t c memo united_states tax_court pasadena ent clinic p a petitioner v commissioner of internal revenue respondent docket no filed date afton jane izen for petitioner christina d moss for respondent memorandum opinion dawson judge this case was assigned for disposition to special_trial_judge john f dean pursuant to sec_7443a and rule sec_180 sec_181 and sec_183 the court agrees with and adopts the opinion of the special_trial_judge which is set forth below opinion of the special_trial_judge dean special_trial_judge on date respondent filed a motion to dismiss for lack of jurisdiction upon the ground that under tax_court rule c petitioner pasadena ent clinic p a ent clinic lacks the legal capacity to engage in litigation before the court petitioner filed an opposition to respondent's motion on date the court set a hearing on the motion at the date houston texas trial session at the trial session the parties appeared through counsel argued the motion and filed a stipulation of facts after the hearing on respondent's motion to dismiss petitioner filed on date a motion to reopen record to receive additional evidence and on date a motion to stay proceedings respondent filed objections to both motions and petitioner filed responses to each of respondent's objections background for calendar years and ent clinic filed forms u s_corporation income_tax return on date 1unless otherwise indicated all section references are to the internal_revenue_code as amended all rule references are to the tax_court rules_of_practice and procedure respondent mailed to petitioner a notice_of_deficiency in which she determined federal_income_tax deficiencies in the amounts of dollar_figure and dollar_figure for and respectively an addition_to_tax under sec_6651 for in the amount of dollar_figure and penalties under sec_6662 in the amounts of dollar_figure and dollar_figure for and respectively petitioner filed a petition for redetermination on date in her motion to dismiss respondent argues that years before the petition was filed in this case petitioner a texas professional association was involuntarily dissolved for failure_to_file its annual_statement thus it is contended that petitioner is not a proper party to file a petition with the court because it did not exist as a legal entity petitioner's response is that the state of texas has no power to dissolve a professional association even if the state has such power petitioner argues litigation of the corporate tax_liability may be pursued in this court by petitioner's sole shareholder for the benefit of the association we rely upon the pleadings the stipulation of facts with attached exhibits and status reports of the parties filed in this case in deciding respondent's motion as well as those of petitioner petitioner was organized under the laws of texas as a professional association on or about date its president and sole shareholder is joe a izen m d dr izen through dr izen petitioner provides ear nose and throat medical services in a clinic located in pasadena texas its principal_place_of_business the parties have attached as exhibits to the stipulation a copy of an order of involuntary dissolution of petitioner and a copy of a letter from the texas secretary of state to dr izen dated date declaring petitioner's involuntary dissolution due to its failure_to_file an annual_statement for the year as required by sec_21 of the texas professional association act tex civ stat ann art 1528f west discussion rule tax_court rules_of_practice and procedure provides that the capacity of a corporation to engage in litigation in this court shall be determined by the law under which the corporation was organized see eg 71_tc_108 petitioner's dissolution under the facts of this case petitioner's corporate existence is governed by two separate but interrelated texas statutes sec_25 of the texas professional association act tex civ stat ann art f west provides that the texas business corporation act shall be applicable to professional associations except to the extent that the provisions of the texas business corporation act conflict with the provisions of this act and professional associations shall enjoy the powers and privileges and be subject_to the duties restrictions and liabilities of business corporations except insofar as the same may be limited or enlarged by this act this act shall take precedence in the event of any conflict with the provisions of the texas business corporation act or the law under the authority of tex bus corp act ann art dollar_figure west a corporation may be dissolved involuntarily by order of the secretary of state when it is in default by failing to file any report within the time required_by_law petitioner essentially argues that its date dissolution by the secretary of state was illegal because there is a conflict between the provision of the business corporation act allowing the secretary of state to act as he did and the professional association act which contains no involuntary dissolution provision when two statutes are in_pari_materia or cover the same subject matter they should be construed so that their provisions are harmonized 930_f2d_409 5th cir even if two statutes are in conflict to some degree they must be read to give effect to each unless it is clear that the legislature intended to repeal the earlier statute 821_f2d_1046 5th cir we find no conflict between the pertinent provisions of the two statutes the professional association act makes the general business corporation act that provides for involuntary dissolution applicable to professional associations unless there is a conflict between the acts but does not itself mention involuntary dissolution if we follow petitioner's logic any provision of texas