T.C. Memo. 2001-65
UNITED STATES TAX COURT
ALAN R. WYLIE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6949-00L. Filed March 20, 2001.
Thomas W. Roberts, for petitioner.
Karen Nicholson Sommers, for respondent.
MEMORANDUM OPINION
LARO, Judge: This case is based on a petition filed under
section 6330(d).1 Respondent moved for summary judgment under
Rule 121(a) on November 6, 2000. The Court, by order dated
November 8, 2000, required petitioner to respond to respondent’s
1
Unless otherwise indicated, section references are to the
Internal Revenue Code applicable to the years in issue. Rule
references are to the Tax Court Rules of Practice and Procedure.
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motion by November 29, 2000. Petitioner did not file a
response. For convenience, we shall combine the facts, which are
not in dispute, with our opinion.
Section 6331(a) provides that, if any person liable to pay
any tax neglects or refuses to pay the tax within 10 days after
notice and demand for payment, the Secretary may collect the tax
by levy upon the taxpayer’s property. Section 6331(d) provides
that the Secretary must provide the taxpayer with notice,
including notice of the administrative appeals available to the
taxpayer, before proceeding with collection by such a levy.
In 1998, Congress enacted section 6330 to provide
protections for taxpayers in tax collection matters involving the
imposition of a levy on a taxpayer's property. See Internal
Revenue Service Restructuring and Reform Act of 1998, Pub. L.
105-206, sec. 3401, 112 Stat. 685, 746. Section 6330 generally
provides that the Secretary cannot proceed with the collection of
taxes by way of a levy until the taxpayer has been given notice
and an opportunity for administrative review of the matter (in
the form of an Appeals Office due process hearing). Judicial
review of the administrative determination is available if the
taxpayer petitions this Court or the appropriate U.S. District
Court. See sec. 6330(d).
On February 23, 2000, respondent issued to petitioner a
Final Notice of Intent to Levy and Notice of Your Right to a
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Hearing. The levy related to his unpaid liability for income tax
assessments for 1993, 1994, and 1995. Petitioner requested and
was granted a collection due process hearing which was held on
May 12, 2000. Other than objecting that the Form 4340,
Certificate of Assessment and Payments, was not a proper basis to
verify the assessments petitioner raised no other arguments and
offered no collection alternatives. On May 19, 2000, respondent
sent a “NOTICE OF DETERMINATION CONCERNING COLLECTION ACTION(S)
UNDER SECTION 6320 AND/OR 6330” to petitioner (notice of
determination). The notice of determination states: “The
Collection enforcement action proposed is the appropriate action
in this case.”
Petitioner timely filed a petition seeking judicial review
of that determination. Where the validity of the underlying tax
liability is properly at issue, the Court will review the matter
de novo. Where, as is here, the underlying liability is not at
issue, the Court will review the Commissioner's administrative
determination for abuse of discretion. See Sego v. Commissioner,
114 T.C. 604, 610 (2000).
Petitioner alleges in the petition that respondent made the
following errors in making his determination:
(a) The appeals officer failed to get proper
verification from the Secretary that the service met
the requirements of any applicable law or
administrative procedure as required by §6330(c)(1), 26
CFR §301.6320-T(e)(1)[sic] and 26 CFR §301.6330-
T(e)(1)[sic].
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(b) The appeals officer failed to furnish requested
documentation prior to the hearing and failed to
properly schedule and notify the petitioners of the
time and date of the hearing that petitioners
requested.
(c) These failures resulted in the Petitioner’s and
their authorized representative’s inability to be
present and present their case, examine documents or
cross examine witnesses against them.
