                        T.C. Memo. 2009-131



                      UNITED STATES TAX COURT



                  CRAIG J. CASEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16436-03L.             Filed June 9, 2009.



     Craig J. Casey, pro se.

     Karen Nicholson Sommers, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     GALE, Judge:   Pursuant to section 6330(d)(1),1 petitioner

seeks review of respondent’s determination to proceed with a levy

to collect unpaid income tax for petitioner’s 1998 taxable year.




     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended.
                                - 2 -

                           FINDINGS OF FACT

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

The stipulation of facts and the accompanying exhibits are

incorporated herein by this reference.    Petitioner resided in

California when he filed the petition.

     On November 3, 2002, respondent issued petitioner a Final

Notice of Intent to Levy and Notice of Your Right to a Hearing

with respect to unpaid income taxes for 1998.    Petitioner timely

submitted a request for a hearing, in which he contended that he

was not liable for the tax, that no notice of deficiency had been

sent, and that an improper assessment had been made.

     Respondent’s Appeals Office sent petitioner a letter on

June 12, 2003, scheduling a face-to-face conference for July 2,

2003.   In the letter, the Appeals officer informed petitioner

that she would not consider challenges to the underlying tax

liability in connection with petitioner’s hearing because she had

determined that petitioner had received a notice of deficiency

with respect to 1998 and had failed to petition the Tax Court.

The Appeals officer further informed petitioner that he would not

be allowed to make an audio or stenographic recording of his

face-to-face conference.

     The Appeals officer examined petitioner’s administrative

file.   According to the Appeals officer’s contemporaneous

handwritten notes and her entries in the case activity record,
                               - 3 -

the administrative file contained copies of a notice of

deficiency for 1998 dated January 24, 2002, addressed to

petitioner at 7107 Broadway, Unit 333, Lemon Grove, California

91945 (the Lemon Grove address) and at P.O. Box 444, Jacumba,

California 91934-0444 (the Jacumba address), as well as an

original of the notice of deficiency sent to the Jacumba address.

The original notice of deficiency addressed to the Jacumba

address had its mailing envelope attached, which bore U.S. Postal

Service (USPS) markings indicating that it had been returned

unclaimed after three notifications were made on January 25,

February 8, and February 18, 2002.

     Petitioner requested that his conference be postponed, and

the Appeals officer rescheduled it for August 4, 2003.

Petitioner advised the Appeals officer of the Tax Court Opinion

in Keene v. Commissioner, 121 T.C. 8 (2003), and informed the

Appeals officer of his intention to bring a court reporter to his

conference.   The Appeals officer advised petitioner that the

Appeals Office was aware of Keene but had not changed its policy

and that recording of petitioner’s conference would not be

permitted.

     Petitioner, accompanied by a witness but not a court

reporter, appeared for the scheduled conference on August 4,

2003.   At the conference, petitioner submitted to the Appeals

officer a copy of his Individual Master File (IMF) and a five-
                               - 4 -

page list of “relevant issues” related to the proposed collection

action (agenda).   The agenda stated:

     Relevant Issues:

     I am disputing several material facts in regards to my tax
     liability, errors on my official transcript, the
     appropriateness of the determination and collection actions
     and the 6702 penalty. * * *

     Below is why I believe my transcript and the resulting
     assessment is defective and prejudicial. * * *

The agenda then outlined why petitioner believed the assessment

of his 1998 liability was defective and prejudicial.   Petitioner

contended in the agenda that he should be allowed to challenge

the underlying liability.   He maintained that he was entitled to

do so because of the presence or absence of certain codes in his

IMF or because of respondent’s failure to provide him with

detailed explanations of these codes.    Specifically, the agenda

stated that an “SCS-1” code on petitioner’s IMF indicated that

two taxpayers were using the same Social Security number, that a

“VAL-1” code indicated that his Social Security number could be

“permanently invalid” for the taxpayer using it, that the absence

of a “TC 494” code indicated that no notice of deficiency had

been issued to petitioner, and that several other codes on

petitioner’s IMF had similar meanings, all of which petitioner

contended made the assessment invalid.   Petitioner also argued

that he was entitled to record the conference.
                                 - 5 -

     Shortly after the conference, petitioner sent several

letters to respondent’s Appeals Office.   Petitioner’s letters

included written statements, styled as affidavits, executed by

petitioner and by the witness petitioner had brought to the

conference.   The statements reflected petitioner’s and the

witness’s accounts of what had transpired at the conference.

