T.C. Memo. 2015-228

UNITED STATES TAX COURT

SHARON L. GARRETT, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 28049-14L. Filed November 24, 2015.

P requested an Appeals hearing after receiving a notice of

Federal tax lien for her taxable years 2004 through 2008. The IRS

Appeals Office determined to proceed with collection of P's unpaid

Federal income tax and additions to tax for those years, and P

petitioned for review of that determination. Both P and R moved for

summary judgment. P concedes liability for 2004 but denies

receiving a notice of deficiency for 2005 through 2008. She argues

that the copy of the notice of deficiency for those years and the

certified mail list R submitted are not adequate evidence of mailing of

the notice because the notice does not bear the certified mail number

indicated on the certified mail list. R argues that the evidence

submitted establishes not only the mailing of a notice of deficiency to

P for 2005 through 2008 but also her receipt of the notice, so that P

cannot challenge the existence or amount of her underlying tax

liabilities for those years.
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[*2] Held: The documents R submitted are sufficient to establish

the validity of R's assessments for 2005 through 2008; P's motion for

summary judgment will be denied.

Held, further, P's denial of receipt of a notice of deficiency for

2005 through 2008 raises a genuine issue of material fact; R's motion

for summary judgment will be granted as to 2004 but denied as to

2005 through 2008.

Sharon L. Garrett, pro se.

Erin Kathleen Salel, for respondent.

MEMORANDUM OPINION

HALPERN, Judge: This case is before us to review a determination by the

Internal Revenue Service Appeals Office to proceed with collection of petitioner's

unpaid Federal income tax and additions to tax for 2004 through 2008. Petitioner

has conceded her liability for 2004, but the years 2005 through 2008 remain in

issue. Both parties have moved for summary judgment. We will deny petitioner's

motion, grant respondent's motion in regard to 2004, but deny respondent's motion

in regard to 2005 through 2008.
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[*3] Unless otherwise stated, all section references are to the Internal Revenue

Code in effect at all relevant times, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

Summary Adjudication

Summary judgment expedites litigation: It is intended to avoid unnecessary

and expensive trials. It is not, however, a substitute for trial and should not be

used to resolve genuine disputes over issues of material fact. E.g., Vallone v.

Commissioner, 88 T.C. 794, 801-805 (1987). The moving party has the burden of

showing the absence of a genuine issue of material fact. E.g., Anonymous v.

Commissioner, 134 T.C. 13, 15 (2010). For these purposes, we afford the party

opposing the motion the benefit of all reasonable doubt, and we view the material

submitted by both sides in the light most favorable to the opposing party. That is,

we resolve all doubts as to the existence of an issue of material fact against the

movant. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Pa. Coal

Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Dreher v. Sielaff, 636 F.2d

1141, 1143 n.4 (7th Cir. 1980); Kroh v. Commissioner, 98 T.C. 383, 390 (1992).

Appeals Hearing

Sections 6320 and 6330 provide a taxpayer the right to notice and the

opportunity for an Appeals hearing before the Commissioner can collect unpaid
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[*4] taxes by means of a lien or levy against the taxpayer's property. At that

hearing, the taxpayer can challenge the existence or amount of her underlying tax

liability for any tax period only if the taxpayer "did not receive any statutory

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

to dispute such tax liability." Sec. 6330(c)(2)(B). Petitioner requested an Appeals

hearing after receiving a notice of Federal tax lien for her taxable (calendar) years

2004 through 2008. She then exchanged correspondence with Settlement Officers

Josephine Stockli and Sherrie Levine. Settlement Officer Levine, on the premise

that petitioner had received notices of deficiency for the years in issue, advised

petitioner that she could not challenge her underlying liabilities for those years.

Petitioner's Motion

As we understand petitioner's argument, she claims that summary judgment

in her favor is appropriate for the taxable years 2005 through 2008 because

respondent has not offered adequate evidence of having mailed to her a notice of

deficiency for those years. The Commissioner generally cannot pursue collection

activity against a taxpayer without first mailing a notice of deficiency to the

taxpayer's last known address. Secs. 6212(b)(1), 6213(a). If respondent's

assessments of petitioner's tax liabilities for 2005 through 2008 were not preceded

by the mailing of a notice of deficiency to petitioner, as required by section 
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[*5] 6213(a), those assessments were invalid. See, e.g., Hoyle v. Commissioner,

131 T.C. 197, 205 (2008). Under sections 6321 and 6322, a tax lien arises in favor

of the United States when an assessment is made. If respondent did not validly

assess petitioner's tax liabilities for the years in issue, then no liens arose with

respect to those tax liabilities, and collection cannot proceed. Accordingly, if the

assessments were invalid, the determination to proceed with collection was error

as a matter of law.

