                         133 T.C. No. 4



                  UNITED STATES TAX COURT



ESTATE OF MARK BRANDON, DECEASED, JANET BRANDON, EXECUTRIX,
                        Petitioner v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent



  Docket No. 7837-07L.                Filed August 27, 2009.



       R issued D a proposed assessment regarding sec.
  6672, I.R.C., trust fund recovery penalties (trust
  penalties). D filed a protest in response to R’s
  proposed assessment. R and D were unable to agree on
  the amount of outstanding trust penalties due, and
  consequently R closed D’s case. R assessed the trust
  penalties and 2 months later, D died in a motorcycle
  accident. After D’s death, R issued a notice of
  Federal tax lien (NFTL) relating to D’s property. E,
  D’s estate, received D’s sec. 6320(a), I.R.C., lien
  notice (lien notice). E timely requested and received
  a collection due process hearing relating to D’s
  outstanding trust penalties. E contends that, as of
  the date of the NFTL filing, D did not have any
  property to which a lien could attach. E further
  contends that the NFTL was invalid because both the
  lien notice and the NFTL were issued naming D,
                                  - 2 -

        individually, after his death. R later issued a notice
        of determination sustaining the NFTL.

             1. Held: A lien in favor of the United States
        attached to D’s property on the date of assessment and
        before D’s death.

             2. Held, further, pursuant to sec. 6320(a),
        I.R.C., and sec. 301.6323(f)-1(d), Proced. & Admin.
        Regs., the lien notice and the NFTL issued solely to D
        are valid.

             3. Held, further, there was no abuse of discretion in
        sustaining the lien.



        N. Dean Hawkins, for petitioner.

        Adam Flick, for respondent.



                                 OPINION


        FOLEY, Judge:   The issue for decision is whether there was

an abuse of discretion in sustaining a notice of Federal tax lien

(NFTL) relating to 2003 trust fund recovery penalties (trust

penalties) assessed against Mark Brandon (Mr. Brandon).     The

parties submitted this case fully stipulated pursuant to Rule

122.1




        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 -

                             Background

     On August 9, 2004, respondent issued Mr. Brandon a proposed

assessment regarding section 6672 trust penalties of $22,768 and

$20,540, relating to the periods ending September 30 and December

31, 2003, respectively.    On October 6, 2004, Mr. Brandon filed a

protest in response to the proposed assessment.    Because no

agreement was reached as to the amount of Mr. Brandon’s trust

penalties, the case was closed as an unagreed case on January 31,

2006.   On February 27, 2006, respondent assessed the

aforementioned trust penalties.

     Mr. Brandon died in a motorcycle accident on April 27, 2006.

In his will Mr. Brandon appointed his wife, Janet Brandon

(executrix), as the executrix.    Mr. Brandon, the executrix, and

the Estate of Mark Brandon (estate) shared the same Carrollton,

Texas, address.    In a faxed letter dated October 20, 2006,

petitioner’s counsel informed Revenue Officer Jonathan Daniel

(Mr. Daniel) of Mr. Brandon’s death.

     On November 2, 2006, Mr. Daniel issued Mr. Brandon a Letter

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

Hearing Under IRC 6320 (lien notice), relating to the unpaid

trust penalties.    The next day, November 3, 2006, Mr. Daniel

recorded, with the clerk of Denton County, Texas, Form 668(Y)(c),

Notice of Federal Tax Lien, relating to Mr. Brandon’s property.
                                - 4 -

After receiving the lien notice, on November 15, 2006, the estate

timely submitted Form 12153, Request for a Collection Due Process

Hearing, in which the validity of the NFTL was disputed.

     On January 22, 2007, Appeals officer Christopher Darling

(Mr. Darling) conducted a telephonic hearing regarding the NFTL.

During the hearing, the estate challenged the NFTL’s validity and

asserted that Mr. Daniel erred by naming “Mark Brandon”, who had

died several months earlier, on both Letter 3172 and Form

668(Y)(c).   Mr. Darling, on March 7, 2007, issued a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330, sustaining the NFTL and concluding that there was

“no valid reason to release or withdraw the Notice of Federal Tax

Lien.”

     On April 5, 2007, the executrix, a resident of Carrollton,

Texas, filed a petition with this Court seeking review of

respondent’s determination.    At the time of his death, Mr.

Brandon also was a resident of Carrollton, Texas.

                              Discussion

     The proposed assessment offered Mr. Brandon a prior

opportunity to challenge the trust penalties, and the estate does

not dispute the underlying trust penalties.    See sec. 301.6320-

1(e)(3), Q&A-E2, Proced. & Admin. Regs.    Thus, we review the

administrative determination for abuse of discretion and will
                               - 5 -

sustain the determination unless it is arbitrary, capricious,

clearly unlawful, or without sound basis in law or fact.

Giamelli v. Commissioner, 129 T.C. 107, 111 (2007); Goza v.