Both described the conference in detail and stated that

petitioner attempted to raise various points relating to his IMF

and the presence or absence of certain code entries thereon,

which were substantially identical to the arguments listed in the

agenda petitioner submitted at the conference.   The Appeals

officer also recorded her account of what had occurred at the

hearing in her case activity records.    The case activity records

likewise record that petitioner argued that proper administrative

procedures had not been met, that the notice of deficiency was

invalid, and that the presence or absence of various codes on his

IMF established the foregoing.

     The Appeals officer subsequently issued petitioner a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330 (notice of determination) sustaining the

proposed levy.   The notice of determination reasoned that

petitioner’s challenge to the underlying liability was not

permitted because (1) petitioner failed to claim the notice of

deficiency mailed to him at the Jacumba address (described in the
                                 - 6 -

notice of determination as P.O. Box “144”), the notice of

deficiency having been returned to the Internal Revenue Service

with USPS markings indicating three notifications to petitioner,

and (2) there was no indication that the notice of deficiency

mailed to petitioner at the Lemon Grove address had been

returned, which created a presumption that petitioner received

it.   The notice of determination stated that petitioner had asked

to record his hearing and was denied permission, that petitioner

had raised several points to the effect that the codes on his IMF

indicated that his tax was incorrectly assessed, and that the

Appeals officer had verified that all assessments were properly

made by consulting a Form 4340, Certificate of Assessments,

Payments, and Other Specified Matters, for petitioner’s 1998

taxable year.    Finally, the notice of determination stated that

the Appeals officer had determined that the proposed levy

balanced the interests of efficient collection of taxes with

petitioner’s legitimate concern that any collection action be no

more intrusive than necessary.

      Petitioner filed a timely petition seeking review of the

determination.

                               OPINION

      Petitioner contends that he should have been permitted to

challenge his underlying tax liability for 1998 during his

hearing and that respondent’s Appeals officer abused her
                                - 7 -

discretion in determining that the proposed levy should be

sustained.

I.   Background

     Section 6331(a) authorizes the Secretary to levy upon

property and property rights of any person liable for taxes

(taxpayer) who fails to pay those taxes after notice and demand

for payment is made.    Section 6331(d) provides that the levy

authorized by section 6331(a) may be made with respect to any

unpaid tax only if the Secretary has given written notice to the

taxpayer 30 days before levy.    Section 6330(a) further requires

that the notice advise the taxpayer of the amount of the unpaid

tax and of the taxpayer’s right to a hearing.

     If a hearing is requested, the hearing is to be conducted by

an officer or employee of the Commissioner’s Appeals Office with

no prior involvement with respect to the unpaid tax at issue.

Sec. 6330(b)(1), (3).    The Appeals officer shall at the hearing

obtain verification that the requirements of any applicable law

or administrative procedure have been met.    Sec. 6330(c)(1).   The

taxpayer may raise at the hearing “any relevant issue relating to

the unpaid tax or the proposed levy”.    Sec. 6330(c)(2)(A).   The

taxpayer may also raise challenges to the existence or amount of

the underlying tax liability at the hearing if the taxpayer did

not receive a statutory notice of deficiency with respect to the
                                - 8 -

underlying tax liability or did not otherwise have an opportunity

to dispute that liability.   Sec. 6330(c)(2)(B).

     At the conclusion of the hearing, the Appeals officer must

determine whether and how to proceed with collection and shall

take into account (1) the verification that the requirements of

any applicable law or administrative procedure have been met; (2)

the relevant issues raised by the taxpayer; (3) challenges to the

underlying tax liability by the taxpayer, where permitted; and

(4) whether any proposed collection action balances the need for

the efficient collection of taxes with the legitimate concern of

the taxpayer that the collection action be no more intrusive than

necessary.   Sec. 6330(c)(3).