As evidence that a notice of deficiency for the years 2005 through 2008 was

mailed to petitioner, respondent has submitted a copy of such a notice and a

"certified mail list" that indicates the mailing of that notice to petitioner. It is well

established that a U.S. Postal Service Form 3877 or equivalent certified mail list is

"highly probative evidence that * * * [a] notice of deficiency [included on the list]

was sent to the address[] specified." United States v. Ahrens, 530 F.2d 781, 784

(8th Cir. 1976); see also O'Rourke v. United States, 587 F.3d 537, 540 (2d Cir.

2009); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Hoyle v.

Commissioner, 131 T.C. at 203.

Petitioner has offered no evidence that the notice of deficiency proffered by

respondent was not mailed. She does not deny that the notice was properly

addressed. The only irregularity she alleges in the documents respondent 
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[*6] submitted is the failure of the notice to bear the certified mail number

indicated on the certified mail list. Petitioner points to no authority that

establishes that a notice of deficiency sent by certified mail must bear the certified

mail number for a copy of the notice to constitute valid evidence of its mailing. 

Cf. In re O'Rourke, 346 B.R. 643, 646 (Bankr. W.D.N.Y. 2006) (noting that

imprint on notice of deficiency of same certified mail number that appeared on

certified mail log established that notice "was prepared and in existence when the

certified mail log was created"), aff'd sub nom. O'Rourke v. United States, 587

F.3d 537 (2d Cir. 2009). Petitioner argues that, because the notice of deficiency

does not bear a certified mail number, the certified mail list evidences only that

respondent sent petitioner something, not that the document sent was a notice of

deficiency.

1

We reject petitioner's argument that the evidence respondent submitted is, as

a matter of law, insufficient to establish the validity of the assessments. Because

Petitioner cites two cases involving arguments that a certified mail list

1

showed only the mailing of some item, but not necessarily the mailing of a notice

of deficiency. Each of those cases is distinguishable from the present case. In

Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988), in contrast to the

present case, the certified mail list did not identify the mailed items as notices of

deficiency. In Pietanza v. Commissioner, 92 T.C. 729, 731 (1989), aff’d without

published opinion, 935 F.2d 1282 (3d Cir. 1991), the Commissioner produced

only an untyped, draft notice.
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[*7] the certified mail list arose from the conduct of official duties by employees

of respondent and the U.S. Postal Service, it is reliable evidence of the mailing of

a notice of deficiency to petitioner for her 2005 through 2008 tax years. The list

itself associates the notice of deficiency with a certified mail number, even though

the copy of the notice submitted by respondent does not bear that number. 

(Because the notice was stamped with the same date as the certified mail list, we

are satisfied that the notice had been prepared and was in existence when the list

was created. Cf. id.) Thus, the certified mail list evidences that the notice of

deficiency was mailed to petitioner. Although petitioner claims not to have

received the notice of deficiency, she offered no evidence that the notice was not

properly mailed. And the validity of an assessment turns only on the mailing of a

notice of deficiency--not its receipt by the taxpayer. Keado v. United States, 853

F.2d 1209, 1211-1212 (5th Cir. 1988); Zolla, 724 F.2d at 810; Pietanza v.

Commissioner, 92 T.C. 729, 736 (1989), aff'd without published opinion, 935 F.2d

1282 (3d Cir. 1991). Therefore, we conclude that the documents respondent

submitted establish the validity of the assessments for the years 2005 through

2008 and, accordingly, we will deny petitioner's motion for summary judgment.
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[*8] Respondent's Motion: Reliance on Presumption

In support of his motion for summary judgment, respondent argues that the

evidence submitted not only establishes that a notice of deficiency for the years

2005 through 2008 was mailed to petitioner; it also establishes that she received it. 

Therefore, according to respondent, petitioner cannot challenge the existence or

amount of her underlying tax liabilities for those years. Petitioner has raised no

issues regarding the Appeals officer's determination other than challenging

respondent's evidence of the mailing of the notice of deficiency and denying that

she received the notice. She provided no financial information that would have

allowed the Appeals officer to evaluate her ability to pay, nor did she propose any

collection alternatives. Therefore, respondent argues that he is entitled to

summary judgment that the Appeals officer did not abuse her discretion in

upholding the proposed liens.

In claiming that the notice of deficiency and certified mail list he submitted

establish not only the mailing of the notice for 2005 through 2008 but also its

receipt by petitioner, respondent purports to rely on the "presumption of official

regularity and delivery". In addition, respondent professes not to have received

from the U.S. Postal Service any statement that the notice of deficiency sent to

petitioner was not delivered. On the basis of these claims, respondent argues that
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[*9] he is entitled to a presumption that petitioner actually received the notice of

deficiency for 2005 through 2008 and that her claim to the contrary is insufficient

to rebut the presumption.

