                  T.C. Summary Opinion 2006-129



                      UNITED STATES TAX COURT



                 WARREN L. OWENS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10766-04S.            Filed August 22, 2006.



     Warren L. Owens, pro se.

     A. Gary Begun, for respondent.



     WHERRY, Judge:   This case is before the Court on

respondent’s motion for summary judgment under Rule 121.1   The

petition was filed pursuant to the provisions of section 7463.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.   The instant


     1
       Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, and Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

proceeding arises from a petition for judicial review filed in

response to a Determination Letter Concerning Collection

Action(s) Under Section 6320 and/or 6330.    The issue for decision

is whether respondent may proceed with collection action as so

determined.

                             Background

     On September 25, 1998, the Internal Revenue Service (IRS)

sent to petitioner a letter indicating that the agency had no

record of receiving Federal income tax returns from petitioner

for 1991, 1994, 1995, and 1996, and proposing taxes and penalties

or additions to tax based upon records received from third-party

payers.    The letter was sent to 12079 Plainview, Detroit, MI

48228, and invited a response from petitioner within 30 days.

The letter listed “Stop 822 M. HOWARD” as the IRS person to

contact.    On or about November 23, 1998, the IRS received from

petitioner a copy of a Form 1040, U.S. Individual Income Tax

Return, for 1992.    The address shown on the Form 1040 and the

return address on the envelope in which it arrived was 12079

Plainview, Detroit, MI 48228.    Enclosed with the return was a

note from petitioner directed to “STOP 822 M. HOWARD” stating:

“THIS A COPY OF THE ORIGINAL TAX FILED IN 1996.    I AM SENDING 91,

93, 94, 95, & 96”.    Petitioner’s signature on the Form 1040, and

that of the return preparer, was dated September 27, 1996.
                                - 3 -

     A notice of deficiency for 1991 was thereafter issued to

petitioner and was sent by certified mail to 12079 Plainview,

Detroit, MI 48228-1070792, on December 1, 1998.      The notice

reflected an income tax deficiency in the amount of $8,329.10 for

1991 and additions to tax under sections 6651(a) and 6654(a) of

$877.53 and $169.99, respectively.      Petitioner did not file a

petition with this Court in response to the notice of deficiency,

and respondent assessed the corresponding taxes, additions to

tax, and interest for 1991 on June 21, 1999.      A notice of balance

due was sent to petitioner on that date, as well as on July 26,

1999, and September 24, 2001.

     On September 18, 2002, the IRS issued to petitioner a Final

Notice - Notice of Intent to Levy and Notice of Your Right to a

Hearing with respect to his 1991 liabilities.      The notice was

sent by certified mail to an address in Romulus, Michigan.        In

response, petitioner submitted to the IRS a timely Form 12153,

Request for a Collection Due Process Hearing, expressing his

disagreement as follows:   “I have filed 1991 return your computer

is not correct”.

     A face-to-face hearing between petitioner and the settlement

officer to whom his case had been assigned was held on March 10,

2004.   Following the hearing, on May 21, 2004, the aforementioned

determination letter sustaining the proposed levy action was
                               - 4 -

issued.   An attachment to the determination contained the

following explanation:

     In your request for a hearing under IRC Section 6330
     you disagreed with the proposed levy action because you
     filed Form 1040 1991 and the liability assessed is
     incorrect. During the hearing you stated that you
     timely filed your Form 1040 1991 but never received
     your refund.

     During the hearing the liability was reviewed and
     discussed. The disallowed claim was reviewed with you.
     You stated you did not file a Form 1040A for 1991. You
     provided a copy of your Form 1040 for 1991. Since you
     indicated that you did not recall receiving the
     Statutory Notice of Deficiency, which our records
     verify was mailed certified to you on December 1, 1998,
     you were provided with an opportunity to present
     information for reconsideration of the liability and
     any proof of timely filing the return. No information
     was presented by the March 24, 2004 deadline to
     reconsider the liability and there has been no
     information received to date. The audit
     reconsideration procedures were explained to you and
     you were provided with Publication 3598, The Audit
     Reconsideration Process.

     Also during the hearing, you were informed that
     collection alternatives could not be considered since
     you are not in compliance with the tax filing
     requirements.

     There were no relevant challenges to the
     appropriateness of the proposed collection action.

     No other issues were raised.