     With respect to determinations made before October 17,

2006,2 we have jurisdiction to review the Appeals Office’s

determination where we have jurisdiction over the type of tax

involved in the case.   Sec. 6330(d)(1)(A); see Iannone v.

Commissioner, 122 T.C. 287, 290 (2004).   Generally, we may

consider only those issues that the taxpayer raised during the

section 6330 hearing.   See sec. 301.6330-1(f)(2), Q&A-F5, Proced.

& Admin. Regs.; see also Giamelli v. Commissioner, 129 T.C. 107

(2007); Magana v. Commissioner, 118 T.C. 488, 493 (2002).


     2
      Pursuant to the Pension Protection Act of 2006, Pub. L.
109-280, sec. 855, 120 Stat. 1019, this Court has exclusive
jurisdiction to review determinations under sec. 6330, effective
for determinations made after the date which is 60 days after the
Aug. 17, 2006, date of enactment, or Oct. 16, 2006.
                                  - 9 -

However, the Appeals officer’s mandated verification under

section 6330(c)(1) that the requirements of any applicable law or

administrative procedure have been met is subject to review

without regard to a challenge by the taxpayer at the hearing.

Hoyle v. Commissioner, 131 T.C. ___ (2008).      Where it is properly

at issue, we review the underlying tax liability de novo.     E.g.,

Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).      Where the

underlying tax liability is not properly at issue, we review the

Appeals officer’s determination of collection issues for abuse of

discretion.     Id. at 182.   Whether an abuse of discretion has

occurred depends upon whether the exercise of discretion was

arbitrary, capricious, or without sound basis in fact or law.

See Trout v. Commissioner, 131 T.C. ___, ___ (2008) (slip op. at

10); Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

II.     Petitioner’s Arguments

      Petitioner argues that the Appeals officer erred in refusing

to allow petitioner to challenge the underlying liability for

1998, including a penalty under section 6702(a), because,

petitioner claims, he did not receive a notice of deficiency for

1998.     Petitioner further argues that the Appeals officer abused

her discretion by refusing to permit petitioner to record the

hearing.     Petitioner also maintains that he raised other issues

at the hearing, including spousal defenses, collection

alternatives, and interest abatement, which the Appeals officer
                               - 10 -

improperly failed to consider in her determination.      Finally,

petitioner argues that the Appeals officer failed to verify that

the requirements of applicable law or administrative procedure

were met.

     A.     Challenges to the Underlying Tax Liability

     Petitioner contends that he should have been permitted to

challenge the underlying tax liability for 1998 in connection

with the hearing because he did not receive a notice of

deficiency for 1998.    Respondent contends that petitioner was

precluded under section 6330(c)(2)(B) from challenging the

underlying liability because petitioner either received a notice

of deficiency or deliberately refused delivery.    The Court’s

determination of whether a taxpayer has received a notice of

deficiency so as to preclude a challenge to the underlying tax

liability under section 6330(c)(2)(B) is made “On the

preponderance of the evidence”.    Sego v. Commissioner, 114 T.C.

604, 611 (2000); see also Figler v. Commissioner, T.C. Memo.

2005-230.

     The preclusion of a challenge to the underlying liability

pursuant to section 6330(c)(2)(B) generally requires actual

receipt of the notice of deficiency by the taxpayer.      See Sego v.

