T.C. Memo. 2001-285
UNITED STATES TAX COURT
TERRY L. LINDSAY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3486-01L. Filed October 15, 2001.
Terry L. Lindsay, pro se.
Julie A. Fields, for respondent.
MEMORANDUM OPINION
RUWE, Judge: This case is based on a petition filed under
section 6320(c), which incorporates the provisions for judicial
review contained in section 6330(d)(1). Respondent has filed a
motion for summary judgment pursuant to Rule 121,1 alleging that
1
Unless otherwise indicated, all section references are to
(continued...)
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no genuine issue of material fact remains for trial. At the time
petitioner filed his petition to this Court, he resided in
Salinas, California.
On August 14, 2000, respondent filed a Notice of Federal Tax
Lien, Form 668(Y)(c), with the County Recorder of Monterey
County, Salinas, California. The lien was filed with respect to
unpaid income taxes of $10,239.52 for taxable years 1990, 1991,
1992, 1993, and 1994.2 On August 18, 2000, respondent issued a
Notice of Federal Tax Lien Filing and Your Right to a Hearing
Under IRC 6320, Letter 3172 (ALS), to petitioner. The notice
informed petitioner of his right to a hearing before the IRS
Appeals Office. On September 21, 2000, petitioner filed a timely
Form 12153, Request for a Collection Due Process Hearing.
Attached to petitioner’s Form 12153 was a 12-page document in
which petitioner raised challenges to the lien filing.
1
(...continued)
the Internal Revenue Code currently in effect, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
2
Petitioner did not file tax returns for taxable years 1990
through 1994. Petitioner has addressed several letters to
members of the Federal Government arguing that the 16th Amendment
was fraudulently certified as ratified by the States, and the IRS
is without the constitutional power to assess and collect taxes.
These arguments, as articulated by petitioner, have been
correctly described as tax protester gibberish. See Crain v.
Commissioner, 737 F.2d 1417, 1418 (5th Cir. 1984); Williams v.
Commissioner, 114 T.C. 136, 144 (2000); Nagy v. Commissioner,
T.C. Memo. 1996-24; Black v. Commissioner, T.C. Memo. 1995-560;
Olsen v. Commissioner, T.C. Memo. 1995-471; Pabon v.
Commissioner, T.C. Memo. 1994-476.
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On January 30, 2001, a hearing was held before an IRS
Appeals officer. On February 14, 2001, a notice of determination
was sent to petitioner by the Appeals Office. The notice of
determination stated: (1) A certified transcript was reviewed
which shows that the assessments exist; (2) petitioner cannot
dispute the underlying tax liability since a notice of deficiency
was received; (3) all legal and administrative requirements for
the proposed action have been met; and (4) balancing of the
efficient collection of taxes with petitioner’s privacy interests
weighed in favor of the lien filing. On March 14, 2001,
petitioner filed a timely petition to the Tax Court.
Section 6321 imposes a lien on all property and property
rights of a taxpayer where a demand for the payment of taxes has
been made and the taxpayer fails to pay those taxes. A lien is
imposed when an assessment of taxes is made. Sec. 6322. Section
6323(a) requires the Secretary to file notice of a lien if it is
to be valid against any purchaser, holder of a security interest,
mechanic’s lienor, or judgment lien creditor.
Section 6320 was added to the Code in 1998, along with its
sister provision, section 6330. See Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3401,
112 Stat. 746. Section 6320(a) requires the Secretary to send a
written notice to the taxpayer of the filing of a notice of lien
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and of his right to a hearing.3 Section 6320(b) affords the
taxpayer the right to a fair hearing before an impartial Appeals
officer. Section 6320(c) incorporates the provisions under
section 6330(c), (d), and (e). Section 6330(c)(1) requires the
Appeals officer to verify that the requirements of any applicable
law or administrative procedure have been met. Section
6330(c)(2)(A) specifies issues that the taxpayer may raise at the
Appeals hearing. The taxpayer is allowed to raise any relevant
issue relating to the unpaid tax including spousal defenses,
challenges to the appropriateness of collection action, and
alternatives to collection. Sec. 6330(c)(2)(A). The taxpayer
cannot raise issues relating to the underlying tax liability if
the taxpayer received a notice of deficiency or the taxpayer
otherwise had an opportunity to dispute the tax liability. Sec.
