1 Unless otherwise indicated, 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.

T.C. Memo. 2009-202

UNITED STATES TAX COURT

SONNY G. LEWIS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 29685-07L. Filed September 9, 2009.

Sonny G. Lewis, pro se.

Alisha M. Harper, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

RUWE, Judge: Pursuant to sections 6320 and 6330(d),1

petitioner seeks review of respondent’s determination to sustain
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the notice of Federal tax lien filing for tax years 2001 and

2003. We must decide whether respondent’s Appeals Office

correctly upheld the filing of a notice of Federal tax lien with

respect to petitioner’s 2001 and 2003 Federal income tax

liabilities. 

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. 

The stipulation of facts and the attached exhibits are

incorporated herein by this reference. Petitioner resided in

Kentucky at the time the petition was filed.

In or about 1974, while residing in Illinois, petitioner

attended a meeting where the attendees were told that they did

not have to pay Federal income tax. After this petitioner

stopped filing Federal income tax returns. 

As was petitioner’s practice, he did not file income tax

returns for 2001 and 2003. On the basis of income information

reported to respondent on various Forms W-2, Wage and Tax

Statement, and a Form 1099-INT, Interest Income, from third-party

payors, respondent prepared and filed substitutes for returns for

petitioner for both years pursuant to section 6020(b) using a

filing status of single. Respondent calculated petitioner’s

income as $45,045 for 2001 and $50,915 for 2003.

Respondent sent to petitioner notices of deficiency, dated

October 17, 2005, for 2001 and 2003. The notices of deficiency
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were sent to an address in Romeoville, Illinois, which, according

to respondent’s records, was petitioner’s last known address. 

In the notices of deficiency respondent determined deficiencies

in income tax and additions to tax as follows:

 Additions to Tax

 Year Deficiency Sec. 6651(a)(1) Sec. 6651(a)(2) Sec. 6654

 

 2001 $6,957 $1,565.32 1$1,391.40 $275.30

 2003 7,588 1,707.30 1607.04 195.79

1 The final amount of the addition to tax per sec.

6651(a)(2) could not be determined at the time the notice of

deficiency was issued, but an addition to tax of 0.5 percent

would be imposed for each month, or fraction thereof, of

nonpayment, up to 25 percent, based upon the liability shown or

the final determined liability, if less.

Petitioner did not petition this Court in response to the notices

of deficiency, and, on March 13, 2006, respondent assessed the

income tax deficiencies for 2001 and 2003.

On June 20, 2007, respondent sent to petitioner at his

current address in Kentucky a Letter 3172(DO), Notice of Federal

Tax Lien Filing and Your Right to a Hearing Under IRC 6320, for

petitioner’s 2001 and 2003 Federal income tax liabilities. 

Petitioner timely requested a collection due process (CDP)

hearing to challenge the underlying tax liabilities.

On November 20, 2007, respondent’s settlement officer Julius

Hollowell (Settlement Officer Hollowell) conducted a telephone

conference with petitioner. During the telephone conference

petitioner told Settlement Officer Hollowell that the Internal

Revenue Service (IRS) broke the law by filing substitutes for
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returns on his behalf. Settlement Officer Hollowell asked

petitioner whether he was recording the conference and petitioner

replied: “yes-always.” Settlement Officer Hollowell then

advised petitioner that he would have to disconnect the call and

a determination would be made on the account, after which the

call was ended.

On December 3, 2007, respondent sent to petitioner at his

current address in Kentucky a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330. On December

26, 2007, petitioner filed a petition with the Court asserting

that: Respondent filed a lien on the basis of “faulty

procedures”; the notices of deficiency were not mailed to him; if

the notices of deficiency were mailed, they were not sent to his

last known address; and he had been denied a CDP hearing. 

On April 4, 2008, respondent filed a motion for remand in

the light of respondent’s concession that the notices of

deficiency were not sent to petitioner’s current address and to

give petitioner an opportunity to challenge the underlying tax

liabilities. By order dated April 16, 2008, the Court granted

respondent’s motion for remand. 

By letter dated June 24, 2008, respondent’s Appeals

collection specialist advised petitioner that if he disagreed

with the substitutes for returns respondent prepared, then he

should send to respondent copies of his 2001 and 2003 returns. 
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In the letter the Appeals collection specialist also requested

that petitioner file Federal income tax returns for 2002, 2004,

2005, 2006, and 2007.

