                            142 T.C. No. 24



                   UNITED STATES TAX COURT



             ERIC ONYANGO, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket Nos. 27788-11L, 19081-12L.             Filed June 24, 2014.



       On several occasions the U.S. Postal Service (Postal Service)
attempted, albeit unsuccessfully, to deliver to P a notice of deficiency
that R had mailed to him by certified mail, return receipt requested,
and addressed to his legal residence. On at least two occasions the
Postal Service left notices of attempted delivery of the certified mail
which contained the notice of deficiency at the address of P’s legal
residence. In those notices, the Postal Service informed P that it had
certified mail to deliver to him and that he had to sign a receipt for
that mail before the Postal Service would deliver it to him. P declined
to check on a regular basis his mailbox at his legal residence and to
retrieve on a regular basis any Postal Service mail items delivered
there. After several unsuccessful attempts to deliver the certified mail
in question to P at his legal residence, the Postal Service returned it to
R.

      Held: P may not decline to retrieve his Postal Service mail,
when he was reasonably able and had multiple opportunities to do so,
and thereafter successfully contend that he did not receive for pur-
poses of I.R.C. sec. 6330(c)(2)(B) a notice of deficiency.
                                         -2-

             Held, further, we reject P’s contention that he is entitled under
      I.R.C. sec. 6330(c)(2)(B) to dispute the underlying tax liability to
      which that notice of deficiency pertained.



      Eric Onyango, pro se.

      Lauren N. May and K. Elizabeth Kelly, for respondent.



      CHIECHI, Judge: These cases arise from petitions filed in response to

respective notices of determination concerning collection action(s) under section

6320 and/or 63301 dated November 3, 2011, and June 25, 2012, with respect to

petitioner’s taxable years 2006, 2007, 2008, and 2009.

      The only issue presented here is whether petitioner is entitled under section

6330(c)(2)(B) to dispute the underlying tax liability for his taxable year 2006.2


      1
       All section references are to the Internal Revenue Code in effect at all
relevant times. All Rule references are to the Court’s Rules of Practice and
Procedure.
      2
        The parties stipulated in pertinent part as follows: “The only aspect of the
determinations set forth in the notices of determination [dated November 3, 2011,
and June 25, 2012] that petitioner disputes in these cases is petitioner’s correct tax
liability for tax year 2006.” At the beginning of the trial in these cases, petitioner
advised the Court that he was unable to testify about matters relating to claimed
expenses that he asserted would establish his correct Federal income tax (tax)
liability for his taxable year 2006. In the light of petitioner’s claimed inability to
present any such evidence and the significant delays that had already occurred in
                                                                          (continued...)
                                         -3-

We hold that he is not.

                                FINDINGS OF FACT

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

      At all relevant times, including when he filed the respective petitions in

these cases, petitioner’s legal residence was 222 North Columbus Drive, No. 1507,

Chicago, Illinois 60601 (Columbus Drive apartment).3

      Petitioner timely filed a tax return for his taxable year 2006. In that return,

petitioner reported total tax of $1,606 for that year.




      2
        (...continued)
the disposition of these cases, the Court decided to conduct a partial trial in order
to determine the threshold issue of whether petitioner is entitled to dispute the
underlying tax liability for his taxable year 2006. The Court informed the parties
at the beginning of that partial trial that if it were to find on the basis of the
evidence adduced at that partial trial that petitioner is entitled to dispute the
underlying tax liability for his taxable year 2006, a further trial would be required
at which petitioner would be able to present evidence to establish what he claims
is his correct tax liability for that year. The Court further informed the parties that
if it were to find on the basis of the evidence adduced at the partial trial that
petitioner is not entitled to dispute the underlying tax liability for his taxable year
2006, no further trial would be required in the light of the parties’ stipulation as to
what is petitioner’s only dispute in these cases.
      3
        The address of petitioner’s Columbus Drive apartment was his address at
the time respondent issued to petitioner the notice of deficiency for his taxable
years 2006 and 2007 (discussed below) as well as at the time petitioner filed the
petitions and at the time of the partial trial in these cases.
                                         -4-

      At a time not established by the record, petitioner submitted to respondent

an amended tax return for his taxable year 2006 (September 23, 2008 amended

2006 return) that his return preparer had signed and dated September 23, 2008. In

that amended return, petitioner reported, inter alia, an increase of $2,168 in his tax

liability for his taxable year 2006 or total tax of $3,774 (petitioner’s reported

increased 2006 tax liability). Respondent filed and processed petitioner’s Septem-

ber 23, 2008 amended 2006 return and changed petitioner’s tax liability in respon-

dent’s records to reflect petitioner’s reported increased 2006 tax liability of

$3,774.

