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A taxpayer may raise the issue of the underlying tax
liability only if he or she did not receive a statutory notice of
deficiency or did not otherwise have an opportunity to dispute
such tax liability. Sec. 6330(c)(2)(B). Actual receipt of the
notice of deficiency is required. Tatum v. Commissioner, T.C.
Memo. 2003-115. Generally, no challenge to the underlying tax
liability is allowed where there is evidence that a notice of
deficiency was mailed to the taxpayer and no factors are present
to rebut the presumption of delivery. See Sego v. Commissioner,
supra at 611. Where the taxpayer denies receipt of the notice of
deficiency and the Commissioner provides only a copy addressed to
the taxpayer and no evidence of its actual mailing, receipt for
purposes of section 6330(c)(2)(B) is not presumed. Calderone v.
Commissioner, T.C. Memo. 2004-240. In the present case,
petitioner asserted that he was not aware of any deficiency.
Respondent has offered only copies of the notices of deficiency
addressed to petitioner and concedes on brief that actual
delivery cannot be proven. Therefore, petitioner was entitled to
challenge his underlying tax liabilities in his hearing, and the
Appeals officer erred in not allowing petitioner’s arguments on
that issue.
Our de novo review of respondent’s determination with
respect to petitioner’s underlying tax liabilities permits us to
consider and resolve the issue. See Priestly v. Commissioner,
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Last modified: November 10, 2007