                         T.C. Summary Opinion 2012-117



                         UNITED STATES TAX COURT



                  ROBERT P. DUPLICKI, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 16533-10S L.                       Filed December 4, 2012.



      Robert P. Duplicki, pro se.

      John M. Janusz, for respondent.



                              SUMMARY OPINION


      WELLS, Judge: This case was heard pursuant to the provisions of section

7463 of the Internal Revenue Code in effect when the petition was filed.1


      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
                                                                       (continued...)
                                         -2-

Pursuant to section 7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent for any other case.

We must decide whether respondent’s Appeals Office properly upheld respondent’s

notice of Federal tax lien (NFTL) with respect to petitioner’s 2000 tax year.

                                     Background

      Some of the facts and certain exhibits have been stipulated. The parties’

stipulated facts are incorporated in this opinion by reference and are found

accordingly. At the time of filing the petition, petitioner resided in New York.

      In June 2004, petitioner moved from Curley Drive in Orchard Park, New

York (Curley Drive residence), to a new residence on Wanda Avenue in

Cheektowaga, New York (Wanda Avenue residence). After moving to the Wanda

Avenue residence, petitioner applied for and obtained a post office box in Buffalo,

New York (Buffalo P.O. Box), on June 16, 2004. Sometime in late June or early

July after petitioner obtained the Buffalo P.O. Box, respondent updated his

internal records to reflect the change in petitioner’s address from the Curley Drive

residence to the Buffalo P.O. Box. Petitioner had not informed respondent about




      1
       (...continued)
Practice and Procedure.
                                         -3-

the Buffalo P.O. Box, and the parties do not dispute that neither party recalls how

respondent obtained knowledge of the Buffalo P.O. Box. Petitioner held the Buffalo

P.O. Box until July 1, 2005. When petitioner surrendered the Buffalo P.O. Box, he

notified the U.S. Postal Service (USPS) in Buffalo, New York (Buffalo Post Office),

to forward to the Wanda Avenue residence any mail addressed to the Buffalo P.O.

Box until January 1, 2007.

      On May 30, 2006, petitioner received from respondent a proposed individual

income tax assessment (30-day letter) stating that respondent had not received a

Form 1040, U.S. Individual Income Tax Return, for the 2000 tax year.2

Respondent addressed the 30-day letter to the Buffalo P.O. Box, but the Buffalo

Post Office forwarded the mail to the Wanda Avenue residence. The envelope that

contained the 30-day letter included a USPS mail forwarding label. Upon receipt of

the 30-day letter, petitioner did not inform respondent of his then- current address.

On March 5, 2007, after assessing the tax due, respondent sent petitioner notices of

balance due to the Buffalo P.O. Box on the following dates: March 5, April 9, May

14, and June 18, 2007, October 13, 2008, and May 18, 2009.



      2
       The instant case involves the 2000 tax year only, but petitioner has not filed
a Form 1040 for any tax year since 1996. Petitioner resided at the Curley Drive
residence when he filed the Form 1040 for his 1996 tax year.
                                         -4-

      On February 2, 2010, respondent filed the NFTL and sent to petitioner Letter

3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320, at the Wanda Avenue residence. Petitioner timely submitted a Form 12153,

Request for a Collection Due Process or Equivalent Hearing, on March 10, 2010.

The hearing was held on May 17, 2010, at which time petitioner spoke via

telephone with Kenneth Heidle, a settlement officer in respondent’s Appeals Office

and claimed that he never received proper notice and demand because they all were

sent to the Buffalo P.O. Box. Mr. Heidle updated respondent’s records to list

petitioner’s address as the Wanda Avenue residence. After the hearing, Mr. Heidle

reviewed respondent’s records of petitioner’s address and determined that notice

and demand was sent to the Buffalo P.O. Box on multiple occasions. On June 15,

2010, respondent’s Appeals Office issued to petitioner a Notice of Determination

Concerning Collection Action Under Section 6320 and/or 6330 upholding the NFTL

as properly filed.

                                     Discussion

      If a taxpayer requests a hearing in response to a notice of Federal tax lien

pursuant to section 6320, a hearing shall be held before an impartial officer or

employee of the Appeals Office. Sec. 6320(b)(1), (3). At the hearing, the taxpayer

may raise any relevant issue, including appropriate spousal defenses, challenges to
                                          -5-

the appropriateness of the collection action, and collection alternatives. Secs.

6320(c), 6330(c)(2)(A). A taxpayer is precluded from contesting the existence or

amount of the underlying tax liability unless the taxpayer did not receive a notice of

deficiency for the liability in question or did not otherwise have an earlier

opportunity to dispute the liability. Sec. 6330(c)(2)(B); see also Sego v.

Commissioner, 114 T.C. 604, 609 (2000). The phrase “underlying tax liability”

includes the tax deficiency, additions to tax, and statutory interest. Gray v.

Commissioner, 138 T.C. 295, 300 (2012); Katz v. Commissioner, 115 T.C. 329,

339 (2000).