     Petitioner filed a petition and amended petition with this

Court disputing the notice of determination on June 18 and

July 20, 2004, respectively, each of which reflected an address

at 11347 Gabriel, Romulus, MI 48174.   The request for relief

proffered in the amended petition read:
                               - 5 -

          The IRS lost my 1991 tax return. I sent a copy of
     the 1991 tax return in 1993. At that time I asked
     about the 1989, & 1990 tax return, because I was due a
     small return. Also, the IRS took money from my account
     for my 1993 taxes. I sent a copy of my 1993 tax return
     showing the IRS that they were wrong again.

     Respondent filed the instant motion for summary judgment on

December 3, 2004, and petitioner filed an objection thereto on

April 21, 2005.   Attached to the objection petitioner included,

inter alia, a copy of a computerized printout for Form 1040 for

1991, bearing a signature for petitioner dated March 28, 1992.

The return reflects total tax of $4,348, withholding of $4,819,

and a refund amount of $471.   A hearing was held on respondent’s

motion on June 7, 2005.   Both petitioner and respondent appeared

and were heard, and the motion was taken under advisement.

                            Discussion

     Rule 121(a) allows a party to move “for a summary

adjudication in the moving party’s favor upon all or any part of

the legal issues in controversy.”   Rule 121(b) directs that a

decision on such a motion shall be rendered “if the pleadings,

answers to interrogatories, depositions, admissions, and any

other acceptable materials, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that a decision may be rendered as a matter of law.”

     The moving party bears the burden of demonstrating that no

genuine issue of material fact exists and that he or she is

entitled to judgment as a matter of law.   Sundstrand Corp. &
                                - 6 -

Subs. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994).   Facts are viewed in the light most favorable to

the nonmoving party.   Id.   However, where a motion for summary

judgment has been properly made and supported by the moving

party, the opposing party may not rest upon mere allegations or

denials contained in that party’s pleadings but must by

affidavits or otherwise set forth specific facts showing that

there is a genuine issue for trial.     Rule 121(d).

I.   Collection Actions--General Rules

      Section 6331(a) authorizes the Commissioner to levy upon all

property and rights to property of a taxpayer where there exists

a failure to pay any tax liability within 10 days after notice

and demand for payment.   Sections 6331(d) and 6330 then set forth

procedures generally applicable to afford protections for

taxpayers in such levy situations.      Section 6331(d) establishes

the requirement that a person be provided with at least 30 days’

prior written notice of the Commissioner’s intent to levy before

collection may proceed.   Section 6331(d) also indicates that this

notification should include a statement of available

administrative appeals.   Section 6330(a) expands in several

respects upon the premise of section 6331(d), forbidding

collection by levy until the taxpayer has received notice of the

opportunity for administrative review of the matter in the form

of a hearing before the IRS Office of Appeals.     Section 6330(b)
                              - 7 -

grants a taxpayer who so requests the right to a fair hearing

before an impartial Appeals officer.

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

the 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.

     Once the Appeals officer has issued a determination

regarding the disputed collection action, section 6330(d) allows
                                - 8 -

the taxpayer to seek judicial review in the Tax Court or a

District Court, depending upon the type of tax.    In considering

whether taxpayers are entitled to any relief from the

Commissioner’s determination, this Court uses the following

standard 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 administrative
      determination for abuse of discretion. [Sego v.
      Commissioner, 114 T.C. 604, 610 (2000).]

II.   Analysis

      A.   Review of Underlying Liabilities

      Petitioner’s position throughout this proceeding has been

that the liability the IRS is proposing to collect for 1991 is

incorrect.    Rather, petitioner maintains that his liability is

more accurately reflected in the Form 1040 he allegedly filed for

1991, which reflected an overpayment of $471.    Respondent asserts

to the contrary that petitioner is precluded from challenging his

underlying liability and has raised no other issues establishing

an abuse of discretion.

      As previously indicated, section 6330(c)(2)(B) permits

taxpayers to challenge the underlying liability in a collection

proceeding only where they did not receive a notice of deficiency

or otherwise have a prior opportunity to dispute the liability.

A notice of deficiency for 1991 was sent to petitioner at 12079
                               - 9 -

Plainview, Detroit, MI 48228-1070792, on December 1, 1998.   On or

about November 23, 1998, the IRS had received from petitioner a

copy of a Form 1040 for 1992, and both the return and the

envelope in which it arrived reflected the Plainview address.