In the context of this case, respondent's claimed presumption of official

regularity and delivery is, in essence, the common law mailbox rule; i.e., "that

proof that a letter properly directed was placed in a post office creates a

presumption that it reached its destination in usual time and was actually received

by the person to whom it was addressed." Hagner v. United States, 285 U.S. 427,

430 (1932); see also Rios v. Nicholson, 490 F.3d 928, 930-931 (Fed. Cir. 2007);

Jag Brokerage, Inc. v. Commissioner, T.C. Memo. 2012-315, at *7; 29 Am. Jur.

2d, Evidence, sec. 273 (2008). We have previously allowed the Commissioner to

rely on the presumption of official regularity and delivery, when not rebutted by a

taxpayer, to establish that the taxpayer actually received a notice of deficiency for

which the Commissioner presents evidence of mailing. E.g., Klingenberg v.

Commissioner, T.C. Memo. 2012-292, at *15; Casey v. Commissioner, T.C.

Memo. 2009-131, 2009 WL 1606226, at *4; Bailey v. Commissioner, T.C. Memo.

2005-241, 2005 WL 2591914, at *5; Figler v. Commissioner, T.C. Memo.

2005-230, 2005 WL 2444045, at *4.
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[*10] Neither the presumption of official regularity and delivery nor the mailbox

rule establishes conclusively that the mailed item arrived. Instead, each merely

creates an inference that, if challenged, raises an issue of fact as to whether the

item was actually received. See Rios, 490 F.3d at 931; 29 Am. Jur. 2d, Evidence,

sec. 273; see also Conn v. Commissioner, T.C. Memo. 2008-186, 2008 WL

2986391, at *2 ("If the presumption is raised and the taxpayer does not rebut the

presumption, the Court may find that the taxpayer received the notice of

deficiency[.]”).

Respondent's motion for summary judgment on all issues in the case

presents the question of whether petitioner's denial of receipt of a notice of

deficiency for the taxable years 2005 through 2008 raises an issue of material fact

sufficient to require the denial of that motion. We conclude that it does.

Petitioner's Rebuttal of the Presumption

The nature and quantum of evidence sufficient to rebut the presumed receipt

of mailed items depends on the circumstances and the policies of the substantive

rules giving rise to the evidentiary dispute. In some circumstances, courts have

held that mere denial of receipt by an addressee is insufficient to rebut the

presumption. E.g., United States v. Ekong, 518 F.3d 285, 287 (5th Cir. 2007)

(holding that "addressee's 'bare assertion of non-receipt' is insufficient to rebut the
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[*11] assumption" arising from the mailbox rule) (quoting Custer v. Murphy Oil

USA, Inc., 503 F.3d 415, 421 (5th Cir. 2007)); Rios, 490 F.3d at 934 (mere

statement that document in issue was never received is inadequate to rebut an

applicable presumption of receipt). In other circumstances, a claim of nonreceipt

rebuts the presumption. E.g., Nunley v. City of Los Angeles, 52 F.3d 792, 796

(9th Cir. 1995) (specific denial of receipt sufficient to rebut presumption of receipt

arising from proof of mailing); In re Yoder Co., 758 F.2d 1114, 1118 (6th Cir.

1985) ("Testimony of non-receipt, standing alone * * * [is] sufficient to rebut the

presumption of receipt."); see also Legille v. Dann, 544 F.2d 1, 6-7 (D.C. Cir.

1976) (reversing summary judgment granted to party that relied on presumption of

regularity of mails because record disclosed potential evidence capable of

dispelling presumption).

2

The weight of evidence required to rebut presumed receipt of mailed items

may also be affected by the identity of the recipient. For example, a business

entity denying receipt of a mailed item could "describe in detail its procedures for

receiving, sorting, and distributing mail, to show that these procedures were 

We give particular weight to the views on evidentiary issues expressed by

2

the U.S. Court of Appeals for the District of Columbia Circuit because, by statute,

we are required to conduct our proceedings "in accordance with the rules of

evidence applicable in trials without a jury in the United States District Court of

the District of Columbia." Sec. 7453; see also Rule 143(a).
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[*12] properly followed at the time when the document in question might

conceivably have been delivered by the postal service". Schikore v. BankAmerica

Supplemental Ret. Plan, 269 F.3d 956, 964 (9th Cir. 2001). The entity could also

explain its filing and recordkeeping procedures and offer evidence "that it * * *

conducted a thorough search for the document" in the location in which it would

normally have been filed. Id. By contrast, an individual may be unable to offer

any evidence of nonreceipt other than his or her bare assertion. Cf. Lepre v. DOL,

275 F.3d 59, 70 (D.C. Cir. 2001) ("[I]t is difficult to conceive of what more a * * *

[Federal Employees Compensation Act] beneficiary could have done to

demonstrate that he had not received [a notice other than denying receipt.]"). 