      Following a hearing, the Appeals Office must determine whether to sustain

the filing of the lien. In making that determination, the Appeals Office is required to

take into consideration: (1) the verification presented by the Commissioner during

the hearing process that the requirements of applicable law and administrative

procedure have been met, (2) the relevant issues raised by the taxpayer, and (3)

whether the proposed lien or levy action appropriately balances the need for

efficient collection of taxes with the taxpayer’s concerns regarding the intrusiveness

of the proposed collection action. Sec. 6330(c)(1)-(3). Pursuant to section

6330(d)(1), this Court has jurisdiction to review the determination made by the

Appeals Office in connection with the section 6320 hearing. Sec. 6320(c).
                                         -6-

      As mentioned above, the Appeals Office is required by statute to “obtain

verification from the Secretary that the requirements of any applicable law or

administrative procedure have been met.” Sec. 6330(c)(1). One requirement

of applicable law is the provision contained in section 6303(a) that the

Commissioner must, within 60 days after making an assessment of tax under section

6203, give notice to each person liable for the assessed tax, stating the amount due

and demanding payment thereof. However, “‘[t]he form on which a notice of

assessment and demand for payment is made is irrelevant as long as it provides the

taxpayer with all of the information required under . . . [section 6303].’” Conway v.

Commissioner, 137 T.C. 209, 216 (2011) (quoting Hughes v. United States, 953

F.2d 531, 536 (9th Cir. 1992)). “A notice of balance due constitutes a notice and

demand for payment under section 6303(a).” Craig v. Commissioner, 119 T.C. 252,

262-263 (2002).3

      Notice and demand of the assessed tax must be left at the person’s dwelling

or usual place of business or must be sent by mail to the person’s last known

address. Sec. 6303(a). Actual receipt is not required under section 6303(a). Lutz

v. United States, No. 92-142, 1993 WL 497783, at *2 (E.D. Ky. Sept. 23, 1993).

      3
       Petitioner does not contest that respondent sent to petitioner, addressed to
the Buffalo P.O. Box, two notices of balance due (on March 5 and April 9, 2007)
within 60 days of the March 5, 2007, assessment.
                                         -7-

“As long as the records of the Internal Revenue Service reflect that notice and

demand was properly mailed to the taxpayers’ last known address, it is irrelevant

that the taxpayers did not receive actual notice.” Hahn v. United States, No. 75-

3983, 1977 WL 1119, at *2 (C.D. Cal. Mar. 11, 1977).

      Petitioner contends that, after assessment of the tax liability for the 2000 tax

year, he never received proper notice and demand from respondent. Respondent

contends that actual receipt of notice and demand is not required. We agree with

respondent. Actual receipt is not required under section 6303(a). Lutz, 1993 WL

497783, at *2; see also, e.g., Cain v. Commissioner, T.C. Memo. 2009-54, 2009

WL 648961, at *6 n.7 (“Proof of receipt is not required.”). Consequently,

petitioner’s argument that he did not receive notice and demand is without merit.

      Additionally, petitioner contends that respondent failed to send notice and

demand to his last known address. Respondent contends that notice and demand

was sent to petitioner’s last known address. The term “last known address” is well

defined in the tax law. A taxpayer’s last known address is the address that appears

on the taxpayer’s most recently filed and properly processed Federal tax return,

unless the IRS is given clear and concise notification of a different address. Sec.

301.6212-2(a), Proced. & Admin. Regs.; see also sec. 301.6303-1(a), Proced. &

Admin. Regs. It is the address to which, in the light of all the surrounding facts and
                                         -8-

circumstances, the Commissioner reasonably believes the taxpayer wished notice to

be sent. Weinroth v. Commissioner, 74 T.C. 430, 435 (1980).

      If the Government has become aware of a change of address, the

Commissioner may not rely on the address listed on the last-filed tax return but must

exercise reasonable care to discern the taxpayer’s correct address. Buffano v.

Commissioner, T.C. Memo. 2007-32, 2007 WL 424705, at *4. Although the

Commissioner must exercise reasonable diligence in ascertaining the taxpayer’s

correct address, the burden is upon the taxpayer to keep the Commissioner informed

of the taxpayer’s correct address. See Ramirez v. Commissioner, 87 T.C. 643, 650

(1986); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff’d

without published opinion, 538 F.2d 334 (9th Cir. 1976). As we have stated:

“[W]hen a taxpayer changes his address it is he who must notify the Commissioner

of such change or else accept the consequences”. Alta Sierra Vista, Inc. v.

Commissioner, 62 T.C. at 374.

      Petitioner contends that respondent’s notice and demand was not sent to his

last known address because it was sent to the Buffalo P.O. Box. Petitioner bears

the burden of proving that the Buffalo P.O. Box was not his last known address.4


      4
      Petitioner has not raised sec. 7491, and, therefore, it does not apply.
Consequently, petitioner bears the burden of proof. See Rule 142(a).
                                        -9-

Petitioner concedes that he applied for the Buffalo P.O. Box shortly after moving to

the Wanda Avenue residence and that he used the Buffalo P.O. Box until July 1,

2005, but claims that the Buffalo P.O. Box was not his last known address because

he did not notify respondent that the Buffalo P.O. Box was the address where he

wanted to receive correspondence. We disagree.

