Rodney P. Walker v. Commissioner ( 2018 )


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    T.C. Memo. 2018-22
    UNITED STATES TAX COURT
    RODNEY P. WALKER,1 Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket Nos. 16108-14L, 9435-15L.           Filed February 26, 2018.
    Both P and R have moved for summary judgment in these CDP
    cases. We will deny P's motion and grant R's motion in part. We will
    remand these cases to Appeals for supplemental determinations on
    two issues.
    Rodney P. Walker, pro se.
    Nicole C. Beckley, for respondent.
    1
    We consolidated the cases at docket Nos. 16108-14L and 9435-15L for
    trial, briefing, and opinion.
    -2-
    [*2]                       MEMORANDUM OPINION
    HALPERN, Judge: These consolidated cases are before us to review two
    determinations by the Internal Revenue Service (IRS) Appeals Office (Appeals)
    following two collection due process (CDP) hearings conducted pursuant to
    sections 6320(b) and (c) and 6330(b) and (c).2 Respondent seeks to collect from
    petitioner his unpaid Federal income tax for his 2001 through 2007 and 2009
    taxable (calendar) years. Appeals' first determination was to sustain respondent's
    notice of Federal tax lien (NFTL) with respect to petitioner's unpaid 2001 through
    2007 tax, and its second determination was to sustain respondent's notice of intent
    to levy (levy notice) with respect to petitioner's unpaid 2007 and 2009 tax.3
    Petitioner assigns errors to those determinations; respondent denies any error. We
    review the determinations pursuant to section 6330(d)(1). Each party has moved
    for summary judgment in his favor (petitioner's motion and respondent's motion).
    Each party objects to our granting the other's motion except that petitioner
    concedes that we may grant respondent's motion as it pertains to 2001 and 2002.
    2
    Unless otherwise indicated, 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.
    3
    As discussed infra, respondent had already notified petitioner of his intent
    to collect by levy petitioner's unpaid 2001 through 2006 tax.
    -3-
    [*3] We accept that concession and will not further address 2001 and 2002 in this
    report. We will sometimes refer to the remaining years at issue (2003-07 and
    2009) as the controversy years.
    Summary judgment expedites litigation. It is intended to avoid unnecessary
    and expensive trials. It is not, however, a substitute for trial and should not be
    used to resolve genuine issues of material fact. E.g., Estate of Powell v.
    Commissioner, 148 T.C. __, __ (slip op. at 10) (May 18, 2017). We may grant
    summary judgment "if the pleadings, answers to interrogatories, depositions,
    admissions, and any other acceptable materials, together with the affidavits or
    declarations, if any, show that there is no genuine dispute as to any material fact
    and that a decision may be rendered as a matter of law." Rule 121(b). The
    moving party bears the burden of proving that no genuine dispute as to any
    material fact exists, and we will draw any factual inferences in the light most
    favorable to the nonmoving party. See, e.g., George v. Commissioner, 
    139 T.C. 508
    , 512 (2012).
    In support of his motion and in opposition to petitioner's motion, respondent
    relies on the pleadings, two declarations (along with attachments thereto), and
    relevant documents from his administrative files. One declaration is by Settlement
    Officer (SO) Wilhamina Hayes, the Appeals employee who was assigned to
    -4-
    [*4] conduct petitioner's CDP hearing with respect to the NFTL and who
    determined that the notice should stand. The second declaration is by Timothy G.
    Kash, the then manager of Linda Reeve, who was the settlement officer assigned
    to conduct petitioner's CDP hearing with respect to the levy notice and who
    determined that the notice should stand. Apparently SO Reeve is unavailable to be
    a declarant. Mr. Kash approved her determination to sustain the levy notice, and
    attached to his declaration are SO Reeve's notes and the documents that she
    reviewed in making her determination. Petitioner has provided us with no
    affidavit or declaration to support either his motion or his opposition to
    respondent's motion. He refers to, and appears to rely on, the declarations and file
    documents provided by respondent.
    We will deny petitioner's motion, grant respondent's motion in part, and
    remand these cases to Appeals for supplemental determinations on two issues.
    Background
    We draw the following facts from the pleadings, the motions, the
    declarations, and the documents provided by respondent from his administrative
    files.
    Petitioner's Residence
    Petitioner resided in California when he filed the petitions.
    -5-
    [*5] Notices of Deficiency and Certified Mail Logs
    Petitioner did not file Federal income tax returns for the controversy years.
    Because of that failure, respondent completed substitutes for returns for petitioner
    pursuant to section 6020(b). On the basis of those substitutes, respondent
    determined deficiencies in petitioner's tax liabilities for those years and prepared
    statutory notices of deficiency (statutory notices or notices). The record contains
    copies of those notices for the controversy years, which were obtained by SO
    Hayes (2003 through 2007) and SO Reeve (2007 and 2009) in preparation for
    petitioner's CDP hearings. Each notice is correctly addressed to petitioner, states
    that there is a deficiency in tax for that year, and shows a particular United States
    Postal Service certified mail number. The record also contains a copy of a
    redacted certified mail log (mail log or log) obtained by SO Reeve that states that a
    statutory notice for 2009 was sent to petitioner. The log is dated February 4, 2013,
    and shows petitioner's name and address, a certified mail number matching the
    number on the 2009 notice, a Postal Service employee's signature, and a postmark
    of even date with the date of the log. Attached to respondent's motion are copies
    of three other redacted mail logs.4 The first is dated July 9, 2007, states that
    4
    Respondent may introduce as evidence a mail log that is not in the
    administrative record to refute petitioner's argument that he did not receive a
    (continued...)
