1Unless otherwise indicated, all Rule references are to the

Tax Court Rules of Practice and Procedure, and all section

references are to the Internal Revenue Code.

T.C. Memo. 2008-25

UNITED STATES TAX COURT

SALVATORE A. D’ONOFRIO, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 23592-05L. Filed February 12, 2008.

Salvatore A. D’Onofrio, pro se.

Patricia P. Wang, for respondent.

MEMORANDUM OPINION

MARVEL, Judge: This matter is before the Court on

respondent’s motion for partial summary judgment filed under Rule

121.1
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2Respondent’s motion for partial summary judgment pertains

only to tax years 1990 through 1993. Respondent concedes that

petitioner did not have a prior opportunity to contest his

underlying tax liability for 1999. Accordingly, respondent

concurrently filed a motion for continuance so that he could have

an opportunity to resolve petitioner’s 1999 liability. On Feb.

5, 2007, we granted respondent’s motion for continuance. 

Background

This is an appeal from respondent’s determination to proceed

with the collection of petitioner’s 1990, 1991, 1992, 1993, and

1999 Federal income tax liabilities.2 Petitioner resided in

Redondo Beach, California, when his petition was filed.

Petitioner failed to file Federal income tax returns for

1990, 1991, 1992, and 1993. Respondent prepared substitutes for

returns under section 6020(b) for 1990, 1991, 1992, and 1993. 

Respondent subsequently determined a deficiency in petitioner’s

tax liability for each of these years.

On April 14, 1995, respondent mailed to petitioner a notice

of deficiency for 1990 and 1991. Respondent sent the notice to

the following address: S. A. D’ONOFRIO, ORANGE COUNTY, C/O 676

CATALINA, AKA LAGUNA BEACH, CALIFORNIA. Petitioner refused to

accept delivery of the notice, and on April 20, 1995, respondent

received the returned notice of deficiency with the words

“Refused for Cause UCC 3-501” handwritten on the envelope. On

April 20 and September 13, 1995, respondent received letters from

petitioner marked “REFUSAL FOR CAUSE UCC 3-501 Without Dishonor”

in which petitioner raised various frivolous arguments regarding
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3In the letters, petitioner argued that he did not have an

“address” but listed a mailing location at which he could be

reached: “Salvatore A. D’Onofrio, Non Domestic Mail, c/o 676

Catalina, Laguna Beach, California”. 

his refusal to accept delivery of correspondence from

respondent.3 On October 9, 1995, respondent assessed additional

tax, additions to tax, and interest against petitioner for 1990

and 1991. 

On February 16, 1996, respondent mailed to petitioner a

notice of deficiency for 1992 and 1993. Respondent sent the

notice to the following address: Salvatore A. D’Onofrio, 676

Catalina Street, Laguna Beach, CA 92651-2545. Petitioner again

refused to accept delivery of the notice, and on February 23,

1996, respondent received the returned notice of deficiency with

the words “Refused for Cause UCC 3-501 Without Dishonor”

handwritten on the envelope.

Petitioner failed to petition this Court with respect to the

April 14, 1995, and February 16, 1996, notices of deficiency.

On June 1, 2005, respondent sent petitioner a Final Notice

of Intent to Levy and Notice of Your Right to a Hearing for 1990,

1991, 1992, and 1993. In response, petitioner timely submitted a

Form 12153, Request for a Collection Due Process Hearing. 

Petitioner indicated that he disagreed with the proposed levy and

requested an audiotaped face-to-face hearing. Petitioner did not

provide a phone number in his request.
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 On September 27, 2005, respondent’s Appeals Office sent a

letter to petitioner explaining that a face-to-face hearing would

not be granted because petitioner raised only frivolous or

groundless arguments. The Appeals Office scheduled a telephone

hearing for October 27, 2005, at 8:30 a.m. and instructed

petitioner to call the phone number provided in the letter at the

given time.

In a letter dated October 6, 2005, petitioner argued that he

never received a notice of deficiency for 1999 and disputed his

tax liability for that year, but he stated that he did not want a

hearing for 1990 through 1993. Petitioner also failed to call

the Appeals officer on the scheduled hearing date, and the

Appeals officer was unable to contact petitioner because

petitioner failed to provide his phone number. 

On November 8, 2005, the Appeals officer issued to

petitioner a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330, in which the Appeals

officer sustained the proposed collection action for 1990, 1991,

1992, and 1993.

On December 6, 2005, petitioner mailed a letter to the Court

that was received and filed on December 12, 2005, as an imperfect

petition. The Court ordered petitioner to submit a proper

amended petition because his original imperfect petition did not

conform with the Rules. On February 6, 2006, the Court received
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and filed petitioner’s amended petition. In his amended

petition, petitioner argues that respondent improperly denied him

a face-to-face section 6330 hearing.

Discussion

I. Summary Judgment

Summary judgment is a procedure designed to expedite

litigation and avoid unnecessary, time-consuming, and expensive

trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681

(1988). Summary judgment may be granted with respect to all or

any part of the legal issues presented “if the pleadings, answers

to interrogatories, depositions, admissions, and any other

acceptable materials, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that a

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

Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd.

17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753,

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

there is no genuine issue of material fact, and factual

inferences will be drawn in a manner most favorable to the party

opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C.

812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982). The nonmoving party, however, cannot rest upon the

allegations or denials in his pleadings but “must set forth 
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specific facts showing that there is a genuine issue for trial.”

Rule 121(d); Dahlstrom v. Commissioner, supra at 820-821. 