Commissioner, supra at 610-611; see also Sapp v. Commissioner,

T.C. Memo. 2006-104; Calderone v. Commissioner, T.C. Memo. 2004-

240; Tatum v. Commissioner, T.C. Memo. 2003-115.    However, where
                              - 11 -

the Commissioner produces a certified mail list (USPS Form 3877)

recording that a notice of deficiency was sent by certified mail,

the presumption of official regularity creates a strong

presumption that the notice was mailed and that it was delivered

or offered for delivery at the address to which it was sent.     In

the absence of clear evidence to the contrary, receipt of the

notice will be presumed.   See Sego v. Commissioner, supra at 611;

Zenco Engg. Corp. v. Commissioner, 75 T.C. 318, 323 (1980), affd.

without published opinion 673 F.2d 1332 (7th Cir. 1981); see also

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

States v. Ahrens, 530 F.2d 781, 784-786 (8th Cir. 1976).   The

taxpayer’s self-serving claim that he did not receive a notice of

deficiency, standing alone, is generally insufficient to rebut

the presumption of official regularity.   See Sego v.

Commissioner, supra at 611; Figler v. Commissioner, supra.     In

addition, a taxpayer cannot defeat actual receipt by deliberately

refusing delivery.   Sego v. Commissioner, supra at 610-611; Stein

v. Commissioner, T.C. Memo. 2004-124; Carey v. Commissioner, T.C.

Memo. 2002-209.

     At trial respondent offered into evidence a USPS Form 3877

from his records that lists certified mailings of notices of

deficiency at the U.S. Post Office in Laguna Niguel, California,

on January 24, 2002, including two notices mailed to petitioner

for the taxable year 1998, one to the Jacumba address (at P.O.
                                - 12 -

Box 444) and one to the Lemon Grove address.3   Respondent also

offered petitioner’s letter of December 18, 2001, to the

Secretary of the Treasury concerning the examination of

petitioner’s 1998 return and the examining agent’s decision to

issue a notice of deficiency.    Attached to that letter was a

December 14, 2001, letter to petitioner from the examining agent

advising petitioner that a statutory notice of deficiency would

be issued for 1998 and confirming petitioner’s request that his

address be changed to the Lemon Grove address.4

     The Appeals officer who conducted petitioner’s hearing

testified that she reviewed petitioner’s administrative file for

1998 in connection with his hearing request.    According to the

Appeals officer, the administrative file contained copies of

duplicate notices of deficiency for petitioner’s 1998 taxable

year issued on January 24, 2002, one addressed to petitioner at

the Jacumba address and another addressed to petitioner at the

Lemon Grove address.   The original of the notice of deficiency

sent to the Jacumba address was also in the file, having been


     3
      We deferred ruling on petitioner’s objection to the
admission of the certified mail list at trial, allowing the
parties to address the issue further on brief. Petitioner failed
to file a posttrial brief. We conclude that the mail list is
admissible under Fed. R. Evid. 803(6) and 902(11). Petitioner
was given a copy of the mail list (and accompanying declaration)
in advance of trial and had a fair opportunity to challenge them.
     4
      The Dec. 14, 2001, letter gave the city in the Lemon Grove
address as San Diego, but the ZIP code was the same as that used
for Lemon Grove.
                              - 13 -

returned by the USPS as unclaimed.     The envelope with this

original contained USPS notations indicating that delivery had

been attempted three times, on January 25, February 8, and

February 18, 2002.   The foregoing testimony was corroborated by

the Appeals officer’s handwritten notes made when she reviewed

the administrative file and by her typed notations in the case

activity record made at about the same time.

     Sometime between the issuance of the notice of determination

and the trial in this case, respondent lost or misplaced

petitioner’s administrative file for 1998.5    As a consequence,

the aforementioned copies and original of the notices of

deficiency are not in the record.    Nonetheless, in appropriate

circumstances a USPS Form 3877 is sufficient to show that a

notice of deficiency was sent and delivered, where the evidence

to the contrary is insubstantial.    See United States v. Zolla,

supra; Sego v. Commissioner, supra; Figler v. Commissioner,

supra.   The Appeals officer’s testimony, fully corroborated by

contemporaneous notes, persuades us that a notice of deficiency

in final form existed.   This evidence distinguishes this case

from Pietanza v. Commissioner, 92 T.C. 729 (1989), affd. without

published opinion 935 F.2d 1282 (3d Cir. 1991), and Butti v.