      At a time not established by the record, but after respondent issued to

petitioner a notice of deficiency for his taxable years 2006 and 2007 (discussed

below), petitioner submitted to respondent a second amended tax return for his

taxable year 2006 (June 23, 2011 amended 2006 return) that his return preparer

had signed and dated June 23, 2011. In that amended return, petitioner reported,

inter alia, an increase of $11,255 in his tax liability for his taxable year 2006 or

total tax of $15,029. Respondent did not file and process petitioner’s June 23,

2011 amended 2006 tax return, which, as noted above, petitioner filed after

respondent issued the notice of deficiency for his taxable years 2006 and 2007.
                                        -5-

      An agent of respondent (examining agent) conducted an examination of

petitioner’s taxable years 2006 and 2007. Respondent proposed certain adjust-

ments to petitioner’s September 23, 2008 amended 2006 return on the basis of that

examination. A representative (Appeals officer) of respondent’s Appeals Office in

Chicago, Illinois, contacted petitioner by letter addressed to his Columbus Drive

apartment and scheduled a meeting with him to discuss those proposed adjust-

ments. Petitioner did not appear at that scheduled meeting. Thereafter, in the

spring or early summer of 2010, the Appeals officer sent petitioner another letter

addressed to his Columbus Drive apartment advising him that if he did not contact

the Appeals officer within 20 days, a notice of deficiency would be issued to him

for his taxable years 2006 and 2007.

      On August 6, 2010, respondent issued to petitioner a notice of deficiency

for his taxable years 2006 and 2007 (2006-2007 notice of deficiency) that was

addressed and mailed by certified mail, return receipt requested, to petitioner’s

Columbus Drive apartment.4 In the 2006-2007 notice of deficiency, respondent

determined, inter alia, a deficiency in, and an accuracy-related penalty under

section 6662(a) on, petitioner’s tax for his taxable year 2006 of $14,987 and




      4
          See supra note 3.
                                         -6-

$2,997.40, respectively.5 Petitioner did not timely file a petition with respect to

the 2006-2007 notice of deficiency.

      On several occasions the U.S. Postal Service (Postal Service) attempted,

albeit unsuccessfully, to deliver the 2006-2007 notice of deficiency to petitioner at

the address of his Columbus Drive apartment. On at least two occasions the Postal

Service left notices of attempted delivery of certified mail at that address. In those

notices, the Postal Service informed petitioner that it had certified mail to deliver

to him and that he had to sign a receipt for that mail before the Postal Service

would deliver it to him.

      At a time not established by the record that was not later than late October

or early November 2010,6 petitioner checked his mailbox at his Columbus Drive

apartment and found at least two notices of attempted delivery of certified mail

from the Postal Service. In those notices, the Postal Service informed petitioner


      5
       The determinations that respondent made in the 2006-2007 notice of defi-
ciency were made with respect to the various amounts that petitioner reported in
his September 23, 2008 amended 2006 return.
      6
        Petitioner testified that he found the notices from the Postal Service
“around late October or early November” 2010 and went to his local Postal
Service office after he found those notices. As discussed below, we are unwilling
to rely on petitioner’s testimony to establish the date around which petitioner
checked his mailbox at his Columbus Drive apartment and found the two notices
in question from the Postal Service (discussed in the text) and went to his local
Postal Service office with those notices.
                                         -7-

that it had certified mail from a sender, who was not identified on those notices,

and that he should retrieve and sign for that certified mail at his local Postal

Service office. At the time not established by the record7 when petitioner went to

his local Postal Service office the certified mail to which the notices from the

Postal Service pertained had been returned to the sender as unclaimed.

      Petitioner spent around 30 to 40% of the period August to December 2010,

including sleeping overnight, at his Columbus Drive apartment and the remainder

of that period staying with friends. He returned to and stayed at that apartment

during each of the months August through October 2010.

      At all relevant times, including during the period August to December 2010,

petitioner received certain bills online and certain other bills through the Postal

Service mail system at his Columbus Drive apartment. Petitioner declined to

check on a regular basis his mailbox at that apartment and to retrieve on a regular

basis any Postal Service mail items delivered there. He usually disregarded and

rarely opened the bills that he received through the Postal Service mail system at

his Columbus Drive apartment and did not depend on that mail system as a

reminder to pay bills that were sent to him through that system. Instead, the

reminder that he often used to pay the utility bills that he received through the

      7
          See supra note 6.
                                           -8-

Postal Service mail system was the utility companies’ disconnection of his utilities

for failure to pay utility bills that were due.

      On May 24, 2011, respondent issued to petitioner a notice of intent to levy

and notice of your right to a hearing (notice of intent to levy) for his taxable years

2006, 2007, and 2008.

