Jeffrey D. Gregory v. Commissioner , 2018 T.C. Memo. 192 ( 2018 )

T.C. Memo. 2018-192
UNITED STATES TAX COURT
JEFFREY D. GREGORY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1090-16L. Filed November 20, 2018.
R filed a notice of Federal tax lien to secure the collection of an
unpaid liability shown on P's Federal income tax return for 2005 and
a deficiency R determined for 2009. P does not dispute his liability
for 2005 but challenges the validity of R's assessment of a deficiency
for 2009 because of an alleged failure to mail him a notice of
deficiency.
Held: A "reprint" of a notice of deficiency for P's 2009 taxable
year evidences the creation of the notice before assessment, even
though the reprint was prepared more than two years after the alleged
mailing of the original notice and omitted or misstated information
that would have appeared on any notice actually mailed.
Held, further, a certified mail list sufficient to evidence the
mailing of a notice of deficiency need not use an official U.S. Postal
Service form.
-2-
[*2] Held, further, a valid notice of deficiency need not comply with
the definition of that term provided in the Internal Revenue Manual
and thus need not include all of the information listed in that
definition.
Held, further, the omission from a notice of deficiency of the
last day to file a timely petition for redetermination does not
invalidate the notice. Rochelle v. Commissioner, 116 T.C. 356(2001), aff'd, 293 F.3d 740 (5th Cir. 2002), followed.
Held, further, a technical services territory manager has
authority to sign and issue a notice of deficiency. Muncy v.
Commissioner, T.C. Memo. 2017-83, aff'd, 890 F.3d 724 (8th Cir.
2018), followed.
Jeffrey D. Gregory, pro se.
Sharyn M. Ortega, for respondent.
MEMORANDUM OPINION
HALPERN, Judge: This case is before us for review of a determination by
the Internal Revenue Service (IRS) Appeals Office (Appeals) to sustain the filing
of a notice of Federal tax lien (NFTL) concerning petitioner's unpaid Federal
income tax liabilities for his taxable years ended December 31, 2005 and 2009.
Petitioner has conceded all issues other than the validity of respondent's
assessment of a deficiency for 2009.
-3-
[*3] Background
Residence
At the times petitioner filed the petition and the amended petition, he
resided in California.
Tax Returns, Payments, and Additional Assessment
Petitioner did not file a Federal income tax return for his taxable year ended
December 31, 2005, until July 30, 2008, and did not begin paying the tax shown as
due on that return until August 2009. He filed a timely return for his 2009 taxable
year and paid the liability shown on that return.
On April 8, 2013, respondent assessed additional tax and an accuracy-
related penalty for petitioner's 2009 taxable year. Petitioner claims that he never
received a notice of deficiency for that year.
The NFTL and Petitioner's Request for a CDP Hearing
Respondent mailed the NFTL to petitioner on January 28, 2014. One month
later, respondent received petitioner's request for a collection due process (CDP)
hearing. In his hearing request, petitioner stated his belief that he was not liable
for the assessed tax. He also stated his desire to "[v]erify whether or not the IRS
complied with all proper procedures as required by law" and his interest in
discussing collection alternatives in regard to any amounts he might actually owe.
-4-
[*4] CDP Hearing and Notice of Determination
Upon being assigned to petitioner's case, respondent's Appeals Officer
Alicia Howard reviewed petitioner's file and transcripts. The file apparently did
not include a notice of deficiency for petitioner's 2009 taxable year because Ms.
Howard requested a copy of the notice, along with a certified mail list, from
respondent's Examination Division.
On February 17, 2015, Valerie Weber, a second Appeals officer assigned to
petitioner's case, received a "reprint" of a notice of deficiency from Brian Juster, a
group manager for respondent's Small Business/Self-Employed (SB/SE) Exam
Technical Services Group. In a declaration of Mr. Juster that the parties submitted
at trial, he explained that, as part of his official duties, he supervised employees in
the use of "an Access database program which generates Notices of Deficiency."
Mr. Juster described the document he provided to Ms. Weber as "a reprinted copy
of a Notice of Deficiency issued to petitioner * * * for tax year 2009."