    -6-
    [*6] statutory notices for 2003 and 2004 were sent to petitioner, and shows
    petitioner's name and address, certified mail numbers matching the numbers on the
    notices, a Postal Service employee's signature, and a postmark of even date with
    the dates on the notices. The second mail log, dated October 20, 2008, is similar
    except that it references statutory notices for 2005 and 2006. The third mail log,
    dated December 22, 2009, is different in that, while it shows petitioner's name and
    address, a certified mail number matching the number on the 2007 notice, a Postal
    Service employee's signature, and a postmark of even date with the date of the
    notice, it does not state, as do the other mail logs, that a statutory notice was
    mailed to petitioner.
    Respondent acknowledges that the four mail logs contain a "technical
    defect" in that, while they show the total number of pieces of mail that
    accompanied each log to the post office (more than just the mailings to petitioner),
    they lack acknowledgment that any number of pieces was received by the post
    office. The spaces on the logs to show that information are blank.
    4
    (...continued)
    statutory notice on the ground that the record may be supplemented if it does not
    adequately disclose the grounds for Appeals' determination. See Crain v.
    Commissioner, 
    T.C. Memo. 2012-97
    , 
    2012 WL 1083489
    , at *5.
    -7-
    [*7] Respondent has also attached to his motion a copy of Form 4340, Certificate
    of Assessments, Payments, and Other Specified Matters, for each of the
    controversy years. Each form shows that a statutory notice was issued for the year
    indicated and that, subsequently, assessment of tax was made.
    NFTL Determination
    Petitioner did not file petitions in response to any of the statutory notices,
    and respondent's Forms 4340 show that, for each year, he assessed the tax,
    interest, and penalties (without distinction, tax) due. Petitioner did not pay the
    assessed amounts, and on November 20, 2012, respondent filed the NFTL and
    notified petitioner of that filing and of his right to a CDP hearing. In response to
    the notification, petitioner timely submitted to respondent a Form 12153, Request
    for a Collection Due Process or Equivalent Hearing. Petitioner listed issues that
    he wished to discuss:
    !      Verify whether or not the IRS followed all proper procedure as
    required by law.
    !      I don't believe I am liable for the assessed tax.
    !      I should NOT be held responsible for the penalties accrued.
    !      To challenge this "liability" seeing that I NEVER had a chance
    to challenge it before.
    -8-
    [*8] !       If this liability is indeed a proper assessment and can be proven
    that it is authentic and owed, I would like to discuss what
    collection alternatives are available to me, including, but not
    limited to, Offer in Compromise, Installment Agreements, and
    any other payment arrangements that may be available to me.
    In preparation for conferring with petitioner, SO Hayes reviewed various
    documents from respondent's administrative files to determine respondent's
    compliance with the law and administrative procedure. She reviewed transcripts
    from respondent's integrated data retrieval system (IDRS) to verify that statutory
    notices had been issued and that the assessments for each controversy year were
    properly made. As stated, she obtained copies of the notices for 2003 through
    2007 and noted that they had been sent to petitioner's address of record.
    Following that preparation, she made two attempts to contact petitioner by letter to
    arrange his CDP hearing, but petitioner responded to neither letter. Her first letter,
    dated April 9, 2013, set forth the date and time for a telephone conference and
    instructed petitioner that she could consider collection alternatives only if he filed
    returns for 2008 through 2011 and returned to her a collection information
    statement. The letter also informed him that he could not dispute his underlying
    liabilities because he had had a prior opportunity to do so. The letter stated that he
    had been sent deficiency notices for each of 2001 through 2007 and had failed to
    file Tax Court petitions in response to any of them. She telephoned him at the
    -9-
    [*9] time established for the telephone conference, but the phone number
    petitioner had provided was no longer in service. Her second letter, dated May 7,
    2013, invited petitioner to telephone her and informed him that he had until May
    24, 2013, to provide the requested information and that, if he did not provide it,
    Appeals would promptly make a determination with respect to his hearing request.
    Petitioner did not provide the requested information, and, on June 6, 2013,
    Appeals sent him notice of its determination to sustain the NFTL (NFTL
    determination). In an attachment to the NFTL determination, SO Hayes stated the
    following reasons for the determination. The requirements of any applicable law
    or administrative procedure had been met. Petitioner could not raise his
    underlying tax liabilities because he had had a prior opportunity to do so. Appeals
    could not consider collection alternatives because petitioner had failed to file
    returns and to provide the requested collection information. The NFTL was
    appropriate under the circumstances: It balanced the need for the efficient
    collection of taxes with petitioner's concern that the collection action be no more
    intrusive than necessary.
    Petitioner timely petitioned us for review of the NFTL determination.
    Petitioner assigned the following errors to that determination. Respondent failed
    to meet the requirements of applicable law and procedure during the CDP hearing.
    - 10 -
    [*10] He did not allow petitioner the opportunity to challenge his liability for the
    assessed tax. He did not allow petitioner to dispute discrepancies in the
    assessment of the tax. He did not accord petitioner a fair and impartial hearing.
    He did not provide petitioner with documents, files, and admissible evidence to
    support respondent's claim of the assessed tax. He denied petitioner a face-to-face
    hearing. He did not allow petitioner to make an audio recording of the hearing.
    Levy-Notice Determination
    In October 2013, respondent sent petitioner the levy notice. In response,
    petitioner timely submitted another Form 12153, raising the same issues that he
    had raised in response to the NFTL. What ensued is much the same as that which
    ensued following petitioner's request for a CDP hearing with respect to the NFTL.
    To determine respondent's compliance with the law and administrative procedure,
    SO Reeve reviewed IDRS transcripts to verify that assessments for 2007 and 2009
    were made, and she obtained copies of the statutory notice and mail log for 2009.