statutory law not mentioned in the professional association act would be in conflict with it this argument is specious there is no conflict between the acts we think petitioner was lawfully dissolved on date petitioner's capacity under survival statute petitioner argues that even if it was lawfully dissolved its sole shareholder dr izen may pursue litigation for its benefit in this court because there is no time limit on the survival of this cause of action to the contrary respondent argues that a corporation that has been dissolved under state law and files a petition beyond the statutory period for winding up its affairs has no capacity to prosecute an action in this court citing among other cases lee enterprises inc v commissioner tcmemo_1992_629 petition of texas corporation dissolved more than three years dismissed under article dollar_figure of the business corporation act the dissolution of a corporation does not impair any remedy available to or against such corporation its officers directors or shareholders for any right or claim existing or any liability incurred prior to such dissolution if action or other proceeding thereon is commenced within three years after the date of such dissolution emphasis added the effect of this and its predecessor statute is to preserve remedies for pre- dissolution claims and liabilities only petitioner's liability for deficiencies in income_tax for the years and arose only after the filing of the respective returns see sec_6901 the notice_of_deficiency issued by respondent therefore relates to post-dissolution liabilities in hunter v fort worth capital corp s w 2d tex the supreme court of texas noted that at common_law dissolution terminated the legal existence of a corporation once dissolved a corporation could neither sue nor be sued and all legal proceedings in which it was a party abated the court considered the possibility that some principle of equity separate and apart from article dollar_figure and its predecessor might keep alive a cause of action against a corporation for post- dissolution liabilities the court found that the effect of the statutes enacted prior to the enactment of article dollar_figure in was to supplant the equitable trust theory by declaring a statutory equivalent we find no indication that the legislature intended for article dollar_figure to be interpreted any differently therefore article dollar_figure expresses a legislative policy to restrict the use of the trust_fund_theory to pre-dissolution claims id pincite fn ref omitted although its focus was on the trust fund doctrine we interpret the hunter v fort worth capital corp supra opinion to hold that article dollar_figure is the sole legal authority for a dissolved texas corporation to pursue claims or to defend against liabilities see anderson v hodge boats motors inc s w 2d tex ct app weibel v martin indus inc s w 2d tex ct app article dollar_figure only provides for survival of any right or claim existing or any liability incurred before dissolution the federal_income_tax liabilities in this case are clearly post-dissolution liabilities that are outside the cited statutory authority and may not be litigated by petitioner although petitioner was dissolved at the time absent a notice to respondent of a fiduciary relationship under sec_6903 and sec_6212 respondent was justified in issuing the notice directly to and in the name of petitioner sec_6212 63_tc_304 comfort home builders inc v commissioner tcmemo_1995_225 petitioner's motion sec_2the trust fund doctrine is an equitable principle that contemplates that assets of a dissolved corporation are held in trust for the benefit of the creditors of the corporation see in re mortgageamerica corp 714_f2d_1266 5th cir 56_tc_447 we next address petitioner's motion to reopen the record petitioner asks the court to reopen the record in the hearing on respondent's motion to allow it to introduce a copy of a letter to dr izen from an attorney in the office of the secretary of state of texas the letter suggests that if certain measures were taken the dissolution of petitioner would be set_aside and petitioner's existence would be reinstated as of date not only does this document contain hearsay but by obtaining the letter only after the hearing on the motion in this case petitioner has not shown due diligence see haydon v commissioner tcmemo_1991_42 further as petitioner admits in its motion to stay proceedings discussed below there has been no reinstatement absent a retroactive reinstatement admission of the proffered document would have no effect on the outcome of our decision on respondent's motion for all the above reasons we will deny petitioner's motion to reopen the record petitioner moves in its most recent motion to in effect indefinitely continue consideration of respondent's motion until it can obtain a declaratory_judgment against the state of texas that it has a right to reinstatement of its charter for the period through the decision to continue consideration of a motion lies in the sole discretion of the court and will not be set_aside absent a clear showing of abuse_of_discretion 904_f2d_101 1st cir affg tcmemo_1988_299 777_f2d_38 d c cir only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay will be such an abuse_of_discretion 793_f2d_436 1st cir citing 461_us_1 the parties by order dated date were requested to notify the court of the status of petitioner's declaratory_judgment action filed in the district_court of travis county texas in which retroactive corporate reinstatement was sought we have been informed by the parties that petitioner's declaratory_judgment action was dismissed for lack of jurisdiction petitioner's status report advises the court of its intention to move for a