After exchanging correspondence with petitioner, Ms. Weber spoke with
him by telephone on March 18, 2015. During that call, according to Ms. Weber,
petitioner conceded his liability for his 2005 taxable year and asked for more time
to gather information concerning his liability for 2009. Ms. Weber allowed
petitioner two more weeks. In early April 2015, petitioner submitted documents
-5-
[*5] for reconsideration of his 2009 deficiency and, in a faxed letter to Ms. Weber,
raised questions about the issuance of a notice of deficiency for that year. Ms.
Weber forwarded petitioner's documentation to Exam/Appeals, which determined
that the information did not warrant any changes in the assessed amounts. Ms.
Weber then reiterated to petitioner a request for financial information to allow for
consideration of collection alternatives, but petitioner did not comply with that
request.
In December 2015, respondent issued a notice of determination sustaining
the NFTL.
Unpaid Balance for 2005
When the Court asked petitioner at trial to identify any issues regarding his
2005 taxable year, he responded: "At this point in time * * * nothing." Petitioner
agreed that respondent had not assessed any tax for 2005 beyond the amount
shown on his return and that he had not paid that amount in full. Respondent's
counsel then interjected that petitioner's 2005 tax liability had been fully paid. A
transcript of petitioner's account for his 2005 taxable year jointly submitted by the
parties, however, shows a balance due as of December 7, 2016, of $1,169.03.
-6-
[*6] Reprint of 2009 Notice of Deficiency
At trial, the parties jointly submitted a document they describe as "a true and
correct copy of an undated copy of a notice of deficiency, comprised of four pages,
for tax year 2009, acquired by Appeals and provided to petitioner." A fax cover
sheet preceding that document indicates that the document submitted is the reprint
of the notice that Ms. Weber received from Mr. Juster.1
Mr. Juster's declaration explains the difference between a reprint and a copy
of a notice of deficiency. As he explained: "Reprinted Notices of Deficiency
contain the same name and mailing address of the recipient and the same amounts
of any deficiencies, additions to tax, or penalties for a given tax year, as were
contained in the original Notice." He continued: "When a Notice of Deficiency is
either printed or reprinted, any date fields are not populated automatically.
Applicable Notice of Deficiency dates are added by hand prior to the Notice being
mailed Certified to a taxpayer." A reprint will show the names of the
Commissioner and technical services territory manager as of the date of reprinting.
The individuals named in the reprint thus may not be those whose names appeared
1
The cover sheet identifies the fax as being to "Valerie" from "BJ" and is
dated February 17, 2015.
-7-
[*7] on any notice of deficiency previously prepared from the database and mailed
to the taxpayer.
Consistent with Mr. Juster's explanation, the reprinted notice of deficiency
the parties submitted shows petitioner's name and address and the amounts of a
deficiency in tax and an accuracy-related penalty under section 6662(a)2 for his
2009 taxable year. Although the printed form has captions for a date of issuance
and the last day to file a petition with this Court, the spaces beside those captions
are blank. The printed form identifies John A. Koskinen as the Commissioner but
his name is crossed out by hand and the name "Sandra Tucker" is handwritten
beside it. The reprint bears the signature of Susan G. Braunz. Beneath Ms.
Braunz's signature, her name appears in print along with the title "Technical
Services Territory Manager". The four pages of the reprint do not provide an
explanation of how the deficiency was computed or the adjustments on which it
was based. The reprint provides no space for a certified mail number, and no such
number was added by hand.
2
All section references are to the Internal Revenue Code of 1986, as
amended, and all Rule references are to the Tax Court Rules of Practice and
Procedure unless otherwise indicated.
-8-
[*8] Certified Mail List
The parties also jointly submitted a certified mail list dated November 13,
2012, that lists statutory notices of deficiencies sent to taxpayers for specified
taxable years. The list bears the heading "Examination Division, Technical
Services". A legend at the bottom of the list reads: "Internal Revenue Service--
Official Use Only".
Petitioner's name and address appear on the list, along with a reference to
his 2009 taxable year. The list includes 11 other entries, which are blacked out on
the copy the parties submitted. An "Article Number" is listed for each entry,
including petitioner's.