    Her letter dated March 11, 2014, is similar to SO Hayes' first letter, including SO
    Reeve's statement that petitioner could not dispute his liability during his CDP
    hearing because respondent's records indicate that he had been sent statutory
    notices. The letter set a telephone conference for April 1, 2014. Petitioner
    responded to that letter by letter dated March 24, 2014 (March 24 letter). He did
    - 11 -
    [*11] not by that letter provide any unfiled returns, nor did he provide the
    requested collection information. He denied having had a prior opportunity to
    dispute his underlying tax liability for either 2007 or 2009, arguing that he could
    not have had a prior opportunity because he had "never" received a statutory
    notice for either year. Subsequently, he did not answer the phone when, on April
    1, 2014, SO Reeve called him for the scheduled telephone conference. On that
    date, she again wrote petitioner, acknowledging his letter and reiterating her
    request for unfiled tax returns and for collection information necessary for her to
    consider any collection alternative. She invited petitioner to contact her and gave
    him two weeks to provide the requested information. She stated that, without the
    requested information, Appeals would promptly make a determination with respect
    to his hearing request. Petitioner did not respond to the April 1 letter, and, on June
    5, 2014, Appeals sent petitioner notice of its determination to sustain the levy
    notice (levy-notice determination). Appeals summarized the levy-notice
    determination as follows: "Appeals has determined that all legal and
    administrative requirements for action taken have been met. The Notice of Intent
    to Levy was appropriate and it balances the need for the efficient collection of
    taxes with the legitimate concern of the taxpayer that any collection action is no
    more intrusive than necessary." In an attachment to the levy-notice determination,
    - 12 -
    [*12] SO Reeve added that she had not considered collection alternatives because
    petitioner was not current in his tax return filing obligations and had not submitted
    financial documentation. She could not consider challenges to his underlying
    liabilities because he had had a prior opportunity to challenge them.
    Petitioner timely petitioned us for review of the levy-notice determination,
    assigning errors similar to those he assigned to the NFTL determination.
    Discussion
    I.    Introduction
    Sections 6320 and 6330 provide taxpayers the opportunity for notice and a
    hearing upon the filing of an NFTL (section 6320) and before a levy to collect
    unpaid tax (section 6330). 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 a hearing any relevant issue relating to the unpaid tax or the
    collection action, including challenges to the appropriateness of collection actions
    and offers of collection alternatives. See sec. 6330(c)(2)(A). The taxpayer may
    also raise at the hearing challenges to the existence or amount of the underlying
    tax liability for any period if the person did not receive a statutory notice for such
    liability or did not otherwise have an opportunity to dispute such liability. See
    - 13 -
    [*13] sec. 6330(c)(2)(B). A taxpayer who may raise the underlying liability
    during a CDP hearing must properly raise the merits of the underlying liability as
    an issue during the hearing to preserve the issue for judicial review. See Giamelli
    v. Commissioner, 
    129 T.C. 107
    , 112-116 (2007); secs. 301.6320-1(f)(2), Q&A-F3,
    301.6330-1(f)(2), Q&A-F3, Proced. & Admin. Regs. The merits are not properly
    raised if the taxpayer challenges the underlying tax liability but fails to present
    Appeals with any evidence with respect to that liability after having been given
    reasonable opportunity to present such evidence. See LG Kendrick, LLC v.
    Commissioner, 
    146 T.C. 17
    , 34 (2016), aff'd, 
    684 F. App'x 744
     (10th Cir. 2017);
    secs. 301.6320-1(f)(2), Q&A-F3, 301.6330-1(f)(2), Q&A-F3, Proced. & Admin.
    Regs.
    Where the underlying tax liability is properly at issue, we review the
    determination of liability de novo. E.g., Goza v. Commissioner, 
    114 T.C. 176
    ,
    181-182 (2000). To the extent the underlying tax liability is not at issue, we
    review the determination for abuse of discretion. 
    Id. at 182
    . In reviewing for
    abuse of discretion, we must uphold the Appeals officer's determination unless it is
    arbitrary, capricious, or without sound basis in fact or law. See Murphy v.
    Commissioner, 
    125 T.C. 301
    , 308 (2005), aff'd, 
    469 F.3d 27
     (1st Cir. 2006); see
    also Keller v. Commissioner, 
    568 F.3d 710
    , 716-718 (9th Cir. 2009), aff'g in part
    - 14 -
    [*14] 
    T.C. Memo. 2006-166
    , and aff'g in part, vacating in part decisions in related
    cases.
    II.      Motions and Responses
    A.    Petitioner's Motion
    Petitioner asks that we summarily determine that respondent may not
    proceed with collection of any unpaid tax for any of the controversy years. The
    gravamen of his claim is that respondent may not proceed with collection because
    he "failed to comply with the[] procedures" specified in the Internal Revenue
    Manual (IRM) regarding the mailing of statutory notices.
    At the times respondent claims to have mailed statutory notices for the
    controversy years to petitioner, the mailing procedures in the IRM called for
    delivery of statutory notices and a Postal Service Form 38775 to the post office,
    where a Postal Service employee would "compare the count and [certified mail]
    numbers used with the envelope notices." See IRM pt. 4.8.9.9.3(6) (Dec. 1, 2006).
    Those mailing procedures further required the IRS employee delivering the
    statutory notices to the post office to sign and date the Form 3877 to indicate
    5
    Postal Service Form 3877, Firm Mailing Book For Accountable Mail, is a
    form for recording items delivered to and received by the post office and showing
    the type of mail, e.g., certified mail, or the service requested, e.g., signature
    confirmation.
    - 15 -
    [*15] delivery of the notices to the post office. 
    Id.
     (7). The Postal Service
    employee was to insert a postmark on the form indicating receipt. 
    Id.
    Petitioner observes that the mail logs respondent submitted to evidence the
    mailing of statutory notices to him for the controversy years lack both the
    signature of an IRS employee and acknowledgment by the Postal Service of the
    number of items received. Petitioner argues: "Proper verification of the exact
    number of envelopes the Postal Service received from the IRS is of vital
    importance because it is the only way to verify that each piece of certified mail
    intended for delivery by the Post Office was actually received into the Post Office
    mail system."
