T.C. Memo. 2017-224

UNITED STATES TAX COURT

PAUL B. MUIR, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13634-16L. Filed November 16, 2017.

Paul B. Muir, pro se.

David Baudilio Mora and Paul Cooperman Feinberg, for respondent.

MEMORANDUM OPINION

KERRIGAN, Judge: The petition in this case was filed in response to a

Notice of Determination Concerning Collections Action(s) under Section 6320

and/or 6330 (notice of determination) dated May 11, 2016. The notice of

determination sustained a proposed levy regarding petitioner’s unpaid income tax

liability for tax year 2010.
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[*2] The issue for consideration is whether respondent’s determination to

proceed with the collection action regarding petitioner’s unpaid income tax

liability for tax year 2010 was proper. Unless otherwise indicated, all section

references are to the Internal Revenue Code, as amended, in effect at all relevant

times, and all Rule references are to the Tax Court Rules of Practice and

Procedure. 

Background

This case was deemed submitted pursuant to Rule 122. The stipulated facts

are incorporated in our findings by this reference. Petitioner resided in Texas

when he timely filed his petition. Before filing his petition, and until January

2016, petitioner resided in Ohio. All correspondence from respondent’s office to

petitioner, including correspondence after January 2016, was mailed to petitioner’s

Ohio address. 

Petitioner did not file a tax return for tax year 2010. Pursuant to section

6020(b), the Internal Revenue Service (IRS) prepared a substitute for return for tax

year 2010. On May 14, 2013, respondent issued petitioner a notice of deficiency

for tax year 2010. Petitioner did not file a petition with this Court in response to

the notice of deficiency. Petitioner did not dispute receipt of the notice of
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[*3] deficiency. The tax determined in the notice of deficiency and associated

penalties and interest were assessed against petitioner on February 10, 2014. 

On August 3, 2015, respondent sent petitioner a Notice of Intent to Levy

and Notice of Your Right to a Hearing, informing him that respondent intended to

levy to collect the unpaid tax liability, interest, and penalties and that he could

request a hearing with the IRS Appeals Office. 

On September 4, 2015, petitioner timely filed a Form 12153, Request for a

Collection Due Process or Equivalent Hearing (CDP hearing request). The CDP

hearing request recommended that petitioner submit a Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed Individuals, if he

wanted to discuss a collection alternative. Petitioner did not submit a Form

433-A. In his CDP hearing request petitioner stated:

I am disputing and believe I do not owe these alleged taxes or

penalties associated with these taxes. I would also like verification of

whether or not the IRS performed the necessary and proper

procedures that are required by law. If at the conclusion of my

hearing, it is proven that the tax is an amount I owe, I would like to

discuss all collection alternatives available to me. I am requesting a

face to face hearing at the appeals office closest to me which I intend

to record.

On October 15, 2015, respondent mailed petitioner a letter acknowledging

the receipt of his request for a CDP hearing. The letter stated that petitioner’s
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[*4] CDP hearing request had been processed and was being forwarded to the IRS

Appeals Office. The letter also requested that petitioner submit the delinquent

returns for the tax years 2008, 2009, 2011, 2012, 2013, and 2014.

On December 23, 2015, an Appeals officer mailed petitioner a letter

notifying him that the Appeals Office had received his CDP hearing request timely

and that the CDP hearing was his opportunity to discuss his reasons for

disagreeing with the collection action or to propose collection alternatives. The

letter further informed petitioner that if he did not participate in a conference or

respond to the letter, the Appeals Office would issue a determination based on his

CDP hearing request, any information previously provided to the Appeals Office,

and any information the office had on file regarding his applicable tax period. 

Petitioner did not respond to the letter. 

On February 12, 2016, the Appeals officer sent petitioner an additional

letter regarding his CDP hearing request, asking him to submit the following

documents: (1) a correct Form 1040, U.S. Individual Income Tax Return, for the

tax year 2010; (2) a Form 433-A and any supporting documents; and (3) all

outstanding delinquent returns for tax years 2008, 2009, 2011, 2012, 2013, and

2014. The letter set a deadline of March 9, 2016, for receipt of the documents and

informed petitioner that until the requested financial documentation had been
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[*5] received, his request for a face-to-face meeting was premature. The letter

reiterated that petitioner had received a notice of deficiency for tax year 2010 and

had not filed a petition with this Court. Petitioner did not respond to the letter or

provide any of the requested tax returns or financial information. 

