Decision will be entered for respondent.
P did not file his 2009 income tax return. R prepared a return and assessed the tax and additions to tax computed by him to be due from P. To collect, R filed a Federal tax lien. P requested a CDP hearing, at the conclusion of which R issued a notice of determination. P petitioned this Court for review. The case was remanded to R for further consideration. R conducted a supplemental CDP hearing and issued a supplemental notice of determination.
LARO,
We must decide three issues in this case. The first is whether respondent properly issued a notice of deficiency to petitioner; we hold that he did. The second is whether petitioner properly raised the issue of his underlying tax liability during the CDP hearing; we find that he did not. The third is whether the Internal Revenue Service (IRS) Office of Appeals settlement officer (SO) who conducted petitioner's initial and supplemental CDP hearings abused her discretion in *217 sustaining the filing of the Federal tax lien for the 2009 taxable year; we find that she did not.
The parties submitted this case fully stipulated under
With respect to petitioner's 2009 taxable year, respondent received a Form 1099-DIV, Dividends and Distributions, and Forms 1099-B, Proceeds From Broker and Barter Exchange Transactions, from TD Ameritrade Clearing, Inc. Respondent also received a Form 1099-INT, Interest Income, from Zone 3 Collision Center, LLC, and Forms 1099-MISC, Miscellaneous Income, from PCS Acquisition Sub, LLC, and Gilbarco, Inc.
Petitioner for the 2009 taxable year made two estimated tax payments of $4,100 each, on April 17 and June 22, 2009. Respondent's account transcript for petitioner for that year shows that pursuant to an extension of time to file, his *218 income tax return was due on October 15, 2010. He never filed a return. Indeed, petitioner has not filed a tax return for any of the taxable years 2006 through 2011.
Using the information provided in the Forms 1099, respondent on June 27,2017 Tax Ct. Memo LEXIS 215">*217 2011, prepared a substitute for return for petitioner's 2009 taxable year. Respondent generated a Letter 2566, Proposed Individual Income Tax Assessment, dated that same day, computing net tax due of $86,651 ($94,851 minus $8,200 for estimated tax payments made), total interest of $5,322.81, a failure-to-file addition to tax of $19,496.47, a failure-to-pay addition to tax of $6,498.82, and a $2,052.59 addition to tax for failure to pay estimated income tax.2 The Letter 2566 advised petitioner that if he did not file his 2009 tax return within 30 days, respondent would assess the amounts shown. The record does not indicate whether the Letter 2566 was mailed to petitioner. The only relevant entry in respondent's account transcript for petitioner's 2009 taxable year indicates that respondent prepared the substitute for return on July 11, 2011. The discrepancy in the dates remains unexplained.
*219 According to respondent's ASFR TDI record for petitioner and the account transcript for petitioner's 2009 taxable year, a statutory notice of deficiency was issued on September 20, 2011. There is no photocopy of the actual notice of deficiency purportedly sent to petitioner. In the record before this2017 Tax Ct. Memo LEXIS 215">*218 Court, there are two reprints of the notice, one reprinted on February 12, 2015, and the other on August 14, 2015. The reprints are identical in almost all respects. They are dated October 3, 2011, and show a deficiency of $94,851, along with a
Petitioner did not petition this Court for redetermination of any amounts indicated in the notice of deficiency. On February 7, 2012, respondent closed the tax determination. On February 27, 2012, respondent assessed tax due of $94,851, a failure-to-file addition to tax of $19,496.47, a failure-to-pay addition to tax of $9,964.86, an addition to tax of $2,052.59 for failure to pay estimated income tax, and interest of $7,083.93 and, according to the account transcript for petitioner's 2009 taxable year, issued a corresponding notice to petitioner.