     5
      The Appeals officer’s handwritten notes and the case
activity record pertaining to petitioner’s hearing request were
part of a “collection due process” file maintained by
respondent’s Appeals Office that was not a part of petitioner’s
administrative file that was lost.
                             - 14 -

Commissioner, T.C. Memo. 2008-82, where the taxpayers’

administrative files had been lost and the Commissioner’s

evidence did not establish that notices of deficiency ever

existed.

     The evidence that petitioner has adduced in contravention of

the presumption of official regularity is unpersuasive.   He

contends that no notice of deficiency for 1998 was issued to him

because his IMF does not contain the code entry “TC 494”, which

indicates that a statutory notice of deficiency has been issued.

The Appeals officer, while acknowledging that a TC 494 entry so

indicates, nonetheless testified that such an entry is not

mandatory and that she rarely sees one.6

     Petitioner makes much of the fact that the notice of

determination described the Jacumba address as “P.O. Box 141”

when the correct address was “P.O. Box 444”.   The Appeals officer

testified that the notice of determination merely had a

typographical error and that the notice of deficiency she

examined contained the correct address.    The documentary evidence

supports the Appeals officer’s position.   Her testimony is


     6
      We note in this regard that the Internal Revenue Manual
(IRM) describes circumstances under which a statutory notice of
deficiency will be issued without entry of code TC 494 on the
taxpayer’s transcript of account. See IRM, pt. 2.4.35.1(4) (Jan.
1, 2009); see also Wiley v. United States, 77 AFTR 2d 640, 96-1
USTC par. 50,089 (S.D. Ohio 1995) (citing instances where notices
of deficiency are issued without entry of a TC 494 code on the
taxpayer’s transcript of account), affd. without published
opinion 108 F.3d 1378 (6th Cir. 1997).
                               - 15 -

corroborated by her contemporaneous notes, which describe the

address on the notice of deficiency she examined as “P.O. Box

444”, and the USPS Form 3877 records the notice of deficiency as

having been mailed to “P.O. Box 444”.

     Petitioner stipulated that he maintained a post office box

as noted at the Jacumba address during the first 6 months of

2002.   The USPS Form 3877 records that a notice of deficiency for

1998 was sent to the Jacumba address on January 24, 2002.    We

further note that petitioner was aware in December 2001 that

respondent had decided to issue a notice of deficiency to

petitioner for 1998.    The Appeals officer’s contemporaneous notes

of her examination of the now-lost original notice of deficiency,

sent to the Jacumba address and returned, record that USPS

markings on the envelope indicated notifications to the address

on three occasions:    January 25, February 8, and February 18,

2002.   Petitioner denies receipt, testifying that he was away on

a 2-week vacation beginning January 21, 2002.    Since a 2-week

vacation beginning January 21, 2002, ended on February 4, 2002,

petitioner’s explanation does not account for the latter two

notifications.

     We find that petitioner’s evidence is insufficient to

overcome the presumption of regularity and of delivery arising

from the Form 3877, as corroborated by the Appeals officer’s

contemporaneous notes of the multiple USPS notifications to the
                              - 16 -

addressee.   Accordingly, the notice of deficiency sent to the

Jacumba address is sufficient to preclude petitioner’s challenge

to the underlying tax liability for 1998 pursuant to section

6330(c)(2)(B).   See Sego v. Commissioner, 114 T.C. 604 (2000);

Figler v. Commissioner, T.C. Memo. 2005-230.

     A like result arises from the notice of deficiency mailed to

the Lemon Grove address.   The USPS Form 3877 in evidence likewise

records that a notice of deficiency for 1998 was sent by

certified mail to the Lemon Grove address on January 24, 2002.

In his testimony, petitioner denied receipt but was evasive

concerning when he commenced use of the Lemon Grove address.

