# United **States Tax Court**

T.C. Memo. 2022

- 121

O UATTARA S. MAMADOU

, Petitioner

v

. COMMISSIONER OF INTERNAL REVENUE, Respondent

—————

Docket N o. 9759

- 21L

. Filed December 19, 2022.

—————

Ou attara S. Mamadou , pro se

.
Marissa J. Savit

, Thomas A. Deamus

, and Marie E. Small

, for respondent.

MEMORANDUM OPINION

LAUBER

, Judge : In this collection due process (CDP) case

, petitioner seeks review pursuant to sections 6320(c) and 6330(d)(1) o f the determination by the Internal Revenue Service ( IRS or respondent) regarding collection action f or tax years 2015 and 2016. 1 Respondent has filed a Motion for Summary Judgment contending that petitioner is not entitled to challenge his underlying tax liabilities and that the settlement o fficer (SO) did not abuse her discretion. We agree and accordingly will grant the Motion.

1 Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar.



### Served 12/19/222

[* 2 ] Background

The following facts are based upon the parties’ pleadings

, Motion papers, declarations

, and attached E xhibits , which include the adm inistrative record of the CDP proceeding

. See R ule 121(b). Petitioner resided in New York when he filed his P etition.

Petitioner filed timely F edera l income tax returns for 2015 and 2016. The IRS commenced an examination of those returns upon receiving third

- party reports showing items of income that petitioner had failed to report. On March 22, 2018

, the IRS issued petitioner a timely

n otice of deficienc y de termining deficiencies of $28,3 64 and $15,980 for 2015 and 2016, respectively

. The notice determined additional income as shown in the third

- party reports and disallowed certain itemized and business expense deductions. 2

The notice of deficiency was sent by certified mail to petition er at his last known address , an apartment in Bronx, New York (Bronx address)

. The Bronx address was the address shown on petitioner’s most recently filed Federal income tax return, that is, his 2016 return filed on April 15, 2017. Th e Br onx address is p etitioner’s address of record with this Court, and it is the address that he has used at all relevant times in his correspondence with the IRS.

Petitioner did not timely petition this Court in response to the notice of deficiency

. Accordingly, o n August 13, 2018 , respondent assessed the additional tax liabilit ies as determined in the notice . Petitioner did not pay these liabilities upon notice and demand for payment.

O n June 6, 2019 , i n a n effort to collect petitioner’s 2015 and 2016 liabilities, the IRS filed a N otice of Federal Tax Lien (NFTL) and sent petitioner a Letter 3172 (lien notice) notifying him of his right to a CDP hearing

. The lien notice was sent by certified mail and was a ddressed to petitioner at the Bronx address.

Petitioner timely requested a CDP hearing, listing the Bronx address as his current address. In his hearing reques t he did not propose a collection alternative . R ather, he stated that he “ha[d] not been given

2 The notice of deficiency also determined accuracy

- related penalties for both

years, but respondent has conceded (and abated) those penalties for inability to show timely supervisory approval under section 6751(b)(1)

. S ee infra p

. 4.3

[* 3 ] a chance to fight the deficiency determination” and wanted to challenge his underlying liability for each year

.
Th e case was assigned to a n SO from the IRS Office of Appeals (Appeals) in Atlanta, Georgia

. 3 On January 28, 2020 , the S O sent petitioner a letter, again mailed to the Bronx address, scheduling a telephone CDP hearin g for March 31, 2020 . The S O in dicated that petitioner should call to reschedule if he could not keep that appointment.

The S O’s letter noted that the proposed confe rence would be petitioner’s main opportunity to explain why he disagreed with the collection action and to discuss collection alternatives. The S O explained that she would be unable to consider a collection alternative unless petitioner sent her a completed Form 433

– A, Collection Information Statement for Wage Earners and Self

- Employed Individuals

, with supporting financial information.

Petitioner did not call in for the scheduled conference , did not request that it be rescheduled, and did not supply any financial information. On April 9, 2020 , the S O sent petitioner a “last chance” letter informing him that he had 14 days to call her or send additional information; otherwise, she would close the case. Petitioner did not respond to that letter . On July 27, 2020, following a “ COVID 19 suspens ion

, ” the S O sent petitioner another last chance letter . A gain he failed to respond.

