Craig J. Casey, Petitioner

T .C . Memo . 2009-131

UNITED STATES TAX COURT

CRAIG J . CASEY, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 16436-03L .

Filed June 9, 2009 . :

Craig J . Casey , pro se .

Karen Nicholson Sommers , for respondent .

MEMORANDUM FINDINGS OF FACT AND OPINIO N

GALE, Judge : Pursuant to section 6330(d)(1),' petitione r f seeks review of respondent's determination to proceed with a lev y to collect unpaid income tax for petitioner's 1998 taxable ye a 'Unless otherwise indicated, all section references .' are the Internal Revenue Code of 1.986, as amended .

,SERVED JUN:':,1 0 2009

FINDINGS OF FAC T

Some of the facts have been stipulated and are so found .

The . stipulation of facts and the accompanying exhibits are_ incorporated herein by this reference . Petitioner resided in California when he filed the petition .

On November 3, 2002, respondent issued petitioner a Final Notice of Intent to Levy and Notice of Your Right to a Hearing with respect to unpaid income taxes for 1998 . Petitioner timely submitted a request for a hearing, in which he contended that he was not liable for the tax, that no notice of deficiency had been sent ;-and that an improper assessment had been made .

Respondent's Appeals Office sent petitioner_a letter on June 12, .2003, . scheduling a face-to-face conference for July 2, 2003 . In the letter, the Appeals officer informed petitioner that she would not consider challenges to the underlying tax liability in connection with petitioner's hearing because she had determined that petitioner had received a notice of deficiency with respect to 1998 and had failed to petition the Tax Court .

The Appeals officer` further informed petitioner that he would not be allowed to make an audio or stenographic recording of his face-to-face conference .

The Appeals officer examined petitioner's administrative file . According to the Appeals officer's contemporaneous handwritten notes and her entries in the case activity record, the administrative file contained copies of a notice o f deficiency for 1998 dated January-24, 2002, addressed t o petitioner at 7107 Broadway, Unit 333, Lemon Grove, Californi a 91945 (the Lemon Grove address) and at P .O . Box 444, Jacumba,' California 91934-0444 (the Jacumba address), aswell`as a n original of the notice of deficiency sent to the Jacumba addre s The original notice of deficiency=addressed to the Jacumba address had its mailing envelope attached, which bore-U .S'. . Poista l Service (USPS) markings indicating that it had been returned unclaimed after three notifications were made on January 25 , February 8, and February 18, 2002 .

Petitioner requested that his conference be postponed, an d the Appeals officer rescheduled it for August 4, 2003 .

Petitioner advised the Appeals officer of the Tax Court Opini ~I on in Keene v . Commissioner , 121 T .C . 8 (2003), and informed the Appeals officer of his intention to bring a court reporter to hi s conference . The Appeals officer advised petitioner that the Appeals Office was aware of Keene but, had not changed its poilli y and that recording of petitioner's conference would not b e permitted .

Petitioner, accompanied by a witness but not a .cour t reporter, appeared for the scheduled . conference on August 4, 2003 . At the conference, petitioner submitted to the Appeals ) officer a copy of his Individual Master File (IMF) and a ;fiver page list of "relevant issues" related to the proposed collection 4 - action (agenda) . The agenda stated :

Relevant Issues :

I .am disputing several material facts in regards to my tax liability, errors on my official transcript, the appropriateness of the determination and collection actions and the 6702 penalty . * * * Below is why I believe my transcript and the resulting assessment is defective and prejudicial . * * * The agenda then outlined why petitioner believed the assessment of his 1998 .liability .was defective and prejudicial . Petitioner contended in the agenda that he should be allowed to challenge the underlying liability . He maintained that, he was entitled to do so because of . the presence or absence of certain codes,in his IMF or because of respondent's failure to provide him with detailed explanations of these codes . Specifically, the agenda stated that an "SCS-l" code on petitioner's IMF indicated that two taxpayers were using the same Social Security number,!,that a "VAL-l" code indicated that his Social Security number could be "permanently invalid" for the taxpayer using it, that the absence .

of a "TC 494" code indicated that no notice of deficiency ha d been issued to petitioner, and that several other codes on petitioner's IMF had similar meanings, all of which petitioner contended made the assessment invalid . Petitioner also argued that he was entitled to record the conference .