new trial or to appeal the decision of dismissal based on the record we see no reason to stay continue or further delay our consideration of respondent's motion therefore we will deny petitioner's motion for a stay of proceedings 3the cases cite various factors that may be used in deciding the issue 899_f2d_1088 11th cir 791_f2d_666 9th cir 531_f2d_1281 5th cir conclusion having considered all of petitioner's arguments we find them to be without merit we hold that petitioner lacked the capacity under rule c to file a petition in this court and we will grant respondent's motion to dismiss for lack of jurisdiction see 69_tc_149 lee enterprises inc v commissioner tcmemo_1992_629 the liabilities at issue here may be litigated on their merits in the event respondent should issue a notice of transferee_liability to the appropriate person sec_6901 great falls bonding agency inc v commissioner supra pincite an order and order of dismissal will be entered


t c summary opinion united_states tax_court eldron u erbs petitioner v commissioner of internal revenue respondent docket no 1890-00s filed date eldron u erbs pro_se james m klein and mark j miller for respondent dinan special_trial_judge the proceedings in this case were conducted pursuant to the provisions of sec_7463 of the internal_revenue_code in effect at the time the petition was filed the decision to be entered is not reviewable by any other court and this opinion should not be cited as authority unless otherwise indicated subsequent section references are to the internal_revenue_code in effect for the year in issue and all - - rule references are to the tax_court rules_of_practice and procedure respondent determined a deficiency in petitioner’s federal_income_tax of dollar_figure for the taxable_year the issue for decision is whether petitioner was engaged in the trade_or_business of gambling in this case was submitted fully stipulated pursuant to rule all of the facts stipulated are so found the stipulations of fact and the attached exhibits are incorporated herein by this reference petitioner resided in oakdale wisconsin on the date the petition was filed in this case petitioner’s audit commenced on date petitioner is semiretired during the year in issue he was engaged in a business in which he purchased and sold antiques he incurred a loss of dollar_figure in this business also during petitioner visited the ho-chunk casino in baraboo wisconsin on at least occasions ho-chunk casino produced a player coin report which indicates petitioner had coin-in and coin-out amounts during the year of dollar_figure and dollar_figure respectively petitioner made bank withdrawals from automated teller machines in connection with his ho-chunk gambling activity on separate dates the following summarizes on a monthly basis the number of days he made withdrawals jan feb mar apr may june july aug sept oct nov dec we treat these numbers as the approximate number of times petitioner visited the casino in each month he would normally visit the casino during late evening and early morning hours averaging hours per visit petitioner received six forms in for gambling winnings on his federal_income_tax return he reported the amounts indicated on the forms as his only winnings from gambling he reported this income of dollar_figure on schedule c profit or loss from business claiming no cost_of_goods_sold or expenses other than gambling_losses of dollar_figure resulting in zero net profit petitioner reported dollar_figure in adjusted_gross_income consisting of the following ira_distributions dollar_figure social_security_benefits big_number interest big_number business loss antique sales big_number adjusted_gross_income big_number in addition petitioner received dollar_figure in nontaxable net social_security_benefits the occupation stated on his return was retailer respondent determined that petitioner’s gambling activity was not an activity entered into for profit accordingly respondent recharacterized petitioner’s gambling income and determined that petitioner’s gambling_losses were deductible as an itemized_deduction rather than as a trade_or_business expense respondent also determined that petitioner was entitled to q4e- itemized_deductions in lieu of the claimed standard_deduction and allowed petitioner an additional itemized_deduction for the payment of taxes finally a computational adjustment was made to the amount of taxable social_security_benefits petitioner disputes respondent’s determination that he was not engaged in the trade_or_business of gambling ordinary and necessary expenses paid in carrying_on_a_trade_or_business generally are deductible under sec_162 a taxpayer who is engaged in the trade_or_business of gambling may deduct gambling_losses and expenses if otherwise permitted only to the extent of the taxpayer’s gambling winnings see sec_162 and sec_165 valenti v commissioner tcmemo_1994_483 a taxpayer who is not engaged in the trade_or_business of gambling also may deduct such losses_and_expenses to the extent of their winnings but must do so under sec_165 a deduction under sec_165 reduces a taxpayer’s taxable_income only if the taxpayer elects to forgo the standard_deduction see sec_63 resolving the question whether a taxpayer is engaged in a trade_or_business requires an examination of the facts in each case 480_us_23 quoting 312_us_212 the supreme court in commissioner v groetzinger supra addressing the question whether a full-time gambler who gambled solely for his own account was engaged in a trade_or_business stated to be engaged in a trade_or_business the taxpayer must be involved in the activity with continuity and regularity and x the taxpayer’s primary purpose for engaging in the activity must be for income or