                        T.C. Memo. 2005-230



                      UNITED STATES TAX COURT



                  E. NEAL FIGLER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16621-02L.          Filed October 3, 2005.


     E. Neal Figler, pro se.

     John Aletta, for respondent.



                        MEMORANDUM OPINION


     WELLS, Judge:   Respondent issued petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (notice of determination).   In response to the notice

of determination, petitioner timely filed a petition pursuant to

section 6330(d).   The issue we must decide is whether respondent

may proceed with the collection of petitioner’s tax liabilities
                               - 2 -

in issue.   All section references are to the Internal Revenue

Code, as amended.

                            Background

     At the time of filing the petition in the instant case,

petitioner resided in Madison, Connecticut.

     Petitioner filed his 1994 and 1995 income tax returns on

October 16 and November 1, 1996, respectively.   During 1998 and

1999, respondent, with petitioner’s knowledge, audited

petitioner’s tax returns for the 1994 and 1995 taxable years.     On

August 11, 1999, respondent sent petitioner via certified mail a

notice of deficiency addressed to petitioner at his last known

address, 328 County Road, Madison, CT 06443-1640, determining

petitioner owed income tax deficiencies of $15,563.31 and

$6,524.30, additions to tax under section 6651(a)(1) of $3,820.53

and $1,525.33, and penalties under section 6662 of $3,112.66 and

$1,304.86 for taxable years 1994 and 1995, respectively.

     Petitioner did not respond to the notice of deficiency by

petitioning the Tax Court within 90 days from August 11, 1999.

On January 3, 2000, respondent assessed the income tax

deficiencies, additions to tax, and penalties for the taxable

years 1994 and 1995 reflected in the notice of deficiency.   On

the same day, respondent’s Andover Service Center sent petitioner

a letter requesting that petitioner pay the assessed deficiencies

and additions to tax for the 1994 and 1995 taxable years.
                               - 3 -

     On March 11, 2001, respondent mailed petitioner IRS Letter

1058, Final Notice of Intent to Levy and Notice of Your Right to

a Hearing, stating that respondent intended to levy upon

petitioner’s assets to collect petitioner’s 1994 and 1995 tax

liabilities.   On March 29, 2001, petitioner filed Form 12153,

Request for a Due Process Hearing, at the Andover Internal

Revenue Service Center.   In his request, petitioner alleged:

(1) Respondent had not sent petitioner a notice of deficiency via

certified or registered mail before the expiration of the 3-year

period of limitations; (2) petitioner had not received notice of

his rights as required by law; (3) petitioner had not been given

an opportunity to appeal the assessed deficiency; and (4)

respondent had no proof that petitioner received the notice of

deficiency.

     On June 27, 2002, respondent’s Settlement Officers Charlette

Jacobi and Howard Smith held a hearing which petitioner attended.

At the hearing petitioner claimed that he never received a notice

of deficiency and that the assessments, therefore, were not

valid.   Petitioner did not submit any documents at the hearing

and offered no collection alternatives to respondent for

collecting the subject tax liabilities.

     Settlement Officer Jacobi examined respondent’s computer

records and audit files and determined that the assessments of

petitioner’s 1994 and 1995 tax liabilities were timely and valid.
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Settlement Officer Jacobi also determined that respondent timely

and properly mailed the notice of deficiency to petitioner at his

last known address and that petitioner failed to timely petition

the Tax Court.

     Regarding petitioner’s claim that respondent failed to mail

petitioner a notice of deficiency, Settlement Officer Jacobi

determined the following:   (1) Petitioner’s 1994 and 1995 audit

files contained a copy of the notice of deficiency dated August

11, 1999, addressed to petitioner at his last known address, 328

County Road, Madison, CT 06443-1640, and stamped “certified

mail”; (2) U.S. Postal Form 3877 reflected that, on August 11,

1999, respondent had delivered the notice of deficiency to the

post office for delivery to petitioner; (3) the certified mail

number on the notice of deficiency and the article number on the

Form 3877 next to petitioner’s name were the same number; and (4)

the notice of deficiency had not been returned to respondent.

     On September 26, 2002, respondent’s Appeals Office issued a

Notice of Determination Concerning Collection Action(s) Under

Section 6320 and/or 6330.   The notice set forth the actions taken

by Settlement Officer Jacobi, addressed the issues raised by

petitioner, and determined that respondent’s proposed levy action

to collect petitioner’s assessed tax liabilities for the 1994 and

1995 taxable years should be upheld.   The notice of determination

also determined that petitioner did not propose any collection
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alternatives to the proposed levy and respondent was therefore

entitled to collect the tax by levying upon petitioner’s assets.

     On October 24, 2002, petitioner filed a petition with the

Tax Court disagreeing with the September 26, 2002, notice of

determination.