- 5 Shortly after the conference, petitioner sent severa l letters to respondent's Appeals Office . Petitioner's .letter s included written statements, styled'as affidavits, execute d petitioner and by the witness petitioner had brought to . the conference . The statements, reflected petitioner's and th e witness's accounts of what had transpired at the conference .

Both described the conference in-detail and stated tha t petitioner attempted to raise various points relating to his IM F and the presence or absence of certain code entries thereon , which were substantially identical to the-arguments listed in th e agenda petitioner submitted at the conference . The Appeal s officer also recorded her account of what had occurred at~the 1 hearing in her case activity records . The case activity . record s likewise record that petitioner argued. that proper administrative procedures had not been met , . that.the notice of deficiency was¹¹ invalid, and that the presence or absence `of various codes on~Iai s IMF established the foregoing .

The Appeals officer subsequently issued petitioner a Notic e of Determination Concerning,Collection Action(s) . Under Secti o n ` 6320'and/or 6330 (notice of determination) sustaining the .

proposed levy . The notice of determination reasoned tha t petitioner ' s challenge . to, the underlying liability was no t permitted because (1)petitioner .failed,to claim the notice deficiency mailed to him at the Jacumba address (described i 6 - notice of'determination as P .O . Box "144"), the notice of deficiency having been returned to the Internal Revenue Service with USPS markings indicating three notifications to petitioner, and .(2) there was no indication that the .notice of deficiency mailed to`petitioner at the Lemon Grove address had been returned, which created a presumption that petitioner received it . The notice of determination stated that petitioner had aske d to record his hearing and was denied permission, that petitioner had raised several points to the effect that the codes on Ihis IMF indicated'that his tax was incorrectly assessed, and that th e Appeals officer had verified that all assessments were properly made by consulting a Form 4340, Certificate of Assessments, .Payments, and Other Specified Matters, for petitioner's 1998 taxable year . Finally, the notice of determination stated that the Appeals officer had determined that the proposed levy balanced the interests of efficient collection of taxes with petitioner's legitimate concern that any collection action be no more intrusive than necessary .

Petitioner filed a timely petition seeking review of the determination .

OPINIO N

Petitioner contends that he should have been permitted t o challenge his underlying tax liability for 1998 during his hearing and that respondent's Appeals officer abused her .

discretion in determining that the proposed -levy should be I sustained .

I .

Backgroun d Section 6331 ( a) authorizes the Secretary to levy upo n property and property rights of any person liable for taxe s (taxpayer) who fails to pay those taxes after notice and demand !

for payment, is' made . Section 6331(d) provides that the levy authorized-by section 6331(a)-may be made with respect .toany unpaid tax only ;if the Secretary has given written notice! to the taxpayer 30 days before levy . Section 6330(a) further requirels that the notice advise the taxpayer of the amount of the unpai d tax and of the taxpayer's right to a hearing .

If a hearing is requested ., the .hearing is to be conducted by an officer or employee of the Commissioner's Appeals Office-with no prior involvement with respect to the unpaid tax-at issue .

Sec-6330(b)(1),1 -(3) .

The Appeals officer shall at the hearin g I obtain verification that the requirements of any applicable law' II- or administrative procedure have been met . Sec .6330(c)_((cid:127)1) A fh e taxpayer may raise at the-hearing "any .relevant issue relating,lt o the unpaid tax or the,proposed levy" . Sec . 6330(c) (2) (A)' .

Th e taxpayer may also raise challenges to the existence or amount4of the underlying tax liability at the hearing if the taxpayer did not receive a statutory notice of deficiency with'respect to ,t e 8 - underlying tax liability or did not otherwise have an opportunity to dispute that liability . Sec . 6330(c)(2)(B) .