profit a sporadic activity a hobby or an amusement diversion does not qualify we conclude that if one’s gambling activity is pursued full time in good_faith and with regularity to the production_of_income for a livelihood and is not a mere hobby it is a trade_or_business within the meaning of the statutes with which we are here concerned respondent groetzinger satisfied that test in constant and large-scale effort on his part was made skill was required and was applied he did what he did for a livelihood though with a less-than-successful result this was not a hobby or a passing fancy or an occasional bet for amusement id pincite after his employer terminated his position in date the taxpayer in groetzinger devoted the remainder of the year to parimutuel wagering primarily on greyhound races during this time he spent days a week for weeks at the track and spent a substantial amount of time studying racing forms programs and other materials in all he devoted to hours each week to gambling-related activities after february he had no employment or profession other than gambling he received dollar_figure in non-gambling income from interest dividends capital_gains and salary earned prior to termination ’ ‘that the taxpayer in groetzinger gambled with a view to earning a living from such activity was not disputed by the commissioner see groetzinger v commissioner supra pincite n quoting 82_tc_793 -- - in this case petitioner’s visits to the casino were not continuous or regular petitioner points to the total number of hours he spent at the casino over the course of the year and argues that he averaged hours per week gambling however his visits to the casino throughout the year were very sporadic the number of monthly visits rose as high as in october but in december he made no visits and in several other months he made only or petitioner also argues that the amount of time he spent in his antique sales business is similar to the amount of time he spent in the gambling activity ’ the aggregate amount of time spent in the activity is not as determinative as the fact that petitioner had little continuity or regularity to his visits finally petitioner argues that the sporadic nature of his gambling was dictated by his knowledge of how the machines were cycling or if the machines were being adjusted to reduce players odds we do not accept this argument both because it is not supported by any evidence and because we do not find it plausible that petitioner had knowledge of when the video poker machines were producing higher payoffs which was sufficiently accurate or specific to dictate when he should visit the casino the primary purpose of petitioner’s gambling activity was for amusement not for profit his activity although respondent has not challenged petitioner’s deduction of the loss from the antiques business so we need not address the accuracy of petitioner’s treatment of the activity as a business - j- substantial was more consistent with a hobby than a trade_or_business he argues that he spent a significant amount of time studying cycles of video poker machines reading publications relating to video poker and practicing on his own video poker machine in order to achieve greater success while gambling these efforts would be consistent with a desire to win money however the desire to win money is consistent with gambling purely for its entertainment or recreational aspects and we find that petitioner gambled primarily for this reason rather than primarily for profit finally we note that petitioner is semiretired and in received a substantial amount of income excluding his business loss of dollar_figure he received over dollar_figure in interest individual_retirement_account distributions and social_security_benefits this income and petitioner’s semiretired status indicate that he was not relying upon gambling for his livelihood in his trial briefs petitioner discusses the material_participation requirements of sec_469 and the regulations thereunder first petitioner points to the references in these provisions to hours of participation in an activity arguing that he was in the trade_or_business of gambling because he devoted nearly twice that amount of time see eg sec_1 5t a temporary income_tax regs fed reg date these provisions govern whether a trade_or_business is --- - passive and do not address the more fundamental question of whether an activity constitutes a trade_or_business second petitioner argues that instructions for the schedule c provide that there are no limitations on losses for nonpassive activities ie activities which meet the material_participation requirements it is true that sec_469 imposes no additional limitations on such losses but the losses are still subject_to the more general limitations discussed above we hold that petitioner was not engaged in the trade_or_business of gambling in reviewed and adopted as the report of the small_tax_case division to reflect the foregoing decision will be entered for respondent


