                        T.C. Memo. 2011-287



                      UNITED STATES TAX COURT



                  EZEKIEL KAMPS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22655-09L.               Filed December 14, 2011.



     Ezekiel Kamps, pro se.

     Kevin R. Erskine, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   Petitioner filed a petition with this Court

in response to a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of
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determination) for 2002 through 2005 (years at issue).1   Pursuant

to section 6330(d), petitioner seeks review of respondent’s

determination.   The issue for decision is whether respondent

may proceed with the proposed collection actions.

                         FINDINGS OF FACT

     Some of the facts have been stipulated.    The stipulation of

facts and the accompanying exhibits are incorporated by this

reference.   Petitioner resided in Michigan at the time of filing

his petition.

     Petitioner received a Form W-2, Wage and Tax Statement, from

Ron Miedema Concrete, Inc. (Ron Miedema), reporting his wages for

each of the years at issue.   Petitioner also received a Form

1099-MISC, Miscellaneous Income, reporting his miscellaneous

income from Ron Miedema for 2005.   Petitioner did not file income

tax returns for the years at issue.    Consequently, respondent

prepared a substitute for return for petitioner for each of the

years at issue pursuant to section 6020(b).    Petitioner also

failed to file income tax returns for 2006-08.

     Respondent did not introduce into evidence the original or a

copy of the notice of deficiency for each of the years at issue,

and petitioner denies ever receiving any.    Respondent did



     1
      All section references are to the Internal Revenue Code, as
amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure. Amounts are rounded to the nearest
dollar.
                               - 3 -

introduce Substitute U.S. Postal Service Form 3877 (Form 3877), a

mailing list form of the Postal Service that is prepared for and

used by the Internal Revenue Service (IRS) to identify items

mailed by certified mail or registered mail.   Form 3877 indicates

that respondent mailed petitioner a notice of deficiency for each

of the years at issue to his last known address.

     On January 9, 2009, Letter 1058, Final Notice of Intent to

Levy and Your Right to a Hearing (notice of levy), was mailed to

petitioner with respect to the years at issue.   On February 9,

2009, petitioner submitted a request for a collection due process

or equivalent hearing (CDP hearing).   He requested a face-to-face

meeting and stated that he had not previously had the chance to

challenge the underlying tax liabilities.

     On April 23, 2009, Settlement Officer Denise Williams

(Williams) sent petitioner a letter scheduling a telephone

conference for May 19, 2009, which, among other things, warned

petitioner that a failure to participate in the telephone

conference or to respond to the letter would result in a

determination based on the information in the administrative

file.   The letter also informed petitioner that his request for a

face-to-face CDP hearing was denied because he had failed to file

all required tax returns.   Petitioner did not participate in the

telephone conference.   On May 20, 2009, Williams sent petitioner

a letter informing him that a determination would be made on the
                               - 4 -

basis of the administrative file and that he had 14 days to send

in any information he would like to have considered.

     On May 28, 2009, Williams received an undated letter from

petitioner stating that the May 19, 2009, telephone conference

was scheduled without contacting him regarding his availability.

Petitioner stated that he did not receive a notice of deficiency

with respect to the underlying tax liabilities and again

requested a face-to-face conference.   On June 15, 2009, Williams

responded that petitioner’s arguments either were frivolous or

reflected a desire to delay or impede the administration of

Federal tax laws.   Williams asked petitioner to amend his CDP

hearing request within 30 days by stating, in writing, legitimate

issues and withdrawing the frivolous and/or desire-to-delay

issues.   Williams warned petitioner that if he failed to submit a

nonfrivolous argument, she would disregard his hearing request

and return his case to the Collections Division.   She further

stated that if he submitted a legitimate reason for his dispute,

she would schedule his hearing.   Petitioner did not respond to

this letter.

     On July 15, 2009, Williams sent petitioner another letter,

scheduling a telephone conference for August 12, 2009.   The

letter attributed petitioner’s underlying tax liability to income

earned from Ron Miedema during the years at issue.   Williams

again warned petitioner that his failure to participate in the
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telephone conference or to respond to the letter would result in

a determination based on the information in the administrative

file.    Petitioner did not participate in the telephone

conference.    Rather, on August 6, 2009, petitioner sent Williams

a response, again claiming that he did not receive a notice of

deficiency for each of the years at issue and asking for a face-

to-face CDP hearing.    Petitioner’s response did not state any

other reason for disputing his underlying tax liability.

