UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ERNEST D. PORTWINE, 

 Petitioner - Appellant, 

v. 

COMMISSIONER OF INTERNAL 

REVENUE, 

 Respondent - Appellee. 

No. 15-9004 

(CIR No. 7383-13 L) 

(Commissioner of Internal Revenue) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HOLMES, BALDOCK, and MORITZ, Circuit Judges. 

_________________________________ 

Ernest D. Portwine unsuccessfully pursued a collection due process (CDP) 

hearing before the Internal Revenue Service (IRS) Office of Appeals and an appeal to 

the Tax Court. He now seeks review of the Tax Court’s decision, as provided by 

26 U.S.C. § 7482. In light of our recent decision in Cropper v. Commissioner, 

__ F.3d __, No. 15-9003, 2016 WL 3434747 (10th Cir. June 22, 2016), we affirm. 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously to honor the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It 

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 

and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals

Tenth Circuit 

August 24, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

BACKGROUND 

Mr. Portwine failed to file tax returns for tax years 2002 through 2007. The 

IRS prepared substitute returns and determined the tax owed. It mailed Mr. Portwine 

notices of deficiency stating the taxes owed, as well as penalties and interest. 

Mr. Portwine neither petitioned the Tax Court for a redetermination of the 

deficiencies nor paid the IRS. 

After the IRS mailed him notices of intent to levy his property and to file a tax 

lien, Mr. Portwine requested CDP hearings. He wanted to verify whether the IRS 

followed the proper procedures and to challenge the underlying tax liabilities. An 

IRS settlement officer set a telephone hearing and informed Mr. Portwine what 

information to submit to have the tax liabilities addressed. Mr. Portwine submitted 

no further information and failed to participate in the telephone CDP hearing. 

Instead, he sent two letters stating that he never received the notices of deficiency. 

The Office of Appeals sustained the proposed collection actions. It 

determined that the settlement officer had verified the mailing of the notices of 

deficiency and had notified Mr. Portwine of the requirements for having his liabilities 

readdressed. Balancing the need for efficient collection of taxes with the concern 

that the collection actions be no more intrusive than necessary, the Office of Appeals 

concluded that the IRS took proper action in issuing the notices of lien and of intent 

to levy. 

Mr. Portwine then appealed to the Tax Court, again asserting that he had not 

had the opportunity to challenge the underlying tax liabilities. The Tax Court 
3 

sustained the Office of Appeals’ decision. It concluded that the settlement officer 

properly verified that the procedural requirements were met. It also held that, 

regardless of whether Mr. Portwine received any of the deficiency notices, he did not 

properly challenge the underlying tax liabilities during the CDP hearing despite being 

given the opportunity to do so. Therefore, he could not challenge the liabilities 

before the Tax Court. Mr. Portwine now seeks review in this court. 

DISCUSSION 

In Cropper, we explained, 

when the Tax Court decision rests on its review of an Office of Appeals’ 

determination following a CDP hearing, we apply the same standards as the 

Tax Court. Thus, we review the Office of Appeals’ determinations about 

challenges to the amount of the underlying tax liability de novo and its 

administrative determinations unrelated to the amount of tax liability for 

abuse of discretion. 

__ F.3d at __, 2016 WL 3434747 at *3. 

Mr. Portwine argues that the Office of Appeals erred in concluding that the 

IRS properly mailed the notices of deficiency to his last known address. He further 

asserts that his proper remedy is setting aside and vacating the tax assessments. 

Cropper resolves both of these issues. 

“The IRS must prove it properly mailed a deficiency notice by competent and 

persuasive evidence.” Id. at *4 (internal quotation marks omitted). Cropper held 

that the IRS adequately demonstrated proper mailing by presenting copies of the 

notices of deficiency and incomplete PS Forms 3877 (a post office certified mail log) 

that contained only minor defects and that were date-stamped with the date they were 
4 

submitted for mailing. See id. Similarly, in this case the IRS presented copies of the 

notices and incomplete PS Forms 3877 that contained only minor defects and were 

date-stamped.1

 For substantially the same reasons discussed in Cropper, id. at *4-5, 

we conclude the Office of Appeals did not abuse its discretion in determining the IRS 

properly mailed the notices of deficiency to Mr. Portwine. 

Proper mailing having been demonstrated, we may presume that Mr. Portwine 

received the notices of deficiency. Id. at *5. As in Cropper, to rebut the 

presumption, Mr. Portwine offered only his own unsworn statements that he did not 

receive them. “We find this insufficient.” Id.

Moreover, even if he had rebutted the presumption of receipt, Mr. Portwine 

would not be entitled to have the notices of deficiency set aside, as he contends. 

See id. at *6. Instead, the proper remedy would be to allow him to challenge the 

underlying tax liabilities at a CDP hearing. See id. at *6-7. As noted by the Tax 

Court, Mr. Portwine was given that opportunity and chose not to avail himself of it. 

He therefore is entitled to no further relief. See id. at *7. 

 1

 The notices list the same address Mr. Portwine was using at the time of the 

Tax Court hearings. Therefore, Mr. Portwine’s discussion of precedent involving 

notices that the IRS sent to clearly incorrect or outdated addresses is irrelevant. 

See Cropper, __ F.3d at __, 2016 WL 3434747 at *5 n.6. 

Mr. Portwine complains that the IRS’s proffered copies of the notices are 

reprints from its computer database, not photocopies, but he cites no authority 

indicating that a reprint cannot serve as adequate evidence of the existence of a 

notice of deficiency. See also Fed. R. Evid. 1001(e) (defining “duplicate” to include 

“a counterpart produced by a . . . electronic . . . process or technique that accurately 

reproduces the original”). 
5 

CONCLUSION

 We affirm the Tax Court’s decision sustaining the Office of Appeals’ 

determination permitting the IRS to proceed with its levy of Mr. Portwine’s property 

and its tax lien. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge