Orlando Bujosa - Page 7




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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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