At the conclusion of the hearing, the Appeals officer must determine ; whether and how to proceed with collection and shall take into account (1) the verification that the requirements of any applicable -law or administrative procedure have been met ; (2) the relevant issues raised by the taxpayer ; (3) challenges to the underlying tax liability by the taxpayer, where permitted ; an d (4) whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the taxpayer that the collection action be no more intrusive than necessary . Sec . 6330(c)(3) .

With respect to determinations made before October 1 7 , 2006,2 we have jurisdiction to review the Appeals Office's ;:

determination where we have jurisdiction over the type of tax involved in the case . Sec . 6330(d)(1)(A) ; see Iannone v .

Commissioner , 122 T .C . 287, 290 (2004) . Generally, we may ' consider only those issues that the taxpayer raised during the section 6330 hearing . See sec . 301 .6330-1(f)(2), Q&A-F⁵, Proced .

& Admin . Regs . ; .see also Giamelli v . Commissioner , 129 T .C ., 107 (2007)' ; Magana v . Commissioner , 118 T .C . 488, 493 (2002) .

2Pursuant to the Pension Protection Act of 2006, Pub . L .

109-280, sec . 855, 120 Stat . 1019, this Court has exclusive .jurisdiction to review determinations under sec . 6330, effective for determinations made after the date which is 60 days after the Aug . 17, 2006, date of enactment, or Oct . 16, 2006 .

."(cid:226) I~I`."~.k~4:M'~'r'!C'1i!_^ .I.Tr rt~~3:>l+I~ . .

However, the Appeals of :ficer' :s mandated verification unde r .section 6330(c)(1) that the requirements of any applicable la w administrative procedure have been~metis subject .to revie w without regard to a challenge by the taxpayer at the hearing .

Hoyle- v . Commissioner , 131 T .C . (2008) . Where it is properl y at issue, we'review the underlying tax liability de novo ., .,E .Y .

Goza v . Commissioner, 114 T .C . 176,,181-182 (2000) . Where the underlying tax liability is not properly at issue, we revie w Appeals officer's determination of collection issues for abus e discretion .

Id . at''182 . Whether an abuse of discretion has occurred depends upon whether the exercise of discretion was arbitrary, capricious, or . without .sound basis in fact or law .

See Trout v . Commissioner , 131 T .C . ; , (2008) . (slip .op .

10) Woodral v . Commissioner , 112 .. T .C . 19, 23 .(1999) .

II .

Petitioner's Argument s Petitioner argues that the Appeals officer erred inrefu3in g to allow petitioner-to challenge, the underlying liability fo r 1998, including a penalty under section 6702(a), because,,, petitioner claims, he did not receive a notice of deficienc y 1998 . Petitioner further argues that the Appeals officer abuse d her discretion . by refusing to`permit .petitioner to record the ~ hearing . Petitioner also maintains that he raised othe r at the hearing, including-spousal defenses ;' collection .

e alternatives, and interest abatement, which the Appeals offic 10 - improperly failed to consider in her determination . Finally, petitioner argues that the Appeals officer. failed to verify that the requirements of .applicable law or administrative procedure were met .

.A ., " Challenges-to the Underlying Tax Liability Petitioner contends that he should have been permitted to challenge the underlying tax liability for 1998 in connection with the hearing because he did not receive a notice of deficiency for 1998 .' Respondent contends that petitioner, .was precluded under section 6330(c)(2)(B) from challenging the underlying liability because petitioner either received a notice of deficiency or deliberately refused delivery . The Court's determination of whether a taxpayer has received a notice of deficiency so as to preclude a . challenge to the underlying tax liability under section 6330(c)(2)(B) is made "On the preponderance of the evidence" .

Sego v . Commissioner , 114,T .C .

604, 611 (2000) ; see also Figler v . Commissioner , T .C . Memo .

2005-230 .

The preclusion of a challenge to the underlying liability pursuant to section 6330(c)(2)(B) generally requires actual receipt of the notice of deficiency by the taxpayer . 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 . Commissioner , T .C . Memo . 2003-115. . However, .where the Commissioner producesa certified mail list (USPS . Form 381177 recording that a notice of deficiency was sent by certified mai 1 , the presumption .of official regularity creates a stron g presumption that the notice was mailed and that it was delivere d or offered for delivery at the address to-which it was sent .