On August 11, 2008, respondent’s settlement officer Suzanne

L. Magee (Settlement Officer Magee) was assigned to petitioner’s

case. The following day Settlement Officer Magee spoke with

petitioner and scheduled a supplemental CDP hearing in the form

of a face-to-face conference on August 19, 2008. On August 13,

2008, Settlement Officer Magee sent a letter to petitioner,

wherein she: Confirmed the face-to-face conference; requested

original Forms 1040, U.S. Individual Income Tax Return, for 2001

and 2003; and advised petitioner that in order to discuss

collection alternatives petitioner had to file Federal income tax

returns for 2002, 2004, 2005, 2006, and 2007 and provide a

completed Form 433-A, Collection Information Statement for Wage

Earners and Self-Employed Individuals. 

During the August 19, 2008, supplemental CDP hearing

petitioner was given the opportunity to challenge the underlying

tax liabilities for 2001 and 2003. Petitioner stated to

Settlement Officer Magee that he had received the notices of

deficiency; nevertheless, additional copies of the notices of

deficiency and other account transcripts were provided to

petitioner. Instead of challenging the underlying tax

liabilities on any substantive ground, petitioner continued to
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question whether the substitutes for returns were legal. 

Settlement Officer Magee explained to petitioner that he needed

to decide whether to accept the liabilities as determined or

provide original returns. Settlement Officer Magee further

advised petitioner that she would hold the case for a week to

give him time to decide whether to file original returns. 

Petitioner stated that he would not be filing any returns, and he

did not do so. Petitioner did not submit a completed Form 433-A

nor offer any collection alternatives. Settlement Officer Magee

verified that the requirements of any applicable law or

administrative procedure had been met, including that the notices

of deficiency had been sent to petitioner’s last known address on

October 17, 2005. Consequently, on September 8, 2008, respondent

issued a Supplemental Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 sustaining

the filing of the notice of Federal tax lien for 2001 and 2003.

OPINION

Collection Review Procedure

Where a taxpayer fails to pay any Federal income tax

liability after notice and demand, section 6321 imposes a lien in

favor of the United States on all the property of the delinquent

taxpayer and section 6323(f) authorizes the IRS to file notice of

the lien.
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Section 6320(a)(1) provides that the Commissioner shall

notify in writing any person liable to pay tax (the taxpayer) of

the filing of a tax lien upon the taxpayer’s property. The

notice must inform the taxpayer of the right to request a hearing

in the Commissioner’s Appeals Office. Sec. 6320(a)(3)(B),

(b)(1). Section 6330(c), (d), and (e) governs the conduct of a

hearing requested under section 6320. Sec. 6320(c).

At the hearing the taxpayer may raise any relevant issues

relating to the unpaid tax, including appropriate spousal

defenses, challenges to the appropriateness of the collection

action, and offers of collection alternatives. Sec.

6330(c)(2)(A). The taxpayer may also challenge the existence or

amount of the underlying tax liability, but only if he did not

receive a notice of deficiency or otherwise have an opportunity

to dispute the liability. Sec. 6330(c)(2)(B). In addition to

considering issues raised by the taxpayer under section

6330(c)(2), the Appeals officer must also verify that the

requirements of any applicable law or administrative procedure

have been met. Sec. 6330(c)(1), (3).

Standard of Review

Where the validity of the underlying tax liability is

properly at issue, the Court will review the matter de novo. 

Davis v. Commissioner, 115 T.C. 35, 39 (2000). Where the

underlying tax liability is not properly at issue, the Court will
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review the Commissioner’s administrative determination for abuse

of discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000);

Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).

By order dated April 16, 2008, the Court remanded this case 

to respondent’s Appeals Office for the purpose of conducting a

supplemental hearing to consider petitioner’s challenge to the

underlying liabilities for 2001 and 2003. Consequently,

petitioner was afforded the opportunity to challenge the

underlying tax liabilities during the supplemental CDP hearing.

Substitutes for Returns

Section 6020(b) authorizes the Commissioner to prepare a

return on behalf of a taxpayer who fails to file a return. 

Millsap v. Commissioner, 91 T.C. 926, 931 (1988). More

specifically, section 6020(b)(1) provides:

SEC. 6020. RETURNS PREPARED FOR OR EXECUTED BY

 SECRETARY.

