UNITED STATES TAX COURT



  ALAN LEE AND DEBI MARIE KUYKENDALL, Petitioners v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 16232-06L.        Filed September 25, 2007.



     R mailed a notice of deficiency to Ps’ last known
address, but Ps did not receive it because they had
moved. During a subsequent examination of their 2000
return, Ps were informed that a notice of deficiency
for 1999 had been sent to them. At Ps’ request, the
examiner faxed a copy of the 1999 notice of deficiency
to them that day, when only 12 days remained in the 90-
day period within which to petition this Court. Ps did
not petition this Court. R then issued a final notice
of intent to levy with respect to 1999. In response,
Ps requested a sec. 6330, I.R.C., hearing. R’s Appeals
Office determined that Ps had an opportunity to
petition this Court for review, and therefore they
could not contest the underlying tax liability. Ps now
seek to challenge the underlying tax liability before
this Court.

     Held: Under sec. 301.6330-1(e)(3), Q&A-E2,
Proced. & Admin. Regs., 12 days was insufficient time
to allow Ps to petition this Court for redetermination
                                    -2-

        of a notice of deficiency. Therefore, Ps were not
        barred from contesting the underlying tax liability at
        their sec. 6330, I.R.C., hearing.



        Alan Lee and Debi Marie Kuykendall, pro sese.

        Emily Giometti, for respondent.



                                  OPINION

        HAINES, Judge:    This case is before the Court on

respondent’s motion for summary judgment filed pursuant to Rule

121.1       Respondent’s motion argues that petitioners were

statutorily barred from challenging the existence or amount of

the underlying tax liability in their section 6330 hearing

because they received a notice of deficiency, and therefore, they

are barred from challenging the liability before this Court.

                                Background

        Petitioners, Alan Lee and Debi Marie Kuykendall (husband and

wife) resided in Middletown, California, at the time the petition

was filed.

        Ms. Kuykendall was primarily employed as an accountant and

bookkeeper.       She also worked part time as a shift lead supervisor

at a restaurant.       On February 28, 2002, while working at the



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

restaurant, Ms. Kuykendall was assaulted and robbed at gunpoint.

She suffered from severe physical and psychological difficulties

as a result of the assault.   She was subsequently diagnosed with

posttraumatic stress disorder.

     Mr. Kuykendall worked as a property manager until he began

experiencing medical problems in 2002.   He was diagnosed with

postpolio syndrome, a debilitating set of physiological changes

in the nervous system, which results in extreme weakness,

fatigue, and pain, among other symptoms.    Mr. Kuykendall became

unable to work and suffered from very poor short term memory.

     In a letter dated April 29, 2002, respondent notified

petitioners that their 1999 Federal income tax return had been

selected for review.    On May 23, 2002, Ms. Kuykendall requested

that respondent delay the examination because of her medical

difficulties.   Respondent’s examiner denied the request.    On July

10, 2002, respondent sent petitioners an audit report showing the

changes made to petitioners’ 1999 return.   Petitioners were

allowed until September 3, 2002, to submit documents pertaining

to their 1999 return.   Petitioners did not respond.

     On May 1, 2003, respondent issued a notice of deficiency to

petitioners’ last known address determining a tax deficiency of

$4,591 for 1999.   In the notice of deficiency, respondent

disallowed petitioners’ unreimbursed employee business expenses

claimed on Schedule A, Itemized Deductions, of $18,169, and
                                 -4-

certain Schedule C, Profit or Loss From Business, expenses,

totaling $8,063.

     On July 18, 2003, Ms. Kuykendall called respondent’s

examiner regarding a letter she had received related to

petitioners’ 2000 tax year.    During the conversation, Ms.

Kuykendall was informed that a notice of deficiency for 1999 had

been mailed to them.    Ms. Kuykendall informed respondent that

petitioners had moved and that they did not receive the notice of

deficiency.    At Ms. Kuykendall’s request, the examiner faxed a

copy of the notice of deficiency to petitioners that day.     With

respect to the notice of deficiency, petitioners did not file a

petition with this Court.

     On February 14, 2004, respondent sent petitioners a Final

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

for 1999.   On March 7, 2004, petitioners submitted a Form 12153,

Request for a Collection Due Process Hearing.    In their request

for relief, petitioners disputed the underlying tax liability by

asserting that the disallowed business expenses were valid.    They

also disputed the examiner’s decision not to postpone the

examination.   On May 6, 2004, respondent’s Appeals Office sent a

letter to petitioners, offering them a hearing.    On May 19, 2004,

Ms. Kuykendall sent a letter to respondent’s Appeals Office,

accompanied by several documents relating to the disallowed

business deductions.
                                -5-

     On August 17, 2004, Appeals Officer Terrence Riddle

conducted a face-to-face hearing with Ms. Kuykendall.     At the

hearing, petitioners sought to challenge the underlying tax

liability by providing documentation to substantiate the

disallowed deductions.   Officer Riddle determined that

petitioners could not properly challenge the underlying tax

liability at the hearing because they previously had the

opportunity to petition this Court for review of the deficiency.

As to the examiner’s decision not to postpone the audit, Officer

Riddle determined that petitioners were allowed a reasonable

amount of time in which to respond to the audit report.

     On July 20, 2006, respondent issued a notice of

determination sustaining the proposed collection action for 1999.

Petitioners timely filed a petition with this Court.    In the

petition, they sought to challenge the underlying tax liability

by asserting that the disallowed deductions were valid.

Petitioners also challenged respondent’s failure to postpone the

examination of their 1999 return.

     On June 19, 2007, respondent filed a motion for summary

judgment on all issues in the case.   On July 27, 2007,

petitioners filed their response.