Petitioner did not pay the assessed liability. On November 1, 2012, respondent issued a Letter 1058, Final Notice: Notice of Intent to Levy and Notice of Your Right to a Hearing (FNIL). The FNIL showed that petitioner owed $133,124.72 and informed him of his right to request a CDP hearing with the IRS Office of Appeals within 30 days of the FNIL's date. The FNIL was mailed in an envelope addressed to petitioner at his present address (the same address as that indicated on the reprinted notices of deficiency),2017 Tax Ct. Memo LEXIS 215">*220 was postmarked November 6, 2012, and bore the tracking number 7011 0470 0003 0295 5961. The envelope *221 was returned to respondent unclaimed on December 4, 2012. Petitioner has not contested the FNIL in this case, and we need address it no further.
On November 9, 2012, a lien was placed on petitioner's assets because of the balance owed on his account. On November 13, 2012, respondent issued the NFTL to petitioner. The NFTL indicated that the amount of the lien was $125,248.85 and informed petitioner of his right to request a CDP hearing by December 21, 2012, to appeal the collection action and discuss payment method options. The NFTL was addressed to petitioner at his current address and was sent by certified mail.
Petitioner timely submitted a Form 12153, Request for a Collection Due Process or Equivalent Hearing, signed and dated by him on December 19, 2012; respondent received the form on January 3, 2013. Petitioner checked the box on the form indicating that he was challenging the NFTL and requested withdrawal of the lien. He also requested a face-to-face CDP hearing, the audio of which he would record. Petitioner proposed to discuss at the hearing:2017 Tax Ct. Memo LEXIS 215">*221 (1) whether respondent followed proper procedures; (2) his belief that he is not liable for the assessed tax; (3) his belief that he should not be held liable for any penalties; (4) a challenge to the underlying liability, which he claimed he did not have the chance *222 to contest earlier; and (5) collection alternatives. The return address on the envelope in which the Form 12153 arrived was petitioner's current address.
Petitioner's case was assigned to IRS Office of Appeals SO Liana A. White in Houston, Texas. In her initial review on March 28, 2013, SO White surveyed the matter and determined that petitioner did not qualify for a face-to-face hearing because he was not current with his Federal tax return filings.
On April 3, 2013, SO White sent a letter to petitioner scheduling a telephone conference call with him for May 1, 2013, to discuss his case. The letter informed petitioner that the IRS Office of Appeals could consider the underlying tax liability, but only if he did not otherwise have an opportunity to dispute it with the Office of Appeals or did not receive a statutory notice of deficiency. The letter further notified him that for SO White to2017 Tax Ct. Memo LEXIS 215">*222 consider alternative collection methods, petitioner should submit before the conference a Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, and certain supporting documentation, along with signed tax returns for the 2006, 2007, 2008, 2010, and 2011 taxable years and proof of estimated tax payments for the 2012 taxable year and the first quarter of 2013. The letter also explained that SO White did not recall having any prior involvement with petitioner's tax periods *223 at issue and that the CDP hearing would determine whether respondent met all the requirements of any applicable law or administrative procedure.
Petitioner responded to SO White by letter dated April 29, 2013, reiterating his request for a face-to-face hearing and noting that the scheduled May 1, 2013, telephone call was not convenient for him. He also stated that he did not receive a deficiency notice for the 2009 taxable year and did not have a previous opportunity to challenge the tax liability. Petitioner went on: "Although I am challenging the liability of the tax, if I do owe the alleged tax and you can provide substantial proof that I do, I would be more than happy to discuss2017 Tax Ct. Memo LEXIS 215">*223 collection alternatives such as installment payments and/or offer and compromise." Petitioner declined to provide the information requested by SO White because he believed each tax year to be separate from the others and wanted to concentrate on 2009 alone.
Petitioner did not call SO White at the scheduled time. By letter dated May 2, 2013, SO White explained that petitioner was not entitled to a face-to-face hearing because he was not in compliance with his filing obligations. SO White reiterated her request that petitioner provide the Form 433-A and supporting documentation as well as any delinquent or corrected tax returns by May 15, 2013. SO White received petitioner's April 29, 2013, letter on May 3, 2013. *224 By letter dated May 31, 2013, petitioner repeated his request for a face-to-face hearing. He also requested a copy of the documents that respondent used to arrive at the numbers on which the tax assessment was based.