Commissioner, 114 T.C. 176, 182 (2000); Woodral v. Commissioner,

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

     The estate contends that as of April 27, 2006, Mr. Brandon’s

date of death, the title to all Mr. Brandon’s property “passed to

the devisees or legatees of the estate of Mark Brandon, the

estate of Mark Brandon, or the executor of the estate of Mark

Brandon [and] therefore, the NFTL is invalid.”   The estate

further contends that Mr. Brandon “had no property interest when

the NFTL was issued on November 2, 2006” to which any lien could

attach.   Respondent contends that the lien attached to Mr.

Brandon’s property on February 27, 2006, the date of assessment.

Respondent further contends that the attachment occurred before

Mr. Brandon’s death and that the lien remained attached even

after his death.   We agree with respondent.

     Pursuant to section 6321, there shall be a lien in favor of

the United States upon all property and rights to property

belonging to any person liable to pay any tax if that person

neglects or refuses to pay the tax after demand.   The lien arises

at the time the assessment is made and continues until the

liability is satisfied or becomes unenforceable by reason of
                                - 6 -

lapse of time.   Sec. 6322.   Thus, when respondent, on February

27, 2006, issued the trust penalty assessment, a United States

lien attached to all of Mr. Brandon’s property.    Further, the

estate has failed to establish that the trust penalties were

satisfied or became unenforceable due to lapse of time.

     After a lien attaches to property, it remains attached and

is not invalidated by a transfer of the property.    See United

States v. Bess, 357 U.S. 51, 57 (1958) (holding that the transfer

of property after attachment of a lien does not invalidate the

lien); Burton v. Smith, 38 U.S. 464, 483 (1839).    Therefore, Mr.

Brandon’s death, which occurred 2 months after the lien attached

to his property, does not adversely affect the validity of the

NFTL.



     The estate also contends that the lien notice and the NFTL

named “Mark Brandon, individually, rather than * * * devisees or

legatees of the estate of Mark Brandon, the estate of Mark

Brandon, or the executor of the estate of Mark Brandon” and that

sustaining the NFTL was an abuse of discretion.    Respondent

contends that the appropriate name is on the NFTL and thus, the

NFTL is valid.

     Section 6320(a) requires the Secretary to give the taxpayer

written notice of the NFTL not more than 5 business days after
                                - 7 -

the day of the NFTL filing.    The lien notice is intended to

inform the taxpayer of the right to a fair hearing relating to

the NFTL.    See sec. 6320(a)(3)(B), and (b).   The person entitled

to notice is the “taxpayer”, who is defined by section 301.6320-

1(a)(2), Q&A-A1, Proced. & Admin. Regs., as the person who is

named on the NFTL, is liable to pay the tax due after notice and

demand, and has refused or neglected to pay the tax due.     Thus,

Mr. Brandon is the taxpayer, and therefore, a lien notice issued

solely in his name is valid.    Pursuant to section 6320(a)(2)(C),

the lien notice must be sent to the taxpayer’s last known

address.    Mr. Daniel timely sent such notice to Mr. Brandon’s

last known address.    Because the estate and executrix share Mr.

Brandon’s address, the estate received the lien notice and the

intent of section 6320(a) was fulfilled.

     The validity and priority of the NFTL is not conditioned on

the taxpayer receiving a lien notice pursuant to section 6320.

See sec. 301.6320-1(a)(2), Q&A-A12, Proced. & Admin. Regs.      An

NFTL is valid if it is filed on Form 668 (Notice of Federal Tax

Lien Under Internal Revenue Laws) and includes the identity of

the taxpayer, the tax liability giving rise to the lien, and the

date the assessment arose.    See sec. 6323(f)(3); sec.

301.6323(f)-1(d), Proced. & Admin. Regs.    If these requirements

are met, the NFTL is valid notwithstanding any other provision of
                                 - 8 -

law regarding the form or content of a notice of lien.       Sec.

301.6323(f)-1(d), Proced. & Admin. Regs.       On November 3, 2006,

Mr. Daniel filed Form 668(Y)(c), Notice of Federal Tax Lien.         The

form identified that Mr. Brandon was the taxpayer, that section

6672 trust penalties gave rise to the NFTL, and that the tax was

assessed on February 27, 2006.    Mr. Daniel complied with the

terms of section 6323(f)(3) and the underlying regulations, thus,

the NFTL is valid.

     In sum, Mr. Daniel sent, to the correct address, a lien

notice that complied with section 6320(a) and filed a valid NFTL

that complied with section 6323(f)(3).       We recognize that the

plain language of the statutes and regulations, to which we are

bound, does not provide a special rule to account for the death

of the taxpayer.   We note, however, that the intent of section

6320 was fulfilled because the estate received notice, made a

timely request for, and received, a hearing relating to the NFTL.

We sustain respondent’s determination.

     Contentions we have not addressed are irrelevant, moot, or

meritless.

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