II. Determination To Proceed With Collection

Section 6330(a) provides that no levy may be made on any

property or right to property of any person unless the Secretary

has notified such person in writing of the right to a hearing

before the levy is made. If the person makes a request for a

hearing, a hearing shall be held before an impartial officer or

employee of the Internal Revenue Service Office of Appeals. Sec.

6330(b)(1), (3). At the hearing, a taxpayer may raise any

relevant issue, including appropriate spousal defenses,

challenges to the appropriateness of the collection action, and

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

Following a hearing, the Appeals Office must make a

determination whether the proposed levy action may proceed. In

so doing, the Appeals Office is required to take into

consideration (1) the verification presented by the Secretary

that the requirements of applicable law and administrative

procedures have been met, (2) the relevant issues raised by the

taxpayer, and (3) whether the proposed levy action appropriately

balances the need for efficient collection of taxes with a 

taxpayer’s concerns regarding the intrusiveness of the proposed

levy action. Sec. 6330(c)(3). 
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Section 6330(d)(1) grants the Court jurisdiction to review

the determination made by the Appeals officer at the hearing. 

Where the validity of the underlying tax liability is properly at

issue, the Court will review the matter de novo. Sego v.

Commissioner, 114 T.C. 604, 610 (2000). Where the underlying tax

liability is not properly at issue, the Court will review the

administrative determination of the Appeals Office for abuse of

discretion. Lunsford v. Commissioner, 117 T.C. 183, 185 (2001);

Sego v. Commissioner, supra at 610; Goza v. Commissioner, 114

T.C. 176, 182 (2000).

A taxpayer is precluded from contesting the existence or

amount of his underlying tax liability at his section 6330

hearing unless the taxpayer failed to receive a notice of

deficiency for the tax in question or did not otherwise have an

earlier opportunity to dispute the tax liability. Sec.

6330(c)(2)(B); see also Sego v. Commissioner, supra at 609. For

purposes of section 6330(c)(2)(B), receipt of a notice of

deficiency means receipt in time to petition this Court for

redetermination of the deficiency asserted in such notice. Sec.

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

6330(c)(2)(B) indicates that receipt of the notice of deficiency

by the taxpayer is required. See Sego v. Commissioner, supra at

610-611; see also Sapp v. Commissioner, T.C. Memo. 2006-104;

Calderone v. Commissioner, T.C. Memo. 2004-240; Tatum v.
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4Petitioner does not dispute that he deliberately refused

delivery of the notices of deficiency, nor does he deny that he

wrote on the envelopes containing the notices.

Commissioner, T.C. Memo. 2003-115. The Court may conclude that

the receipt requirement of section 6330(c)(2)(B) is met if the

taxpayer deliberately refused delivery of the notice. See Sego

v. Commissioner, supra at 611 (“taxpayers cannot defeat actual

notice by deliberately refusing delivery of statutory notices of

deficiency”). 

Petitioner asserts various frivolous arguments relating to

his underlying tax liabilities for 1990-93. However, petitioner

is precluded from contesting his underlying tax liabilities for

those years because petitioner deliberately refused delivery of

the notices of deficiency mailed by respondent.4 The record

reflects that petitioner received the envelopes containing the

notices of deficiency but returned the notices to respondent with

“Refusal for Cause UCC 3-501” and “Refused for Cause UCC 3-501

Without Dishonor” handwritten on the envelopes. Petitioner later

sent letters further referencing UCC 3-501 asserting numerous

frivolous arguments as to why he refused delivery of the notices

of deficiency. Because the undisputed facts establish that

petitioner explicitly declined to accept delivery of the notices

of deficiency, we conclude that petitioner received effective

notice despite his refusal to accept delivery. See id. 
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Petitioner is therefore prohibited from challenging his

underlying tax liabilities for 1990 through 1993.

With respect to the validity of the section 6330 hearing,

petitioner argues that respondent improperly denied him a

face-to-face section 6330 hearing. We disagree. Although a

hearing may consist of a face-to-face meeting, a proper section

6330 hearing may also occur by telephone or by correspondence

under certain circumstances. See Katz v. Commissioner, 115 T.C.

329, 337-338 (2000); sec. 301.6330-1(d)(2), Q&A-D6, Proced. &

Admin. Regs. Petitioner was offered a telephone hearing but

chose not to participate. In addition, petitioner was offered a

face-to-face hearing if he would identify legitimate, relevant,

and nonfrivolous issues he intended to discuss. Petitioner did

not respond. The only correspondence petitioner sent respondent

after the Form 12153 hearing request indicated that petitioner no

longer wanted a section 6330 hearing for 1990 through 1993. 

Under these circumstances, we conclude that it is neither

necessary nor productive to remand this case for a face-to-face

hearing. See Lunsford v. Commissioner, supra. 

If a taxpayer has been given a reasonable opportunity for a

hearing and has failed to avail himself of that opportunity, this

Court has approved the Commissioner’s determination to proceed

with collection on the basis of an Appeals officer’s review of

the case file. See, e.g., Bean v. Commissioner, T.C. Memo.
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2006-88; Ho v. Commissioner, T.C. Memo. 2006-41; Leineweber v.

Commissioner, T.C. Memo. 2004-17. Petitioner was given the

opportunity for a hearing and failed to take advantage of it. We

conclude, therefore, that there is no genuine issue of material

fact requiring a trial, that the undisputed facts in the record

establish that respondent did not abuse his discretion in

determining that the proposed collection action could proceed,

and that respondent is entitled to a summary disposition

upholding his proposed collection action with respect to

petitioner’s unpaid tax liabilities for 1990 through 1993. 

We shall grant respondent’s motion for partial summary

judgment.

An appropriate order

will be issued.