    Petitioner is unclear in drawing out the consequences of the defects in the
    mail logs that respondent submitted. Most narrowly, he claims that those defects
    deny respondent the benefit of a presumption of regularity to establish mailing.
    Petitioner also argues that respondent's failure to comply with those procedures
    means that the settlement officers did not fulfill their obligations under section
    6330(c)(1) to verify that the assessments were made in compliance with any
    applicable law and administrative procedure. Finally, and most broadly, petitioner
    suggests that respondent's failure to comply strictly with his own standards for
    - 16 -
    [*16] documenting the mailing of statutory notices means that the assessments
    made on the basis of those notices were, as a matter of law, invalid.
    B.     Respondent's Response to Petitioner's Motion
    Respondent objects to our granting petitioner's motion. Conceding that,
    with regard to mailing of the statutory notices for the controversy years, he is not
    entitled to a presumption of regularity in mailing, he argues that, nonetheless, SOs
    Hayes' and Reeve's verifications of mailing were legally sufficient and the defects
    in the mail logs were not fatal to either assessment or collection of the unpaid tax.
    Moreover, he continues, even if verification was flawed or the defects in the mail
    logs were legally significant, the remedy would be remand to Appeals or a trial,
    not abatement of the tax due.
    C.     Respondent's Motion
    Respondent moves for summary adjudication in his favor with respect to all
    of the issues in these cases. In particular, he asks that we summarily determine
    that petitioner's underlying tax liability is not at issue for any of the controversy
    years. For 2003 through 2006, respondent argues that petitioner had had a prior
    opportunity to raise the existence or amount of his underlying tax liabilities and
    was, therefore, precluded from raising them during his CDP hearing in response to
    the NFTL and is, likewise, precluded from raising them here. See Daniel v.
    - 17 -
    [*17] Commissioner, 
    T.C. Memo. 2009-28
    ; sec. 301.6320-1(e)(3), Q&A-E7,
    Proced. & Admin. Regs. For 2007 and 2009, respondent argues that petitioner did
    not properly raise his underlying tax liabilities during the two CDP hearings at
    issue (i.e., the NFTL hearing, with respect to 2007, and the levy-notice hearing,
    with respect to 2007 and 2009). See Giamelli v. Commissioner, 
    129 T.C. at 112
    -
    116; secs. 301.6320-1(f)(2), Q&A-F3, 301.6330-1(f)(2), Q&A-F3, Proced. &
    Admin. Regs.
    Respondent also asks that we determine that, in making their determinations
    to proceed with collection, SOs Hayes and Reeve complied with the requirements
    of sections 6320(c) and 6330(c)(3). Section 6330(c)(3) provides that an Appeals
    officer's determination shall take into consideration not only her verification that
    the requirements of any applicable law and administrative procedure have been
    met but also (1) the issues raised by the taxpayer with respect to the unpaid tax or
    the proposed collection actions and (2) that the proposed collection actions
    balanced the need for efficient collection of taxes with the taxpayer's concern that
    any collection action be no more intrusive than necessary. In particular,
    respondent asks us to determine that SOs Hayes and Reeve (1) were fair and
    impartial, (2) properly verified respondent's assessments of tax, and (3) did not
    abuse their discretion in (A) denying petitioner a face-to-face hearing, (B) not
    - 18 -
    [*18] permitting him to record the hearings, and (C) not considering collection
    alternatives.
    D.        Petitioner's Response to Respondent's Motion
    Petitioner objects to our granting respondent's motion. He claims a genuine
    dispute as to material fact with respect to (1) whether the settlement officers
    fulfilled their obligations under section 6330(c)(1) to verify that the requirements
    of any applicable law and administrative procedure had been met (particularly
    with respect to petitioner's claim that, in mailing the statutory notices to him,
    respondent had failed to comply with mailing procedures specified in the IRM),
    (2) whether the evidence of mailing of those statutory notices on which the
    settlement officers relied is adequate to prove that the notices were mailed, (3)
    whether he had had a prior opportunity to challenge the underlying tax liabilities
    at issue, and (4) whether he had received statutory notices for the controversy
    years. Petitioner also disputes, although he does not label it a dispute as to a
    material fact, respondent's claim that he did not properly raise his underlying tax
    liabilities during the two CDP hearings at issue.
    - 19 -
    [*19] III.   Discussion
    A.     Petitioner's Motion
    1.    Presumption of Regularity
    While petitioner is of course correct that respondent is not entitled to a
    presumption of regularity to establish mailing of the notices of deficiency,6 it does
    not follow that respondent's assessments were invalid, SOs Hayes and Reeve
    abused their discretion in deciding to the contrary, and, consequently, petitioner is
    6
    The "presumption of regularity in mailing" is a particular application of the
    more general "presumption of regularity" (sometimes, presumption of official
    regularity), which supports the proposition that, in the absence of evidence to the
    contrary, public officers are presumed to have discharged their duties. See, e.g.,
    United States v. Ahrens, 
    530 F.2d 781
    , 785 (8th Cir. 1976) ("In our view, the
    presumption of official regularity controls the question of the validity of the notice
    of deficiency. 'The presumption of regularity supports the official acts of public
    officers and, in the absence of clear evidence to the contrary, courts presume that
    they have properly discharged their official duties.' United States v. Chem.
    Found., Inc., 
    272 U.S. 1
    , 14-15, * * * (1926)."). With respect to the mailing of a
    statutory notice, we have said: "[W]here the existence of the notice of deficiency
    is not disputed, a properly completed Form 3877 by itself is sufficient, absent
    evidence to the contrary, to establish that the notice was properly mailed to a
    taxpayer. * * * More specifically, exact compliance with the Form 3877 mailing
    procedures raises a presumption of official regularity in favor of respondent."