t c summary opinion united_states tax_court dimitrios t manousos and anne m manousos petitioners v commissioner of internal revenue respondent docket no 22246-06s filed date anne m manousos pro_se aaron d gregory and micah a levy for respondent armen special_trial_judge this case was heard pursuant to the provisions of sec_7463 of the internal_revenue_code in effect when the petition was filed pursuant to sec_7463 the decision to be entered is not reviewable by any unless otherwise indicated all subsequent section references are to the internal_revenue_code as amended and all rule references are to the tax_court rules_of_practice and procedure other court and this opinion shall not be treated as precedent for any other case this matter is before the court on respondent’s motion for summary_judgment as supplemented in his motion respondent moves for a summary adjudication in his favor in this collection review case involving a proposed levy for for reasons discussed hereinafter we shall grant respondent’s motion background at the time that the petition was filed petitioner dimitrios t manousos mr manousos and petitioner anne m manousos mrs manousos resided in virginia beach virginia we shall refer to mr and mrs manousos collectively as petitioners petitioners’ income_tax_liability for petitioners timely filed a federal_income_tax return for on their return petitioners reported a tax_liability which they paid in full through a combination of withholding and a remittance enclosed with their return subsequently respondent examined petitioners’ return by notice dated date respondent determined a deficiency of on their return petitioners claimed five exemptions dollar_figure and itemized their deductions on schedule a itemized_deductions included among those deductions were state and local_taxes in the amount of dollar_figure and various miscellaneous deductions in the net amount of dollar_figure see sec_67 imposing a 2-percent floor on miscellaneous_itemized_deductions dollar_figure the deficiency was attributable solely to the alternative_minimum_tax amt respondent mailed a notice_of_deficiency to mr manousos and a duplicate original to mrs manousos both documents were sent by certified mail and each was mailed to petitioners’ joplin lane address in virginia beach virginia that address was at the time and has remained through the present day petitioners’ mailing address petitioners did not contest respondent’s deficiency determination by filing a petition for redetermination with this court see sec_6213 accordingly upon petitioners’ default respondent assessed the deficiency together with statutory interest on date on that same date respondent sent petitioners a statutory notice of balance due ie notice_and_demand for payment see sec_6303 petitioners did not pay the full amount due final notice_of_intent_to_levy on date respondent sent to petitioners a final notice notice_of_intent_to_levy and notice of your right to a hearing final notice see sec_6330 respondent sent the in computing the amt no deduction is allowed for various deductions specifically including state and local_taxes otherwise deductible on a schedule a itemized miscellaneous deductions and exemptions see sec_56 therefore for amt purposes petitioners were deprived of deductions worth dollar_figure that were otherwise allowable under the regular ie sec_1 income_tax final notice to petitioners in respect of their outstanding liability for which at that time was approximately dollar_figure without regard to statutory accruals of interest and penalty administrative developments petitioners timely filed with respondent a form request for a collection_due_process_hearing in the form petitioners focused only on the existence or amount of their underlying liability by letter dated date respondent’s settlement officer advised petitioners that inter alia for me to consider alternative collection methods such as an installment_agreement or offer_in_compromise you must provide any items listed below in addition you must have filed all federal tax returns required to be filed the items listed below included a completed collection information statement form 433-a for individuals and or form 433-b for businesses and signed income_tax returns for and regarding the latter the settlement officer stated that our records indicate they have not been filed the settlement officer subsequently conducted a telephonic conference with mrs manousos petitioners never submitted a collection information statement or proposed a specific collection alternative nor did petitioners file all of the requested returns during the time that their case was pending before respondent’s appeals_office ultimately on date respondent’s appeals_office sent to petitioners a notice_of_determination concerning collection action s under sec_6320 and or the notice_of_determination sustained the proposed levy the attachment to the notice_of_determination authored by the settlement officer included the following statement you stated that you were not interested in the setting up of a payment plan it was explained to you that a payment plan could not be considered as you were not compliant in filing all your tax returns you were still interested in the liability issue the settlement officer explained that you had prior opportunity to question the liability issue and this could not be considered at the hearing petitioners’ petition on date petitioners filed a petition with this court appealing from the date notice_of_determination the petition focuses solely on the existence or amount of petitioners’ underlying liability for respondent’s motion for summary_judgment as previously stated respondent filed a motion for summary_judgment which motion was subsequently supplemented in his motion respondent relies on sec_6330 in that regard respondent states in part as follows in both their cdp collection_due_process_hearing request and their petition the petitioners challenged the underlying tax_liability for the tax_year pursuant to sec_6330 the petitioners cannot raise during the cdp hearing the existence or amount of the underlying tax_liability if petitioners received a statutory_notice_of_deficiency for that tax_liability the petitioners received a statutory_notice_of_deficiency for the tax_year more specifically as noted above respondent properly mailed the statutory_notice_of_deficiency to the petitioners’ last_known_address on date respondent is entitled to rely upon presumptions of official regularity