Above the legend at the bottom of the form, printed captions appear for
"Total Number of Pieces Listed By Sender", "Total Number of Pieces Received At
Post Office", and "Postmaster And Date". The number "12" is written by hand
beside each of the first two captions. Handwritten initials appear beside the first
and third captions. A circular mark is stamped next to the initials that appear
beside the caption "Postmaster And Date". The stamped mark includes the date
November 13, 2012. The writing along the top of the circle is not entirely legible
but appears to include "YRON RUMFORD STATION". The letters "YRON"
appear to be preceded by another that is obscured by the initials beside the
-9-
[*9] "Postmaster And Date" caption. Inscribed along the bottom of the circle is
"OAKLAND, CA", followed by what appears to be a zip code.
Discussion
I. Introduction
Sections 6320 and 6330 provide a taxpayer the right to notice and the
opportunity for an Appeals hearing before the Commissioner can collect unpaid
taxes by means of a lien or levy against the taxpayer's property. If a taxpayer
requests a CDP hearing, the Appeals officer conducting the hearing must verify
that the requirements of any applicable law or administrative procedure have been
met. Secs. 6320(c), 6330(c)(1). The taxpayer may raise at the hearing any
relevant issue relating to the unpaid tax or the collection action, including
appropriate spousal defenses, challenges to the appropriateness of collection
actions, and offers of collection alternatives. See sec. 6330(c)(2)(A).
As a general rule, the Commissioner cannot assess a deficiency without first
mailing a notice of deficiency to the taxpayer and allowing him a specified period
to file with this Court a petition for redetermination. Sec. 6213(a). If a taxpayer
in a CDP case did not receive a statutory notice of deficiency for any period for
which the Commissioner is attempting to collect a deficiency or did not otherwise
have an opportunity to dispute the liability the Commissioner seeks to collect, the
-10-
[*10] taxpayer can raise in his CDP hearing challenges to the existence or amount
of that liability. See sec. 6330(c)(2)(B).
Section 6330(d)(1) allows a taxpayer to petition this Court for review of a
determination made under section 6320 or 6330 and grants us jurisdiction with
respect to the matter upon the timely filing of a petition.
II. Petitioner's Concessions
Although in the amended petition petitioner assigns error to what he
characterizes as the IRS' claim that he had taxable income and tax liabilities for
2005 and 2009, he agreed at trial that he had no issues to raise in regard to 2005.
In his posttrial brief, petitioner attributes the absence of any issue in regard to
2005 to the parties' agreement that "the taxes for 2005 have been fully paid." In
support of that claim, however, he cites the account transcript that shows a balance
due. Respondent acknowledged in his brief that his counsel "misspoke * * * when
she stated that the balance for 2005 was full[y] paid."
Under the circumstances, we agree with respondent that "[p]etitioner was
not prejudiced by the misstatement of the 2005 balance." Because petitioner
raised in his brief no issues in regard to his 2005 taxable year, even though he had
reason to know that a liability remained outstanding, we will treat him as having
conceded any issues for that year. See Remuzzi v. Commissioner, T.C. Memo.
-11-
[*11] 1988-8, T.C.M. (P-H) para. 88,008, at 88-46 (1988) (treating as conceded an
issue not raised by taxpayers in briefs), aff'd on other grounds, 867 F.2d 609 (4th
Cir. 1989); see also Rule 151(e)(5) (requiring briefs to discuss the points of law
involved in the case and disputed questions of fact).
Similarly, although petitioner attempted in his CDP hearing to challenge his
underlying tax liability for 2009, and stated in his petition a belief that he does not
owe the deficiency respondent determined, he made no arguments on brief that the
deficiency is incorrect in amount. Petitioner's only challenge to the deficiency
respondent determined for 2009 is that its assessment was improper because, he
claims, respondent did not mail to him a valid notice of deficiency for that year.
III. Validity of Assessment of 2009 Deficiency
Petitioner's claims regarding the validity of respondent's assessment of the
deficiency he determined in petitioner's 2009 Federal income tax fall into four
categories: First, petitioner asserts that respondent did not create a notice of
deficiency. Second, he contends that any notice created was not mailed. Third, he
claims that the notice was invalid because it lacked essential content. And finally,
he asserts that Ms. Braunz lacked the authority to issue a notice of deficiency. We
address each group of arguments in turn below and conclude that none provides a
-12-
[*12] basis for determining that respondent's assessment of a deficiency for
petitioner's 2009 taxable year was invalid.