                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   Fla. Peach Corp. v.
                                  -6-

Commissioner, 

, 681 (1988).     The Court may grant

summary judgment when there is no genuine issue of material fact

and a decision may be rendered as a matter of law.     Rule 121(b);

Sundstrand Corp. v. Commissioner, 

, 520 (1992), affd.

(7th Cir. 1994); Zaentz v. Commissioner, 

,

754 (1988).    The moving party bears the burden of proving that

there is no genuine issue of material fact.     Dahlstrom v.

Commissioner, 

, 821 (1985); Naftel v. Commissioner, 

, 529 (1985).     The Court will view any factual material

and inferences in the light most favorable to the nonmoving

party.   Dahlstrom v. 

at 821; Naftel v.

at 529.

     Before the Commissioner may levy on any property or property

right, the taxpayer must be provided written notice of the right

to request a hearing during the 30-day period before the first

levy.    Sec. 6330(a).   If the taxpayer requests a hearing, an

Appeals officer of the Commissioner must hold the hearing.       Sec.

6330(b)(1).    At the hearing, the taxpayer may raise any relevant

issue relating to the unpaid tax or the proposed levy, including

appropriate spousal defenses, challenges to the appropriateness

of collection actions, and offers of collection alternatives.

Sec. 6330(c)(2)(A).

     Section 6330(c)(2)(B) limits the taxpayer’s ability to

challenge the underlying tax liability during the hearing.
                                -7-

Specifically, the taxpayer may “raise at the hearing challenges

to the existence or amount of the underlying tax liability for

any tax period if the person did not receive any statutory notice

of deficiency for such tax liability or did not otherwise have an

opportunity to dispute such tax liability.”   

a statutory notice of deficiency for this

purpose means receipt in time to petition the Tax Court for a

redetermination of the deficiency asserted in the notice of

deficiency.”   Sec. 301.6330-1(e)(3), Q&A-E2, Proced. & Admin.

Regs. Therefore, section 6330(c)(2)(B) contemplates actual

receipt by the taxpayer.2   Tatum v. Commissioner, T.C. Memo.

2003-115.

     We have not previously addressed the issue of how much time

is required under section 301.6330-1(e)(3), Q&A-E2, Proced. &

Admin. Regs., for a taxpayer to petition this Court for

redetermination of a deficiency.   However, we have addressed

similar questions in determining whether a taxpayer who failed to

file a timely petition with this Court was prejudiced by an

improperly addressed notice.   Our decisions in those cases inform

our analysis of the current issue.


     2
      If, however, the notice of deficiency was not received
because the taxpayers deliberately refused delivery, they may not
seek to challenge the underlying tax liability at a sec. 6330
hearing or before this Court. Sego v. Commissioner, 

, 611 (2000). Respondent does not argue, nor would we find,
that petitioners deliberately refused delivery of the notice of
deficiency.
                                  -8-

     The jurisdiction of this Court is dependent on the timely

filing of a petition.   Rule 13(c).     In a deficiency suit, a

taxpayer is generally given 90 days from the issuance of a notice

of deficiency to petition this Court for review.      Sec. 6213(a).

However, we have jurisdiction to decide whether a taxpayer had

insufficient time to properly file a petition because he was

prejudiced by an improperly addressed notice.      Looper v.

Commissioner, 

, 699 (1980).

     In general, we have held that when a notice of deficiency is

actually received by the taxpayer with at least 30 days remaining

in the filing period, the taxpayer had sufficient time to

petition this Court for review.    See, e.g., Mulvania v.

Commissioner, 

, 67-69 (1983) (74 days remaining);

Masino v. Commissioner, T.C. Memo. 1998-118 (69 days remaining);

Fileff v. Commissioner, T.C. Memo. 1990-452 (60 days remaining);

George v. Commissioner, T.C. Memo. 1990-147 (52 days remaining);

Bulakites v. Commissioner, T.C. Memo. 1998-256 (45 days

remaining); Loftin v. Commissioner, T.C. Memo. 1986-322 (30 days

remaining); Eger v. Commissioner, T.C. Memo. 1984-325 (30 days

remaining).

     However, when a notice was received with only 17 days

remaining in the filing period, we held that the taxpayer had

insufficient time to petition this Court.      Looper v.

at 699.   Similarly, the Court of Appeals for
                                -9-

the Eleventh Circuit held as a matter of law that receipt of a

notice of deficiency with only 8 days remaining in the filing

period was insufficient to permit the timely filing of a

petition.   Sicker v. Commissioner, 

(11th Cir.

1987).

     In this case, petitioners received the notice of deficiency

with 12 days remaining to petition this Court.    Petitioners did

not deliberately avoid receipt of the notice.    In fact, upon

realizing that they did not receive it, petitioners asked

respondent’s examiner to fax it to them immediately.    Since

petitioners received the notice of intent to levy, Ms. Kuykendall

has diligently sought to dispute the underlying tax liability by

requesting a section 6330 hearing and providing respondent’s

Appeals officer documentation supporting the disallowed

deductions.

     Applying the standards set forth in Mulvania v.

, and Looper v. 

, to

section 301.6330-1(e)(3), Q&A-E2, Proced. & Admin. Regs., we hold

that 12 days was insufficient time for petitioners to petition

this Court for redetermination of the notice of deficiency.

Therefore, petitioners were entitled to challenge the existence

or the amount of the underlying tax liability during their

section 6330 hearing.
                                 -10-

     By setting forth specific facts, petitioners have shown

there is a genuine issue of material fact as to whether the

deductions disallowed by the notice of deficiency should be

allowed.   See Rule 121(d).   We shall, therefore, deny

respondent’s motion for summary judgment and remand the case to

respondent’s Appeals Office for further proceedings consistent

with this Opinion.

     To reflect the foregoing,

                                             An appropriate order will

                                        be issued.