1 Unless 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 in effect for the

year in issue.

 T.C. Memo. 2007-240

UNITED STATES TAX COURT

CRAIG H. BOND AND JENNIFER BOND, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 9282-06L. Filed August 22, 2007.

Craig H. Bond and Jennifer Bond, pro sese.

John M. Janusz, for respondent.

MEMORANDUM OPINION

MARVEL, Judge: This matter is before the Court on

respondent’s motion for summary judgment filed under Rule 121.1 
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Background

This is an appeal from respondent’s determination to uphold

the validity of a notice of Federal tax lien filed with respect

to petitioners’ 2001 unpaid income tax liability. Petitioners

resided in Henrietta, New York, when the petition was filed.

Petitioners filed their joint Federal income tax return for

2001. Respondent subsequently commenced an examination of

petitioners’ 2001 tax year and determined a deficiency in

petitioners’ income tax and an accuracy-related penalty under

section 6662. On October 27, 2004, respondent mailed petitioners

a statutory notice of deficiency.

Petitioners failed to petition this Court with respect to

the October 27, 2004, notice of deficiency. Consequently,

respondent assessed petitioners’ unpaid 2001 tax liability and

issued notice and demand for payment. Petitioners failed to

respond to respondent’s request, and on October 5, 2005,

respondent issued to petitioners a Notice of Federal Tax Lien

Filing and Your Right to a Hearing Under I.R.C. 6320. 

Petitioners timely submitted a Form 12153, Request for a

Collection Due Process Hearing.

On December 21, 2005, Appeals Officer Kenneth J. Heidle

(Officer Heidle) conducted a conference with Harold Rehm (Mr.

Rehm), petitioners’ representative and 2001 tax return preparer. 

However, because Officer Heidle concluded that Mr. Rehm was not
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an enrolled return preparer, no information was provided to Mr.

Rehm at the conference. Mr. Rehm communicated to Officer Heidle

the desire of petitioners to reopen the audit of their 2001

return. 

On December 29, 2005, Officer Heidle held a face-to-face

conference with petitioner Jennifer Bond (Mrs. Bond) and Mr.

Rehm. Mrs. Bond raised questions regarding petitioners’ tax

liability for 2001 and reiterated petitioners’ request to reopen

the audit of their 2001 return. Officer Heidle informed Mrs.

Bond that petitioners were precluded from contesting their

underlying tax liability for 2001 because petitioners had already

been given an opportunity to do so when they received the October

27, 2004, notice of deficiency, which Mrs. Bond acknowledged

receiving. 

On April 12, 2006, Officer Heidle sent petitioners a Notice

of Determination Concerning Collection Action(s) Under Section

6320 and/or 6330. Officer Heidle determined that petitioners

were precluded from contesting their underlying tax liability and

concluded that respondent could proceed with the proposed

collection action.

On May 16, 2006, the petition was filed. In their petition,

petitioners raised arguments relating only to their underlying

tax liability for 2001. 
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On June 13, 2007, respondent filed his motion for summary

judgment. On July 5, 2007, petitioners filed a response in

opposition to respondent’s motion. On July 13, 2007, respondent

filed a reply to petitioners’ response in opposition. 

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(a) and

(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

establishing 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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2 The term “Secretary” means “the Secretary of the Treasury

or his delegate”, sec. 7701(a)(11)(B), and the term “or his

delegate” means “any officer, employee, or agency of the Treasury

Department duly authorized by the Secretary of the Treasury

directly, or indirectly by one or more redelegations of

authority, to perform the function mentioned or described in the

context”, sec. 7701(a)(12)(A).

3 Sec. 6320(c) provides that sec. 6330(c), (d) (other than

par. (2)(B)), and (e) shall apply for purposes of the sec. 6320

hearing. 

specific facts showing that there is a genuine issue for trial.” 

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

II. Section 6330(d) Review

Under section 6320(a), the Secretary2 is required to notify

the taxpayer in writing of the filing of a Federal tax lien and

to inform the taxpayer of his right to a hearing. If the

taxpayer makes a request for a hearing under section 6320, a

hearing shall be held before an impartial officer or employee of

the Internal Revenue Service (IRS) Office of Appeals. Sec.