6330(c)(2)(B). Section 6330(d)(1) allows the taxpayer to appeal
a determination to the Tax Court or a district court.
Respondent argues that there are no genuine issues of
material fact in this case, and, therefore, we should grant his
motion for summary judgment. Respondent claims that petitioner
received a notice of deficiency, and, therefore, the underlying
3
Generally, a Notice of Federal Tax Lien, Form 668(Y)(c), is
filed with an appropriate local Government entity and gives
public notice of the Federal Government’s lien on the taxpayer’s
property. A Notice of Federal Tax Lien Filing and Your Right to
a Hearing Under IRC 6320, Letter 3172 (ALS), is then sent to the
taxpayer.
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tax liability cannot be raised in the hearing or in the Tax Court
proceeding. Respondent argues that petitioner effectively
conceded the Appeals officer’s determination that petitioner
received a notice of deficiency by failing to raise the issue in
the petition. Respondent also argues that petitioner has
conceded the issues that may be raised under section
6330(c)(2)(A), since he did not raise those issues in the
petition or at the hearing. Further, respondent contends that
the validity of the assessments has already been verified by a
Form 4340, Certificate of Assessments and Payments, which could
be relied on by an Appeals officer to satisfy his verification
function under section 6330(c)(1).
We shall grant a motion for summary judgment where the
pleadings and other materials show that there is no genuine issue
as to any material fact and that a decision may be rendered as a
matter of law. Sundstrand Corp. v. Commissioner, 98 T.C. 518,
520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). The burden is on
the moving party, respondent, to prove the nonexistence of a
genuine issue as to any material fact and that he is entitled to
judgment as a matter of law. FPL Group, Inc. & Subs. v.
Commissioner, 116 T.C. 73, 74-75 (2001); Naftel v. Commissioner,
85 T.C. 527, 529 (1985). In all cases, we must view the facts
and inferences therefrom in the light most favorable to the
nonmoving party, petitioner. Bond v. Commissioner, 100 T.C. 32,
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36 (1993); Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985).
When a motion for summary judgment is made, the nonmoving party
cannot rely upon the allegations or denials in its pleading but
must demonstrate with specific facts that there is a genuine
issue for trial. King v. Commissioner, 87 T.C. 1213, 1217
(1986); Shepherd v. Commissioner, T.C. Memo. 1997-555.
In his petition to this Court, petitioner raises no
discernable issues, except to argue generally that he disagreed
with the determination of the Appeals officer and that the
determination was not complete and was erroneous. The petition
states:
1. Petitioner disagrees with the determination under
§§6230 and/or 6330 alleged for the year: 1990, 1991,
1992, 1993, and 1994 as set forth in the NOTICE OF
DETERMINATION CONCERNING COLLECTION ACTION(S) which is
dated FEB. 14, 2001, * * * and NOTICE OF FEDERAL TAX
LIEN * * *
2. Petitioner taxpayer identification number is: * * *
3. Petitioner disputes the following:
AMOUNT OF ADDITIONS TO TAX/
DEFICIENCY PENALTIES-I.R.C.
