                           T.C. Memo. 2008-202



                         UNITED STATES TAX COURT



                       DAVID BACH, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent


        Docket No. 23061-06L.             Filed August 27, 2008.



        David Bach, pro se.

        Steven M. Webster, for respondent.



                           MEMORANDUM OPINION


        WELLS, Judge:   Petitioner seeks review, pursuant to section

6330,1 of respondent’s determination to proceed with the

collection of petitioner’s tax liability for the 1993 taxable

year.     The issue we must decide is whether petitioner is liable




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

for the underlying tax liability for taxable year 1993,2 and,

therefore, whether respondent may proceed with the collection of

that liability.

                              Background

     Some of the facts and certain exhibits have been stipulated.

The parties’ stipulations of fact are incorporated in this

opinion by reference and are found as facts in the instant

case.     At the time he filed his petition, petitioner resided

in South Carolina.

     Petitioner did not file a return for taxable year 1993.       On

March 29, 1996, respondent sent petitioner a notice of deficiency

for taxable year 1993 (notice of deficiency), but petitioner

failed to petition this Court. On the envelope containing the

notice of deficiency, the U.S. Postal Service noted “Return to

Sender - attempted, not known.”     Respondent timely assessed the

income tax determined in the notice of deficiency.

        On January 20, 2006, respondent sent petitioner a Letter

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

a Hearing.     Respondent’s Appeals officer received from petitioner

on February 15, 2006, a timely filed Form 12153, Request for a

Collection Due Process Hearing.     In reviewing petitioner’s file,

respondent’s Appeals officer noted that petitioner did not


     2
       Respondent has conceded that petitioner did not receive
the notice of deficiency sent to him with respect to his income
taxes for taxable year 1993.
                                 -3-

receive the notice of deficiency and therefore did not have a

prior opportunity to challenge the underlying liability and that

petitioner therefore could raise relevant challenges to the

underlying tax liability at the hearing.

     Petitioner submitted to respondent’s Appeals officer a

letter stating the following:

     I disagree with the assessment in your Form Notice of
     Levy on Wages, Salary, and other Income that you had
     sent to my employer at Poinsette Tire & Auto, 208
     Poinsette Hwy. Greenville, SC 29609 on February 08,
     2006. I deny each and every part thereof and in
     particular, I disagree with the false and malicious
     accusations on the attached Form 668-W(ICS) in tax year
     12-31-1993. Your assessment of additional taxes levy
     is completely and totally wrong; the adjustments are
     incorrect factually and as a matter of law. I neither
     agree nor accept your findings. Your office normally
     sends out an audit letter pertaining to the year in
     question, but did not for me. I consider your approach
     in this case to be harassment. I hereby request a
     conference with one of your examiners so I might submit
     additional information and evidence. Please schedule
     an appointment that will be anyway possible convenient
     with the taxpayer. Please send me several Power of
     Attorney Forms, your audit, appeals publication and
     other forms or materials that I may need.

     Respondent’s Appeals officer sent petitioner a letter dated

June 5, 2006, offering a face-to-face conference and requesting

certain information.   Petitioner replied that he wanted an audio

recording of the conference.    In the interim, since telephone

conferences could not be recorded, respondent’s Appeals officer

decided to obtain information from petitioner by correspondence

in order to provide the written record of events that petitioner

desired.
                                -4-

     Petitioner sent respondent’s Appeals officer a letter dated

June 16, 2006, identifying relevant issues that he intended to

raise with respondent’s Appeals officer.   On June 22, 2006,

respondent’s Appeals officer sent petitioner a letter requesting

many items that had been requested from petitioner in the June 5,

2006, letter.

     On August 29, 2006, respondent’s Appeals officer sent

petitioner another letter scheduling a face-to-face hearing in

Charlotte, North Carolina, and advising petitioner of recording

requirements.   Enclosed with the letter were Rev. Proc. 68-29,

1968-2 C.B. 913, Publication 216, Conference and Practice

Requirements, and Notice 89-51, 1989-1 C.B. 691, all of which

addressed issues surrounding the scheduled conference.