6320(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.3 Sec. 6330(c)(2)(A). A taxpayer may

contest the existence or amount of the underlying tax liability

if the taxpayer failed to receive a notice of deficiency for the

tax liability 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, 114 T.C. 604, 609 (2000). Receipt
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of a statutory notice for purposes of section 6330(c)(2)(B) means

receipt in time to petition the Tax Court for a redetermination

of the deficiency asserted in the notice of deficiency. Sec.

301.6320-1(e)(3), Q&A-E2, Proced. & Admin. Regs.

Following a hearing, the Appeals Office must make a

determination whether the Secretary may proceed with the proposed

collection action. 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 collection

action appropriately balances the need for efficient collection

of taxes with a taxpayer’s concerns regarding the intrusiveness

of the proposed collection action. Sec. 6330(c)(3). 

Section 6330(d)(1) grants the Court jurisdiction to review

the determination made by the Appeals officer. If the underlying

tax liability is properly at issue, the Court reviews the

determination regarding the underlying tax liability de novo. 

Sego v. Commissioner, supra at 610. The Court reviews all other

determinations 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). 

Petitioners claim that they are not precluded from

contesting their underlying tax liability for 2001 because Mr.
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4 We shall assume for purposes of this discussion that the

Form 2848, Power of Attorney and Declaration of Representative,

signed by Mrs. Bond and Mr. Rehm on Oct. 12, 2004, is valid

despite petitioner Craig Bond’s failure to sign it.

Rehm did not receive a copy of the October 27, 2004, notice of

deficiency. Petitioners allege that because they executed a

power of attorney placing Mr. Rehm in charge of all matters

relating to their 2001 tax year, respondent erred by not sending

him a copy of the notice.4

Petitioners’ argument is without merit. The power of

attorney designated Mr. Rehm as petitioners’ representative and

authorized him to receive copies of communications sent by

respondent to petitioners. However, the power of attorney

specified that respondent would send all original communications

to petitioners. Under like circumstances we have held that the

failure to mail a copy of the notice of deficiency to a

taxpayer’s representative is not fatal to the validity of the

notice. McDonald v. Commissioner, 76 T.C. 750, 753 (1981); Allen

v. Commissioner, 29 T.C. 113, 117 (1957). Section 6212 requires

only that the Secretary mail the notice of deficiency by

certified or registered mail to the taxpayer’s last known

address. A notice of deficiency is valid if it is mailed

directly to a taxpayer at the taxpayer’s last known address, even

if the taxpayer directs that a copy of all communications be sent

to the taxpayer’s representative and no copy of the deficiency
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notice is sent to the taxpayer’s representative. McDonald v.

Commissioner, supra at 752-753; Allen v. Commissioner, supra at

117. Sending copies of the statutory notice to representatives

named in a power of attorney is merely a courtesy to the

taxpayer, not an obligation of the IRS, and in no way affects the

mailing requirements of section 6212. McDonald v. Commissioner,

supra at 753; Houghton v. Commissioner, 48 T.C. 656, 661 (1967). 

Accordingly, the notice of deficiency is valid despite Mr. Rehm’s

failure to receive a copy. 

Petitioners’ remaining arguments relate to their underlying

tax liability for 2001. The record clearly demonstrates,

however, that respondent properly mailed them a notice of

deficiency for 2001 on October 27, 2004. Respondent attached to

his motion a copy of the notice of deficiency and a copy of the

U.S. Postal Service Form 3877, confirming that a copy of the

notice was mailed to each petitioner on October 27, 2004. The

record does not contain any evidence that the notice of

deficiency was ever returned to respondent nor have petitioners

denied receiving it. Moreover, Mrs. Bond admitted at the faceto-face conference held on December 29, 2005, and in a January

27, 2006, letter to Officer Heidle that petitioners received the

October 27, 2004, notice of deficiency. Accordingly, we conclude

that because petitioners received a statutory notice of

deficiency, petitioners are precluded under section 6330(c)(2)(B)
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from contesting their 2001 tax liability. Because petitioners’

underlying tax liability is not properly at issue, we review the

determination made by the Appeals Office for abuse of discretion. 

As petitioners raise no other arguments pertaining to the

appropriateness of the proposed collection action, we hold that

Mr. Heidle did not abuse his discretion in upholding the validity

of the notice of Federal tax lien filing. 

On this record, we conclude that there is no genuine issue

of material fact requiring a trial, and we hold that respondent

is entitled to the entry of a decision sustaining the lien as a

matter of law.

To reflect the foregoing,

An appropriate order and

decision will be entered.