     Case: 18-60221      Document: 00514821763         Page: 1    Date Filed: 02/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-60221                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                    February 4, 2019

CARLOS ALAMO,                                                         Lyle W. Cayce
                                                                           Clerk
              Petitioner - Appellant

v.

COMMISSIONER OF INTERNAL REVENUE,

              Respondent - Appellee




                           Appeal from the Decision of the
                              United States Tax Court
                                TC No. 24174-13L


Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       The Internal Revenue Service filed a federal tax lien against Carlos
Alamo for a deficiency in his 2009 taxes. Alamo challenges the lien, contending
that the IRS never sent him a notice of deficiency. IRS Appeals sustained the
lien, the Tax Court concluded that IRS Appeals did not abuse its discretion,
and Alamo now petitions for our review.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 18-60221      Document: 00514821763         Page: 2    Date Filed: 02/04/2019



                                      No. 18-60221
       We review the Tax Court’s findings of fact for clear error and its legal
determinations de novo. 1 “When reviewing the result of a [collection due
process] hearing in which the underlying tax liability is not properly at issue,
the court must determine whether IRS Appeals abused its discretion”—that is,
whether it acted “arbitrarily, capriciously, or without sound basis in fact or
law.” 2 The Tax Court concluded that the IRS sent Alamo a valid notice of
deficiency for the 2009 tax year and that IRS Appeals did not abuse its
discretion in sustaining the filing of the tax lien.
       We agree. Alamo argues that there was insufficient evidence to support
the conclusion that the IRS mailed him the deficiency notice. To the contrary,
the Tax Court did not err in holding that IRS Appeals did not abuse its
discretion by finding sufficient evidence in the combination of (1) the electronic
copy of the deficiency notice, addressed to Alamo’s residence and dated October
3, 2011, and (2) the Form 3877 reflecting that a document with an essentially
identical tracking number was mailed to Alamo at his residence on October 3,
2011. 3 While Alamo raises other concerns with the Tax Court’s decision, they
are similarly insufficient to show that the Tax Court reversibly erred.
       The judgment of the Tax Court is affirmed.




       1 Estate of Duncan v. Comm’r of Internal Revenue, 890 F.3d 192, 197 (5th Cir. 2018).
       2 Id.
       3 See, e.g., Cropper v. Comm’r of Internal Revenue, 826 F.3d 1280, 1285–86 (10th Cir.

2016) (observing that a combination of proof of the existence of a deficiency notice and an
incomplete Form 3877 with relevant mailing information may be sufficient to meet the
Commissioner’s burden); O’Rourke v. United States, 587 F.3d 537, 541–42 (2d Cir. 2009)
(same). We agree with the Tax Court that the slight differences at the beginning and end of
the tracking numbers does not undercut the conclusion that “the document that was mailed
on October 3, 2011, as evidenced by the Form 3877, was indeed the notice of deficiency.”
                                             2
