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                                                                                [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 17-11216
                              ________________________

                                Agency No. 018437-15 L



ALAN M. BERKUN,

                                                        Petitioner - Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE,

                                                        Respondent - Appellee.

                              ________________________

                        Petition for Review of a Decision of the
                                     U.S. Tax Court
                              ________________________

                                      (May 25, 2018)

Before MARTIN, JORDAN, and WALKER, ∗ Circuit Judges.



∗
 The Honorable John M. Walker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
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JORDAN, Circuit Judge:

      If the Internal Revenue Service intends to levy on a restitution-based

assessment against a taxpayer who is imprisoned, must it provide notice to him at

his prison address? Alan Berkun, who is appealing the tax court’s dismissal of his

petition for review for lack of jurisdiction, believes due process requires such

notice.   Alternatively, he argues that the time period for a taxpayer to appeal a

notice of intent to levy begins to run only when the notice is actually received.

                                          I

      Mr. Berkun pled guilty in 2010 to a number of federal charges, including

filing a false 2004 income tax return. See United States v. Berkun, No. 1:11-cr-214

(E.D.N.Y). The district court sentenced him to 72 months of imprisonment and

ordered him to pay $390,595 in restitution to the Internal Revenue Service.

      In January of 2013, Mr. Berkun sent a handwritten letter to IRS Agent

Laurian Jennings. He provided the IRS his Miami federal prison mailing address

and asked that all notices in reference to his case be sent to him there. On April

15, 2013, Mr. Berkun filed his 2012 tax return, and on April 15, 2014, he filed his

2013 tax return, both from the Federal Correctional Institution in Miami. On both

tax returns he listed his address as 9121 Equus Circle in Boynton Beach, Florida,

where he lived with his girlfriend, Kimberlee Thomas, and their three children

before he went to prison.


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      The IRS assigned Revenue Officer Steven Crimmins to collect the

restitution-based assessment against Mr. Berkun from the false 2004 tax return.

On September 15, 2014, Officer Crimmins learned that Mr. Berkun was still

incarcerated at the Federal Correctional Institute in Miami. That same day, Officer

Crimmins called Mr. Berkun at the prison, but no one answered the phone. Later

that month, Officer Crimmins visited the Equus Circle property, but no one was

there and he left his card. After this visit, Mr. Berkun’s attorney contacted Officer

Crimmins and told him Mr. Berkun was scheduled to be released to a halfway

house some time in November.

      On November 3, 2014, the IRS issued a “Notice of Intent to Levy” (NOIL)

under 26 U.S.C. § 6330 to collect from Mr. Berkun the unpaid restitution

assessment from 2004. The IRS sent this notice by certified U.S. Mail, with return

receipt requested, to Mr. Berkun’s Equus Circle address.           Mr. Berkun had

previously designated Ms. Thomas as a person authorized to inspect, request, and

receive his confidential tax information, and she signed and returned the return

receipt card on behalf of Mr. Berkun. The IRS received the signed card on

November 6, 2014.

      Ms. Thomas informed Officer Crimmins on November 20, 2014, that Mr.

Berkun no longer lived with her at the Equus Circle property. The following day,

Mr. Berkun was released from custody to home confinement in his mother’s home


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in Delray Beach, Florida, because Ms. Thomas said he could longer live with her at

the Equus Circle property.

         Mr. Berkun and Officer Crimmins first spoke on January 5, 2015.         On

January 21, 2015, they met for the first time at the home of Mr. Berkun’s mother.

At this meeting, Officer Crimmins gave Mr. Berkun a number of tax-related

documents, including a copy of the NOIL dated November 3, 2014, and a copy of

the restitution-based assessment accrual with interest, reflecting a balance of

$704,665.25. Mr. Berkun says he first became aware of the NOIL at this meeting

with Officer Crimmins.

         On February 20, 2015, the IRS received Mr. Berkun’s Form 12153,

“Request for a Collection Due Process or Equivalent Hearing,” regarding the

NOIL. When Mr. Berkun filed the form, Officer Crimmins recorded the following

entry:


         Will process and forward [Mr. Berkun’s Form] 12153 to appeals.
         Appeal is timely because the taxpayer received the [NOIL] when I
         hand delivered it on 1/22/15 and the CDP was received on 2/20/2015.
         When the original [NOIL] was mailed it was sent to the address of his
         girlfriend at Equus Circle in Boynton Beach. He was in prison at the
         time and never received it.

Despite Officer Crimmins’ view, the IRS Office of Appeals concluded that Mr.

Berkun’s appeal was untimely. Counting from November 3, 2014, the date the

NOIL issued, the Office of Appeals concluded that Mr. Berkun’s attempt to protest


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the collection action was beyond the statutory 30-day period allowed for a

“Collection Due Process” hearing under 26 U.S.C. § 6330(b)(1). On April 30,

2015, the Office of Appeals, therefore, held a telephonic “equivalent hearing,”

rather than a CDP hearing, with Mr. Berkun to discuss his concerns about the

timing of his receipt of the NOIL and the merits of the levy action. Mr. Berkun

had a second telephonic discussion with a settlement officer from the Office of

Appeals on May 12, 2015.