The Appeals officer reviewed the account transcripts for tax year 2010 as

well as the transcripts for tax years 2008-09 and 2011-14. He concluded the

requirements of applicable law and administrative procedure had been met and

that an assessment had been properly made for tax year 2010. On May 11, 2016,

the Appeals officer mailed the notice of determination sustaining the proposed

collection action to petitioner’s Ohio address. The notice of determination stated

that the collection action was sustained because petitioner had failed to raise any

specific relevant issue or submit a viable collection alternative. Petitioner’s

petition disputed the notice of determination on the following grounds:

 (1) respondent did not properly verify that the IRS followed the proper

assessment procedure; (2) petitioner was not allowed to challenge the underlying

liability; (3) petitioner was denied a face-to-face hearing at a convenient location;

and (4) respondent did not consider the issues that he raised.
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[*6] Discussion

Section 6330 requires the Secretary to furnish a person notice and

opportunity for a hearing before an impartial office or employee of Appeals before

levying on the person’s property. At the hearing, the person may raise any

relevant issue relating to the unpaid tax or the proposed levy, including spousal

defenses, challenges to the appropriateness of the collection action, and offers of

collection alternatives. Sec. 6330(c)(2). The person may challenge the existence

or the amount of the underlying tax liability for any period only if the person did

not receive a notice of deficiency or did not otherwise have an opportunity to

dispute the liability. Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604,

609 (2000).

Following a hearing, the Appeals officer must determine whether

proceeding with the proposed levy action is appropriate. In making that

determination, the Appeals officer is required to take into consideration:

(1) whether the requirements of any applicable law or administrative procedure

have been met; (2) any issues appropriately raised by the taxpayer; and

(3) whether the proposed collection action balances the need for the efficient

collection of taxes with the legitimate concern of the taxpayer that any collection

action be no more intrusive than necessary. Sec. 6330(c)(3); see also Lunsford v.
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[*7] Commissioner, 117 T.C. 183, 184 (2001). We note that the Appeals officer

properly based his determination on the factors specified by section 6330(c)(3). 

I. Standard of Review

Once Appeals issues a notice of determination, the person may seek review

in this Court. Sec. 6330(d)(1). Petitioner raised the issue of his underlying tax

liability on his Form 12153, his petition, and his amended petition. Petitioner did

not file a tax return for tax year 2010. A notice of deficiency was issued and

received. Petitioner did not petition this Court. Petitioner did not dispute that he

had received a notice of deficiency. Consequently, petitioner’s underlying tax

liability is not properly before the Court. See Goza v. Commissioner, 114 T.C.

176 (2000). 

Where the validity of the underlying tax liability is not properly at issue, we

review the determination for abuse of discretion. Sego v. Commissioner, 114 T.C.

at 610; Goza v. Commissioner, 114 T.C. at 182. An abuse of discretion occurs if

Appeals exercises its discretion “arbitrarily, capriciously, or without sound basis

in fact or law.” Woodral v. Commissioner, 112 T.C. 19, 23 (1999). The Court

does not conduct an independent review and substitute its judgment for that of the

Appeals officer. Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469

F.3d 27 (1st Cir. 2006). If the Appeals officer follows all statutory and
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[*8] administrative guidelines and provides a reasoned, balanced decision, the

Court will not reweigh the equities. Link v. Commissioner, T.C. Memo. 2013-53,

at *12.

II. Abuse of Discretion

Petitioner contends that respondent’s determination constitutes an abuse of

discretion. Petitioner argues that it was an abuse of discretion for the Appeals

officer to deny him a face-to-face CDP hearing. Respondent contends that the

Appeals officer did not abuse his discretion because petitioner did not provide

requested financial information, including a proposed return for tax year 2010,

delinquent returns for 2008, 2009, 2011, 2012, 2013, and 2014, or a completed

Form 433-A. 