[interest disputed &
Years (disputed) penalties disputed]
1990 $1403.16 $Unknown
1991 $3241.50 $Unknown
1992 $427.57 $Unknown
1993 $1787.47 $Unknown
1994 $3379.82 $Unknown
4. Set forth those adjustments, i.e. changes, in the
FINAL NOTICE OF INTENT TO LEVY with which you disagree
and why you disagree: Respondent erred in its
administrative procedure against petitioner in issuing
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the notice of levy pursuant to §6331.[4]
Request is made that this matter be transferred to the
appeals branch of the IRS on the grounds that the
information supporting the notice of levy is not
complete and is erroneous. SEE EXHIBIT “A” FOR
ADDITIONAL INFORMATION * * *
EXHIBIT “A”
DEMAND IS MADE THAT THE TAX COURT TRANSFER THIS CASE TO
THE APPELLATE DIVISION OF THE IRS ON THE GROUNDS THAT
THIS TAXPAYER HAS BEEN DENIED DUE PROCESS OF LAW, AND
HAS A SUBSTANTIAL CLAIM UNDER THE “NEW” TAXPAYER BILL
OF RIGHTS, AGAINST THE AGENT AND THE IRS, PLUS OTHER
CAUSES OF ACTION THAT HAVE NOT BEEN FULLY DETERMINED AS
OF THE PRESENT DATE
AVOIDANCE AND/OR AFFIRMATIVE DEFENSES
PETITIONER ALLEGES AS AN AVOIDANCE AND/OR AFFIRMATIVE
DEFENSE EACH OF THE FOLLOWING THAT HAVE BEEN MARKED BY
AN “X” ON THE LINE BEFORE THE ITEM LISTED:
X RES JUDICATA
X ESTOPPEL
X WAIVER
X DURESS
X FRAUD
X STATUTE OF LIMITATIONS
X INVALID NOTICE OF INTENT TO LEVY NOT
COMPLYING WITH THE TAX CODE PROVISIONS
X FAILURE TO PROVIDE FREEDOM OF INFORMATION ACT
DOCUMENTS AND MATERIALS NECESSARY FOR
PETITIONERS TO PREPARE FOR TRIAL
FAILURE OF RESPONDENT TO “FULLY COOPERATE” AS
PROVIDED BY THE STANDING ORDER
FAILURE OF RESPONDENT TO EXHAUST
ADMINISTRATIVE REMEDIES, NO PRIOR CONTACT
X LACHES
4
We point out that there is no indication in the record that
respondent issued a Notice of Intent to Levy under sec. 6331(d),
gave a Notice of Levy to any third parties, or otherwise
initiated a levy action. On the contrary, the only notices in
the record are the Notice of Federal Tax Lien filed with Monterey
County and the Notice of Federal Tax Lien Filing sent to
petitioner. We assume, therefore, that petitioner is referring
to those notices in his petition.
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X THE “CLEAN HANDS” DOCTRINE (UNCLEAN HANDS OF
RESPONDENT)
X ILLEGALITY
X FAILURE OF JURISDICTION OVER PETITIONER
DISCHARGE IN BANKRUPTCY
OTHER________________________________________
A petition filed under section 6330(d)(1)(A) must contain
“Clear and concise assignments of each and every error”. Rule
331(b)(4). Further, “clear and concise lettered statements of
the facts on which the petitioner bases each assignment of error”
must be contained in the petition. Rule 331(b)(5). If any issue
is not raised in the petition, it “shall be deemed to be
conceded.” Rule 331(b)(4). Further, the prayer for relief shall
be set forth in the petition. Rule 331(b)(6). Petitioner was
not represented by counsel at the time he filed his petition.
Petitioner, nevertheless, has an obligation to comply with the
Rules of this Court. The broad and general issues that
petitioner raised do not even come close to complying with those
Rules.5 In any event, the issues that petitioner presented
throughout the proceedings in this case do not raise a genuine
issue of material fact.
At the Appeals hearing, petitioner attempted to challenge
the underlying tax liability. Specifically, petitioner argued
5
In his petition, petitioner presents a laundry list of
defenses to his tax liability and to the proposed collection
activity. Petitioner alleged no facts in support of those
defenses in his petition, in the Appeals hearing, or in documents
submitted to IRS Appeals or this Court. Our review of the record
shows that the defenses pleaded by petitioner have no merit.
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that the Notice of Federal Tax Lien listed the “Kind of Tax” to
be collected as a “1040". Petitioner contended that there was no
1040 tax under the Code, and, therefore, any such tax cannot be
legally collected and any payment would be voluntary. Further,
in the attachment to the Form 12153, petitioner argued that the
presumption normally afforded a Form 4340, Certificate of
Assessments and Payments, should not apply where the notice sent
to him shows the kind of tax assessed as a 1040.
While it is true that a 1040 is not a tax under the Code,
Form 1040, U.S. Individual Income Tax Return, is recognized by
tax professionals and laymen alike as the form filed generally to
report income tax, which is a tax under the Code. Petitioner’s
challenges to the underlying tax liability and the assessment of
taxes on this basis do not present a genuine issue of material
fact.