Petitioner testified that he had not advised respondent of the

Lemon Grove address until sometime after the 1998 notice of

deficiency had been mailed (in January 2002).   Petitioner’s

testimony is contradicted by the attachment to his December 18,

2001, letter to the Secretary of the Treasury, which demonstrates

that petitioner had advised respondent by that time to use the

Lemon Grove address.   Since petitioner’s testimony concerning the

Lemon Grove address was evasive and at best unreliable, he has

failed to overcome the presumption of official regularity and of

delivery arising from the USPS Form 3877.   Accordingly, in the

alternative, the notice of deficiency sent to the Lemon Grove

address is sufficient to preclude petitioner’s challenge to the

underlying tax liability for 1998 pursuant to section
                              - 17 -

6330(c)(2)(B).   See Sego v. Commissioner, supra; Figler v.

Commissioner, supra.   Therefore, the underlying tax liability is

not properly at issue.7

     B.    Refusal To Permit Petitioner To Record the Hearing

     Petitioner contends that the Appeals officer abused her

discretion by refusing to permit him to make an audio recording

of his conference, contrary to the holding of this Court in Keene

v. Commissioner, 121 T.C. 8 (2003).    He argues that the lack of

an audio recording of the conference precludes us from

determining what issues he raised in connection with his hearing.

     A taxpayer is entitled under section 7521(a)(1) to make an

audio recording of a conference held as part of his section 6330

hearing.   Keene v. Commissioner, supra at 19.   In Keene, where

the taxpayer had refused to continue with the conference when the

permission to record was denied, we remanded the case to the

Appeals Office because there was no administrative record on

which to decide the relevant issues.   However, we have declined

to remand cases where the taxpayer participated in the hearing,

even though unrecorded, and where all issues the taxpayer raised

could be properly decided from the existing record.    Id. at 19-

20; Frey v. Commissioner, T.C. Memo. 2004-87; Durrenberger v.



     7
      In view of this conclusion, we sustain petitioner’s
objection to the admission of certain pages from the Web site of
petitioner’s purported insurance business, as this evidence of
petitioner’s income-producing activities in 1998 is irrelevant.
                              - 18 -

Commissioner, T.C. Memo. 2004-44; Brashear v. Commissioner, T.C.

Memo. 2003-196; Kemper v. Commissioner, T.C. Memo. 2003-195.

     Petitioner fully participated in his face-to-face

conference, accompanied by a third-party witness.    Subsequently,

petitioner and his witness each prepared written statements

(styled as affidavits) memorializing what transpired at the

conference, which were submitted to the Appeals officer and are

part of the administrative record.     The Appeals officer also made

entries in the case activity record to memorialize what took

place at the conference.   These three roughly contemporaneous

written accounts agree in all material aspects regarding what

issues were raised.   We are satisfied that the available evidence

in the administrative record establishes what transpired at the

face-to-face conference.   It is therefore unnecessary and would

be unproductive to remand this case to the Appeals Office.     See

Frey v. Commissioner, supra; Durrenberger v. Commissioner, supra;

Brashear v. Commissioner, supra; Kemper v. Commissioner, supra.

     C.   Validity of the Assessment of the Underlying Tax
          Liability

     Petitioner contends that the assessment of his 1998 tax

liability was invalid, as shown by the presence or absence of

certain codes from his IMF.   We have already addressed

petitioner’s contention that the absence of a TC 494 code
                              - 19 -

indicates that no notice of deficiency had been issued.8    With

respect to any other aspect of petitioner’s challenge to the

validity of the assessment, section 6330(c)(1) directs that the

hearing officer shall at the hearing obtain verification from the

Secretary that the requirements of any applicable law or

administrative procedure have been met, and section 6330(c)(3)(A)

provides that the determination shall take this verification into

account.   See Hoyle v. Commissioner, 131 T.C. at ___ (slip op. at

8).   Section 6330(c)(1) imposes on the hearing officer the

responsibility “to obtain verification that the legal and

administrative requirements for a proper assessment * * * have

been met.”   Clough v. Commissioner, T.C. Memo. 2007-106.