Petitioner also stated at the hearing on respondent’s motion that

he moved from the Plainview address in 1999 or 2000.    Thus, the

evidence shows that the notice of deficiency was sent in a manner

in compliance with, and valid under, section 6212 and

corresponding regulations, requiring that a notice of deficiency

be sent to a taxpayer’s last known address.   See sec. 6212(a) and

(b)(1).

     However, section 6330(c)(2)(B) focuses upon receipt of the

notice of deficiency.   During the administrative proceedings,

petitioner apparently indicated that he “did not receive” or “did

not recall receiving the Statutory Notice of Deficiency”.    He was

therefore provided with an opportunity to present information for

reconsideration of the liability but submitted no substantiating

materials by a deadline established for that purpose.   At the

hearing on respondent’s motion, following a lengthy explanation

from the Court regarding certified mail procedures, petitioner

never expressly denied receiving either (1) notification of a

certified letter to be claimed or (2) the notice of deficiency

itself.   He merely stated that the IRS had been unable to “give *
                                - 10 -

* * [him] a copy of who signed for it”.2    Additionally, the note

enclosed with the copy of petitioner’s 1992 return and directed

to “STOP 822 M. HOWARD” suggests that petitioner received other

IRS communications sent to the Plainview address, specifically

the September 25, 1998, letter.

     In general, absent clear evidence to the contrary,

compliance with certified mail procedures raises a presumption of

official regularity in delivery and receipt with respect to

notices sent by the Commissioner.     United States v. Zolla, 724

F.2d 808, 810 (9th Cir. 1984); United States v. Ahrens, 530 F.2d

781, 784-785 (8th Cir. 1976); Clough v. Commissioner, 119 T.C.

183, 187-188 (2002); Sego v. Commissioner, supra at 610-611.

Furthermore, taxpayers are not permitted to defeat actual receipt

by deliberately refusing delivery of a statutory notice.      Sego v.

Commissioner, supra at 610-611.     Suffice it to say that the

evidence here is far from convincing regarding petitioner’s

nonreceipt of the notice of deficiency.    Petitioner would

reasonably be considered in these circumstances to have forfeited

his opportunity to contest the notice of deficiency in this Court

and likewise now to be precluded from challenging his underlying

liability in this proceeding.



     2
       In this connection, we also note that although the order
setting respondent’s motion for hearing was sent to petitioner by
certified mail on May 6, 2005, petitioner apparently did not pick
up the letter until May 31, 2005.
                               - 11 -

     Nonetheless, even if petitioner were entitled to contest his

underlying liabilities at this juncture, he has at no time

offered requisite evidence in substantiation of the positions

taken upon the 1991 Form 1040.    During the administrative process

before Appeals, petitioner was afforded an opportunity to submit

information for reconsideration of his liability but declined to

do so.    He was even given an additional 2 weeks after the

collection hearing to provide documentation but did not take

advantage of this chance.    At the hearing on respondent’s motion,

he again mentioned possible supporting materials but had made no

effort to bring such items.    Thus, even a de novo review would

not aid petitioner as the record now stands, and he has been

given multiple opportunities to remedy this defect.

     B.   Review for Abuse of Discretion

     Regardless of the availability of review under section

6330(c)(2)(B) of underlying liability, section 6330(c)(2)(A)

directs that taxpayers may raise at collection hearings relevant

issues relating to the unpaid tax or proposed collection action

including, inter alia, spousal defenses, challenges to the

appropriateness of the collection action, and collection

alternatives.    Determinations made by the Appeals Office with

respect to these issues are reviewed for abuse of discretion.

Action constitutes an abuse of discretion under this standard

where arbitrary, capricious, or without sound basis in fact or
                               - 12 -

law.   Cox v. Commissioner, 126 T.C. 237, 255-256 (2006); Woodral

v. Commissioner, 112 T.C. 19, 23 (1999).

       Throughout these proceedings, petitioner has focused solely

on his contentions concerning having filed a 1991 return.      While

the Court sympathizes with petitioner’s frustrations in this

regard, what transpired with respect to this return is not

substantively relevant in the current procedural posture.      Yet

due to this singularity of focus, petitioner has never advanced

any other issues susceptible to review under section

6330(c)(2)(A).     Accordingly, nothing in the record reflects an

abuse of discretion.    The Court will grant respondent’s motion

for summary judgment and sustain the proposed collection action.

       To reflect the foregoing,


                                           An order granting

                                     respondent’s motion for

                                     summary judgment and decision

                                     for respondent will be

                                     entered.