A. Existence of Notice
Respondent asserts that he issued petitioner a notice of deficiency for
petitioner's 2009 taxable year but admits that "[t]here was no copy of the original
Notice of Deficiency * * * in the administrative file." Petitioner asks: "How can
we tell if the NOD [notice of deficiency] was ever printed and mailed out, when
there is no copy of the actual NOD that was supposedly PRINTED OUT and then
mailed to Petitioner?!" He also contends: "Juster Declaration is admission of
Respondent that the NOD which is part of the record of this case was a) never
printed out by Respondent, b) to be mailed out to Petitioner, c) to have a copy of it
made and save in Petitioner's file."
Respondent responds that "[t]he notice proffered to demonstrate its
existence does not have to be an original but can be a copy or reprint." In support
of his claim respondent cites rule 1001(e) of the Federal Rules of Evidence. That
rule is not an operative rule; it merely defines the term "duplicate" to mean "a
counterpart produced by a mechanical, photographic, chemical, electronic, or other
equivalent process or technique that accurately reproduces the original." That
definition supplements the operative provision found in Fed. R. Evid. 1003, which
-13-
[*13] generally allows the admission of a duplicate "to the same extent as the
original".
As respondent observes, the U.S. Court of Appeals for the Tenth Circuit
cited Fed. R. Evid. 1001(e) in rejecting a taxpayer's complaint that "the IRS's
proffered copies of the notices [of deficiency] are reprints from its computer
database, not photocopies". Portwine v. Commissioner, 668 F. App'x 838, 840 n.1
(10th Cir. 2016), aff'g T.C. Memo. 2015-29. The court observed that the taxpayer
had "cite[d] no authority indicating that a reprint cannot serve as adequate
evidence of the existence of a notice of deficiency" and proceeded to invoke Fed.
R. Evid. 1001(e). Id.
We are not convinced that the reprint the parties submitted in this case
qualifies as a "duplicate" within the meaning of Fed. R. Evid. 1001(e). Because
the reprint omits dates that would have appeared on any notice of deficiency
actually sent to petitioner and apparently names individuals other than those
whose names would have appeared on any original, the reprint is not an accurate
reproduction of any notice of deficiency sent to petitioner.
Moreover, Portwine is distinguishable from the case before us. The reprint
in that case bore a date that matched the date of a certified mail list the
Commissioner submitted. Portwine v. Commissioner, T.C. Memo. 2015-29, at
-14-
[*14] *12. It also included the certified mail number shown on the mailing list for
the item purportedly mailed to the taxpayer. Id.
Portwine, however, is not the only case in which we accepted reprints of a
notice of deficiency as evidence of a valid assessment. In Alamo v.
Commissioner, T.C. Memo. 2017-215, we relied on two reprints of a notice of
deficiency for the year in issue, along with other evidence, to conclude that the
Commissioner had not only created a notice of deficiency but also had mailed it to
the taxpayer.
But Alamo is also distinguishable from the present case. The reprints in
Alamo, like that in Portwine, bore dates that matched the dates of certified mail
lists the Commissioner submitted. Our conclusion in Alamo regarding the
existence and mailing of the notice was further supported by a notation in the
Commissioner's records that the notice was returned as unclaimed or refused.
Because the reprints in Portwine and Alamo were apparently prepared
contemporaneously with the alleged mailings, they provided stronger evidence
that notices of deficiency were actually printed out and mailed to the taxpayers.
Nonetheless, those factors that distinguish the present case from Portwine
and Alamo do not require a different result. Even if the reprint the parties
submitted in the present case does not qualify as a duplicate, we see no reason it
-15-
[*15] cannot serve as evidence that respondent prepared a notice of deficiency for
petitioner's 2009 taxable year. We infer from the inclusion in respondent's
database of the information shown on the reprint that respondent created a notice
of deficiency for petitioner's 2009 taxable year in accordance with his customary
practice.3 We draw that inference not from the document the parties submitted but
instead from the information included in respondent's database. The reprint
simply evidences information that had been stored in the database before the
reprint's creation. Thus, we conclude that the reprint is sufficient to support
Appeals Officer Weber's determination regarding the existence of a notice of
respondent's determination of a deficiency in petitioner's 2009 Federal income
tax.4
3
We also infer, on the basis of Mr. Juster's description of his supervisory
duties, that the Access database program that produced the reprint is customarily
used to generate notices of deficiency mailed to taxpayers.