We have previously held that an Appeals officer does not necessarily abuse

his or her discretion by refusing to offer a face-to-face CDP hearing. LaForge v.

Commissioner, T.C. Memo. 2013-183, at *11 (noting that a face-to-face hearing is

not required under section 6330; noting further that an Appeals officer’s denial of

a face-to-face hearing does not constitute an abuse of discretion when the taxpayer

fails to provide requested financial information). 

If no face-to-face hearing, telephone conference, or any other oral

communication takes place, review of the documents in the case file will
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[*9] constitute the CDP hearing for the purposes of section 6330(b). Sec.

301.6330-1(d)(2), Q&A-D7, Proced. & Admin. Regs. Petitioner did not provide

any of the requested tax returns or financial information or contact the Appeals

officer. Because of petitioner’s failure to provide the requested information, the

Appeals officer, as petitioner was forewarned in respondent’s December 2015

letter, conducted petitioner’s CDP hearing by review of respondent’s

administrative files. 

Petitioner contends that it was an abuse of discretion for the Appeals office

to fail to note his change of address. He argues that he did not receive

respondent’s February 2016 letter because it was mailed to his previous address in

Ohio. There is no indication in the record that petitioner was not receiving

correspondence at his Ohio address. Petitioner received the notice of

determination at his Ohio address and timely filed his petition. In May 2016

petitioner still had access to mail received at his Ohio address.

It is the taxpayer’s responsibility to provide the IRS clear and concise

notification of any change of address. See sec. 301.6212-2(a), (b)(2), Proced. &

Admin. Regs.; see also Ward v. Commissioner, 907 F.2d 517 (5th Cir. 1990),

rev’g 92 T.C. 949 (1989); Tadros v. Commissioner, 763 F.2d 89 (2d Cir. 1985). 

The taxpayer may submit a change of address by indicating a new address on his
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[*10] next return, by filing a written or electronic change of address with the IRS

or by providing an updated address to the U.S. Postal Service for inclusion in its

national change of address database. Sec. 301.6212-2(a), Proced. & Admin. Regs. 

A taxpayer’s notification regarding change of address will be considered properly

processed 45 days after the submission of a written or electronic change of address

to the IRS or the U.S. Postal Service. Rev. Proc. 2010-16, 2010-19 I.R.B. 664.

Petitioner did not dispute receipt of respondent’s December 2015 letter. 

His change of address does not negate his failure to respond or provide any of the

requested financial information. The December 2015 letter contained the name,

address, and phone number of the Appeals officer assigned to petitioner’s CDP

hearing request. The letter also informed petitioner that if he failed to participate

in a conference or respond and submit the requested information and documents,

the determination concerning the proposed levy would be based solely on

information already in the Appeals Office’s possession. Petitioner made no

attempt at contact, nor did he respond to the letter.

The Appeals Office’s failure to note the change of address was not an abuse

of discretion. Petitioner was well advised of his responsibility to contact and

provide the requested information to his assigned Appeals officer. A taxpayer is

expected to provide all relevant information to the Appeals Office, including
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[*11] financial statements. See sec. 301.6330-1(e)(1), Proced. & Admin. Regs. 

Petitioner made no contact with the Appeals officer or respondent, and at no time

did he provide any of the requested financial information. 

Petitioner has not shown an irregularity in respondent’s assessment

procedure. See Nestor v. Commissioner, 118 T.C. 162, 166-167 (2002) (placing

the burden on the taxpayer to prove an irregularity existed in the assessment

procedure). Petitioner likewise has failed to show that the Appeals officer did not

properly determine that the requirements of any applicable law or administrative

procedure had been met. We conclude that petitioner was provided a CDP hearing

which complied with all applicable requirements and the Appeals officer did not

abuse his discretion in sustaining the proposed levy. 

Any contention we have not addressed is irrelevant, moot, or meritless. 

Respondent’s determination to proceed with collection was not an abuse of

discretion.

To reflect the foregoing,

Decision will be entered

for respondent.