In any event, the underlying tax liability is not an issue
that can be raised at the hearing if the taxpayer has received a
notice of deficiency. See sec. 6330(c)(2)(B). Although there
was some dispute in the hearing as to whether petitioner
“received” notices of deficiency for taxable years 1990, 1991,
1992, 1993, and 1994, or refused to accept them,6 he failed to
6
At the Appeals hearing, petitioner argued that he did not
receive the notices of deficiency for the underlying tax
liabilities. The notices of deficiency were sent by certified
mail to petitioner’s last known address; however, the notices
(continued...)
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raise the issue either in the petition or in his response to
respondent’s summary judgment motion and memorandum which did
discuss that issue. We find that petitioner has conceded the
specific issue of whether he received the notices of deficiency.7
It follows, then, that the underlying tax liability need not be
addressed in our review of the determination. See Sego v.
Commissioner, 114 T.C. 604, 610-611 (2000); Goza v. Commissioner,
114 T.C. 176, 182-183 (2000).
Petitioner’s principal argument in the Form 12153 and at the
Appeals hearing was: Whether the IRS recorded an assessment
against petitioner as required by section 6203 and section
301.6203-1, Proced. & Admin. Regs., and whether the Appeals
officer was required to present him with a Form 23C, Assessment
6
(...continued)
were not accepted and some were returned with the address
obliterated and with the notation “Return to Sender not at this
address”. See sec. 6212(a) and (b)(1). Petitioner argued at the
hearing that the notices must be actually received to be valid.
7
Similarly, in Davis v. Commissioner, 115 T.C. 35, 39
(2000), the taxpayer failed to present any allegations or facts
in his petition to this Court so as to raise the issue of whether
a notice of deficiency was received. We stated:
Petitioner does not allege that he did not receive a
notice of deficiency for the tax liabilities in issue,
nor does he allege that he did not have an opportunity
to contest the deficiency determinations. Because
petitioner failed to aver the facts specified in
section 6330(c)(2)(B), which are required to put the
underlying tax liability in issue, petitioner’s
underlying tax liability is not properly before the
Court. [Citation omitted.]
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Certificate, which is the summary record of assessment.8 The
Appeals officer informed petitioner that a Form 4340 was
sufficient to verify that the taxes were properly assessed. The
Appeals officer showed petitioner the Form 4340, which clearly
showed that the assessment of taxes was in fact made and
explained to petitioner its significance.
In Davis v. Commissioner, 115 T.C. 35 (2000), the taxpayer
involved argued that a “valid” summary record of assessment did
not exist because he was not given a Form 23C. We held that the
Appeals officer could rely on a Form 4340 to verify that a valid
assessment existed. Id. at 40-41. Since the taxpayer did not
point to any irregularity in the assessment procedure, we granted
respondent’s motion for a judgment on the pleadings. Id. at 41.9
8
Sec. 6203 requires the Secretary to record a liability of
the taxpayer and to furnish a copy of the record of assessment to
the taxpayer on request. Sec. 301.6203-1, Proced. & Admin.
Regs., provides that an assessment officer shall make the
assessment and sign a “summary record of assessment”. This
record “through supporting records” shall identify the taxpayer,
the character of the liability, the taxable period, and the
amount of the assessment.
9
Form 4340, Certificate of Assessments and Payments,
provides presumptive evidence that an assessment has in fact
occurred. See Nicklaus v. Commissioner, 117 T.C. ___, ___ (2001)
(slip op. at 8); Davis v. Commissioner, supra at 40; Wylie v.
Commissioner, T.C. Memo. 2001-65. Nevertheless, it is not
conclusive and further examination may be required in some
instances where the taxpayer points to an irregularity. See,
e.g., Huff v. United States, 10 F.3d 1440, 1446 (9th Cir. 1993)
(where the assessment date did not appear on Form 4340). But, in
a case such as this, where the taxpayer presents no evidence of
an irregularity, the presumption remains applicable. See Hughes
(continued...)
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The same is true of this case: The Appeals officer verified that
the assessments were made with a Form 4340, and petitioner has
presented no evidence of any irregularity in the assessment
procedure. No genuine issue of material fact has been presented.