In a letter dated June 19, 2013, SO White informed petitioner that that letter was his final opportunity to challenge his liability for the 2009 taxable year. She again requested that he provide the delinquent tax returns and informed him that it was his last opportunity2017 Tax Ct. Memo LEXIS 215">*224 to request a collection alternative. SO White reiterated that because of petitioner's nonfiling and failure to submit financial information, she could not grant him a face-to-face hearing. She also noted that she was available by phone to discuss petitioner's case. She offered to process a corrected 2009 individual income tax return if petitioner disagreed with the amount owed. SO White then included the following text in bold type: Please send the delinquent Individual Income tax returns for 2006, 2007, 2008, 2009, 2010 and 2011. If you do not agree with the figures for 2009 please submit a corrected return. I have ordered the tax return for 2009 to verify that a Notice of Deficiency was issued to you at your current address. I show this is a good address for you in 2011 when the Notice of deficiency was sent to you per the Services records. Please provide the Form 433-A with all supporting documentation by 7/1/2013. The compliance function followed all legal and procedural requirements regarding the filing of the Notice of Federal Tax lien therefore if I do not receive the requested information by 7/1/2013 I will have no other choice but to issue you a Determination letter sustaining2017 Tax Ct. Memo LEXIS 215">*225 the lien filing.
By letter dated July 18, 2013, petitioner restated his request for a face-toface hearing. He also noted that he did not receive a statutory notice of deficiency for the 2009 taxable year and did not have an opportunity to challenge the tax liability. Petitioner again requested that SO White provide him with substantial proof of his underlying tax liability.
On July 26, 2013, SO White noted in respondent's case activity record that petitioner had failed to submit financial information and delinquent or corrected tax returns. Although she could not obtain a copy of the notice of deficiency, she observed that transcripts showed that it was sent. She added that petitioner was given the opportunity to provide corrected returns and failed to do so and that it appeared to her that he "picks and chooses what he will accept since the L 1058 [the FNIL] went unclaimed to his address of record but received the 3172 [the NFTL] and filed a 12153 [request for a CDP hearing]."
On August 30, 2013, respondent2017 Tax Ct. Memo LEXIS 215">*226 issued a Notice of Determination Concerning Collection Action(s) Under
Petitioner had 30 days to file a petition contesting respondent's determination.
On August 19, 2015, respondent moved to remand this case to the Office of Appeals to allow the SO to supplement the administrative file to verify that the notice of deficiency was issued properly by respondent and to allow petitioner an additional opportunity to2017 Tax Ct. Memo LEXIS 215">*228 submit an amended return for the 2009 taxable year or a statement of his position on the amount of his income tax liability for that year. On August 26, 2015, this Court granted respondent's unopposed motion and remanded the case to the Office of Appeals to allow it to further consider and verify the underlying liability and the mailing of notices.
By letter dated September 30, 2015, SO White informed petitioner that the Office of Appeals had scheduled a face-to-face supplemental CDP hearing on *228 November 12, 2015. The letter notified petitioner that records showed that he had been provided with a copy of the deficiency notice and supporting documentation and that he should be prepared at the face-to-face hearing to provide documentation to support any income and expenses in dispute or not previously considered. SO White requested that petitioner provide these documents to the Office of Appeals by November 2, 2015. SO White encouraged petitioner to prepare an income tax return and applicable schedules for the 2009 taxable year. She indicated that the discussion of collection alternatives would be predicated upon petitioner's compliance with income tax return filing requirements, including2017 Tax Ct. Memo LEXIS 215">*229 submitting tax returns for the 2006 through 2014 taxable years.
When petitioner did not respond to SO White's letter, she performed an internet search and found a telephone number for him. She called him on November 11, 2015, to advise him about the scheduled face-to-face hearing. During the telephone call petitioner told SO White that he was not aware of the hearing and had been hospitalized for 10 days. Petitioner informed SO White that he would not commit to a rescheduled hearing date and requested a letter with a date and time. Accordingly, by letter dated November 13, 2015, SO White rescheduled the hearing for December 2, 2015, and reiterated that petitioner *229 should be prepared to provide documentation to support any income and expenses in dispute or not previously considered.