     On August 17, 2009, respondent issued a notice of

determination sustaining the notice of levy for the years at

issue.    On September 15, 2009, petitioner timely filed a petition

with this Court.2

                               OPINION

I.   General Rules

     Section 6321(a) provides that if any person liable to pay

any tax neglects or refuses to pay after demand, the Secretary

can collect such tax by placing a lien on the person’s property



     2
      On Sept. 25, 2009, the Court ordered petitioner to file an
amended petition on or before Nov. 9, 2009, to conform with the
Tax Court Rules of Practice and Procedure. On Dec. 9, 2009, the
Court extended petitioner’s deadline to file an amended petition
to Dec. 31, 2009. Petitioner failed to file an amended petition
on time. Thus, on Jan. 15, 2010, the Court dismissed this case
for lack of jurisdiction. On Feb. 22, 2010, petitioner filed a
motion to vacate the Court’s order dismissing this case.
Petitioner concurrently filed his amended petition. On Mar. 5,
2010, the Court vacated its order dismissing this case for lack
of jurisdiction and ordered the Clerk of the Court to file
petitioner’s amended petition.
                                 - 6 -

or rights to property.    Section 6331(a) provides that, if any

person liable to pay any tax neglects or refuses to do so within

10 days after notice and demand, the Secretary can collect such

tax by levy upon property belonging to such person.       However, the

Secretary is required to give the taxpayer written notice of his

intent to file a lien or to levy and must describe the

administrative review available to the taxpayer before

proceeding.   Secs. 6320(a), 6330(a).

     Section 6330(b) describes the administrative review process,

providing that a taxpayer can request a hearing with the Appeals

Office with regard to a levy notice.     At the hearing the taxpayer

may raise certain matters set forth in section 6330(c)(2), which

include appropriate spousal defenses, challenges to the

appropriateness of collection actions, and offers of collection

alternatives.    Further, a taxpayer may dispute the underlying tax

liability for any tax period if the taxpayer did not receive a

notice of deficiency for the tax liability or did not otherwise

have an opportunity to dispute the tax liability.    Sec.

6330(c)(2)(B).   Frivolous arguments, however, are not relevant

issues in a hearing.     Pierson v. Commissioner, 115 T.C. 576

(2000).   “A taxpayer’s position is frivolous or groundless if it

is contrary to established law and unsupported by a reasoned,

colorable argument for change in the law.”     Smith v.

Commissioner, T.C. Memo. 2000-290.
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     Following a hearing, the Appeals Office must make a

determination whether the proposed lien or levy action may

proceed.   In so doing, the Appeals Office is required to take

into consideration the verification presented by the Secretary

that the requirements of applicable law and administrative

procedure have been met, the issues raised by the taxpayer, and

whether the proposed levy action appropriately balances the need

for efficient collection of taxes with a taxpayer’s concerns

regarding the intrusiveness of the proposed collection action.

Sec. 6330(c)(3).

     Pursuant to section 6330(d)(1), within 30 days of the

issuance of the notice of determination the taxpayer may appeal

that determination to this Court.   Although section 6330 does not

prescribe the standard of review that we are to apply in

reviewing the Commissioner’s administrative determinations, we

have stated that where the validity of the underlying tax

liability is properly at issue, we will review the matter de

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

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

of the underlying tax liability is not properly at issue,

however, we will review the Commissioner’s administrative

determination for abuse of discretion.   Sego v. Commissioner,

supra at 610; Goza v. Commissioner, supra at 182.
                                - 8 -

II.   CDP Hearing

      Petitioner argues that he was entitled to dispute his

underlying tax liabilities at a CDP hearing.   Respondent counters

that petitioner was precluded from disputing the liabilities

because he received a notice of deficiency for each of the years

at issue.

      Section 6330(c)(2)(B) contemplates actual receipt of a

notice of deficiency by the taxpayer, Tatum v. Commissioner, T.C.

Memo. 2003-115, although a taxpayer may not avoid actual receipt

by deliberately refusing delivery, Sego v. Commissioner, supra at

610-611.    The Commissioner has generally prevailed in foreclosing

challenges to the underlying liability under section

6330(c)(2)(B) where he establishes that a notice of deficiency

was mailed to the taxpayer’s last known address and no factors

are present that rebut the presumption of official regularity and

of delivery.   See, e.g., id.; Clark v. Commissioner, T.C. Memo.

2008-155.