We have assumed that the intended reference in the petition is a
reference to section 301.6330-1T(e)(1), Temporary Proced. &
Admin. Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999),2 which provides:
(e) Matters considered at CDP hearing
(1) In general. Appeals has the authority to
determine the validity, sufficiency, and timeliness of
any CDP [collection due process] Notice given by the
IRS and of any request for a CDP hearing that is made
by a taxpayer. Prior to issuance of a determination,
the hearing officer is required to obtain verification
from the IRS office collecting the tax that the
requirements of any applicable law or administrative
procedure have been met. The taxpayer may raise any
relevant issue relating to the unpaid tax at the
hearing, including appropriate spousal defenses,
challenges to the appropriateness of the proposed
collection action, and offers of collection
alternatives. The taxpayer also may raise challenges
to the existence or amount of the tax liability for any
tax period shown on the CDP Notice if the taxpayer did
not receive a statutory notice of deficiency for that
tax liability or did not otherwise have an opportunity
to dispute that tax liability. Finally, the taxpayer
may not raise an issue that was raised and considered
at a previous CDP hearing under section 6320 or in any
other previous administrative or judicial proceeding if
the taxpayer participated meaningfully in such hearing
or proceeding. Taxpayers will be expected to provide
2
Sec. 301.6320-1T(e)(1), Temporary Proced. & Admin. Regs.,
64 Fed. Reg. 3402 (Jan. 22, 1999), is substantially similar to
section 301.6330-1T(e)(1), Temporary Proced. & Admin. Regs., 64
Fed. Reg. 3411 (Jan. 22, 1999).
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all relevant information requested by Appeals,
including financial statements, for its consideration
of the facts and issues involved in the hearing.
The Appeals officer relied on a Form 4340, Certificate of
Assessment and Payments, to verify the proper assessments of the
taxes in issue. Generally, courts have held that Form 4340
provides at least presumptive evidence that a tax has been
validly assessed under section 6203. See Farr v. United States,
990 F.2d 451, 454 (9th Cir. 1993); Geiselman v. United States,
961 F.2d 1, 5-6 (1st Cir. 1992); Rocovich v. United States, 933
F.2d 991, 994 (Fed. Cir. 1991); United States v. Chila, 871 F.2d
1015, 1017-18 (11th Cir. 1989); United States v. Miller, 318 F.2d
637, 638-39 (7th Cir. 1963). Petitioner’s argument that the
production of, and reliance by the Appeals officer on, a Form
4340 to establish a procedurally proper assessment is an abuse of
discretion or irregularity is without legal support. See Davis
v. Commissioner, 115 T.C. 35 (2000). "Certificates of Assessments
and Payments are routinely used to prove that tax assessment has
in fact been made. They are presumptive proof of a valid
assessment." Guthrie v. Sawyer, 970 F.2d 733, 737 (10th Cir.
1992) (quotation marks and citations omitted). Petitioner has
neither averred nor demonstrated any irregularity in the
assessment procedure that would raise a question as to the
validity of the assessment. We therefore hold it was not an
abuse of discretion for Appeals to rely, in part, on a Form 4340
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for the purpose of complying with section 6330(c)(1) and section
301.6330-1T(e)(1), Temporary Proced. & Admin. Regs., supra. See
Davis v. Commissioner, supra.
We find petitioner’s allegations contained in paragraph (b),
set out above, to be unsupported by the record. On March 30,
2000, petitioner’s representative was notified that a collection
due process hearing would be held on April 26, 2000. At
petitioner’s request, the hearing was rescheduled on April 18,
2000, and held on May 12, 2000. Petitioner was represented at
the hearing by Thomas Roberts, C.P.A., and Richard Miller, C.P.A.
We find as a fact that the Appeals officer furnished a Form 4340
at the hearing and notified petitioner of the time and date of
the hearing. We hold that respondent provided petitioner with
all required documents and provided adequate notice of the
hearing to petitioner.
Petitioner’s final allegation of error is that he was
precluded from gaining access to documents and not allowed to
cross-examine witnesses. We rejected these same arguments in
Davis v. Commissioner, supra, and the reasoning stated therein is
equally applicable here.
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We find that respondent did not abuse his discretion when
making his determination that “The Collection enforcement action
proposed is the appropriate action in this case.” Consequently,
we shall grant respondent’s motion for summary judgment. The
decision in this case will indicate that we sustain respondent's
administrative determination to proceed with collection against
petitioner.
To reflect the foregoing,
An appropriate order and
decision will be entered
granting respondent’s motion
for summary judgment.