I n the absence of clear evidence to the contrary, . receipt ofthe notice will be presumed .

See Sego v . Comm issioner , . supra at 61.1 ; Zenco Enga . Corp . v . Commissioner , 75 T .C . 318, 323 (1980), afd .

without published opinion 673 F .2d 1332 (7th Cir . 1981) ; see also United States v . Zolla , 724 F . 2d 808 , 810 (9th Cir . 1984 )x; Unie d States v . Ahrens , 530 F .2d 781, 784-786 (8th Cir . 1976) . Th e taxpayer's self-serving claim that he did not receive a notic e o f deficiency, standing alone, is generally insufficient to,rebut the presumption of official .regularity . See . Sego v .

Commissioner , supra at 611 ; Filer v : .Commissioner , supra . In addition, a taxpayer cannot defeat actual receipt by deliberately refusing delivery .

Sego v . Commissioner , supra at 610-611 ; t,in i v . Commissioner , T .C . Memo . 2004-124 ; Carey v . Commissioner , T C .

Memo . 2002-209 .

I At trial respondent-offered into evidence a USPS Form 3$'177 from his records that lists certified mailings-of notices o f deficiency at the U .S . Post Office in Laguna Niguel, California , on January 24, 2002, including two notices,mailed to petitioned .

for the taxable year 1998, one to the Jacumba address (at, P .0' .

I M 12 - Box 444) and one to the Lemon Grove address .' Respondent also offered petitioner's letter of December 18, 2001, to the Secretary of the Treasury concerning the examination o f petitioner's 1998 return and the examining agent's decision t o issue a notice of'deficiency . Attached to that letter was a December 14, 2001, letter to petitioner from the examining agent advising petitioner that a statutory notice .of deficiency would be issued for 1998 and confirming petitioner's request that his address be changed to the Lemon Grove address . ' The Appeals officer who conducted petitioner's hearing testified that she reviewed petitioner's administrative file fo r 1998-in connection with his hearing request . According td the Appeals officer, the administrative file contained copies of duplicate notices of deficiency for petitioner's 1998 taxable year issued on January 24, 2002, one addressed to petitioner at the Jacumba address and another addressed to petitioner at the Lemon Grove address . The original of the notice of deficiency sent to the Jacumba_address was also in the file, having bee n 'We deferred ruling on petitioner's objection to the admission of the certified mail list at trial, allowing the parties to address the issue further on brief . Petitioner failed to file a posttrial brief . We conclude that the mail list is .admissible under Fed . R . Evid . 803(6) and 902(11) . Petitioner was given a copy of the mail list (and accompanying declaration) in advance of trial and had a fair opportunity to challenge them . .

.4The Dec . 14, 2001, letter gave the city in the Lemon Grove .address as San Diego, but the ZIP code was the same as that used for Lemon Grove .

i returned by the USPS as unclaimed . The envelope with this original contained USPS notations indicating that delivery ha d been attemptedthree . times , on January 25, February 8, and February 18, 2002 . The foregoing testimony was corroborated by the Appeals officer's handwritten notes made when she reviewe d the administrative file and by her - typed- notations in they casi e activity record made 'at about the same time' .

Sometime between the issuance of the notice .of determinatio n and the trial in this case, respondent lost or misplaced petitioner's administrative file for 1998 :5- As a consequence' , the aforementioned copie s and original of the notices o f . deficiency are not in the record . Nonetheless, in appropriate circumstances a USPS Form 3877 i s sufficient to show that a notice of deficiency was sent an d to the contrary is insubstantial .

delivered,~where the evidenc e f LI .See United'States .v . Zollai , supra ; Sego . v . Commissioner , supra ; F.icrler v . Commissioner , supra .