By letter dated November 30, 2015, and sent to the Office of Appeals by facsimile on the following day, petitioner explained his delay in responding to SO White was by reason of his own hospitalization, followed by family medical emergencies and bereavement. He requested that SO White continue investigating the IRS records and mail him the results of the investigation. Petitioner expressed his belief that2017 Tax Ct. Memo LEXIS 215">*230 a face-to-face hearing would not be productive until he received proof that the IRS had created the notice of deficiency and mailed it to him.
Petitioner did not appear for the scheduled supplemental CDP hearing on December 2, 2015. By letter dated December 3, 2015, SO White informed him that the 2009 deficiency notice was provided to him by respondent's counsel but that she was sending another copy of the documents he had requested. SO White rescheduled the face-to-face supplemental CDP hearing to January 7, 2016, and requested that petitioner provide by December 29, 2015, documentation supporting any income and expenses in dispute and not previously considered.
By letter dated December 30, 2015, petitioner refused to appear for the rescheduled hearing, stating that when he received the copy of the deficiency notice that SO White mailed with her previous letter, it was the first time he had *230 seen the document. Petitioner reiterated his belief that the IRS had never created the notice or mailed it to him. He further asserted that the copies of the notice that SO White provided to him were incomplete and had been saved on the Government's computers and never actually printed. He noted2017 Tax Ct. Memo LEXIS 215">*231 that the USPS did not show any tracking information for the tracking number indicated on the reprinted notice of deficiency.3 Accordingly, because of his belief that the IRS never created or sent him a deficiency notice for the 2009 taxable year, petitioner requested abatement of tax and additions to tax without a face-to-face hearing.
On February 5, 2016, respondent issued a Supplemental Notice of Determination Concerning Collection Action(s) Under
The Secretary has collection authority over taxes imposed by the Code.
A taxpayer must be notified in writing of the filing of a notice of lien under
Within 30 days of a CDP determination by the IRS Office of Appeals, a taxpayer may petition this Court for review of that determination.
The threshold question in this case is one over which the parties' dispute is the most vociferous: whether respondent created and mailed to petitioner the notice of deficiency upon which respondent's tax assessments and proposed collection action are based.
The Commissioner bears the burden of proving by competent and persuasive evidence that he properly mailed the notice of deficiency.
Petitioner argues that before the Commissioner can assess or collect a tax deficiency, he must send a notice of deficiency to the taxpayer by certified or registered mail.
Citing
Notwithstanding respondent's disorganized recordkeeping2017 Tax Ct. Memo LEXIS 215">*239 as to the tax account for petitioner for 2009, we find that respondent has carried his burden of proving that he mailed a deficiency notice to petitioner.
The account transcript for petitioner's 2009 taxable year and respondent's ASFR TDI record both show that a statutory notice of deficiency was generated on September 20, 2011. Respondent has also provided two reprints of the deficiency notice, each dated October 3, 2011. These reprints show petitioner's address, which was his last known address at that time and is the address he uses presently. Respondent further has provided a Form 3877 showing that an item was mailed to petitioner on October 3, 2011, which is the date shown on the reprinted notice of deficiency, and bearing a Detroit, Michigan, USPS postmark dated that same day.
The situation with the tracking numbers, of which there are three as noted in the background summary above, admittedly is peculiar. However, the similarity of the numbers suggests that the differences are the result of carelessness or a computer error rather than a bumbling coverup on respondent's part, as petitioner seems to suggest. The three tracking numbers are as follows, with the identical digits aligned2017 Tax Ct. Memo LEXIS 215">*240 vertically:
Reprinted deficiency notices | 00 7161 7618 3633 7915 92 |
Handwritten on one of the reprints | 7161 7618 3633 7915 92 |
Form 3877 | 7161 7618 3633 7915 9245 |
*239 We agree with respondent that the similarity among these numbers is not coincidental. The confluence of the date of record entries and the reprinted notice of deficiency, the close similarity of the tracking numbers, and the lack of any other correspondence around the same time from respondent to petitioner suggest that the document that was mailed on October 3, 2011, as evidenced by the Form 3877, was indeed the notice of deficiency.