Petitioner also argued in the Form 12153 attachment that he
did not receive a notice and demand for payment as required under
section 6303.10 It is not apparent from that attachment whether
petitioner was challenging the physical “receipt” of the notice
or the validity of the notice received. In any event, petitioner
did not raise the issue at the Appeals hearing, in his petition
to this Court, or in his response to respondent’s motion for
summary judgment. We must, therefore, find that the issue was
conceded. See Nicklaus v. Commissioner, 117 T.C. ___, ___ (2001)
(slip op. at 6 n.4).
Petitioner contended throughout the hearing that he could
not present a defense because he was not given a set of
procedures governing the Appeals hearing and the presentment of
issues therein. Attached to the notice given to petitioner of
his right to a hearing under section 6320 was Publication 1660
9
(...continued)
v. United States, 953 F.2d 531, 535 (9th Cir. 1992).
10
Sec. 6303(a) requires the Secretary to send a notice of
assessment of a tax and a demand for payment within 60 days after
the assessment is made. “Such notice shall be left at the
dwelling or usual place of business of such person, or shall be
sent by mail to such person’s last known address.” Sec. 6303(a).
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that described his appeal rights and invited him to raise issues,
including the issues referred to in the relevant statutes. The
Appeals officer encouraged petitioner on multiple occasions to
simply raise the issues he wanted to present, noting that the
hearing was intended to be informal and no formal set of
procedures governed the hearing. Petitioner was nonresponsive
and renewed the same argument on numerous occasions throughout
the hearing. In Davis v. Commissioner, supra at 41-42, we
emphasized that the hearing process was informal, did not require
testimony under oath, and did not require the compulsory
attendance of witnesses or the production of documents. See also
Wylie v. Commissioner, T.C. Memo. 2001-65. The Appeals officer
did not abuse his discretion in not giving to petitioner a set of
procedures governing the hearing.
Finally, in his response to respondent’s motion for summary
judgment, petitioner suggests that the notice of determination is
invalid because the Appeals Office failed to make a proper and
complete record of the hearing. However, attached to
petitioner’s response to respondent’s motion is what petitioner
purports to be a transcription from a cassette tape recording of
the Appeals hearing. We have considered the contents of this
document. On the basis of the record, we conclude that the
hearing requirements were met and that our judicial review
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function is fulfilled with the record we have been presented
with.
Petitioner also argues that respondent’s motion for summary
judgment is premature and that he is entitled to make additional
discovery. In some cases, additional discovery is warranted
before a motion for summary judgment is granted, however, we do
not believe this is such a case. Petitioner did not provide any
explanation as to how additional discovery could be of assistance
to him, nor did he submit an affidavit under Rule 121 setting
forth the reasons why he could not respond to respondent’s motion
without additional discovery.11 Petitioner has made only one
request for discovery. On October 1, 2001, petitioner filed a
request for the following admissions of fact:
1. Do you admit that the February 14, 2001
determination letter signed by Appeals Team Manager,
Robert Spooner, makes the summary statement of
verification of compliance with “all applicable laws
and procedures.”
2. Do you admit that Respondent refuses to provide
Petitioner a copy of the Administrative file which
counsel for Respondent has had to prepare his case?
3. Do you admit that the date of the Notice of Federal
Tax Lien is dated August 14, 2000?
Whether or not these requested admissions are true, we find that
11
See also Guthrie v. Sawyer, 970 F.2d 733, 738 (10th Cir.
1992) (interpreting rule 56(f) of the Federal Rules of Civil
Procedure); United States v. McCallum, 970 F.2d 66, 71 (5th Cir.
1992) (same). Rule 121 is in large part derived from F.R.C.P.
56. Casanova Co. v. Commissioner, 87 T.C. 214, 216 (1986).
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they would not present a genuine issue of material fact in this
case. Petitioner’s conduct throughout the proceedings, and the
issues he has raised therein, suggests that any further discovery
would be utilized for purposes of delay. We do not agree with
petitioner that summary judgment is premature.
On the basis of the record, and considering all facts and
circumstances, we find that there are no genuine issues of
material fact presented in this case. Accordingly, we shall
grant respondent’s motion for summary judgment.
An appropriate order and
decision will be entered for
respondent.