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Sixth Circuit Affirms Tax Court Decision Upholding IRS Levy

SEP. 24, 2021

Alfred Q. Campbell III v. Commissioner

DATED SEP. 24, 2021
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Alfred Q. Campbell III v. Commissioner

ALFRED Q. CAMPBELL III,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

NOT RECOMMENDED FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ON APPEAL FROM THE UNITED STATES TAX COURT

ORDER

Before: BATCHELDER, GIBBONS, and DONALD, Circuit Judges.

Alfred Q. Campbell III, a Tennessee resident proceeding pro se, appeals an order of the United States Tax Court granting summary judgment to the Commissioner of Internal Revenue on Campbell's petition to review a notice of determination to sustain a proposed levy. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

According to the Tax Court, Campbell has failed to file federal tax returns for at least the last two decades. Relevant to this appeal is Campbell's failure to file a federal tax return for 2009. As a result of this failure, the Internal Revenue Service issued a notice of deficiency for tax year 2009 on December 10, 2012, to Campbell's last known address at P.O. Box 34358, Memphis, Tennessee, 38184. Campbell failed to file a petition challenging this notice. As a result, the IRS sent to Campbell, at a new address in Waynesboro, Tennessee, notice of its intent to levy and his right to a hearing.

Campbell requested a hearing, asserting, among other things, that he never received the notice of deficiency regarding his 2009 tax return. A telephonic collection due process (CDP) hearing was scheduled for November 15, 2016, but the Settlement Officer (SO) was unable to reach Campbell at the scheduled time.

Thereafter, following receipt of a letter from the SO, Campbell informed the SO that he wished to have an in-person hearing and reiterated that he had not received a notice of deficiency regarding his 2009 tax return. On January 11, 2017, the SO issued Campbell a notice of determination, which sustained the proposed levy for his 2009 tax liabilities. The notice informed Campbell that he was not entitled to an in-person hearing because, among other faults, he was not up-to-date with his tax return filings.

Campbell then petitioned the Tax Court, claiming, as is relevant here, that (1) the IRS failed to follow the proper assessment procedures, and (2) the IRS improperly denied him an in-person hearing.

Upon a remand at the IRS's request, the SO obtained the 2009 notice of deficiency, which had been sent to Campbell's Memphis address on December 10, 2012, via certified mail. The notice had been returned as unclaimed.

The SO then sent Campbell a letter scheduling a telephonic CDP hearing for September 6, 2017. The hearing was held as scheduled. Despite the SO's request for Campbell to verify his mailing address as of December 2012 through December 2013 and to provide his 2009 and 2010 tax returns, he failed to do so. The SO also noted that Campbell provided “frivolous arguments” when asked about his address and tax liabilities.

Following the hearing, the SO issued to Campbell a supplemental notice of determination sustaining the levy. The IRS then filed a motion for summary judgment regarding Campbell's 2009 tax liabilities, arguing that the notice of deficiency had been mailed to his last known address. Campbell filed a cross-motion for summary judgment, arguing, among other things, that the notice of deficiency with respect to his 2009 taxes was void because it was not issued by the Secretary of Treasury or a duly authorized delegate.

The Tax Court agreed with the IRS's arguments, granted its motion, denied Campbell's cross-motion for summary judgment, and sustained the collection action. It reasoned that (1) even assuming that Campbell was entitled to challenge his 2009 tax year liability at the CDP hearing, he failed to do so, (2) Campbell never disputed that the address listed on his notice of deficiency was his then-current address, (3) contrary to Campbell's argument, the notice of deficiency contained no irregularities, and (4) Campbell was not improperly denied an in-person hearing.

In this timely appeal, Campbell argues that (1) the IRS denied him the opportunity to dispute the tax claims that were filed against him insofar as the IRS never provided him with a deficiency notice or any other relevant information, and (2) the Tax Court exceeded its authority when it granted the IRS's motion for summary judgment — both in violation of his due process rights.

Standard of Review

We review de novo the Tax Court's grant of summary judgment in a CDP case. Golden v. Comm'r, 548 F.3d 487, 492 (6th Cir. 2008). Summary judgment is appropriate 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.”

Address Issue

Campbell challenges the IRS's collection efforts for his 2009 tax liability, arguing that he never received a notice of deficiency. This argument fails because mailing a notice of deficiency to a taxpayer's last known address is sufficient under 26 U.S.C. § 6212(a) and (b)(1). See Patmon & Young Pro. Corp. v. Comm'r, 55 F.3d 216, 217 (6th Cir. 1995). The IRS presented admissible evidence, through the SO in his declaration, that it sent the notice of deficiency, signed by an IRS agent, to Campbell's Memphis address via certified mail. Campbell claims not to have received it. “The notice [of deficiency] is valid even if not received by the taxpayer, if it is mailed to the taxpayer's last known address,” as is the case here. United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984). Campbell has never disputed that his Memphis address was his last known address as of December 10, 2012.

Failure to Challenge 2009 Tax Liability

Even if Campbell did not receive the notice of deficiency, the Tax Court properly granted the IRS's motion for summary judgment sustaining the IRS's collection action following the CDP hearing.

The purpose of a CDP hearing is to “obtain verification . . . that the requirements of any applicable law or administrative procedure have been met” in a collection action brought by the IRS. I.R.C. § 6330(c)(1); see Golden, 548 F.3d at 492.

A taxpayer may “challenge[ ] . . . the existence or amount of the underlying tax liability . . . [only] if the person did not receive any statutory notice of deficiency . . . or did not otherwise have an opportunity to dispute such tax liability.” 26 U.S.C. § 6330(c)(2)(B); see Living Care Alts. of Utica v. United States, 411 F.3d 621, 625 (6th Cir. 2005); see also Williams v. Comm'r, 718 F.3d 89, 92 (2d Cir. 2013).

The record shows that Campbell had multiple opportunities to dispute his tax liability for 2009 — but he neglected to do so. In particular, as noted by the Tax Court, Campbell, before the CDP hearing, failed to submit information requested by the SO, including a properly completed 2009 tax return. Indeed, the Tax Court emphasized that Campbell “submitted no information of any kind to the SO on this subject.” And during the supplemental telephonic hearing, Campbell provided only “frivolous arguments” and abruptly terminated the call.

Campbell does not dispute these findings. Rather, he argues that he was denied the opportunity to dispute his 2009 liability because he was never provided with any information regarding the IRS's claims. But as set forth above, the SO gave Campbell multiple opportunities to provide evidence disputing his tax liability. And Campbell has failed to identify the information he claims to have needed to challenge the tax levy that had been filed against him. The Tax Court thus properly concluded that Campbell was not precluded from challenging his 2009 tax liability. See Holloway v. Comm'r, 322 F. App'x 421, 423 (6th Cir. 2008) (“The Tax Court's review, as well as our court's review, is strictly confined to only those issues . . . raised during the CDP hearing.”).

Denial of an In-Person Hearing

Finally, to the extent that Campbell maintains that he was improperly denied an in-person CDP hearing, the argument lacks merit. Campbell cites no authority demonstrating that he was entitled to an in-person CDP hearing. See 26 C.F.R. § 301.6330-1(d)(2)(A-D6); e.g., Kindred v. Comm'r, 454 F.3d 688, 691 n.7 (7th Cir. 2006); Katz v. Comm'r, 115 T.C. 329, 337-38 (2000).

Accordingly, we AFFIRM the Tax Court's order.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

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