      The IRS issued its decision letter on June 18, 2015. The decision letter,

which explained the findings of the Office of Appeals following the equivalent

hearing, stated that Mr. Berkun could not petition the tax court for review of the

collection action “unless he could show that [his] due process hearing request was

on time.”

      In July of 2015, Mr. Berkun petitioned the tax court for relief under 26

U.S.C. § 6330(d)(1). The IRS moved to dismiss the petition, arguing that the tax

court lacked jurisdiction because Mr. Berkun did not timely file a Form 12153 in

accordance with 26 U.S.C. § 6330 and 26 C.F.R. § 301.6330-1(i)(1). The tax court

granted the IRS’ motion to dismiss on April 15, 2016. Less than one month later,

Mr. Berkun moved to vacate the dismissal order and submitted a memorandum of

law in support. On December 16, 2016, the tax court denied the motion to vacate.

This petition for review followed.


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                                          II

      We review the tax court’s order of dismissal “in the same manner and to the

same extent as decisions of the district courts in civil actions tried without a jury.”

26 U.S.C. § 7482(a)(1). That means we exercise plenary review as to whether the

tax court correctly dismissed Mr. Berkun’s petition for lack of jurisdiction under

26 U.S.C. § 6330(d)(1). See Creel v. Commissioner, 419 F.3d 1135, 1139 (11th

Cir. 2005). See also Romano–Murphy v. Commissioner, 816 F.3d 707, 714 (11th

Cir. 2016).

                                         III

      Mr. Berkun presents two arguments in support of his position that the tax

court had jurisdiction over his petition for relief. We address each in turn.

                                          A

      Mr. Berkun contends that the IRS failed to comply with constitutional due

process requirements because it did not mail the NOIL to him at his Miami prison

address. He relies on Dusenbery v. United States, 534 U.S. 161, 164-69 (2002), in

which the Supreme Court held that the government satisfied due process by

mailing a notice of forfeiture to a claimant by certified mail to the prison where he

was incarcerated, to the residence where the claimant’s arrest occurred, and to the

home where the claimant’s mother lived. Citing to several unpublished Eleventh

Circuit cases, he says that we have interpreted Dusenberry as requiring the


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government to provide notice to incarcerated individuals at their prison facilities.

See United States v. Simon, 609 F. App’x 1002, 1006 (11th Cir. 2015) (“Notice [of

forfeiture] was sent to and received at the prison where Mr. Simon was

incarcerated, which is sufficient to meet the constitutional requirements for

notice.”); United States v. Williams, 130 F. App’x 301, 302 (11th Cir. 2005) (“The

mailed notices [of forfeiture] were sent to locations where Williams was not

located, a fact the Government should have known since Williams was essentially

in federal custody for the pendency of the forfeiture proceedings.”). He also points

to other circuit cases which have held that, in forfeiture proceedings, due process

requires that notice to prisoners be directed and mailed to them at the facilities

where they are detained. See, e.g., United States v. McGlory, 202 F.3d 664, 672,

674 (3d Cir. 2000) (en banc); Weng v. United States, 137 F.3d 709, 714 (2d Cir.

1998).

      Because the IRS mailed the NOIL to the Equus Circle address rather than to

him in prison, Mr. Berkun contends that he was denied due process of law, and that

the IRS was prohibited from levying his assets until Officer Crimmins personally

served him with the NOIL on January 21, 2015. See 26 U.S.C. § 6330(a)(2)(A)

(stating that one possible method for the required notice is delivery “in person”).

As a result, he continues, the 30-day period for him to request a CDP hearing did

not begin to run until that date, and his Form 12153, filed on February 20, 2015,


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was timely. That means he was entitled to a CDP hearing (the result of which is

reviewable in the tax court) rather than just an equivalent hearing before the IRS

Office of Appeals. See 26 U.S.C. § 6330(b). Mr. Berkun essentially asks that we

treat the equivalent hearing as a CDP hearing, and the IRS decision letter as a

notice of determination, which would give the tax court jurisdiction to review his

petition for relief. See Craig v. C.I.R., 119 T.C. 252, 259 (2002) (treating a

decision letter as a notice of determination where the petitioner timely requested a

CDP hearing).     Under this paradigm, he says, the tax court should not have

dismissed his petition for lack of jurisdiction.

      With respect to the merits of this argument, the IRS responds that Dusenbery

and the other cases cited by Mr. Berkun all address the adequacy of notice to

defendants/claimants in administrative forfeiture actions, not tax collection actions.

The IRS maintains that these forfeiture cases “have no bearing on whether, for

purposes of § 6330, [it] properly mailed the notice of intent to levy to [the]

taxpayer’s last known address.” Br. for the Commissioner at 37.

      According to the IRS, the NOIL was properly sent to Mr. Berkun by

certified mail to his last known address – the Equus Circle address listed on the

2013 tax return, which was filed in April of 2014. See 26 U.S.C. § 6330(a)(2)(C).