Concluding that an individual taxpayer's denial of receipt of a notice of deficiency

is insufficient to rebut the presumption raised by the mailbox rule would, in most

cases, cause the presumption to be conclusive. As noted, individual taxpayers

who lack documented and routinized procedures for handling mail could seldom

offer any evidence other than mere denials to show that they did not receive a

mailed notice of deficiency.

Giving conclusive effect to the presumption raised by the mailbox rule

would contravene the purposes of the collection due process provisions of sections

6320 and 6330. Cf. United States v. Bowen, 414 F.2d 1268, 1273 (3d Cir. 1969)
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[*13] (regulation that "in effect creates an ‘irrebuttable or conclusive presumption'

that mail sent is received" held "unconstitutional as violative of the due process

clause of the Fifth Amendment"); Solberg v. Sec'y of Dep't of Health & Human

Servs., 583 F. Supp. 1095, 1097 (E.D. Wis. 1984) (presumption of delivery of

mailed letter "may not * * * be given conclusive effect without violating the due

process clause"). Congress enacted sections 6320 and 6330 to "afford taxpayers

due process in collections" and intended that taxpayers be given "a meaningful

hearing before the IRS deprives them of their property." S. Rept. No. 105-174, at

67 (1998), 1998-3 C.B. 537, 603. Allowing evidence of the mailing of a notice of

deficiency to create an effectively conclusive presumption of receipt could deny a

taxpayer any opportunity to contest his or her tax liability before payment. 

Therefore, the question of whether, for purposes of section 6330(c)(2)(B), a

taxpayer actually received a notice of deficiency notwithstanding the taxpayer's

denials should be decided not by an effectively conclusive presumption but instead

on the preponderance of the evidence. Casey v. Commissioner, 2009 WL

1606226, at *4 ("The Court's determination of whether a taxpayer has received a

notice of deficiency so as to preclude a challenge to the underlying tax liability

under section 6330(c)(2)(B) is made ‘On the preponderance of the evidence'."

(quoting Sego v. Commissioner, 114 T.C. 604, 611 (2000))); see also Klingenberg
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[*14] v. Commissioner, at *12. To the extent the Commissioner's introduction of

a notice of deficiency and Postal Service Form 3877 or certified mail list raises a

presumption that the taxpayer received the notice, that presumption merely places

on the taxpayer the burden of going forward and producing some evidence to the

contrary. The taxpayer's denial of receipt meets that burden. Granting summary

judgment against a taxpayer who denies receiving a notice of deficiency would

preclude the Court from hearing the taxpayer's testimony and evaluating her

credibility. Cf. Kaye v. Commissioner, T.C. Memo. 2014-145 (granting summary

judgment in favor of Commissioner following hearing disclosed in record of case

that allowed for evaluation of credibility of taxpayer's denial of having received

notice of deficiency). At trial, the evidence offered by the Commissioner to raise

the presumption would remain relevant and, by a preponderance of the evidence,

could well support a finding that the taxpayer actually received a notice of

deficiency despite the taxpayer's testimony to the contrary. But allowing that

evidence to require a finding to that effect in the face of denial by a taxpayer who,

as a practical matter, could not reasonably be expected to offer any other evidence
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[*15] of nonreceipt would in effect make the presumption conclusive, to the

prejudice of the taxpayer's rights.3

For the reasons explained above, we conclude that the question of whether

petitioner actually received a notice of deficiency for the taxable years 2005

through 2008 is a genuine question of material fact to be decided at trial. 

Consequently, we will deny respondent's motion for summary judgment on all

issues but, on the basis of petitioner's concession of liability for her 2004 taxable

year, we will grant respondent's motion for summary judgment as to that year.

An order will be issued denying petitioner's

motion for summary judgment, and granting in

part, and denying in part, respondent's motion for

summary judgment.

In at least two prior Memorandum Opinions, we observed that taxpayers'

3

claims of nonreceipt of notices of deficiency would "generally" be insufficient to

rebut the presumption of receipt established by evidence of mailing. E.g.,

Klingenberg v. Commissioner, T.C. Memo. 2012-292, at *12; Casey v.

Commissioner, T.C. Memo. 2009-131, 2009 WL 1606226, at *4. Neither of those

cases, however, considered a motion for summary judgment, and (as noted in the

text above), each emphasized the need for the determination of receipt to be made

on the preponderance of the evidence. Our observations in those cases should be

taken as nothing more than generalizations about how we would ordinarily weigh

the evidence following trial.