    Coleman v. Commissioner, 
    94 T.C. 82
    , 91 (1990). The failure of exact
    compliance with the Form 3877 mailing instructions, however, does not mean that
    the notice was not mailed; it means only that the evidence of an undisputed notice
    and a Form 3877 in less than exact compliance do not, even absent evidence to the
    contrary, establish as a matter of law that the notice was mailed to the taxpayer.
    As we said in Coleman v. Commissioner, 
    94 T.C. at 91
    : "A failure to comply
    precisely with the Form 3877 mailing procedures may not be fatal if the evidence
    adduced is otherwise sufficient to prove mailing."
    - 20 -
    [*20] entitled to summary judgment. Petitioner points to respondent's failure to
    submit "corroborating evidence to evince proof of mailing such as habit evidence
    as to * * * [his] mailing procedures." Petitioner is mistaken if he believes that
    copies of a proper statutory notice and an imperfect mail log are necessarily
    insufficient for an Appeals officer (or, indeed, any fact finder) to infer from that
    evidence that the Commissioner, in fact, mailed the notice to the intended
    recipient.7 See, e.g., O'Rourke v. United States, 
    587 F.3d 537
    , 541-542 (2d Cir.
    2009) (holding that the Commissioner's evidence of a proper statutory notice and a
    Form 3877 defective only in that (1) it did not state the number of pieces of mail
    received by the Postal Service and (2) it lacked the signature or initials of a Postal
    Service employee was, in the absence of a presumption of mailing, sufficient to
    meet the Commissioner's burden of showing that the notice was mailed). As
    discussed in the next section of this report, we think that neither SO Hayes nor SO
    7
    In the law of evidence, inferences differ from presumptions. An inference
    is a permissible deduction that the fact finder may make without express direction
    of the law to that effect. That is, the fact finder is permitted to deduce the
    existence of fact B from fact A by ordinary rules of reasoning and logic. A
    presumption is distinguished from an inference in that, if basic fact A is
    established, then the fact finder must accept that the presumed fact B has also been
    established unless the presumption is rebutted. See 1 Jack B. Weinstein &
    Margaret A. Berger, Weinstein's Federal Evidence, sec. 301.02[1], at 301-6 (Mark
    S. Brodin, ed.) (2d ed. 2017).
    - 21 -
    [*21] Reeve abused her discretion in concluding that statutory notices for the
    controversy years were mailed to petitioner.
    2.     Sufficiency of Settlement Officers' Verifications
    As stated, 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. Sec. 6330(c)(1). Petitioner appears to
    challenge the adequacy of SO Hayes' and SO Reeve's reliance on computer
    transcripts for verification that the requirements of any applicable law or
    administrative procedure had been met. Respondent answers that section
    6330(c)(1) does not mandate that Appeals rely upon a particular document to
    satisfy the section's verification requirement. See, e.g., Craig v. Commissioner,
    
    119 T.C. 252
    , 261-262 (2002); Jewell v. Commissioner, 
    T.C. Memo. 2016-239
    , at
    *10. Appeals may, indeed, rely on computer transcripts to satisfy the verification
    requirement. See, e.g., Roberts v. Commissioner, 
    329 F.3d 1224
    , 1228 (11th Cir.
    2003), aff'g 
    118 T.C. 365
     (2002); Grace Found. v. Commissioner, 
    T.C. Memo. 2014-229
    , at *14-*15. It may also rely on a mail log with minor defects (such as
    the lack of both a Postal Service employee's signature and a count of the items
    delivered to the post office) if supported by copies of the statutory notices in
    question. See Cropper v. Commissioner, 
    826 F.3d 1280
    , 1286 (10th Cir. 2016),
    - 22 -
    [*22] aff'g 
    T.C. Memo. 2014-139
    ; cf. O'Rourke, 
    587 F.3d at 541-542
     (not a CDP
    case). Respondent concludes: "In petitioner's cases, the SOs properly verified that
    all legal and procedural requirements were met by using transcripts in all years,
    and the CML [mail log] for 2009, to verify that assessments were proper."
    We agree with respondent that verification was sufficient. Petitioner did not
    during either CDP hearing bring to either settlement officer's attention the
    technical defect in the mail logs that respondent now acknowledges (i.e., the
    absence of entries for the number of pieces of mail received by the post office).
    Indeed, petitioner did not claim any defect until he objected to our granting
    respondent's motion. And because petitioner did not bring any defects to the
    attention of SO Hayes, the settlement officer did not err or abuse her discretion in
    relying on computer transcripts to make the necessary verifications for 2003
    through 2007, the controversy years subject to the NFTL. See Grace Found. v.
    Commissioner, at *15 ("An Appeals officer may rely on the IRS account transcript
    to satisfy the section 6330(c)(1) verification requirement unless the taxpayer
    alleges that a specific irregularity transpired during the assessment process and the
    taxpayer provides evidence of such an irregularity.").
    For 2007 (again) and for 2009, the years subject to the levy notice, however,
    petitioner had by the March 24 letter notified SO Reeve of his belief that he had
    - 23 -
    [*23] not received a statutory notice for either year. Petitioner had thus alleged an
    irregularity in the assessment procedure for each year, and SO Reeve could not on
    account of that allegation rely on computer transcripts alone for verification. See,
    e.g., Crain v. Commissioner, 
    T.C. Memo. 2012-97
    , 
    2012 WL 1083489
    , at *5 ("The
    Commissioner must send a notice of deficiency to the taxpayer before he may
    assess, collect, or reduce to judgment most income tax liabilities. * * * If the
    taxpayer contests receipt of the notice of deficiency, the Commissioner must
    introduce evidence of actual mailing."). For 2009, however, besides computer
    transcripts, SO Reeve had the mail log listing the 2009 statutory notice, which,
    although missing some information, was, together with a copy of the 2009 notice,
    sufficient to establish that the 2009 notice had been mailed, as respondent claims.