In January 2021 the SO verified the propriety of the assessments by reviewing copies of the notice of deficiency and the U.S. Postal S ervice (USPS) certified mail list on which the notice appeared

. On January 14, 2021 , having received no communication from petitioner since his initial request for a CDP hearing , the S O closed the ca se

. On February 26, 2021, the IRS sent petitioner a notice of determination sustaining the NFTL filing

. The letter acknowledged petitioner’s assertion that he “didnot have the opportunity to dispute the notice of deficiency.” But because he supplied no relevant information and failed to participate in the telephone conference

, his dispute regarding his underlying liabilities “was not considered.”

Petitioner timely petitioned this Court for re view , listing his address as the Bronx address. In his P etit ion he sought to challenge his

3 On July 1, 2019, th e IRS Office of Appeals was renamed the IRS Independent Office of Appeals. See Taxpayer First Act, Pub. L. No. 116

- 25, § 1001, 133 Stat. 981, 983 (2019).4

[* 4 ] underlying tax liabilities for 2015

– 2016. He stated that he was anindependent contractor and alleged that the IRS had failed to allow deductions for his “self

- employed expenses.”

On March 18, 2022, after several unsuccessful efforts to communicate with petitioner, r espondent filed a M otion to D ismiss for F ailure to Properly Prosecute . On April 6, 2022, petitioner filed a handwritten R esponse, asserting that he did not receive the notice of deficiency for 2015

– 2016. He also attached a copy of IRS Form 668 ( Z ) , Certificate of Release of Federal Tax Lien , indicating that the tax liens for 2015

– 2016 had been released on February 9, 2022.

This case was called from the calendar in New York, New York, on April 1 1, 2022. There was no appearance by or on behalf of petitioner. R espondent appeared and explained that the tax liens had been released in error. Counsel for respondent represented that, upon determining that the IRS could not show timely supervisory app roval for the penalties, she asked the Service Center to abate the penalties, but it erroneously abated the deficiencies as well. Counsel explained that the erroneous abatement of the deficiencies had been reversed, but not in time to prevent issuance of the Form 668 (Z) , which releas ed the liens.

By Order served April 15, 2022, we denied without prejudice respondent’s M otion to Dismiss . We subsequently set the case for a remote hearing on June 13, 202 2, in which petitioner participated by telephone

. He asserted that he had a lawyer, but no counsel has ever entered an

appearance for him in this case.

During the hearing we suggested that the case might be resolved via motion for summary judgment. On June 29, 2022, w e directed respondent to file a motion for summary judgment by August 15, 2022, and directed petitioner to respond by September 28, 2022. Our O rder warned petitioner that, “under Tax Court Rule 121(d), judgment may be entered against a party who fails to respond to a motion for summary judgment.” On August 5, 2022 , respondent filed a Motion for Summary Judgment , but p etitioner failed to respond

.
Discussion

A. Jurisdiction

In his CDP hearing request petitioner challenge d his underlying
tax liabilities fo r 2015

– 2016. In the notice of determination the SO determined that petitioner’s underlying liability challenge would not be5

[* 5 ] considered, that he was entitled to no collection alternative, and that the NFTL filings were proper

. Because of a clerical error, the tax liens for 2015

– 2016 have been released , but the abatements of the deficiency assessments have been reversed. Petitioner thus continues to have outstanding tax liabilities for 2015

– 2016, and he s eeks to dispute th ose liabilities in this Court.

This Court has jurisdiction to review the “determination” made by the IRS following a CDP hearing. See §§ 6330(d)(1), 6320(c). Withdrawal of a Federal tax lien, in and of itself, does not pre vent us from exercising jurisdiction over the remaining issues in a case. See First Rock Baptist Church Child Dev. Ctr

. v. Commissioner , 148 T.C. 380, 388 (2017) ; see also V i gon v . Commissioner , 149 T.C. 97, 104, 105

– 07 ( 2017)

. D espite the inadvertent withdr awal of the l ien s, we retain jurisdiction
to consider petitioner’s challenge to his underlying tax liabilities and the SO’s exercise of discretion

.