But there is more evidence persuading us that respondent did mail the notice of deficiency. Respondent closed the tax determination on February 7, 2012, and assessed the tax due and additions to tax on February 27, 2012. The last date indicated on the reprinted deficiency notice for petitioner to file a petition with this Court was January 3, 2012. The timing of respondent's assessment of tax against petitioner coincides with the expiration of the 90-day window to petition this Court for redetermination of the determination in the notice of deficiency.
We do not think the purported inconsistencies pointed out by petitioner to be relevant or significant. We have already addressed the mismatch among the tracking numbers on the reprinted deficiency notice and the Form 3877. It is not significant that the deficiency notice listed a Holtsville, New York, address at2017 Tax Ct. Memo LEXIS 215">*242 its top but was mailed from Detroit, Michigan; IRS operations are national in scope, and documents can be prepared in one location and printed in another or mailed between locations before being sent to the taxpayer. Petitioner's argument about whether the notice included a statement showing how the deficiency was computed is not relevant because it has no bearing on whether the notice was *241 mailed. As to the Form 3877, respondent admitted that it was not complete, but taken together with all the other evidence it is sufficient to show that the notice of deficiency was mailed. Finally, petitioner's contention that the absence of his name from the reprinted notice means that it could not have been delivered to him is inapposite; there is no evidence on whether the original notice included his name and whether it was mailed in an opaque envelope or one with a window.
Considering all the evidence before us, we conclude that respondent mailed a notice of deficiency to petitioner.
We have found that respondent mailed a notice of deficiency to petitioner, and so the assessment of income tax and additions to tax against2017 Tax Ct. Memo LEXIS 215">*243 him is valid.
Respondent admits that petitioner stated in his request for a CDP hearing that he does not believe that he owes the underlying tax liability. However, respondent argues that petitioner is precluded from disputing the underlying tax liability because he failed to raise properly the merits of that liability as an issue during the CDP hearing.
We have already determined that respondent did mail a notice of deficiency to petitioner. But it is also true that because petitioner did not receive the notice, he was entitled to raise the issue of the underlying liability at his CDP hearing.
It is insufficient for a taxpayer simply to state to the Office of Appeals that he is challenging the underlying tax liability in a CDP hearing. He must also *244 present some evidence with respect to that issue. In seeking Tax Court review of a Notice of Determination, the taxpayer can only ask the court to consider an issue, including a challenge to the underlying tax liability, that was properly raised in the taxpayer's CDP hearing. An issue is not properly raised if the taxpayer fails to request consideration of the issue by Appeals, or if consideration is requested but the taxpayer fails to present to Appeals any evidence with respect to that issue after2017 Tax Ct. Memo LEXIS 215">*246 being given a reasonable opportunity to present such evidence.
SO White afforded petitioner a more than reasonable opportunity to present evidence relating to his underlying tax liability. A taxpayer may not claim to *245 challenge the underlying tax liability in a CDP hearing and then refuse to cooperate with the Office of Appeals in attempting to establish that liability. In previous cases, we have found against taxpayers where they stated that they were challenging2017 Tax Ct. Memo LEXIS 215">*247 the underlying tax liability in a CDP hearing but failed to provide to the Office of Appeals any evidence on that issue.
Because petitioner's underlying tax liability is not properly at issue, we review respondent's decision for abuse of discretion only.
Petitioner asserts that SO White's determination that the requirements of any applicable law or administrative procedure had been met in his case rested on erroneous findings of fact. Petitioner argues that the copy of the deficiency notice provided by the Government does not include his name and is incomplete because it does not show how the deficiency was computed, nor does it include an explanation of the adjustments. Petitioner also points out the discrepancy among the tracking numbers in respondent's records. Thus, petitioner would have us hold that SO White abused her discretion in neglecting to verify the valid issuance of a notice of deficiency and its proper mailing. Petitioner maintains that SO White should not have concluded that a valid deficiency notice was sent to him and thus should have determined not to proceed with the collection action.