                             Discussion

     Section 6330 provides that no levy may be made on any

property or right to property of a person unless the Secretary

first notifies the person in writing of the right to a hearing

before the Appeals Office.   Section 6330(c)(1) provides that the

Appeals Officer must verify at the hearing that the applicable

laws and administrative procedures have been followed.       At the

hearing, the person may raise any relevant issues relating to the

unpaid tax or the proposed levy, including appropriate spousal

defenses, challenges to the appropriateness of collection

actions, and collection alternatives.     Sec. 6330(c)(2)(A).    The

person may challenge the existence or amount of the underlying

tax, however, only if the person did not receive any statutory

notice of deficiency for the tax liability or did not otherwise

have an opportunity to dispute the tax liability.     Sec.

6330(c)(2)(B).

     Where the validity of the underlying tax liability is

properly in issue, the Court will review the matter de novo.

Where the validity of the underlying tax is not properly at
                                 - 6 -

issue, however, the Court will review the Commissioner’s

administrative determination for abuse of discretion.     Sego v.

Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner, 114

T.C. 176, 181-182 (2000).

     Petitioner contends that:    (1) The period of limitations on

assessment has expired because respondent did not properly mail

the notice of deficiency to him within the 3-year period of

limitations; (2) petitioner did not receive notice of his rights

as required by law; and (3) petitioner was not given an

opportunity to appeal the assessed deficiencies.

     At the outset, we note that section 6212(b)(1)1 does not

require actual receipt by a taxpayer of the notice of deficiency.

We have held that Form 3877 is direct evidence of both the fact

and the date of mailing.    See Magazine v. Commissioner, 89 T.C.

321, 327 n.8 (1987) (stating that Form 3877 is often the only

direct evidence of mailing a notice of deficiency).   In the

absence of contrary evidence, Form 3877 is sufficient to

establish that the notice was properly sent to the taxpayer.


     1
      Sec. 6212(a) provides: “If the Secretary determines that
there is a deficiency in respect of any tax * * *, he is
authorized to send notice of such deficiency to the taxpayer by
certified or registered mail.” “[A] notice of a deficiency in
respect of a tax imposed * * *, if mailed to the taxpayer at his
last known address * * *, shall be sufficient”. Sec. 6212(b)(1)
(emphasis added). Pursuant to sec. 6212(b)(1), a notice of
deficiency sent by certified mail to the taxpayer at his last
known address is valid and sufficient whether or not it is
actually received. United States v. Ahrens, 530 F.2d 781, 785
(8th Cir. 1976).
                               - 7 -

United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); United

States v. Ahrens,530 F.2d 781, 785 (8th Cir. 1976); Cataldo v.

Commissioner, 60 T.C. 522, 524 (1973), affd. per curiam 499 F.2d

550 (2d Cir. 1974).   Moreover, “There is a strong presumption in

the law that a properly addressed letter will be delivered, or

offered for delivery, to the addressee.”   Zenco Engg. Corp. v.

Commissioner, 75 T.C. 318, 323 (1980), affd. without published

opinion 673 F.2d 1332 (7th Cir. 1981); see also Sego v.

Commissioner, supra at 611 (holding that “In the absence of clear

evidence to the contrary, the presumptions of official regularity

and of delivery justify the conclusion that the statutory notice

was sent and that attempts to deliver were made in the manner

contended by respondent.”).   The effect of proper mailing is to

place the risk of nondelivery on the taxpayer.   Trimble v.

Commissioner, T.C. Memo. 1989-419; Barrash v. Commissioner, T.C.

Memo. 1987-592, affd. 862 F.2d 872 (5th Cir. 1988).

     Petitioner contends that he never received the notice of

deficiency and that respondent has no proof that petitioner

received a notice of deficiency.   The notice of deficiency is

dated August 11, 1999, and is addressed to E. Neal Figler at 328

County Road, Madison, CT 06443.2   The Form 3877 bears that name

and address, is initialed by Pam Butler, respondent’s notice of



     2
       Petitioner did not dispute that this address was his last
known address.
                               - 8 -

deficiency clerk, and is stamped by the U.S. Postal Service

August 11, 1999.   At trial, Pam Butler, respondent’s clerk who

delivered the notice of deficiency to the post office,

corroborated the information on the Form 3877.   The information

was also corroborated by John Bohan, respondent’s revenue agent

reviewer, with 32 years of experience in issuing notices of

deficiency, and Dwight Davies, a Postal Service employee with 28

years of experience in handling certified mail and Forms 3877.