B

. Summary Judgment Standard

The purpose of summary judgment is to expedite litigation and avoid costly, ti me

- consuming, and unnecessary trials. Fla. Peach Corp. v. Commissioner , 90 T.C. 678, 681 (1988)

. The Court may grant a motion for summary judgment when the record reveals that there is no genuine dispute as to any material fact and a decision may be rendered as a matter of law. Rule 121(b) ; Sundstrand Corp. v. Commissioner , 98 T.C. 518, 520 (1992), aff’d , 17 F.3d 965 (7th Cir. 1994)

. In deciding whether to grant summary judgme nt, we construe factual materials and inferences drawn from them in the light most favorable to the nonmoving party. Sundstrand Corp

. , 98 T.C. at 520

. However, the nonmoving party may not rest upon mere allegations or denials in his pleading s ; instead, h e must set forth specific facts demonstrating that a genuine dispute exists for trial. Rule 121(d); see Sundstrand Corp. , 98 T.C. at 520.

Because petitioner did not respond to the M otion for S ummary J udgment, we could enter a decision against him for tha t reason alone. See Rule 121(d). We will nevertheless consider the M otion on its merits. We conclude that no material facts are in genuine dispute and that this case is appropriate for summary adjudication.

C

. Standard of Review

Section 6330(d)(1) does not prescribe the standard of review thatthis Court should apply in reviewing an IRS administrative determination in a CDP case. The general parameters for such review are marked6

[* 6 ] out by our precedents. Where the validity of a taxpayer’s underlying liability is properly at issue, we review the IRS ’ s determination de

novo. Sego v. Commissioner , 114 T.C. 604, 610 (2000); Goza v. Commissioner , 114 T.C. 176, 181

– 82 (2000). Where the taxpayer’s underlying liability is not properl y before us , we review the IRS ’ s determination for abuse of discretion only. Jones v. Commissioner , 338 F.3d 463, 466 (5th Cir. 2003); Goza , 114 T.C. at 182. Abuse of discretion exists when a determination is arbitrary, capricious, or without sound basis in fact or law. See Murphy v. Commissioner , 125 T.C. 301, 320 (2005), aff’d , 469 F.3d 27 (1st Cir. 2006).

D

. Underlying Liabilities

A taxpayer may challenge his underlying tax liability at a CDP hearing only if he “did not receive any statutory notice o f deficiency for such tax liability or did not otherwise have an opportunity” to dispute it

. § 63 3 0(c) (2)(B). For purposes of determining whether a taxpayer can raise a liability challenge under section 6330(c)(2)(B) , actual receipt of the statutory notice must be determined. See Sego , 114 T.C. at 610

– 11. A notice of deficiency is presumed to have been received by the taxpayer if it was properly mailed to him at his last known address. See § 6212(b)(1); Hoyle v. Co mmissioner , 131 T.C. 197, 200 , 203

– 04 (2008), supplemented by 136 T.C. 463 (2011). A taxpayer’s last known address is generally the address appearing on his “most recently filed and properly processed Federal tax return.” Treas. Reg. § 301.6212

- 2(a)

.

R espondent bears the burden of proving, by competent and persuasive evidence, the proper mailing of the notice of deficiency. Coleman v. Commissioner , 94 T.C. 82, 90 (1990). Generally, if the IRS establishe s that the notice existed and produces a USPS cer tified mail list showing that the no t ice was sent to the taxpayer’s last known address, the IRS is entitled to a presumption of proper mailing. See O’Rourke v. United States , 587 F.3d 537, 540 (2d Cir. 2009); Coleman

, 94 T.C. at 90

– 91

. If a taxpayer fail s to rebut this presumption, the Court may find that the taxpayer received the notice. See Sego , 114 T.C. at 611.

Respondent has supplied a USPS certified mail list show ing that the notice of deficiency for 2015

– 2016 was sent via certified mail to petiti oner at his Bronx address. The SO subsequently verified that this address w as petitioner’s last known address. P etitioner does not dispute that the Bronx address was his last known address , and several facts support the conclusion that it has been his correc t address at all relevant times. Petitioner listed the Bronx address on his 2016 tax return
, filed7

[* 7 ] April 15, 2017. He received the lien notice at the Bronx address and show ed the Bronx address as the return address on his CDP hearing request . The Bronx address has been his address of record with this Court at all relevant times: H e list ed th e Bronx address as his address on his Tax Court P etition, on a subsequent amendment to his P etition, and in his R esponse to the Motion to Dismiss

.