The Appeals officer's testimony, fully corroborated b' y contemporaneous notes, persuades us that a ,notice of deficiency in final form existed . This evidence distinguishes thiscas e from Pietanza v . Commissioner , 92 T .C . 729 (1989), affd . ;witou t published opinion 935'F .2d 1282 (3d Cir . 1991), and Butti V .

'The Appeals officer's handwritten . notes and the cas e activity record pertaining to petitioner's hearing-request wer part of a "collection due process" file-maintained by respondent's Appeals Office that was not ,a part of petitione .r'r administrative file that was lost .

e s 14 - Commissioner ., T .C . Memo . 2008-82, where the taxpayers' administrative files had been lost and the Commissioner's evidence did not establish that notices of deficiency eve r existed .

The evidence that petitioner has adduced in contravention of the presumption of official regularity is unpersuasive . He contends that no notice of deficiency for 1998 was issued to him because his IMF does not contain the code entry "TC 494", which indicates that a statutory notice of deficiency has been issued .

The Appeals officer, while acknowledging that a TC 494 entry so indicates, nonetheless testified that such an entry is-not mandatory .and that she rarely sees one . ' Petitioner makes much of the fact that the notice of .determination described the Jacumba address as "P .O . Box 141" when the correct address was "P .O . Box 444" . The Appeals officer testified that the notice of determination merely had a typographical error and that the notice of deficiency she examined contained the correct address . The documentary evidence .supports the Appeals officer's position . Her testimony i s 'We note in this regard that the Internal Revenue Manual .(IRM) describes circumstances under which a statutory notice of deficiency will be issued without entry of code TC 494 on the taxpayer's transcript of account . See IRM, pt . 2 .4 .35 .1(4') (Jan . 1, 2009) ; see also Wiley v . United States , 77 AFTR 2d 640,,96-1 USTC par . 50,089 (S .D . Ohio 1995) (citing instances where notices of deficiency are issued without entry of a TC 494 code on the taxpayer's transcript of account), affd . without published opinion 108 F .3d 1378 (6th Cir . 1997) .

15 - corroborated by her-contemporaneous notes, which describe :the address on the notice of deficiency she examined as "P .O . Bo x 4 .44", and the USPS-Form 3877 records the notice of deficienc y having been mailed to "P .O . Box 444". .

Petitioner stipulated that he maintained a post office b as noted at the(cid:127)Jacumba address during'the first-6 months .

2002 . The USPS Form 3877 records that a notice of deficienc y 1998 was sent to the Jacumba address on January-24, 2002 .

further note that petitioner was aware in December 2001 tha t respondent had decided to issue a notice of deficiency-to" petitioner for .1998 . The-Appeals officer's'contemporaneous(cid:127)note s of her examination-of the now-lost original notice of deficien'c'y, sent to the Jacumba address and returned, record that USP S markings. on the envelope indicated-notifications to the address on three occasions : January 25, February 8,,and February 18, r 2002 . Petitioner denies receipt, testifying that he was awa y o n y a 2-week vacation beginning January 21, 2002 . Since . a 2Yweek` vacation beginning January 21, 2002, ended on February 4, 200!2 ; petitioner's explanation does not-account for the latterbtw o notifications :

We find that' petitioner's evidence is insufficient t o overcome the presumption of regularity and of delivery arisin g from the Form 3877, as"corroborated by the Appeals officer' contemporaneous notes of the multiple USPS notifications'to - 1 6 addressee . Accordingly, the notice of deficiency sent to the Jacumba address is sufficient to preclude petitioner's challenge to the underlying tax liability for 1998 pursuant to section 6330(c)(2)(B) . See Sego v . Commissioner , 114 T .C . 604 (2000) . ; Figler v . Commissioner , T .C . Memo . 2005-230 .

A like result arises from the notice of deficiency mailed t o the Lemon Grove address . The USPS Form 3877 in evidence likewise records that a notice of deficiency, for 1998 .was sent by certified mail to the .Lemon Grove address on January 24, .,2002 .

In his testimony, petitioner denied receipt but was evasive concerning when he commenced use of the Lemon Grove address .