The IRS relies on Treasury regulations which state that “a taxpayer’s last known

address is the address that appears on the taxpayer’s most recently filed and


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properly processed Federal tax return.” 26 C.F.R. § 301.6212-2. See also 26

C.F.R. § 301.6330-1(a)(1). Because Mr. Berkun did not file a request for a CDP

hearing within 30 days of November 3, 2014, he was not entitled to such a hearing

or to a notice of determination, and, therefore, had no right to request review by the

tax court. See 26 U.S.C. §§ 6330(b)(1), (d)(1).

      The IRS maintains that it properly conducted an equivalent hearing for Mr.

Berkun, after which it properly sent him a decision letter. The tax court, the IRS

says, correctly recognized that it lacked subject-matter jurisdiction to entertain Mr.

Berkun’s petition because a decision letter issued after an equivalent hearing is not

subject to judicial review. See United States v. Giaimo, 854 F.3d 483, 485 n.2 (8th

Cir. 2017) (“The determination from an equivalent hearing is not a formal ‘Notice

of Determination,’ but rather, is a ‘Decision Letter’ and generally is not judicially

reviewable.”).

      Mr. Berkun’s argument that due process requires the IRS to send NOILs to

incarcerated taxpayers at their prison addresses presents one plausible application

of Dusenbery and its progeny, particularly in a situation like this one where the

incarceration is based in part on a criminal tax offense and the taxpayer has

requested the IRS to send tax correspondence to his place of incarceration. On the

other hand, there is the added wrinkle of Mr. Berkun listing the Equus Circle

property as his address on his 2012 and 2013 tax returns.


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      We leave the due process issue for another day because Mr. Berkun never

raised it in the tax court. He did not assert it in his response to the IRS’ motion to

dismiss or in his motion to vacate. See R. 6 at 1; R. 15 at 2-3. We therefore do not

think it is appropriate for us to address it for the first time on appeal. See Access

Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

                                          B

      Mr. Berkun also advances an argument as to § 6330 based on the legislative

history of the bill which became the IRS Restructuring and Reform Act of 1998.

He asserts that, according to the bill’s conference report, for the purpose of CDP

hearings the Conference Committee was concerned with actual receipt of notices

of deficiency, rather than simply constructive receipt accomplished through

mailing notice to a taxpayer’s last known address. See H.R. Rep. No. (Conf.) 105-

599 at 264-66 (1998); 105 Cong. Rec. 144-53 at S4163 (1998). Building on this

reading of the legislative history,      Mr. Berkun contends that the Treasury

regulations on which the tax court relied in dismissing his petition do not apply if

the taxpayer does not receive the NOIL during the 30-day appeal period.

Alternatively, he argues that if these regulations do apply, they are unreasonable

constructions of the governing statutes and should not receive deference under

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837




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(1984), or they fail as an unreasonable interpretation of the text, structure, and

purpose of the statutes.

      The IRS responds that, as with the due process claim, Mr. Berkun is making

an argument that he failed to properly present in the tax court. On the merits, the

IRS maintains that the tax court correctly based its original order of dismissal on

the language of § 6330, the Treasury regulations, and precedent. And it concurs

with the tax court’s comment that Mr. Berkun’s legislative history theory “raises

more questions than it answers.” R. 20 at 1.

      We agree with the IRS that Mr. Berkun did not properly preserve his

legislative history argument in the tax court because he first presented it in his

motion to vacate the order of dismissal. Tax Court Rule 162 permits a party to

move to vacate a decision of the tax court in certain circumstances, such as when

“(1) the decision is shown to be void or a legal nullity for lack of jurisdiction over

either the subject matter or a party; (2) there has been fraud on the court; or (3) the

decision was based on mutual mistake.” Davenport Recycling Assocs. v. Comm’r,

220 F.3d 1255, 1259 (11th Cir. 2000). But a party “waive[s] [an] argument by first

including it in a motion under Tax Court Rule 162.” Johnson v. Comm’r, 289 F.3d

452, 455 (7th Cir. 2002). Because Mr. Berkun failed to raise the legislative history

argument in his response to the motion to dismiss, the tax court was within its

discretion to deny Mr. Berkun’s motion to vacate, and we have no occasion to


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address the argument ourselves. See generally O’Neal v. Kennamer, 958 F.2d

1044, 1047 (11th Cir. 1992) (holding that motions to vacate or amend a judgment

“should not be used to raise arguments which could, and should, have been made

before the judgment was issued”); Mays v. United States Postal Service, 122 F.3d

43, 46 (11th Cir. 1997) (holding that a motion to reconsider should not be used to

set forth new theories of law).

                                           IV

      We do not reach the due process or legislative history arguments because

Mr. Berkun did not properly raise them in the tax court. Given the lack of any

substantive ruling on our part, this may seem like an opinion “about nothing.” Cf.

Seinfeld: The Pitch (NBC television broadcast Sept. 16, 1992). And maybe it is.

But we have chosen to publish it because the issues that Mr. Berkun attempts to

raise on appeal may deserve attention from the bench and bar.

      Mr. Berkun’s petition is denied.

      PETITION DENIED.




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