      Section 301.6212-2(b)(2)(i), Proced. & Admin. Regs., provides:

      The IRS will update taxpayer addresses maintained in IRS records by
      referring to data accumulated and maintained in the United States
      Postal Service (USPS) National Change of Address database that
      retains change of address information for thirty-six months (NCOA
      database). Except as provided in paragraph (b)(2)(ii) of this section, if
      the taxpayer’s name and last known address in IRS records match the
      taxpayer’s name and old mailing address contained in the NCOA
      database, the new address in the NCOA database is the taxpayer’s last
      known address, unless the IRS is given clear and concise notification
      of a different address.[5]

      According to the foregoing regulation, in order to inform the USPS of a

change in permanent address that triggers a change of address in the NCOA

Database, a taxpayer must submit to the USPS a USPS Form 3575, Official Mail




      5
      Although the regulations set forth a general rule that “change of address
information that a taxpayer provides to a third party, such as a payor or another
government agency, is not clear and concise notification of a different address for
purposes of determining a last known address”, an exception is made for official
change of address forms filed with the USPS. Sec. 301.6212-2(b), Proced. &
Admin. Regs.
                                        - 10 -

Forwarding Change of Address Form. 6 Sec. 301.6212-2(b)(3), Example (1),

Proced. & Admin. Regs.; Notice of Proposed Rulemaking, Definition of Last

Known Address, 64 Fed. Reg. 63768, 63769 (Nov. 22, 1999) (to be codified at 26

C.F.R. pts. 1, 301). However, petitioner offered no evidence that he gave the USPS

a completed USPS Form 3575 informing it of his move to the Wanda Avenue

residence. Indeed, he admitted that he did not file any specific form with the

Buffalo Post Office or the USPS. The only evidence of petitioner’s address is his

application to obtain the Buffalo P.O. Box and a notice to the Buffalo Post Office to

forward mail to the Wanda Avenue residence upon surrender of the Buffalo P.O.

Box.

       Petitioner contends that the Wanda Avenue residence was his last known

address because, upon moving to the Wanda Avenue residence, he submitted to the

Buffalo Post Office a post office box application and mail forwarding notice that

gave the IRS clear and concise notification of petitioner’s change of address. We

disagree. None of the documents petitioner submitted to the Buffalo Post Office

       6
        Taxpayers may also inform the USPS of a change in address via telephone or
the Internet. See USPS, Frequently Asked Questions - Change of Address (COA),
http://faq.usps.com/eCustomer/iq/usps/request.do?create=kb:
USPSFAQ&view()=c%5Bc_usps1104jch%5D&varset(source)=sourceType:
embedded (last visited Nov. 9, 2012). Petitioner neither alleges nor provides
evidence that he informed the USPS of his change of address via telephone or the
Internet. Accordingly, we do not further discuss those methods.
                                        - 11 -

were the official change of address form (i.e., USPS Form 3575) required by the

USPS to effect a change of address in the NCOA database. Petitioner merely

notified the USPS to forward his mail to the Wanda Avenue residence. Therefore,

petitioner has failed to satisfy his burden of proving that he provided respondent,

either directly7 or indirectly, e.g. through the NCOA database, with clear and

concise notification of his change of address. See Alta Sierra Vista, Inc. v.

Commissioner, 62 T.C. at 374. Consequently, petitioner has failed to prove that

respondent was not entitled to rely on the Buffalo P.O. Box address as his last

known address for the purpose of sending him notice and demand. See Weinroth v.

Commissioner, 74 T.C. at 435. Accordingly, for purposes of the instant case, the

Buffalo P.O. Box was petitioner’s last known address.




      7
       Petitioner received from respondent the 30-day letter that was addressed to
the Buffalo P.O. Box but delivered to the Wanda Avenue residence with a mail
forwarding label. Petitioner took no action to directly notify respondent of his
move to the Wanda Avenue residence even though the mail forwarding label should
have alerted him that respondent had petitioner’s former address in respondent’s
records and that respondent was attempting to contact him.

       Petitioner also could have directly provided respondent with clear and concise
notification of a change in address by filing a Form 1040 listing the Wanda Avenue
residence as his address, see Abeles v. Commissioner, 91 T.C. 1019, 1034-1035
(1988), but, as we previously mentioned, he has not filed an annual tax return since
1996.
                                       - 12 -

      On the basis of the foregoing, we hold that notice and demand of

respondent’s assessment of tax against petitioner was not defective and the Appeals

Office’s determination to uphold the lien was correct.

      In reaching the foregoing holdings, we have considered all the parties’

arguments, and, to the extent not addressed herein, we conclude that they are moot,

irrelevant, or without merit.

      To reflect the foregoing,


                                                      Decision will be entered for

                                                respondent.
