- 16 -
petitioner. Respondent argues that the foregoing constitutes
"evidence that respondent sent petitioner a notice of deficiency
for * * * 1996" and "evidence that petitioner likely received
it."
Section 6330(c)(2)(B) contemplates actual receipt of the
notice of deficiency by the taxpayer, Tatum v. Commissioner, T.C.
Memo. 2003-115, although a taxpayer cannot defeat actual receipt
by deliberately refusing delivery, Sego v. Commissioner, 114 T.C.
604, 610-611 (2000). The Commissioner has generally prevailed in
foreclosing challenges to the underlying liability pursuant to
section 6330(c)(2)(B) where there is evidence that a notice of
deficiency was mailed to the taxpayer and no factors are present
that rebut the presumption of official regularity and of
delivery. See, e.g., id.; Figler v. Commissioner, T.C. Memo.
2005-230; Kubon v. Commissioner, T.C. Memo. 2005-71; Sciola v.
Commissioner, T.C. Memo. 2003-334; Moore v. Commissioner, T.C.
Memo. 2001-285. However, where the taxpayer denies receipt and
the Commissioner proffers only a notice of deficiency addressed
to the taxpayer and no evidence of its actual mailing, receipt
for purposes of section 6330(c)(2)(B) has not been presumed.
Calderone v. Commissioner, T.C. Memo. 2004-240. We believe the
present circumstances are indistinguishable from Calderone v.
Commissioner, supra, and accordingly conclude that receipt of the
notice of deficiency for 1996 has not been shown. Consequently,
Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: May 25, 2011