                        T.C. Memo. 2008-190



                      UNITED STATES TAX COURT



    JONATHAN SHAFMASTER AND CAROL SHAFMASTER, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7955-06L.              Filed August 11, 2008.



     James E. Higgins, for petitioners.

     Carina J. Campobasso, for respondent.



                        MEMORANDUM OPINION


     GALE, Judge:   This case is before the Court on respondent’s

motion to dismiss for lack of jurisdiction.     In his motion

respondent contends that no notice of determination sufficient to
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confer jurisdiction on the Court pursuant to sections 63201

and/or 6330 was issued to petitioners.   Petitioners filed a

response, a hearing was held, and the parties filed supplemental

briefs in support of their positions.

                           Background

     At the time the petition was filed petitioner Jonathan

Shafmaster (Mr. Shafmaster) resided in New Hampshire, and

petitioner Carol Shafmaster (Mrs. Shafmaster) resided in Maine.

     This case arises out of respondent’s efforts to collect

unpaid income taxes for petitioners’ 1993 and 1994 taxable years.

On October 4, 2002, respondent filed notices of Federal tax lien

with respect to the outstanding 1993 and 1994 tax liabilities of

$3,989,921, and on or about October 7, 2002, respondent issued

petitioners notices of Federal tax lien filing.   Petitioners

filed a timely request for an Appeals Office hearing in response

thereto on November 7, 2002.   Petitioners, through their

representative, held extensive discussions with a settlement

officer in respondent’s Appeals Office over the next 21 months.

In early August 2004 petitioners and respondent reached an

agreement for respondent to file revised notices of lien to

reflect reduced tax liabilities and to enter into an installment

agreement, which required Mr. Shafmaster to pay the balance of


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986 as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 3 -

the 1993 and 1994 liabilities over approximately 3 years.    In

connection therewith, on August 4, 2004, petitioners’

representative faxed to the settlement officer a Form 433-D,

Installment Agreement, signed by Mr. Shafmaster; a Summary Notice

of Determination, Waiver of Right to Judicial Review of a

Collection Due Process Determination, and Waiver of Suspension of

Levy Action (2004 summary notice of determination), signed by Mr.

Shafmaster; and a cover letter.    The cover letter referred to the

Form 433-D and the 2004 summary notice of determination as

follows:

          The original documents are being sent to you for you to
     * * * facilitate the execution of the Installment Agreement
     * * *. It is not Mr. Shafmaster’s intention to waive his
     right to judicial review or to be bound by the Installment
     Agreement until he has had the opportunity to review the
     finalized documents and ensure that no changes have been
     made to their terms.

     The record does not contain a copy of the 2004 summary

notice of determination or of the Form 433-D that is

countersigned by an Internal Revenue Service (IRS)

representative.    However, the Forms 4340, Certificate of

Assessments, Payments, and Other Specified Matters, for

petitioners’ 1993 and 1994 taxable years contain “LEGAL SUIT NO

LONGER PENDING” entries dated August 30, 2004.   The copy of the

2004 summary notice of determination signed by Mr. Shafmaster

states:    “I waive my right under sections 6320 and 6330 to seek
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judicial review within 30 days of an Appeals Notice of

Determination.”

     The Form 433-D faxed to respondent stated that Mr.

Shafmaster would make an initial payment of $150,000 to

respondent on September 10, 2004, and monthly payments of $32,183

thereafter until the liabilities were paid in full.   The Form

433-D further stated that Mr. Shafmaster would make payments of

$250,000 on October 1, 2005, and April 1, 2006, followed by

payments of $500,000 on October 1, 2006, and October 1, 2007.

     Respondent received an initial payment of $150,000 from Mr.

Shafmaster on September 13, 2004, and received monthly payments

of $32,183 from Mr. Shafmaster starting in October 2004.

Respondent also received a $250,000 payment from Mr. Shafmaster

on October 3, 2005, and a $736,552 payment from Mr. Shafmaster on

November 7, 2005.   All of the foregoing payments were credited

against petitioners’ outstanding liabilities for 1993 and 1994.

     On February 15, 2006, respondent sent petitioners a notice

of additional Federal tax lien filing with respect to their

income tax liabilities for 1993 and 1994 (2006 additional NFTL),

which reduced the unpaid balance due for each year.   On March 17,

2006, petitioners submitted a request for a hearing in response

thereto.   On March 30, 2006, the settlement officer who had held

discussions with petitioners in connection with their November 7,

2002, hearing request sent petitioners a letter (hearing
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rejection letter) advising that a hearing had previously been

conducted with respect to 1993 and 1994 and that he was

forwarding the current request to the local IRS compliance office

for further disposition.   Thereafter, petitioners filed a

petition with the Court seeking review under sections 6320 and

6330.