4
As petitioner observes, Mr. Juster's declaration makes it clear that the
reprinted notice of deficiency included in the record was not itself mailed to
petitioner. But we see nothing in Mr. Juster's declaration that could be read as an
admission that no notice of deficiency, in any form, was mailed to petitioner for
his 2009 taxable year. In fact, Mr. Juster's description of the reprint as "a * * *
copy of a Notice of Deficiency issued to petitioner * * * for tax year 2009"
indicates his belief that a notice was prepared and mailed using the information
stored in the Access database.
-16-
[*16] B. Mailing of Notice
Of course, that a notice of deficiency was created does not establish that it
was mailed. See Garrett v. Commissioner, T.C. Memo. 2016-179, at *13. We
thus now turn to petitioner's questions regarding the mailing of the notice.
1. Absence From Reprint of Certified Mail Number
Petitioner complains that the reprint of the 2009 notice of deficiency does
not bear a certified mail number. He asks: "Without a certified mail number listed
on the NOD, how can we know that the NOD was mailed by Respondent to
Petitioner? How could we track that item at the Post Office's website * * * to see
if it was mailed out by Respondent to Petitioner?"
Respondent's certified mail list answers petitioner's first question. It
associates a certified mail number5 with the notice respondent says he mailed to
petitioner and thus provides evidence that the notice was not only created but also
mailed. See id. at *7. By the time of petitioner's CDP hearing in March 2015,
however, that certified mail number could not have been used to track a notice of
deficiency mailed on November 13, 2012, because the Postal Service stores
tracking information on items sent by certified mail for no more than two years.
5
We assume that the article numbers appearing on respondent's certified
mail list are the certified mail numbers assigned to the listed notices of deficiency.
-17-
[*17] U.S. Postal Service, USPS Tracking--The Basics, https://usps.force.com/
faq/s/article/USPS-Tracking-The-Basics (last visited Nov. 14, 2018).
2. Absence From Reprint of Date of Issuance
Petitioner argues that "[w]ithout a date of issuance on the NOD, we cannot
tell if the NOD was ever mailed out on ANY DATE at all." The absence of a date
of issuance from the reprint of the notice of deficiency, however, is not surprising.
As Mr. Juster explained, in accordance with respondent's customary procedures, a
notice of deficiency's date of issuance is added by hand after the notice is printed.
Moreover, as noted above, respondent's certified mail list evidences the mailing of
the notice whose existence we have accepted on the basis of the information stored
in respondent's database and shown on the reprint.
3. Form of Mailing List
Petitioner complains that respondent used his own form of a certified mail
list: "The Certified Mailing * * * is NOT a Postal Form 3877 or authorized
equivalent, or state that it is a postal form at all, but a home-made form of
'Examination Division Technical Services' that on top left of the page calls itself
'Certified Mail List.'" He asserts: "Respondent must follow the applicable Postal
Regulations, just like taxpayers and use the Form 3877 or its equivalent,
authorized by the Post Office."
-18-
[*18] The taxpayer in Garrett v. Commissioner, at *13, made the same argument
and, as in that case, we can "quickly dispose" of it. As we said there: "The
Commissioner is not required to produce a USPS Form 3877 if he produces
equivalent evidence of proper mailing." Id.
Petitioner has not identified any information missing from respondent's
certified mail list that would be included on a Postal Service Form 3877. We thus
conclude that respondent's certified mail list is equivalent to a Postal Service Form
3877, and we accept that list as evidence that respondent mailed to petitioner on
November 13, 2012, a notice of deficiency for his 2009 taxable year.
4. Validity of Postmark
Petitioner challenges the validity of the postmark that appears on
respondent's certified mail list. As he interprets that mark, in addition to "some
illegible language", it reads "Oakland, CA" and "from runford station". He
reasons that "no Post Office Postmark would state 'from' on it." He also claims
that the mark makes no reference to a Post Office or the USPS.