Respondent maintains that SO White did not abuse her discretion. First, respondent argues that SO White verified that a valid notice of deficiency was sent to petitioner at his last known address,
We agree with respondent that there was no abuse of discretion in sustaining the Federal tax lien filing for the 2009 taxable year. Respondent's case activity record shows that SO White documented her review of petitioner's case and her correspondence and conversation with petitioner. The evidence and the notice of determination itself demonstrate that SO White (1) properly verified that the requirements of any applicable law or administrative procedure were met, (2) considered all relevant issues raised by petitioner, and (3) considered whether the proposed collection action balanced the2017 Tax Ct. Memo LEXIS 215">*250 need for efficient collection of taxes with petitioner's legitimate concern that the action be no more intrusive than necessary.
We also are not persuaded by petitioner's arguments that the absence of his name from the reprinted notice of deficiency makes it invalid, as does the absence of computations of the deficiency and an explanation of the adjustments. The reprinted notice of deficiency is a computer-generated copy, not a photocopy of the original notice. At any rate, the Form 3877, the tracking number on which, we have found, correlates with that on the notice of deficiency, does include petitioner's correct name and address. Further, we cannot accept petitioner's argument that the notice of deficiency was mailed in an envelope with a window for2017 Tax Ct. Memo LEXIS 215">*251 the address as opposed to a fully opaque envelope. There is no evidence in the record about the types of envelope in which respondent mails notices. And surely petitioner could not claim to have specific knowledge that the notice of deficiency for the 2009 taxable year was placed in a windowed envelope, because that would discredit his position that he never received the notice. *249 As far as the absence of deficiency computations and an explanation of adjustments made, the reprinted deficiency notice indeed does not include these, although we note that it includes the following line: "The enclosed statement shows how we figured the deficiency." The record before us includes a copy of the proposed individual income tax assessment dated June 27, 2011, which does explain respondent's computations of petitioner's income tax deficiency and additions to tax. The record does not show whether this document was mailed to petitioner; however, because it was entered into the record in this case before it was remanded, petitioner did have actual notice at the supplemental CDP hearing of respondent's computation of his tax liability.
Even if the notice of deficiency had been mailed without an explanation2017 Tax Ct. Memo LEXIS 215">*252 of respondent's computation of petitioner's deficiency and additions to tax, this does not invalidate it.
Furthermore, there generally is no abuse of discretion in an SO's refusal to grant a face-to-face hearing during CDP proceedings where the taxpayer fails to provide requested financial information and delinquent tax returns.
There also was no abuse of discretion in respondent's determination that petitioner is not entitled to a collection alternative, because petitioner did not provide a completed Form 433-A or supporting financial information, nor was he in compliance with Federal tax laws, having not filed income tax returns for the 2006 through 2014 taxable years.
On the basis of the record in this case, we can find no defect in respondent's determination to sustain the filing of the Federal tax lien. SO White and the IRS Office of Appeals did not act arbitrarily, capriciously, or without sound basis in fact or law.
We have determined that respondent properly mailed a notice of deficiency to petitioner. We also found that petitioner failed to properly raise the issue of his underlying tax liability during the CDP hearing. And, finally, we concluded that the IRS Office of Appeals did not abuse its discretion in sustaining the filing of the Federal tax lien for the 2009 taxable year.
If petitioner believes that he does not owe the tax assessed by respondent2017 Tax Ct. Memo LEXIS 215">*255 and is able and willing to provide competent evidence to that effect, he may pay the full amount assessed and submit a claim for refund or credit.
We have considered all of the parties' arguments, and to the extent not discussed above, conclude that those arguments are irrelevant, moot, or without merit.
*253 To reflect the foregoing,
1. Unless otherwise indicated, section references are to the Internal Revenue Code (Code) in effect at all relevant times. Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. Respondent's Automated Substitute for Return (ASFR) taxpayer delinquency investigation (TDI) record for petitioner shows that the letter package was created on June 14, 2011.↩
3. Deborah L. Ross, an IRS Office of Appeals team manager, contacted the USPS on January 22, 2016, and was informed that tracking numbers are active for 60 days, archived for up to two years, and then recycled.↩