      The Commissioner bears the burden of proving by competent

and persuasive evidence that the notice of deficiency was

properly mailed.    Coleman v. Commissioner, 94 T.C. 82, 90 (1990);

August v. Commissioner, 54 T.C. 1535, 1536-1537 (1970).      The act

of mailing may be proven by documentary evidence of mailing or by

evidence of the Commissioner’s mailing practices corroborated by

direct testimony.    Coleman v. Commissioner, supra at 90.
                                 - 9 -

     In appropriate circumstances Form 3877 is sufficient to show

that a notice of deficiency was sent and delivered.     United

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

Commissioner, supra at 611; Figler v. Commissioner, T.C. Memo.

2005-230.   The Court of Appeals for the Sixth Circuit, the Court

to which an appeal in this case would be heard, has held that

Form 3877 is highly probative evidence that the notice of

deficiency was sent by certified mail and in the absence of

contrary evidence is sufficient to establish that fact.     Wiley v.

United States, 20 F.3d 222 (6th Cir. 1994); Golsen v.

Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445 F.2d 985

(10th Cir. 1971).

     For each of the years at issue, respondent has provided a

Form 3877 as proof of mailing.    A Form 3877 creates a presumption

of mailing absent evidence to the contrary.   Petitioner’s correct

address is noted on the Form 3877 for each year at issue, as is

the date of mailing.   Petitioner has failed to present any

evidence to dispute mailing.   Rather, petitioner has done nothing

but request affirmative proof of mailing from respondent.     The

Form 3877 is sufficient proof.

     On its face, this case appears to be similar to Pietanza v.

Commissioner, 92 T.C. 729 (1989), affd. without published opinion

935 F.2d 1282 (3d Cir. 1991), where we held that the Commissioner

could not rely on Form 3877 to prove mailing where the
                               - 10 -

Commissioner failed to produce the taxpayers’ notice of

deficiency.    In Pietanza, as here, the Commissioner (1) had no

copies of a notice of deficiency, (2) did not establish that a

final notice of deficiency ever existed, and (3) relied on Form

3877.   In that case, however, we held that the taxpayers rebutted

the presumption of mailing created by Form 3877.       Id. at 736.

Communications between the taxpayers and the IRS raised doubts as

to the accuracy of the date of mailing shown on the Form 3877.

Id. at 739.    Petitioner has not presented similar evidence in

this case, and absent any such evidence, this case is clearly

distinguishable from Pietanza.

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

the notice of deficiency will be presumed upon proof of mailing.

Sego v. Commissioner, supra at 611.     Outside of petitioner’s and

his wife’s self-serving testimony denying receipt, petitioner has

failed to provide any evidence that the mailing procedures were

irregular.    Therefore, the presumption of mailing has not been

rebutted, and petitioner was not entitled to contest his

underlying tax liabilities for the years at issue.      See sec.

6330(c)(2)(B).    Because petitioner was not entitled to contest

his underlying tax liabilities, we review respondent’s decision

to proceed with collection for abuse of discretion.

     Petitioner argues that he was improperly denied a face-to-

face hearing for the years at issue.    We disagree.    We have held
                                - 11 -

repeatedly that a hearing conducted under section 6330 is an

informal proceeding, not a formal adjudication.   Generally, there

is no abuse of discretion in the IRS’ refusal of a face-to-face

hearing when a taxpayer fails to present nonfrivolous arguments,

file past-due returns, and submit financial statements as a

prerequisite to a collection alternative.   See Zastrow v.

Commissioner, T.C. Memo. 2010-215; Rice v. Commissioner, T.C.

Memo. 2009-169; Summers v. Commissioner, T.C. Memo. 2006-219.

Therefore, a face-to-face hearing is not mandatory.    Katz v.

Commissioner, 115 T.C. 329, 337-338 (2000); Davis v.

Commissioner, 115 T.C. 35, 41 (2000).

     Outside of petitioner’s argument that he did not receive a

notice of deficiency for the years at issue, he has failed to

present a nonfrivolous issue for dispute throughout his dealings

with respondent or the Court.    In fact, petitioner testified that

he did not file returns for the years at issue because of his

belief that the income tax is “voluntary” and “optional”.    We are

satisfied that a face-to-face hearing would not have been

productive.   Accordingly, we find there has not been an abuse of

discretion, and respondent may proceed with collection for the

years at issue.
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     In reaching these holdings, the Court has considered all

arguments made and, to the extent not mentioned, concludes that

they are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                           Decision will be entered

                                      for respondent.
