owed.   Sec. 6201(a)(1).   Petitioner did not file tax returns for

those years.   Therefore, respondent was forced to issue notices

of deficiency for 1992 and 1993.

     Petitioner failed to establish that he is entitled to an

abatement of interest.     Petitioner has not demonstrated any error

or delay by the Commissioner in performing a ministerial act.

Any delay in sending petitioner a final tax bill for his 1992 and

1993 taxable years was attributable to petitioner’s failure to

file tax returns for those years and to notify the Internal

Revenue Service of his change of address.    Accordingly,

respondent did not abuse his discretion in denying petitioner’s

request for interest abatement.

     Petitioner offered no evidence to prove entitlement to a

dependency exemption or to head of household filing status, and

these issues are deemed conceded.

     To the extent that we have not addressed any of the parties’
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arguments, we have considered them and conclude they are

irrelevant or without merit.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