                            Discussion

     Respondent maintains that we lack jurisdiction because the

hearing rejection letter was not a notice of determination

sufficient to confer jurisdiction on this Court.   Petitioners

argue that they were entitled to a hearing with respect to the

2006 additional NFTL and that the hearing rejection letter was in

effect a determination for purposes of invoking this Court’s

jurisdiction.   In the alternative petitioners contend that no

effective notice of determination was issued to them as a result

of their hearing request of November 7, 2002, and that the

hearing rejection letter was therefore the long-delayed notice of

determination with respect to the November 7, 2002, hearing

request.

     The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress.   Naftel v. Commissioner, 85 T.C. 527, 529 (1985).     The

Court’s jurisdiction under sections 6320 and 6330 depends upon

the issuance of a valid notice of determination and the filing of
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a timely petition for review.   See Orum v. Commissioner, 123 T.C.

1, 8 (2004), affd. 412 F.3d 819 (7th Cir. 2005); Sarrell v.

Commissioner, 117 T.C. 122, 125 (2001); Moorhous v. Commissioner,

116 T.C. 263, 269 (2001); Offiler v. Commissioner, 114 T.C. 492,

498 (2000); see also Rule 330(b).   In the absence of either, this

Court lacks jurisdiction.

     Petitioners filed their petition for review within 30 days

of the issuance of the hearing rejection letter.    Therefore, the

issue we must decide is whether that letter constitutes a

determination for purposes of conferring jurisdiction on this

Court.

     A taxpayer generally is entitled to only one hearing with

respect to the type of tax and taxable period to which the tax

covered by a notice of Federal tax lien filing relates.    Sec.

6320(b)(2); sec. 301.6320-1(b)(1) and (2), Proced. & Admin.

Regs.; see also Inv. Research Associates, Inc. v. Commissioner,

126 T.C. 183, 190 (2006).   Thus, if petitioners received a

hearing as a result of their November 7, 2002, request, in

response to which a valid notice of determination was issued,

respondent’s settlement officer acted properly when he

effectively refused them another hearing in connection with the

2006 additional NFTL, see sec. 301.6320-1(b)(1) and (2), Proced.

& Admin. Regs., and his hearing rejection letter could not

constitute a basis for jurisdiction.    Moreover, if the 2004
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summary notice of determination was fully executed, petitioners

waived their right to judicial review under sections 6320(c) and

6330(d)(1).   See Smith v. Commissioner, T.C. Memo. 2007-221 n.9

(citing Aguirre v. Commissioner, 117 T.C. 324 (2001)).

     Respondent is unable to produce a copy of the 2004 summary

notice of determination countersigned by an IRS representative.

As a result, petitioners contend that no notice of determination

was issued in 2004 and therefore no determination with respect to

their November 7, 2002, hearing request was made until the

hearing rejection letter.   Cf. Craig v. Commissioner, 119 T.C.

252 (2002) (where the Appeals Office issued a decision letter on

the mistaken assumption that the hearing request was untimely,

the decision letter was a determination sufficient for

jurisdiction under section 6330).

     Respondent relies on the presumption of official regularity

to establish that a fully executed 2004 summary notice of

determination was completed.   The presumption of official

regularity supports the official acts of public officers,

including IRS personnel; and in the absence of clear evidence to

the contrary, courts presume that they have properly discharged

their official duties.   United States v. Chem. Found., Inc., 272

U.S. 1, 14-15 (1926); Pietanza v. Commissioner, 92 T.C. 729, 739

(1989); affd. without published opinion 935 F.2d 1282 (3d Cir.

1991).   However, the presumption does not apply where the
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taxpayer introduces specific evidence to rebut the presumption.

See Pietanza v. Commissioner, supra.

     Respondent has proffered the settlement officer’s case

activity records, which contain notations to the effect that the

settlement officer received a faxed copy of the 2004 summary

notice of determination and the installment agreement on August

4, 2004; that final versions of the foregoing were received from

petitioners’ representative on August 25, 2004; and that after

closing documents were prepared, the final versions were given to

the settlement officer’s Appeals team manager for signature.