      On June 6, 2011, respondent received from petitioner Form 12153, Request

for a Collection Due Process or Equivalent Hearing, with respect to the notice of

intent to levy (Form 12153 concerning proposed levy), in which petitioner

requested a hearing with respect to that notice.

      The settlement officer in respondent’s Appeals Office assigned to peti-

tioner’s Form 12153 concerning proposed levy spoke with petitioner by telephone

about that matter.

      On November 3, 2011, respondent’s Appeals Office issued to petitioner a

notice of determination concerning collection action(s) under section 6330, in

which that office sustained the notice of intent to levy.

      On June 7, 2011, respondent issued to petitioner a notice of Federal tax lien

filing and your right to a hearing under I.R.C. 6320 (notice of Federal tax lien

filing) for his taxable years 2006, 2007, and 2008.
                                          -9-

      On July 8, 2011, respondent received from petitioner Form 12153 with

respect to the notice of Federal tax lien filing (Form 12153 concerning tax lien

filing), in which petitioner requested a hearing with respect to that notice.

      On June 5, 2012, after petitioner provided certain documentation to the

settlement officer in respondent’s Appeals Office assigned to petitioner’s Form

12153 concerning tax lien filing, that settlement officer spoke by telephone with

petitioner about that matter.

      On June 25, 2012, respondent’s Appeals Office issued to petitioner a notice

of determination concerning collection action(s) under section 6320 and/or 6330,

in which that office sustained the tax lien filing.

                                      OPINION

      The only issue presented here is whether petitioner is entitled under section

6330(c)(2)(B) to dispute the underlying tax liability for his taxable year 2006.8 A

person may dispute the existence or the amount of the underlying tax liability for

any tax period if the person did not receive a notice of deficiency for that tax

liability or did not otherwise have the opportunity to dispute that tax liability. Id.

      It is petitioner’s position that he is entitled under section 6330(c)(2)(B) to

contest the underlying tax liability for his taxable year 2006. In support of that

      8
          See supra note 2.
                                            - 10 -

position, petitioner contends that although respondent mailed to him by certified

mail, return receipt requested, the 2006-2007 notice of deficiency that was ad-

dressed to his Columbus Drive apartment,9 he did not receive that notice within

the 90-day period during which he could have filed a petition with the Court with

respect to that notice. In support of that contention, petitioner relies on his testi-

mony at the partial trial in these cases.

      Respondent counters that although the Postal Service returned to respondent

the 2006-2007 notice after several unsuccessful attempts to deliver it to petitioner

at the address of his Columbus Drive apartment, petitioner “chose not to accept

delivery.” According to respondent, petitioner’s testimony to the contrary is not

credible and “should be given no weight.”

      We agree with respondent that petitioner’s testimony is not credible in

certain material respects and thus is unreliable. However, even if we accept peti-

tioner’s testimony that he did not know until late October or early November 2010

about the notices from the Postal Service of attempted delivery of certified mail

(i.e., the 2006-2007 notice of deficiency) and that when he went to his local Postal

Service office with those notices the Postal Service had already returned the certi-

fied mail to the sender, we nonetheless reject his contention that he is entitled

      9
          See supra note 3.
                                       - 11 -

under section 6330(c)(2)(B) to dispute the underlying tax liability for his taxable

year 2006. That is because petitioner’s testimony establishes that, even though he

spent at his Columbus Drive apartment around 30 to 40% of the period August to

December 2010, including staying and sleeping overnight there during each of the

months August through October 2010, he declined to check on a regular basis his

mailbox at that apartment and to retrieve on a regular basis any Postal Service mail

items delivered there. And petitioner did so despite the fact that on August 6,

2010, when respondent mailed to him the 2006-2007 notice of deficiency that was

addressed to his Columbus Drive apartment, he knew that (1) respondent’s

Appeals Office in Chicago was considering the adjustments that respondent’s

examining agent had proposed with respect to his taxable years 2006 and 2007;

(2) an Appeals officer in that office had contacted him by letter and scheduled a

meeting with him to discuss those proposed adjustments; (3) he did not appear at

that meeting; and (4) thereafter, in the spring or early summer of 2010, that

Appeals officer sent him another letter advising him that if he did not contact the

Appeals officer within 20 days, a notice of deficiency would be issued to him for

his taxable years 2006 and 2007.

      On the record before us, we hold that petitioner may not decline to retrieve

his Postal Service mail, when he was reasonably able and had multiple oppor-
                                        - 12 -

tunities to do so, and thereafter successfully contend that he did not receive for

purposes of section 6330(c)(2)(B) the 2006-2007 notice of deficiency. On that

record, we reject petitioner’s contention that he is entitled under that section to

dispute the underlying tax liability for his taxable year 2006.

      To reflect the foregoing,10


                                                       Decisions will be entered for

                                                 respondent.




      10
           See supra note 2.