P etitioner assert ed in his R esponse to th e Motion to Dismiss that he did not receive the notice of deficiency. But he has supplie d no evidence to support the p lausibility of that assertion. He has evident ly resided at the Bronx address at least since April 2017, well before the notice of deficiency was issued, and he has repeatedly received mail at that address from the IRS and this Court

. Petitioner’s allegations are in sufficient to overcome the presumption of official regularity

. See S ego , 114 T.C. at 611. W e find that respondent has carried his burden of showing that petitioner actually received the notice of deficiency

. See Golditch v. Commissioner , T.C. Memo. 2010

- 260, 100 T.C.M. (CCH) 477, 480 (citing Sego , 1 1 4 T.C. at 611)

. Assuming arguendo that petitioner did not receive the notice of deficiency , he was entitled to dispute his underlying tax liabilities at the CDP hearing. But this right entailed certain reciprocal obligations on his part. To preserve an underlying liability challenge in this Court, a taxpayer must properly raise th at challenge at the CDP hearing. Thompson v. Commissioner , 140 T.C. 173, 178 (2013) ; see Giamelli v. Commissioner , 1 29 T.C. 107, 113 (2007). “An issue is not properly raised if the taxpayer fails . . . to present to Appeals any evidence with respect to that issue after being given a reasonable opportunity” to do so. Treas. Reg. § 301.6320

- 1(f)(2), Q&A

- F3 ; see Giamelli , 129 T.C. at 112

– 16

. In other words, the taxpayer must explain what he believes his correct tax liability to be and supply the SO with some evidence to support that position. See Giamelli , 129 T.C. at 11 2

– 16 ; Fleming v. Commissioner

, T.C. Memo. 2017

- 155, 114 T.C.M. (CCH) 180, 182 (citing McRae v. Commissioner

, T.C. Memo. 2015

- 132, 110 T.C.M. (CCH) 89, 91 ); Treas. Reg. § 301.6320

- 1(f)(2), Q&A

- F3.

P etitioner did not submit during the CDP hearing any evidence that would tend to dispute the existence or amount s of his 2015

– 2016 tax liabilities

. Indeed, he did not participate in the CDP hearing or communicate with the S O after fil ing his hearing request. See Sullivan v. Commissioner , T.C. Memo. 2019

- 153, 118 T.C.M. (CCH) 415, 417. Because petitioner did not properly raise an underlying liabilit y challenge8

[* 8 ] at the CDP hearing, that issue is not before this Court

. We thus review the S O’s action for abuse of discretion only.

E

. Abuse of Discre tion

In deciding whether the S O abused her discretion we consider whether she: (1) properly verified that the requirements of applicable law or administrative procedure were met, (2) considered relevant issues petitioner raised, and (3) considered “whethe r any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of [petitioner] that any collection action be no more intrusive than necessary.” § 6330(c) (3) ; see § 6320(c)

. Our review of the record establishes that the S O properly discharged all of her responsibilities under sections 6320(c) and 6330(c).

The S O properly verified the assessments by requesting and reviewing the notice of deficiency and the certified mail list. She reasonably concluded that petitioner did not qualify for a collection alternative. P etitioner proposed no such alternative

, and he declined to supply the financial information requisite to determining whether he was entitled
to one

. Either of these failings by itself is disqualifying. See Gentile v. Commissioner , T.C. Memo. 2013

- 175, 106 T.C.M. (CCH) 75, 77 (no alternative proposed), aff’d

, 592 F. App’x 824 (11th Cir. 2014); Coleman v. Commissioner , T.C. Memo. 2010

- 51, 99 T.C.M. (CCH) 1213, 1215 (n o financial information provided), aff’d , 420 F. App’x 663 (8th Cir. 2011)

.Finding no abuse of discretion in any respect, we will grant summary judgment for respondent

. We note that petitioner is free to submit to the IRS at any time, for its consideration and possible acceptance, a collection alternative in the form of an offer

- in

- compromise or an installment agreement
, supported by the requisite financial information.

To reflect the foregoing

, An ap propriate order and decision will be entered for respondent.