and delivery where the record reflects proper mailing of the statutory_notice_of_deficiency there is no evidence that the statutory_notice_of_deficiency was returned to the service nor have the petitioners ever denied its receipt thus the presumptions of official regularity and delivery have not been rebutted accordingly settlement officer chapman properly determined that the petitioner s were precluded from disputing the underlying tax_liability under sec_6330 petitioners filed a response to respondent’s motion in their response petitioners continue to focus on the underlying tax_liability but they do not deny receipt of the date notice_of_deficiency hearing on respondent’s motion for summary_judgment mrs manousos and counsel for respondent appeared at the hearing on respondent’s motion for summary_judgment at the hearing mrs manousos stated that petitioners were unable to specifically recall whether or not they had received the date notice_of_deficiency discussion summary_judgment summary_judgment is intended to expedite litigation and avoid unnecessary and expensive trials fla peach corp v commissioner 90_tc_678 summary_judgment may be granted with respect to all or any part of the legal issues in controversy 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 a and b after carefully reviewing the record we are satisfied that there is no genuine issue as to any material fact and a decision may be rendered as a matter of law accordingly we shall grant respondent’s motion for summary_judgment as supplemented respondent’s proposed levy sec_6330 generally provides that the commissioner cannot proceed with collection by levy until the person has been given notice and the opportunity for an administrative review of the matter in the form of an appeals_office hearing and if dissatisfied with judicial review of the administrative determination see 115_tc_35 114_tc_176 sec_6330 prescribes the matters that a person may raise at an appeals_office hearing in sum sec_6330 provides that a person may raise collection issues such as spousal defenses the appropriateness of the commissioner's intended collection action and possible alternative means of collection sec_6330 provides that the existence and amount of the underlying tax_liability can be contested at an appeals_office hearing only if the person did not receive a notice_of_deficiency for the tax in question or did not otherwise have an earlier opportunity to dispute the tax_liability see 114_tc_604 goza v commissioner supra sec_6330 provides for judicial review of the administrative determination in the present case petitioners seek only to challenge the existence or amount of their underlying liability for however petitioners are legally precluded from doing so if they received the date notice_of_deficiency and chose not to contest respondent’s determination by filing a petition for redetermination with this court sec_6330 in this regard there is nothing in the record to suggest that petitioners did not receive the date notice_of_deficiency indeed duplicate originals of the notice_of_deficiency were mailed to petitioners by certified mail at their last_known_address which is also their current address respondent represents that there is nothing in his files to suggest that either of the notices was returned undelivered to respondent by the u s postal service in addition petitioners have never denied receipt see rule d and mrs manousos candidly admitted at the hearing that petitioners could not recall whether or not they had received the notice_of_deficiency moreover other notices and letters such as the final notice the settlement officer’s correspondence and the notice_of_determination were all sent to petitioners at the same address as the notice_of_deficiency and all such notices and letters were received by petitioners in 75_tc_318 affd without published opinion 673_f2d_1332 7th cir we held that there is a strong presumption in the law that a properly addressed letter will be delivered or offered for delivery to the addressee further it is clear that in general and in the absence of clear evidence to the contrary compliance with certified mail procedures raises a presumption of official regularity in delivery and receipt with respect to notices sent by the commissioner see 724_f2d_808 9th cir 530_f2d_781 8th cir 119_tc_183 respondent’s motion for summary_judgment and to a lesser extent the settlement officer’s attachment to the notice_of_determination make plain respondent’s view that petitioners did in fact receive the date notice_of_deficiency thus petitioners had every incentive to contest that matter if it were not factually accurate the foregoing presumptions coupled with the factors previously discussed oblige us to conclude that petitioners received the date notice_of_deficiency as a consequence sec_6330 bars petitioners from challenging the existence or amount of their outstanding liability for see bailey v commissioner tcmemo_2005_ conclusion petitioners have failed to make a valid challenge to the appropriateness of respondent’s intended collection action offer an alternative means of collection or raise a spousal defense see rule b any issue not raised in the assignments of error shall be deemed to be conceded in the absence of a valid issue for review we conclude that respondent is entitled to judgment as a matter of law sustaining the date notice_of_determination accordingly we shall grant respondent’s motion for summary_judgment as supplemented and thereby sustain the determination of the appeals_office permitting respondent to proceed with collection for to give effect to the foregoing an order granting respondent’s motion for summary_judgment as supplemented and decision for respondent will be entered