(b) Execution of Return by Secretary.--

(1) Authority of secretary to execute

return.--If any person fails to make any

return required by any internal revenue law

or regulation made thereunder at the time

prescribed therefor * * * the Secretary shall

make such return from his own knowledge and

from such information as he can obtain

through testimony or otherwise.

Section 6020(b)(2) provides: “Any return so made and subscribed

by the Secretary shall be prima facie good and sufficient for all

legal purposes.”
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2 Clear and concise notification of an address change may be

provided to the IRS either orally or in writing. See Westphal v.

Commissioner, T.C. Memo. 1992-599; see also Rev. Proc. 2001-18,

sec. 4.05, 2001-1 C.B. 708, 708-709.

The Notices of Deficiency

“The Commissioner must send a notice of deficiency to the

taxpayer before he may assess, collect, or reduce to judgment

most income tax liabilities.” Clayton v. Commissioner, T.C.

Memo. 2009-114 (citing United States v. Zolla, 724 F.2d 808, 810

(9th Cir. 1984)). Under section 6212(b)(1), a notice of

deficiency mailed to a taxpayer’s last known address is valid

even if it is never received. Wiley v. United States, 20 F.3d

222, 224 (6th Cir. 1994); Frieling v. Commissioner, 81 T.C. 42,

52 (1983). 

Section 301.6212-2(a), Proced. & Admin. Regs., defines a

taxpayer’s last known address as “the address that appears on the

taxpayer’s most recently filed and properly processed Federal tax

return, unless the * * * (IRS) is given clear and concise

notification[2] of a different address.” Moreover, the burden

falls on the taxpayer to give clear and concise notification to

the Commissioner of an address change. Broomfield v.

Commissioner, T.C. Memo. 2005-148.

In or about 1974 petitioner stopped filing Federal income

tax returns. At the time respondent mailed the notices of

deficiency petitioner’s address in respondent’s records was in
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Romeoville, Illinois. The notices of deficiency were prepared

and sent in due course to the Romeoville, Illinois, address. 

Petitioner has neither testified nor proffered any documentary

evidence to establish that he had given respondent any

notification of an address change. Furthermore, petitioner has

not denied having resided at the Romeoville, Illinois, address. 

Accordingly, we hold that the address to which respondent sent

the notices of deficiency, i.e., the Romeoville, Illinois,

address, was petitioner’s last known address at the time the

notices of deficiency were sent.

We are satisfied that the Appeals officer properly verified

that the requirements of any applicable law or administrative

procedure were met, that petitioner offered no viable collection

alternatives, and that the Appeals officer did not abuse her

discretion in sustaining the notice of lien filing.

Underlying Tax Liability

Petitioner testified that respondent did not have all the

necessary information to assess the correct tax liability,

namely, his correct filing status and “other interest

deductions”, but provided no evidence on these points.
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With respect to a taxpayer’s filing status, this Court has

held: 

[I]n situations where deficiency procedures are availed

of and a taxpayer has not filed a return, the taxpayer

may file a return and contest respondent’s filing

status determination, even though respondent has

“filed” a substitute return under section 6020(b), in

which filing status has been “elected” by respondent. 

* * * [Millsap v. Commissioner, supra at 937.]

The circumstances in this case reflect that petitioner did

not file a return for either 2001 or 2003. Petitioner was

afforded an opportunity to challenge the underlying tax liability

during the supplemental CDP hearing. Petitioner was also given

an opportunity to provide original returns for 2001 and 2003, but

he failed to do so. Furthermore, Settlement Officer Magee held

the case for an additional week to allow petitioner an added

opportunity to file returns for 2001 and 2003. Petitioner,

however, did not file any returns.

With respect to petitioner’s claimed “other interest

deductions”, deductions are a matter of legislative grace, and

the taxpayer bears the burden of proving his entitlement to a

deduction. Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S.

79, 84 (1992). Petitioner has not produced any testimonial or

documentary evidence to establish his eligibility for “other

interest deductions.”
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Accordingly, we uphold respondent’s determination to sustain

the notice of lien filing. In reaching our holding, we have

considered all arguments made, and, to the extent not mentioned,

we conclude that they are moot, irrelevant, or without merit.

To reflect the foregoing,

Decision will be entered

for respondent.