    See, e.g., Cropper v. Commissioner, 826 F.3d at 1286; O'Rourke, 
    587 F.3d at
    541-
    542. That is not necessarily the case for 2007, for the record does not establish
    that SO Reeve had a copy of the mail log dated December 22, 2009, which shows
    mail addressed to petitioner with a certified mail number matching the number on
    the 2007 notice. And while we could remand the case at docket No. 16108-14L to
    Appeals for it to clarify the record as to evidence on which SO Reeve relied in
    concluding that the 2007 notice was properly mailed to petitioner, see Hoyle v.
    Commissioner, 
    131 T.C. 197
    , 205 (2008); Noyes v. Commissioner, T.C. Memo.
    - 24 -
    [*24] 2017-27, at *4, we do not think that is necessary. We have in the record a
    copy of a mail log dated December 22, 2009, showing information with respect to
    the 2007 notice similar enough to the information shown on the mail log on which
    SO Reeve relied for 2009 that it would be inconsistent for her to reach a
    conclusion with respect to whether the 2007 notice was mailed to petitioner
    different from the one she reached with respect to whether the 2009 notice was
    mailed to him. We are satisfied with SO Reeve's efforts, based on at least a
    computer transcript for 2007 and on both a computer transcript and a mail log for
    2009, to verify that statutory notices for both 2007 and 2009 had been mailed to
    petitioner. She did not abuse her discretion in so concluding.8
    3.     Failure To Adhere to the IRM
    Finally, petitioner claims that he is entitled to summary judgment simply
    because of respondent's failure to comply with the standards described in the IRM
    8
    And while it remains an open question whether petitioner may challenge
    the existence or amount of his underlying liabilities for 2007 and 2009, see infra,
    sec. III.B.2.c., it does not follow that, just because that question is open, the
    verification question for those years also is open. Even if SO Hayes (for 2007)
    and SO Reeve (for both 2007 and 2009) abused their discretion in determining that
    petitioner had had a prior opportunity to challenge his 2007 and 2009 underlying
    liabilities (and so could not challenge them during his NFTL and levy-notice
    hearings), it does not follow that they also abused their discretion in relying on
    computer transcripts and mail logs to verify that the requirements of any
    applicable law or administrative procedure had been met; such reliance, we have
    concluded, was not an abuse of discretion.
    - 25 -
    [*25] for documenting the mailing of statutory notices. Taken at face value, the
    claim rests on the premise that, even if the statutory notices for the controversy
    years were in fact sent (and, moreover, received), Appeals erred in upholding the
    NFTL and the levy notice. That would be so only if, as a matter of law,
    respondent's failure to strictly comply with the IRM mailing procedures rendered
    invalid the assessments based on those notices. The short answer to petitioner's
    claim is: "The IRM lacks the force of law and does not create rights for
    taxpayers." Weiss v. Commissioner, 
    147 T.C. 179
    , 196 (2016). Appeals did not
    solely on account of any failure by respondent to comply with the IRM mailing
    procedures for statutory notices err in upholding the NFTL and the levy notice.
    4.     Conclusion
    We will deny petitioner's motion.
    B.     Respondent's Motion
    1.     Dispute as to Material Fact
    We will first address petitioner's claim that there are genuine disputes as to
    material fact that preclude any summary adjudication in respondent's favor.
    Petitioner's first two claims--that there are genuine disputes as to whether
    (1) the settlement officers fulfilled their section 6330(c)(1) verification obligations
    and (2) the evidence of mailing on which they relied is adequate to prove that
    - 26 -
    [*26] statutory notices were, indeed, mailed--seem to collapse into one claim.
    Petitioner does not assert any particular failures on the settlement officers' parts in
    fulfilling that obligation. He seems to suggest, as he did in support of his own
    motion, that the defects in the mail logs mean that the settlement officers cannot
    have properly verified that the assessments were made in compliance with all legal
    and administrative requirements. We have adequately addressed, and have
    rejected, petitioner's first two claims and need not restate our reasons. We will
    address petitioner's remaining claims as we proceed.
    2.     Prior Opportunity To Raise Existence or Amount of
    Underlying Liability
    a.     2003 through 2006
    For 2003 through 2006, respondent argues that petitioner had a prior
    opportunity to challenge the existence or amounts of his underlying liabilities and
    was, therefore, precluded from challenging them during his CDP hearing in
    response to the NFTL and is, likewise, precluded from challenging them here.
    Respondent relies on a Notice of Determination Concerning Collection Actions(s)
    Under Section 6320 and/or 6330 issued to petitioner on June 13, 2011 (prior
    determination notice), that informed petitioner of Appeals' determination that
    respondent's notice of levy with respect to petitioner's income tax liabilities for
    - 27 -
    [*27] 2003 through 2006 would stand. A copy of the prior determination notice is
    attached to respondent's motion. Petitioner does not dispute the authenticity of the
    prior determination notice. The prior determination notice was issued in response
    to petitioner's request for a CDP hearing made on August 10, 2010, following his
    receipt of a levy notice for 2003 through 2006 dated July 7, 2010. The prior
    determination notice recites that, although the assigned settlement officer offered
    petitioner a hearing by telephone, no hearing was held because the settlement
    officer could not reach petitioner by telephone at the time scheduled for the
    hearing and petitioner did not respond to a subsequent letter from the settlement
    officer. With respect to petitioner's challenge to his underlying liabilities, the prior
    determination notice states that, because petitioner did not contact the settlement
    officer, the issue of his underlying liabilities could not be discussed. Respondent
    argues that, if a taxpayer previously received notice of his right to a CDP hearing
    with respect to the same tax and tax period, he has had an opportunity to challenge
    the existence and amount of the underlying tax liability and may not challenge the
    existence and amount of that tax liability in a subsequent CDP hearing.