      The Appeals officer examined copies and originals of notices

of deficiency issued to petitioner that were in the

administrative file.   On the basis of the returned original with

the USPS markings indicating three notifications to the

addressee, she concluded that a notice of deficiency had been

mailed to petitioner on January 24, 2002, and that he had refused



      8
      Petitioner also argued that an “SCS-1” code on his IMF
indicated that another taxpayer might be using his Social
Security number and that a “VAL-1” code indicated that his Social
Security number was invalid. Petitioner’s arguments with respect
to these codes, apparently designed to engender doubt that
petitioner was the earner of some of the income reported to
respondent in connection with petitioner’s Social Security
number, are more properly characterized as challenges to the
underlying tax liability, which we have held are precluded in
this proceeding.
                               - 20 -

to claim it.   Given petitioner’s concession that he maintained

the Jacumba address post office box at this time, we are

satisfied with the Appeals officer’s verification of the mailing

of the notice of deficiency.   The Appeals officer further

consulted a Form 4340 for petitioner’s 1998 tax year to verify

that petitioner’s 1998 tax liability was assessed on June 17,

2002, and that a notice and demand for payment letter was mailed

to petitioner within 60 days of assessment.   Petitioner having

demonstrated no infirmity in the foregoing, we conclude that the

Appeals officer satisfied section 6330(c)(1), including verifying

that the assessment of the underlying liability was properly

made.

     D.   Petitioner’s Claim That Other Issues Were Raised at the
          Hearing

     Petitioner contends that he either raised or attempted to

raise collection alternatives, a section 66(c) spousal relief

claim, and respondent’s failure to abate interest under section

6404(g) in connection with his hearing.9

     On the basis of the administrative record, as supplemented

by the testimony at trial, we are not persuaded that petitioner




     9
      Petitioner’s contentions also include claims more properly
characterized as challenges to the underlying tax liability, such
as a claim that his income for 1998 should be attributed in part
to his wife because of California’s community property laws. As
previously concluded, petitioner is precluded from challenging
the underlying liability pursuant to sec. 6330(c)(2)(B).
                              - 21 -

raised or attempted to raise these other issues.10    Particularly

persuasive are the letters sent by petitioner and his witness to

the Appeals officer shortly after the conference, which

summarized the issues that had been raised.   These

contemporaneous written statements lack any reference whatever to

the additional issues petitioner claims he attempted to raise at

the conference.   Petitioner’s contention that both he and his

witness forgot to list these additional issues in the written

statements is not credible.   The written statements are not only

detailed, but they are also consistent with the agenda petitioner

gave the Appeals officer at the conference, as well as the

Appeals officer’s contemporaneous notes of what took place at the

conference and her testimony at trial.   Petitioner’s testimony at

trial with respect to several other matters was often evasive.

He was, as previously noted, evasive regarding when he notified

respondent to use the Lemon Grove address, which petitioner

understood was an important issue in the case.   Under these


     10
      On the basis of the agenda and his postconference letters,
we find that petitioner did raise a challenge to a frivolous
return penalty under sec. 6702 for 1998. With respect to
determinations made before Oct. 17, 2006, we have held that we
lack jurisdiction over a sec. 6702 penalty. See Johnson v.
Commissioner, 117 T.C. 204, 208 (2001); Dunbar v. Commissioner,
T.C. Memo. 2006-184. But see Wagenknecht v. United States, 509
F.3d 729 (6th Cir. 2007). However, petitioner’s IMF, which is
part of the administrative record, records that the penalty was
assessed on Mar. 27, 2000, and paid by virtue of offset on the
same day. The penalty was therefore not a subject of the levy
and is not any part of the underlying tax liability at issue in
this case.
                               - 22 -

circumstances, we do not accept petitioner’s self-serving

testimony that he raised other issues that were not addressed in

the notice of determination.

III. Other Requirements

     As discussed supra, the Appeals officer verified that the

requirements of applicable law and administrative procedure had

been met.   She further took into account whether the proposed

collection action balanced the need for the efficient collection

of taxes with the legitimate concern of petitioner that the

collection action be no more intrusive that necessary.    See sec.

6330(c)(3).   Petitioner has identified no specific infirmities in

the foregoing not heretofore addressed.

     To reflect the foregoing,


                                        Decision will be entered

                                  for respondent.