-19-
[*19] In fact, Byron Rumford Station is the name of a post office in Oakland,
California.6 With that in mind, we read as "YRON" the letters that petitioner
interprets as "from". (We assume that the obscured letter that precedes those four
letters is a "B".) We thus reject petitioner's claim that the postmark makes no
reference to a post office, and we accept its validity.
C. Content of Notice
1. In General
Petitioner observes that the notice reprint is "ONLY 4 pages long". He
adds: "[T]here is NO explanation, reasons, facts, law or calculations listed on the
NOD to give us a hint as to what Respondent found to be a problem/issue/concern/
objection/adjustments to * * * [his] tax return". He observes that the reprint does
not include all of the items required by pt. 4.8.9.2 of the Internal Revenue Manual
(IRM). That part of the manual, as in effect in November 2012, defined the term
"notice of deficiency" as a "legal determination" that "consists of" four items:
(1) "[a] letter explaining the purpose of the notice, the amount of the deficiency,
and the taxpayer's options," (2) "[a] waiver to allow the taxpayer to agree to the
additional tax liability," (3) "[a] statement showing how the deficiency was
6
U.S. Post Office Hours, Byron Rumford Post Office,
https://www.uspostofficehours.org/location/ca_1301_byron_rumford_
post_office (last visited Nov. 14, 2018).
-20-
[*20] computed," and (4) "[a]n explanation of the adjustments." IRM pt. 4.8.9.2
(June 14, 2011).7 Because the reprint does not include all of those items,
petitioner concludes: "[T]he NOD and the assessment for 2009 are invalid, due to
the NOD having no substance whatsoever behind the tax and penalty numbers
listed on its front page of the NOD."
Petitioner's complaints about the content of the reprint do not provide
reason to question the validity of the assessment respondent made on the basis of
that notice. To begin with, although we have accepted the reprint the parties
submitted as evidence of the notice's existence, we need not view it as delimiting
the extent of the content of any notice actually mailed to petitioner. The document
actually mailed may have included additional content not reflected in the reprint.
Moreover, even if the actual notice had no content beyond that of the
reprint, the notice would still have been sufficient to support respondent's
assessment. A notice of deficiency need not take any particular form but is
adequate as long as it notifies the taxpayer of the Commissioner's intent to assess a
deficiency and gives him the opportunity to petition this Court for
7
Petitioner cites a revised version of Internal Revenue Manual pt. 4.8.9.2
adopted on August 11, 2016. The description of the four elements of a notice of
deficiency stated in the revised definition of that term is substantially identical to
that in the earlier version.
-21-
[*21] redetermination. As the Court of Appeals for the Second Circuit explained
in Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir. 1937), "the notice [of deficiency]
is only to advise the person who is to pay the deficiency that the Commissioner
means to assess him; anything that does this unequivocally is good enough."
More recently, this Court observed that "no particular form is required" for a
notice of deficiency "as long as it is a formal communication informing the
taxpayer that a deficiency has been determined and stating either the taxable
period involved or giving sufficient information that the taxpayer reasonably could
not be deceived as to the taxable period." Smith v. Commissioner, T.C. Memo.
1979-16, T.C.M. (P-H) para. 79,016, at 79-53 (1979).
It is immaterial that the IRM defines the term "notice of deficiency" to
consist of elements beyond those required by caselaw. "The IRM lacks the force
of law and does not create rights for taxpayers." Weiss v. Commissioner, 147 T.C.
179, 196 (2016), aff'd, 2018 WL 2759389 (D.C. Cir. May 22, 2018); Walker v.
Commissioner, T.C. Memo. 2018-22, at *25. We therefore reject petitioner's
argument that respondent's assessment was invalid because the reprint of the
notice of deficiency did not include sufficient information.
-22-
[*22] 2. Absence From Reprint of Last Day To File Timely Petition
As an alternative ground for his claim that respondent did not mail him a
valid notice of deficiency, petitioner observes that the reprinted notice of
deficiency does not state the last day to file a timely petition for redetermination
with this Court. Section 3463(a) of the Internal Revenue Service Restructuring
and Reform Act of 1998 (RRA 1998) requires the Secretary or his delegate to
include on any notice of deficiency issued under section 6212 the last day on
which the taxpayer can file a petition with this Court. RRA 1998, Pub. L. No.