Consistent with the foregoing, the Forms 4340 for petitioners’

1993 and 1994 taxable years proffered by respondent each contain

an August 30, 2004, entry (5 days after the receipt of final

documents recorded in the case activity records) entitled “LEGAL

SUIT NO LONGER PENDING”, indicating that the hearing proceeding

had been resolved.   Entries in Forms 4340 are also presumptively

correct in the absence of evidence to the contrary.   Geiselman v.

United States, 961 F.2d 1, 6 (1st Cir. 1992).

     The only rebuttal evidence petitioners proffered is an

affidavit of their then counsel to the effect that he was unable

to locate in his files a copy of the fully executed 2004 summary

notice of determination.2   This is insufficient.


     2
       Petitioners also make the near-specious argument that
respondent’s loss of a portion of their records is itself an
                                                   (continued...)
                                - 9 -

     Of greatest significance, petitioners’ own actions strongly

corroborate respondent’s records and belie their claim that the

2004 summary notice of determination was never fully executed.

Fourteen days after the Forms 4340 record that the hearing

proceeding for 1993 and 1994 had been concluded, Mr. Shafmaster

made a payment to respondent of $150,000--as provided in the

installment agreement that was integral to the parties’ execution

of the 2004 summary notice of determination.    Mr. Shafmaster

thereafter made monthly payments of $32,183 in accordance with

the installment agreement’s terms, as well as lump-sum payments

of $250,000 and $736,5523 with respect to the 1993 and 1994

liabilities.    In the cover letter accompanying their submission

of the 2004 summary notice of determination and the installment

agreement signed by Mr. Shafmaster, counsel for the Shafmasters

was careful to condition Mr. Shafmaster’s agreement to both the

summary determination and the installment terms upon his

“opportunity to review the finalized documents”.    Having so



     2
      (...continued)
irregular event, which causes respondent to lose the benefit of
the presumption of official regularity. We disagree. The
absence of documents is not an irregularity that tends to rebut
the presumption; rather, it is the absence of documents that
typically gives rise to use of the presumption. See, e.g., R.H.
Stearns Co. v. United States, 291 U.S. 54, 63 (1934); United
States v. Zolla, 724 F.2d 808 (9th Cir. 1984); United States v.
Ahrens, 530 F.2d 781 (8th Cir. 1976).
     3
         This amount exceeded the payments called for in the Form
433-D.    The record offers no explanation for the discrepancy.
                              - 10 -

carefully delineated his rights, we find it virtually

inconceivable that Mr. Shafmaster would then have made a $150,000

payment under the installment agreement some weeks later without

having been provided “finalized” (i.e., fully executed)

documentation of the installment agreement and the 2004 summary

notice of determination.   The same can be said of the monthly

$32,183 payments that commenced in October 2004.   In short, in

addition to the presumption of official regularity, other

substantial evidence strongly corroborates the conclusion that

the 2004 summary notice of determination was executed.     We so

find.

     Because petitioners received a hearing and a notice of

determination with respect to the notices of Federal tax lien

issued to them in October 2002 for 1993 and 1994, they are not

entitled to another hearing with respect to the same years, even

though a subsequent notice of lien filing (i.e., the 2006

additional NFTL) was issued to them.   See sec. 6320(b)(2); sec.

301.6320-1(b)(1) and (2), Proced. & Admin. Regs.; see Inv.

Research Associates, 126 T.C. at 189 (where taxpayer chose not to

request a hearing with respect to first notice of lien, it was

not entitled to a hearing with respect to the filing of another

lien with respect to the same tax periods; sec. 301.6320-1(b)(1)

and (2), Proced. & Admin. Regs., specifically upheld as

reasonable exercise of regulatory authority).   Further,
                             - 11 -

petitioners waived their right to judicial review in the 2004

summary notice of determination.

     The settlement officer’s effective refusal to grant them a

hearing concerning the 2006 additional NFTL in the hearing

rejection letter was therefore proper, and the letter does not

provide a basis for invoking this Court’s jurisdiction.4

     Because petitioners did not timely petition the Court with

respect to a valid notice of determination, we lack jurisdiction.

We shall therefore grant respondent’s motion.

     To reflect the foregoing,



                                        An order dismissing this

                                   case for lack of jurisdiction

                                   will be entered.




     4
       Petitioners’ reliance on Craig v. Commissioner, 119 T.C.
252 (2002), is misplaced. Craig involved a decision letter
issued by the Appeals Office on the mistaken assumption that the
taxpayer’s hearing request was untimely. Here, the settlement
officer’s letter refusing a hearing was based on the correct
premise that petitioners were not entitled to one.