     On September 19, 2006, respondent’s Appeals officer received

a letter from petitioner dated September 13, 2006, requesting

that the conference be conducted in Greenville or Anderson, South

Carolina.   Respondent’s Appeals officer sent petitioner a letter

dated September 19, 2006, denying petitioner’s request for a

hearing at the requested locations and explaining that sections

301.6320-1(d)(2), Q&A-D7 and 301.6330-1(d)(2), Q&A-D7, Proced. &

Admin. Regs., allowed for a hearing at the Appeals Office closest

to the taxpayer’s residence and that there was not an Appeals

Office in either requested location.
                                -5-

     On September 24, 2006, petitioner sent respondent’s Appeals

officer a letter again stating that he could not come to

Charlotte because he was unemployed and had unreliable

transportation and limited funds.     He requested a conference

“near where I live”.   The closest Appeals Office to Greenville,

South Carolina, is either Columbia, South Carolina, or Charlotte,

North Carolina.   Respondent’s Appeals officer determined that

petitioner’s address in Greenville, South Carolina, according to

Map Quest, is roughly of equal distance from Columbia, South

Carolina, and Charlotte, North Carolina.     Inasmuch as

petitioner’s request for a hearing at another location was based

on his inability to travel because of limited funds, respondent’s

Appeals officer determined that there would be no benefit to

transferring the case to South Carolina and that the transfer

would serve only to delay the Appeals process.

     Petitioner’s letter also asked for an explanation of a

correspondence conference.   Respondent’s Appeals Office sent a

letter to petitioner dated September 27, 2006, explaining a

correspondence conference.   Petitioner was again advised that his

conference was being conducted in the closest Appeals Office to

his home and that if he did not appear for the rescheduled

hearing, he should submit all relevant information for

consideration by October 11, 2006, or a determination would be

made on the basis of all information received up to that date.
                                -6-

Petitioner responded with a letter dated October 6, 2006, stating

that he “wants to appeal the time and place”.

     Respondent’s Appeals officer determined that petitioner had

been provided sufficient opportunity to submit information for

consideration.   She based her determination upon the specific

issues petitioner raised in his correspondence.

     Respondent's Appeals officer determined that, since

petitioner’s return was filed with “single” status, section 6015

did not apply.   She also determined that while petitioner stated

he intended to dispute the underlying tax liability, he made no

specific challenge to that liability.   Petitioner was provided

with Form 4340, Certificate of Assessments, Payments, and Other

Specified Matters, detailing the tax information for the subject

period, and a literal transcript, which provides information

similar to that in Form 4340.

     Because petitioner raised nonspecific issues surrounding the

underlying tax liability, respondent’s Appeals officer reviewed

the assessment package in general and determined that:   (1)

Petitioner’s recorded tax liability was based on wages earned and

reported to the Internal Revenue Service (IRS) of $20,548, (2) a

single filing status was used in the computation of petitioner’s

tax liability, (3) petitioner was allotted one personal exemption

of $2,350 and a standard deduction of $3,700, (4) petitioner’s

taxable income was properly determined to be $14,498, according
                                 -7-

to the tax table for taxable year 1993 and petitioner’s filing

status, (5) petitioner’s tax was $2,171, (6) petitioner was given

a credit for withholding of $1,645, for a balance of tax due of

$526, (7) petitioner was liable for a failure to file penalty and

an estimated tax penalty, (8) no computational error was

discovered, and (9) the amounts shown on the notice of deficiency

are the same as those recorded on official transcripts.

     Petitioner’s correspondence with respondent’s Appeals

officer stated that he believed the amount owed to be excessive

but did not specify why.    Petitioner did not support his position

with facts or evidence.    Petitioner also challenged the issuance

of Form 668-W(ICS), stating that the law requires the IRS to

notify a taxpayer at least 30 days before initiating any levy

action to give the taxpayer an opportunity to formally appeal the

proposed levy.    Respondent’s Appeals officer conceded that the

IRS did not wait the required 30 days from issuance of Letter

1058 before issuing a wage levy, a clear violation of Internal

Revenue Code and Internal Revenue Manual guidelines.

Respondent’s Appeals officer determined, however, that on

February 23, 2006, the IRS released Form 668-W(ICS) in its

entirety and no funds were ever realized from the levy issuance.