    Respondent relies on sections 301.6320-1(e)(3), Q&A-E7, and 301.6330-1(e)(3),
    Q&A-E7, Proced. & Admin. Regs., and Daniel v. Commissioner, 
    T.C. Memo. 2009-28
    . Those authorities are consistent with respondent's argument but address
    - 28 -
    [*28] a situation where the taxpayer did not request a CDP hearing in response to
    the earlier CDP notice. That, of course, is not the case here because petitioner did
    request a CDP hearing in response to the July 7, 2010, levy notice for 2003
    through 2006. The question is whether the prior CDP notice and the settlement
    officer's subsequent actions gave petitioner a meaningful opportunity to challenge
    the existence or amount of his 2003 through 2006 underlying tax liabilities. We
    believe that they did give him a meaningful opportunity, of which he did not take
    advantage. See Lewis v. Commissioner, 
    128 T.C. 48
    , 61 (2007) ("A conference
    with the Appeals Office provides a taxpayer a meaningful opportunity to dispute
    an underlying tax liability."); secs. 301.6320-1(e)(3), Q&A-E2, 301.6330-1(e)(3),
    Q&A-E2, Proced. & Admin. Regs. ("An opportunity to dispute the underlying
    liability includes a prior opportunity for a conference with Appeals[.]").
    Because we are not here considering an actual challenge to the existence or
    amounts of petitioner's underlying liabilities for 2003 through 2006, but rather
    whether SO Hayes erred in precluding petitioner from raising such a challenge
    (because she had determined that he had had a prior opportunity to do so), we ask
    only whether SO Hayes abused her discretion in so precluding petitioner, see Bell
    v. Commissioner, 
    126 T.C. 356
    , 358-359 (2006), which, demonstrably, she did
    not.
    - 29 -
    [*29]               b.     2007 and 2009
    For 2007 and 2009, respondent argues that petitioner did not properly raise
    his underlying liabilities during the two CDP hearings at issue here (i.e., the NFTL
    hearing, with respect to 2007, and the levy-notice hearing, with respect to both
    2007 and 2009). Referring to the two Forms 12153 that petitioner submitted
    requesting those hearings and to the March 24 letter that petitioner sent to SO
    Reeve (the sum and total of petitioner's communications to Appeals in response to
    the NFTL and the levy notice), respondent claims that petitioner never stated what
    he was challenging with respect to his underlying liabilities but only said that he
    wanted to challenge those liabilities and should not be held responsible for
    penalties. "Petitioner never presented any information or documents showing that
    the underlying liabilities were incorrect." And because of that, argues respondent,
    Appeals made no determination with respect to petitioner's underlying liabilities,
    and there is nothing for us to review.
    In their first letters to petitioner, both SO Hayes and SO Reeve notified him
    that he could not challenge his underlying tax liabilities because he had been sent
    statutory notices and, thus, he had had a prior opportunity to challenge his
    liabilities. They repeated those explanations in the attachments that, respectively,
    they wrote and that were attached to the NFTL and the levy-notice determinations.
    - 30 -
    [*30] In his two petitions in these consolidated cases, petitioner makes it clear that
    he believes that Appeals erred in failing to allow him to challenge his liability for
    the assessed tax.9 It is true that, if petitioner had received statutory notices for
    2007 and 2009, he could not during any CDP hearing concerning those years
    challenge his underlying tax liabilities. See sec. 6330(c)(2)(B). If, however, he
    had not received statutory notices for those years, then he was entitled to challenge
    his underlying liabilities.
    The record is not clear as to the bases on which SOs Hayes and Reeve
    decided that petitioner had had a prior opportunity to challenge his 2007 liability
    (both SO Hayes and SO Reeve) and his 2009 liability (only SO Reeve). It is
    insufficient to deny him a challenge on the ground that a statutory notice had been
    sent to him (which is the only reason either settlement officer recites) without also
    concluding that he had received the notice. As for 2003 through 2006, we are not
    now, in disposing of respondent's motion, considering an actual challenge to the
    existence or amounts of petitioner's 2007 and 2009 underlying liabilities, but,
    rather, we are considering whether either SO Hayes (for 2007) or SO Reeve (for
    9
    And while petitioner does not aver as to how his liability for either year is
    any less than respondent assessed, we will read his complaint that he was not
    allowed to challenge his liability for either 2007 or 2009 to imply that he has
    grounds on which to challenge those liabilities.
    - 31 -
    [*31] both 2007 and 2009) abused her discretion in precluding petitioner from
    raising such a challenge on the assumption that he had received a statutory notice.
    Because the record is unclear, we will remand these cases for Appeals to clarify
    the record as to the evidence (if any) on which Appeals relies to conclude that
    petitioner may not for either 2007 or 2009 challenge his underlying tax liability. If
    Appeals is unable to conclude that petitioner received the requisite statutory notice
    or notices, we assume that Appeals will allow petitioner to raise a challenge to the
    existence or amount of his underlying liability before these cases are returned to
    us.
    c.    Conclusion
    In sum, we agree with respondent that petitioner had a prior opportunity to
    challenge his underlying liabilities for 2003 through 2006 and was, therefore,
    precluded from challenging them during his CDP hearing in response to the NFTL
    and is, likewise, precluded from challenging them here. We do not decide whether
    petitioner is similarly precluded with respect to his underlying liabilities for 2007
    and 2009 because the record is inadequate for us to determine whether, in
    concluding that petitioner had had a prior opportunity, either settlement officer
    abused her discretion. We will remand for clarification or other appropriate
    action.