105-206, sec. 3463(a), 112 Stat. at 767. Any petition filed on or before the
specified date is treated as timely filed (regardless of whether it is filed within 90
days after mailing of the notice). Sec. 6213(a) (last sentence).
Again, the absence of information from the reprint does not establish the
omission of that same information from any notice of deficiency respondent
mailed to petitioner. As Mr. Juster explained, the date of issuance and last day to
file a timely petition are added to a notice of deficiency by hand after the notice is
printed and before it is mailed to the taxpayer.
Moreover, the omission from a notice of deficiency mailed to a taxpayer of
the last day on which to file a timely petition in response to the notice does not
automatically invalidate it. See Rochelle v. Commissioner, 116 T.C. 356 (2001),
-23-
[*23] aff'd, 293 F.3d 740 (5th Cir. 2002); accord Elings v. Commissioner, 324
F.3d 1110 (9th Cir. 2003). Congress enacted section 3463 of RRA 1998 to ensure
that taxpayers would not be foreclosed from litigating their deficiencies on a
prepayment basis merely because of "a miscalculation of the filing period under
section 6213(a)". Rochelle v. Commissioner, 116 T.C. at 360. Because petitioner
claims not to have received a notice of deficiency for his 2009 taxable year, he
cannot also claim that his failure to file a petition for redetermination of the
deficiency resulted from a miscalculation of the filing period. If petitioner did not
receive any notice mailed by respondent, he cannot have been prejudiced by the
omission from that notice of the last date to file a timely petition for
redetermination. We therefore reject petitioner's argument that the absence from
the reprint of the last day to file a timely petition with this Court establishes that
respondent did not mail to him a valid notice of deficiency for his 2009 taxable
year.
D. Authority of Signer
Finally, as one last challenge to the validity of respondent's notice of
deficiency, petitioner argues that, "to * * * [his] best knowledge and research",
Ms. Braunz "is NOT a delegate of the Commissioner with the authority to issue
NODs." Moreover, petitioner claims that our opinion in Muncy v. Commissioner,
-24-
[*24] T.C. Memo. 2017-83, aff'd, 890 F.3d 724 (8th Cir. 2018), provides "proof"
that Ms. Braunz "did NOT have the delegation of authority to issue the NOD that
was issued to * * * [him] for year 2009."
Muncy actually establishes just the opposite--that technical services
territory managers such as Ms. Braunz do have authority to issue notices of
deficiency and have since at least October 10, 2008. As we explained in Muncy v.
Commissioner, at *9: "The technical services territory manager position is part of
the Small Business/Self-Employed * * * division of the IRS." We accepted
Delegation Order 4-8, IRM pt. 1.2.43.9 (Sept. 4, 2012), as documentation that
SB/SE technical services territory managers have authority to issue notices of
deficiency. In his appeal of our decision to the Court of Appeals for the Eighth
Circuit, the taxpayer in Muncy v. Commissioner, 890 F.3d at 725, relied on "a
literal reading of Delegation Order 4-8" to claim that the order did not delegate to
SB/SE technical services territory managers authority to issue notices of
deficiency. The appellate court agreed that Delegation Order 4-8 did not "directly
list[]" SB/SE technical services territory managers. Id. at 725. But, as the court
explained, Delegation Order 4-8 did list two technical services employees who
were subject to the supervision of technical services territory managers. And
because the IRM provides for the direct delegation "to the lowest level expected to
-25-
[*25] take final action", IRM pt. 1.11.4.4.1 (Oct. 10, 2008), those in supervisory
positions over the specific delegatees generally have the same authority.
Therefore, the Court of Appeals for the Eighth Circuit concluded that the SB/SE
technical services territory manager who signed the notice of deficiency at issue in
Muncy v. Commissioner, 890 F.3d at 726, "had authority to sign and send" the
notice.
Following Muncy, we reject petitioner's argument that Ms. Braunz lacked
the authority to issue him a notice of deficiency for his 2009 taxable year.
IV. Conclusion
As noted at the outset, petitioner has conceded all issues other than the
validity of respondent's assessment of a deficiency in his 2009 Federal income tax.
Having rejected each of his challenges to the validity of that assessment, we
conclude that Appeals properly sustained the NFTL.
Decision will be entered for
respondent.