     Petitioner also questioned the statute of limitations in his

correspondence.    The June 22, 2006, letter respondent’s Appeals

officer sent petitioner provided a detailed explanation regarding
                                -8-

the statute of limitations.   Respondent’s Appeals officer

determined that the tax was assessed September 2, 1996, and that

the 10-year period to collect the tax would have expired on

September 2, 2006, if petitioner had not submitted a timely

section 6330 Appeals hearing request.   Respondent’s Appeals

officer determined that the period of limitations on collection

had not expired because petitioner timely submitted a hearing

request, which suspends collection during the time that

respondent’s Appeals Office considers the request and any

subsequent judicial review period.

     Respondent’s Appeals officer determined that petitioner

had proposed no specific collection alternative, although the

written appeal request mentioned an installment agreement and an

offer-in-compromise.   Respondent’s Appeals officer determined,

however, that petitioner had not filed an income tax return for

1999, 2000, 2001, 2002, 2003, 2004, or 2005 and therefore an

installment agreement could not be proposed, nor could an

offer-in-compromise be accepted.   Moreover, petitioner did not

submit financial information for consideration, nor did he

formally present a collection alternative.   Petitioner raised no

other relevant issues.

     Respondent’s Appeals officer determined under section

6330(c)(3)(C) that, balancing the need for efficient collection

against petitioner's concern that it be no more intrusive than
                                -9-

necessary, the issuance of the notice of intent to levy was

appropriate, given the facts and circumstances of the case.

She determined that, notwithstanding      premature levy action, the

levy action was appropriate.   She determined that with the best

information available, the requirements of various applicable

laws or administrative procedures had been met and that

petitioner had been afforded appeal rights in a timely manner.

Petitioner used the appeal process to raise issues which had been

addressed.

                             Discussion

     The issue we must decide is whether petitioner is liable for

the underlying tax liability for taxable year 1993, and,

therefore, whether respondent may proceed with the collection of

that liability.

     Section 6330 provides that no levy may be made on any

property or right to property of a person unless the Commissioner

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
                               -10-

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

person may challenge the existence or amount of the underlying

tax 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 in

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).

     As noted above, respondent has conceded that petitioner did

not receive the notice of deficiency.    We therefore review the

instant matter de novo.   See Sego v. Commissioner, supra at 611;

Goza v. Commissioner, supra at 182.     Neither at the hearing nor

at trial has petitioner raised any issue regarding the underlying

tax other than whether the period of limitations for assessment

has expired because the notice of deficiency allegedly was not

sent to petitioner’s last known address.3    As explained below, we


     3
       In his correspondence with respondent’s Appeals officer,
petitioner argued that the tax was excessive; however he did not
support that claim with sufficient specificity to preserve the
issue for our review. See Poindexter v. Commissioner, 122 T.C.
280, 284-286 (2004), affd. 132 Fed. Appx. 919 (2d Cir. 2005).
Petitioner has not raised any claim of eligibility for a
                                                   (continued...)
                              -11-

agree with respondent that the notice of deficiency was mailed to

petitioner’s last known address and that neither the period of

limitations on assessment nor the period of limitations on

collection has expired.4

     The record shows that respondent mailed the notice of

deficiency on March 29, 1996, to petitioner at P.O. Box 334,

Greenville, South Carolina 29602.    The envelope bearing the

petition was returned to respondent with a notice from the U.S.

Postal Service “Return to Sender - attempted, not known.”

Petitioner contends his address was P.O. Box 2762, not P.O. Box

334, Greenville, South Carolina 29602.

     If a notice of deficiency is mailed to the taxpayer at

the taxpayer's last known address, actual receipt of the notice




     3
      (...continued)
collection alternative, and, in any case, petitioner would not be
eligible for a collection alternative because of his failure to
file tax returns for 2000-05.
     4
        Because petitioner did not file a return for taxable year
1993, the assessment period would remain open indefinitely even
if the notice of deficiency were invalid. See sec. 6501(c)(3).
Had the notice of deficiency not been mailed to petitioner’s last
known address (and not received by him in time to file a petition
in this Court), the subsequent assessment of the deficiency on
Sept. 2, 1996, would have been defective (and the instant levy to
collect it would be defective as well), not because the
assessment was made after the applicable limitations period had
expired, but because it would have been made in violation of sec.
6213(a), which restricts the assessment of a deficiency unless
the assessment is duly preceded by the mailing of a deficiency
notice to the last known address. See Freije v. Commissioner,
125 T.C. 14, 34-37 (2005).
                                 -12-

is immaterial to its validity.    King v. Commissioner, 857 F.2d

676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Yusko v.