    - 32 -
    [*32]         3.    SOs Hayes' and Reeve's Compliance With the Requirements of
    Section 6330(c)(3)
    a.     Introduction
    Respondent points to the NFTL and levy-notice determinations (along with
    the settlement-officer attachments) and the Hayes and Kash declarations as
    evidence that, in determining to proceed with collection, Appeals (acting through
    the settlement officers) took into consideration the verification and other
    requirements specified in section 6330(c)(3). On that basis respondent argues that
    Appeals did not abuse its discretion in determining to proceed with collection for
    the controversy years. Except to the extent that we have previously discussed (i.e.,
    with respect to mailing of the 2007 statutory notice and receipt of the 2007 and
    2009 notices), we agree that Appeals complied with the requirements of section
    6330(c)(3). We will address particular points raised by petitioner.
    b.     CDP Hearings Fair and Impartial
    Petitioner contends the hearings were not fair and impartial. Sections
    6320(b)(3) and 6330(b)(3) provide that the hearing shall be conducted by an
    officer or employee who has had no prior involvement. Neither SO Hayes nor SO
    Reeve had any prior involvement in petitioner's tax matters for the tax years at
    - 33 -
    [*33] issue in the hearings. Both settlement officers were impartial within the
    meaning of sections 6320(b)(3) and 6330(b)(3).
    c.     No Mandate for Appeals To Provide Taxpayer With
    Written Confirmation That Requirements of Any Law or
    Procedure Have Been Met
    Petitioner contends that respondent did not provide him with any admissible
    evidence to support the determinations. The short answer is that SOs Hayes and
    Reeve did not have to provide petitioner with any written confirmation that the
    requirements of any applicable law or administrative procedure had been met. As
    we have said: "Section 6330(c)(1) does not require the Appeals officer to rely on
    any particular document in satisfying the verification requirement and does not
    require that the Appeals officer actually give the taxpayer a copy of the
    verification upon which he or she relied." Shirley v. Commissioner, 
    T.C. Memo. 2014-10
    , at *24-*25 (citing Craig v. Commissioner, 
    119 T.C. at 262
    ; Nestor v.
    Commissioner, 
    118 T.C. 162
    , 166 (2002)).
    d.     No Abuse of Discretion in Denying Petitioner a Face-To-
    Face Hearing
    Section 6330 does not mandate that a taxpayer be given a face-to-face
    hearing. E.g., LaForge v. Commissioner, 
    T.C. Memo. 2013-183
    , at *11. Because
    SOs Hayes and Reeve determined that petitioner had not filed all necessary tax
    - 34 -
    [*34] returns, and because petitioner had failed to return collection information
    statements to SOs Hayes and Reeve, the settlement officers did not abuse their
    discretion in determining that he was entitled to no face-to-face hearing and
    denying him such a hearing. See id.; see also secs. 301.6320-1(d)(2), Q&A-D8,
    301.6330-1(d)(2), Q&A-D8, Proced. & Admin. Regs.
    e.     No Abuse of Discretion in Not Permitting Audio
    Recording
    Petitioner had no face-to-face hearing, and he did not answer telephone calls
    from SOs Hayes and Reeve for scheduled telephone conferences. Section
    7521(a)(1) accords taxpayers the right "in connection with any in-person interview
    * * * upon advance request * * * to make an audio recording". We have held that
    section 7521 applies to section 6330 face-to-face hearings, and a taxpayer
    providing the IRS with advance notice is allowed to record his face-to-face
    hearing. Keene v. Commissioner, 
    121 T.C. 8
    , 19 (2003). We have also held that
    section 7521 is not applicable to telephone hearings and that a taxpayer is not
    entitled to record his telephone hearing. Calafati v. Commissioner, 
    127 T.C. 219
    ,
    229 (2006). The short answer is that there were no spoken communications for
    petitioner to record, and, even if there had been a telephone hearing (all that
    - 35 -
    [*35] petitioner was offered), he had no right to record it. There was no abuse of
    discretion.
    f.     No Abuse of Discretion in Not Considering Collection
    Alternatives
    SO Hayes and Reeve did not abuse their discretion in not considering
    collection alternatives because they had determined that petitioner had not filed all
    necessary tax returns and because he had not returned to them the collection
    information statements they had requested. See, e.g., Rosenthal v. Commissioner,
    
    T.C. Memo. 2014-252
    , at *16 ("It is not an abuse of discretion for the Appeals
    Office to reject collection alternatives and sustain a proposed collection action on
    the basis of the failure of a taxpayer to submit requested financial information or
    to achieve current compliance with filing obligations.").
    4.   Conclusion
    We will deny petitioner's motion and grant respondent's motion in part. We
    will grant respondent's motion to the extent that, with respect to the NFTL
    determination, we find no error in Appeals' determination that respondent may
    proceed with collection by lien of petitioner's income tax liabilities for 2003
    through 2006. With respect to the NFTL determination for 2007 and the levy-
    notice determination, we will grant respondent's motion to the extent that
    - 36 -
    [*36] respondent asks us to determine that (1) Appeals verified that the
    requirements of any applicable law or administrative procedure were met, (2) the
    NFTL hearing and the levy-notice hearing were fair and impartial, (3) neither SO
    Hayes nor SO Reeve had to provide petitioner with any written confirmation of
    her verification efforts, (4) neither settlement officer abused her discretion in
    denying petitioner a face-to-face hearing or the right to audio record any telephone
    hearing, and (5) neither abused her discretion in not considering collection
    alternatives.
    We will remand the cases at docket Nos. 16108-14L and 9435-15L to
    Appeals for supplemental determinations clarifying the record as to the grounds on
    which Appeals relied in precluding petitioner from challenging his 2007 and 2009
    tax liabilities. If petitioner was entitled to raise challenges to those liabilities,
    - 37 -
    [*37] Appeals shall consider such challenges and report the results of its
    consideration in its supplemental determinations.
    An appropriate order will be issued
    denying petitioner's motion for summary
    judgment, granting respondent's motion for
    summary judgment in part, and remanding
    these cases for further proceedings
    consistent with this report.