Petitioner testified that he had not advised respondent of the Lemon Grove address until sometime after the 1998 notice of deficiency had been mailed (in January 2002) . Petitioner's testimony is contradicted by the attachment to his December 18, 2001, letter to the Secretary of the Treasury, which demonstrates that petitioner had advised respondent by that time to use the Lemon Grove address . Since petitioner' s . testimony concerning the Lemon Grove address was evasive and at best unreliable, he has failed to overcome the presumption of official regularity and of delivery-arising from the USPS Form 3877 . Accordingly, in the alternative, the notice of deficiency . sent to-the Lemon Grove address is sufficient to preclude petitioner's challenge to the underlying tax liability for 1998 pursuant to section Commissioner , supra .

Therefore , the _underlying~tax liabilit y not properly at issue .

B .

Refusal To Permit Petitioner To Record the-Hearin g Petitioner contends that the Appeals officer abused he r discretion by refusing to permit him to make an audio recordin g of his conference, contrary'to the holding of this Court . in(cid:127) Kleen e v . Commissioner , 121 T .C . 8 (2003) .

He argues that the lac k an audio recording of the conference precludes us from i determining what issues he raised in connection with his hearing .

A taxpayer is entitled under section .7521(a .)(1) to make a . i ~ audio recording of a conference held as part `of his ,section 6330 .

hearing .

Keene v . Commissioner ,I supra at 19 . In Keene , wher e the .taxpayer had refused to continue with the conference whe n permission to record was denied,-we remanded the case toith e Appeals Office because .there was no-administrative record on .

which . to decide the relevant . .i.ssues . However, we have decline d to remand cases where the ._taxpayer participated in the hearin g even though unrecorded, and where all issues the taxpayer r a could be properly decided from the existing record .

Id .

at ' l 20 ; Frey v . Commissioner , T .C . Memo . 2004-87 ; Du.rrenberger vl " In view of this conclusion, we sustain petitioner' s objection to the admission of certain pages from the Web site of petitioner's purported insurance business, as this evidence of petitioner's income-producing . activities in 1998 is irreleva,tl .

Commissioner , T .C . Memo . 2004-44 ; Brashear v . Commissioner , T .C .

Memo . 2003-196 ; Kemper v . Commissioner , T .C . Memo . 2003-195 .

Petitioner fully participated in his face-to-fac e conference, accompanied by a third-party witness . ;Subsequently, petitioner and his witness each prepared written statements (styled as affidavits) memorializing what transpired at the .

conference, which were submitted to the Appeals officer and are part .of the administrative record . The Appeals officer also made entries in the case activity record to memorialize what took place at, the conference . These three roughly contemporaneous written accounts agree in all material aspects regarding what issues were raised . We are satisfied that the available evidence in the administrative record establishes what transpired at the face-to-face : conference . It is therefore unnecessary and would be unproductive to remand this case to the Appeals . Office . See Frey v . Commissioner , supra ; Durrenberger v . Commissioner , supra ; Brashear v . Commissioner , supra ; Kemper v . Commissioner , su ra .

C .

Validity of the Assessment of the Underlying Tax Liabilit y Petitioner contends that the assessment of his 1998 ta x liability was invalid, as shown by the presence or absence of certain codes from his IMF . We have already addressed petitioner's contention that the absence of a TC 494 code indicates that no notice of deficiency had been issued .' (With ."

respect to .any other aspect of petitioner's challenge to the P .

validity of the assessment, section 6330(c)(1), directs that t he hearing officer shall at the hearing obtain verification fromthe Secretary that the requirements-,of any applicable law or administrativeyprocedurehave been met, and section 6330(c)(3)(A ) provides that the determination shall take this~verification int o account . See Hoyle v . Commissioner , 131 T .C . . at (sli'p op1k.

responsibility "to obtain verification that the legal an d administrative requirements for a ;proper assessment been met ."

Clough v . Commissioner , T .C . Memo . 2007-106 .