Commissioner, 89 T.C. 806, 810 (1987); Frieling v. Commissioner,

81 T.C. 42, 52 (1983).

     Although the phrase “last known address” is not defined in

the Internal Revenue Code or in the regulations, we have held

that a taxpayer's last known address is the address shown on the

taxpayer's most recently filed return, absent clear and concise

notice of a change of address.    Abeles v. Commissioner, 91 T.C.

1019, 1035 (1988); see King v. Commissioner, supra at 681.5

     At trial the Court remanded this case to respondent’s

Appeals Office to consider whether the notice of deficiency was

sent to petitioner’s last known address as required by section

6212(b).6   On remand, respondent’s Appeals officer offered

petitioner a hearing in Charlotte, North Carolina, or Columbia,

South Carolina.   Citing the same reasons he did not attend the




     5
       The definition of the phrase “last known address” in sec.
301.6212-2(a), Proced. & Admin. Regs., is similar to the
definition found in Abeles v. Commissioner, 91 T.C. 1019, 1035
(1988), but the regulation was not effective until Jan. 29, 2001,
and therefore is inapplicable to the instant case.
     6
       Sec. 6212(a) expressly authorizes the Commissioner, after
determining a deficiency, to send a notice of deficiency to the
taxpayer by certified or registered mail. It is sufficient if
the Commissioner mails the notice of deficiency to the taxpayer's
“last known address”. Sec. 6212(b); Frieling v. Commissioner, 81
T.C. 42, 52 (1983).
                               -13-

previous face-to-face section 6330 hearing offered to him,

petitioner refused to travel to Charlotte or Columbia.

Nonetheless, on remand respondent’s Appeals officer reviewed the

administrative file and considered the last known address issue,

noting that, at the time the notice of deficiency was issued, at

least five separate sources of information in respondent’s

possession showed petitioner’s last known address as P.O. Box

334, Greenville, South Carolina 29602.

     The record shows that petitioner did not notify respondent

of any other address than the one respondent used on the notice

of deficiency.   Petitioner did not file a return for 1993, and

the address respondent used on the notice of deficiency was the

address shown on the following records of respondent:

(1) A transcript dated 03/08/1995; (2) a different command code

showing current address information dated 08/23/1994; (3) wage

information reported to the IRS dated 06/25/1996; (4) command

code identifying audit data dated 08/22/1995; (5) Form 1099-G,

Certain Government Payments, information for tax year 1989

reported by the South Carolina Employment Security Commission.

     In the absence of a return, the last known address is

the one which, in view of all relevant circumstances, the

Commissioner reasonably believed the taxpayer wished the IRS to
                               -14-

use in sending mail to him or her.    Lifter v. Commissioner, 59

T.C. 818, 821 (1973).   We conclude that the IRS reasonably

believed that the address respondent used on the notice of

deficiency was the address petitioner wanted to be used for

mail sent to him.

     Because petitioner did not, before the notice of deficiency

was mailed, communicate to respondent any address other than

P.O. Box 334, Greenville, South Carolina 29602, we hold that the

notice of deficiency, sent to petitioner at that address, was

sent to petitioner’s last known address.

     On the basis of the record, we hold that neither the period

of limitations for assessment of the deficiency nor the period of

limitations for the collection of the tax has expired.7

     In sum, we hold that respondent may proceed with the

proposed levy to collect the tax liability for the year in issue.

We have considered all the contentions raised by the

parties, and, to the extent they are not addressed in this




     7
       The limitations period for collection remains open
because, counting from the assessment date of Sept. 2, 1996, it
had yet to expire as of Feb. 15, 2006, the date on which the IRS
received from petitioner a request for a sec. 6330 hearing, and,
by reason of sec. 6330(e), the running of the period was
suspended and remains suspended pending the disposition of the
instant case. See Boyd v. Commissioner, 117 T.C. 127, 130-131
(2001).
                                 -15-

opinion, we conclude that they are irrelevant, immaterial, or

unnecessary to reach.

     To reflect the foregoing,


                                             Decision will be entered

                                        for respondent.