They testified that certified mail would be returned to

respondent if it was not received by the addressee.   Diana

Calverley, respondent’s revenue agent, also testified that, on a

previous occasion, petitioner had refused to accept certified

mail from respondent.   That occasion related to an IRS summons

that had been issued to petitioner’s bank for matters concerning

the taxable years involved in the instant case, a copy of which

respondent had mailed to petitioner, via certified mail, return

receipt requested, at his last known address; i.e., 328 County

Road, Madison, CT 06443.   Petitioner was aware that he was being

audited at the time of the summons and failed to claim the copy

mailed to him.   Eventually, the copy of the summons and the

envelope containing it were returned to respondent with an

indication on the envelope that the post office had notified

petitioner three times of the attempt to deliver the item, but

that petitioner failed to claim it.
                               - 9 -

     Petitioner struggles to convince us by raising meritless

arguments that respondent did not properly mail, and petitioner

did not receive, the notice of deficiency.   Petitioner argues,

among other things, that there could have been a mistake because

Pam Butler, respondent’s clerk who mailed the notice of

deficiency, did not place a check mark next to each name on Form

3877, despite testimony from John Bohan and Pam Butler that the

notice of deficiency and the mailing labels were double checked

before the Form 3877 was generated and from Dwight Davies that

the post office checks the article numbers on the pieces of

certified mail against the article numbers listed on Form 3877.

Petitioner also argues that respondent’s settlement officers

deliberately withheld, refused to look for, or destroyed

exculpatory evidence because they were afraid of losing their

jobs and perjured themselves to “cover up that fact.”

Specifically, petitioner asserts that respondent’s settlement

officers did not obtain evidence of a certified mail signed

receipt.   We find petitioner’s arguments lacking in merit.

     Other than his self-serving testimony that he never received

the notice of deficiency, petitioner has not produced sufficient

credible evidence to overcome the strong presumption of proper

mailing and delivery in the instant case.    See Sego v.

Commissioner, supra at 611; see also Zenco Engg. Corp. v.

Commissioner, supra at 323 (stating “tax cases could all become
                                - 10 -

farcical swearing contests, with impermissibly high rewards for

false testimony, if we awarded unconditional relief to every

taxpayer who was willing to testify that he had not received the

notice of deficiency”).   Petitioner’s testimony in the instant

case was unreliable and improbable.      We also take note of

respondent’s evidence that, in a divorce proceeding in a superior

court in New Haven, Connecticut, the court determined that

petitioner’s “testimony was consistently not worthy of belief,”

that “he was not truthful about his income,” and that “he lied

about his income and personal expenses.”

     The preponderance of the evidence shows that the statutory

notice of deficiency was duly mailed to petitioner at his last

known address and that petitioner failed to petition this Court

within 90 days of the mailing of the notice of deficiency as

required by section 6213(a).3


     3
       Even if we were to conclude that petitioner did not
receive a notice of deficiency or otherwise did not have an
opportunity to dispute the underlying tax liabilities as provided
by sec. 6330(c)(2)(B), we would hold, on the basis of the
evidence in the record, that respondent properly mailed the
notice of deficiency to petitioner for purposes of sec. 6212 and
that the period of limitations had not run on the assessment of
the liabilities in issue.

     Pursuant to sec. 6503(a), the period of limitations on
assessment is suspended during the 90-day period following the
mailing of a notice of deficiency, until the decision of the Tax
Court becomes final, if the taxpayer petitions the Tax Court
during the 90-day period, and for 60 days thereafter. Petitioner
filed his 1994 and 1995 Federal income tax returns on Oct. 16 and
Nov. 1, 1996, respectively. On Aug. 11, 1999, respondent
                                                   (continued...)
                              - 11 -

     The record establishes that the Appeals Office properly

verified that all applicable laws and administrative procedures

were followed.   Settlement Officer Jacobi had no prior

involvement with respect to the unpaid tax liabilities before the

section 6330 hearing.   Settlement Officer Jacobi determined that

the assessments were both timely and valid by examining:

Respondent’s computerized records and audit files; petitioner’s

1994 and 1995 tax returns; a copy of the notice of deficiency

mailed to petitioner; and Form 3877 showing the date the notice

of deficiency was mailed to petitioner at his last known address.

Settlement Officer Jacobi also determined that petitioner had

received notice of his rights as a taxpayer through various IRS

publications sent with the notice of deficiency including IRS

Publications 1, 5, 594, and IRS Notice 1214 (listing the name and

phone number of the local Taxpayer Advocate Service office), and

that petitioner failed to timely petition the Tax Court to

contest the notice of deficiency.   Finally, petitioner did not




     3
      (...continued)
properly mailed a notice of deficiency to petitioner at his last
known address. Petitioner failed to petition the Tax Court
within 90 days as required by sec. 6213(a). On Jan. 3, 2000,
respondent assessed against petitioner the income tax
deficiencies, additions to tax, and penalties for the taxable
years 1994 and 1995 reflected in the notice of deficiency mailed
to petitioner on Aug. 11, 1999. Because the limitations period
under sec. 6503(a) was tolled, respondent assessed the
liabilities well within the limitations period.
                             - 12 -

offer any collection alternatives.    Accordingly, we find no abuse

of discretion in respondent’s determination.    We have considered

all of petitioner’s arguments, and, to the extent that we have

not addressed them in this opinion, we conclude they are without

merit.

     To reflect the foregoing,


                                      Decision will be entered for

                                 respondent.