The Appeals officer examined copies and originals of notice s administrative file . On the basis of the returned original wi h the USPS markings indicating three notifications to the addressee , she concluded that a notice of deficiency had,beel . ' mailed to petitioner on January 24, 2002, and that he had refuse d 'Petitioner also argued . that an "SCS-1" code on his IMF indicated that another taxpayer might be using his Social Security number and that a "VAL-1" code indicated that his Social Security number . was invalid . Petitioner's arguments with'respect to these codes ;` apparently designed to-engender doubt'that petitioner was the earner of some of the income reported,to respondent in connection : with . petitioner's Social Security number, are more properly characterized as challenges to ;the underlying tax liability, which we have held . are precluded in :, this proceeding .

:

20 - to claim it . Given petitioner's . concession that he maintained the Jacumba address post office box at this time, we are satisfied with the Appeals officer's verification of the mailing of the notice of deficiency .' The Appeals officer further 'consulted a Form 4340 for petitioner's 1998 tax year to verify that petitioner's 1998 tax liability was assessed on June 17, 2002, and that a notice and demand for payment letter was maile d to petitioner within 60 days of assessment . Petitioner having demonstrated no infirmity in the foregoing, we conclude-that the Appeals officer satisfied section 6330(c)(1), .including verifying that the assessment of the underlying liability was properly made .

- Petitioner's Claim That Other Issues Were Raised at the Hearin g Petitioner contends that he either raised or attempted to raise . collection alternatives, a section 66(c) spousal relief claim, and respondent's failure to abate interest under section 6404(g) in~connection with his hearing .

On the basis of the administrative record, as supplemented by the testimony at trial, we are not persuaded that petitione r 9Petitioner's contentions also include claims more properly characterized as challenges to the underlying tax liability, such as a claim that his income for 1998 should be attributed in part to his wife because of California's community property laws . As previously concluded, petitioner is precluded . from challenging the underlying liability pursuant to sec . 6330(c)(2)(B) .

s i k l it 21 - raised or attempted to raise these other issues .10 Particularl y persuasive are the letters sent by petitioner and his witness to , the Appeals officer shortly after the conference, which summarized the issues that had been raised . . Thes e contemporaneous written statements lack any reference whateve r t o the additional issues petitioner claims .he attempted to raise4"C- the conference . Petitioner's contention that both he and hisl witness forgot to list these additional issues in the writtenj`~" statements is not credible . The written statements are not only detailed, but they are also consistent with the agenda petitione r gave the -Appeals officer at the conference, as well as the Appeals officer's contemporaneous :notes of what took place at th e .f~ conference and her testimony at trial . Petitioner's-test'imony~a t trial with respect to several other matters was often evasiv e He was, as previously noted, evasive regarding when he notifie d respondent to use the Lemon Grove address, which petitioner understood was an important issue .in the case . Under thes e 100n the basis of the agenda and his postconference letters , we find that petitioner did raise a challenge to a frivolous return penalty under sec . 6702 for .1998 . With respect to determinations made before Oct . 17, 2006, we have held that we lack jurisdiction over a sec . 6702 penalty . See Johnson v . Commissioner , 117 T .C . 204, 208 (2001) ; Dunbar v . Commissioner , T .C . Memo . 2006-184 . But see Wagenknechtv . United States , : F .3d 729 (6th Cir . 2007) . However, petitioner's IMF, which part of the administrative record, records that the penalty assessed on Mar . 27, 2000, and paid by virtue of offset on t same day . The penalty was therefore not a subject of the le and is not any part of the underlying tax liability at issue this case.

A - .22 - circumstances, we do not accept petitioner's self-serving- testimony that he raised,other issues that were not addressed in the notice of determination .

III . Other Requirement s As discussed supra , the Appeals officer verified that the requirements of applicable law and administrative procedure had been met .

; ; She further took into account whether the proposed collection action balanced the need for the efficient collection of taxes with the legitimate concern of petitioner that the collection action be no more intrusive that necessary . See sec . .

6330(c)(3) ; . Petitioner has identified no specific infirmities in the foregoing . not heretofore addressed .

.

To reflect the foregoing, Decision will be entere d for respondent .