T.C. Memo. 2002-13
UNITED STATES TAX COURT
STEPHEN R. BARKER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 8576-00L. Filed January 10, 2002.
Stephen R. Barker, pro se.
Sheara Gelman, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court
on respondent’s Motion for Summary Judgment, as supplemented,
filed pursuant to Rule 121(a).1 Respondent contends that there
is no dispute as to any material fact with respect to this
1
All Rule references are to the Tax Court Rules of
Practice and Procedure, and all section references are to the
Internal Revenue Code, as amended.
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collection review matter and that respondent’s determination to
proceed with collection should be sustained as a matter of law.
Summary judgment is intended to expedite litigation and
avoid unnecessary and expensive trials. Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be
granted with respect to all or any part of the legal issues in
controversy "if the pleadings, answers to interrogatories,
depositions, admissions, and any other acceptable materials,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that a decision may be
rendered as a matter of law." Rule 121(a) and (b); Sundstrand
Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965
(7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);
Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The moving
party bears the burden of proving that there is no genuine issue
of material fact, and factual inferences will be read in a manner
most favorable to the party opposing summary judgment. Dahlstrom
v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.
Commissioner, 79 T.C. 340, 344 (1982).
As explained in detail below, we are satisfied that there is
no genuine issue as to any material fact and that a decision may
be rendered as a matter of law. Accordingly, we shall grant
respondent’s motion.
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Background
On March 31, 2000, respondent mailed to petitioner a Final
Notice Of Intent To Levy and Notice Of Your Right To A Hearing
concerning petitioner’s unpaid income tax liabilities for the
years 1994 through 1997.2 On or about April 25, 2000, petitioner
filed with the Internal Revenue Service Office of Appeals
(Appeals Office) Form 12153, Request for a Collection Due
Process Hearing.
Petitioner attended the Appeals Office hearing in this
matter and argued that the assessments for the years in issue
were invalid inasmuch as the Appeals officer failed to produce
Forms 23-C, Assessment Certificate--Summary Record of
Assessments, for each year. Although the Appeals officer did not
provide petitioner with Forms 23-C for the years in issue, the
Appeals officer did provide petitioner with Forms 4340
(Certificates of Assessments and Payments) for each year.
On July 18, 2000, the Appeals Office issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 stating that respondent would proceed with collection
action for the years 1994 through 1997. On August 9, 2000,
petitioner filed with the Court a Petition For Levy Action Under
2
The Final Notice of Intent to Levy stated that petitioner
owed amounts from prior notices, interest, and additional
penalties for the years 1994, 1995, 1996, and 1997 totaling
$13,087.62, $840,848.30, $1,007,312.01, and $409,622.75,
respectively.
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Code Section 6330(d) challenging the validity of the assessments
for the years 1994 through 1997.
After filing an answer to the petition, respondent filed a
Motion for Summary Judgment. Respondent contends that there is
no issue as to a material fact, and that respondent’s
determination to proceed with collection should be sustained as a
matter of law.
This matter was called for hearing at the Court’s motions
session in Washington, D.C. Counsel for respondent appeared at
the hearing and argued in support of respondent’s motion.
Although there was no appearance by or on behalf of petitioner at
the hearing, petitioner did file a written statement with the
Court pursuant to Rule 50(c) repeating the arguments in the
petition. Following the hearing, respondent filed a Supplement
to Motion for Summary Judgment, attaching thereto Forms 4340 for
each of the years in issue.
Discussion
Section 6331(a) provides that if any person liable to pay
any tax neglects or refuses to pay such tax within 10 days after
notice and demand for payment, the Secretary is authorized to
collect such tax by levy on the person’s property. Section
6331(d) provides that at least 30 days prior to enforcing
collection by way of a levy on the person's property, the
Secretary is obliged to provide the person with a final notice of
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intent to levy, including notice of the administrative appeals
available to the person.
In the Internal Revenue Service Restructuring and Reform Act
of 1998 (RRA 1998), Pub. L. 105-206, sec. 3401, 112 Stat. 685,
746, Congress enacted new sections 6320 (pertaining to liens) and
6330 (pertaining to levies) to provide protections for persons
subject to collection actions. Sections 6320 and 6330 generally
provide that the Commissioner cannot proceed with collection
until the person has been given notice of and the opportunity for
an administrative review of the matter (in the form of an Appeals
Office hearing) and, if dissatisfied, with judicial review of the
administrative determination. See Davis v. Commissioner, 115
T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179
(2000).
Section 6330(c) prescribes the matters that may be raised by
a person at an Appeals Office hearing. Section 6330(c)(1) first
provides that the Appeals officer shall obtain verification from
the Secretary that the requirements of any applicable law or
administrative procedure have been met. Section 6330(c)(2)(A)
provides that a person may raise collection issues such as
spousal defenses, the appropriateness of the Commissioner's
intended collection action, and possible alternative means of
collection. Section 6330(c)(2)(B) provides that the existence
and amount of the underlying tax liability can be contested only
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at an Appeals Office hearing if the person did not receive a
notice of deficiency for the taxes in question or did not
otherwise have an earlier opportunity to dispute such tax
liability. See Sego v. Commissioner, 114 T.C. 604, 609 (2000);
Goza v. Commissioner, supra.
Petitioner contends that before respondent may proceed with
the planned levy action, respondent must demonstrate under
section 6330(c)(1) that the underlying tax assessments for the
years 1994 through 1997 are valid. Petitioner argues that
respondent failed to verify or prove that the assessments in
question are valid inasmuch as respondent failed to provide
petitioner with Forms 23-C.
Section 6203 provides:
SEC. 6203. METHOD OF ASSESSMENT.
The assessment shall be made by recording the
liability of the taxpayer in the office of the
Secretary in accordance with rules or regulations
prescribed by the Secretary. Upon request of the
taxpayer, the Secretary shall furnish the taxpayer a
copy of the record of the assessment.
Section 301.6203-1, Proced. & Admin. Regs., requires an
assessment to be made “by an assessment officer signing the
summary record of assessment”; i.e., a Form 23-C. See Nicklaus
v. Commissioner, 117 T.C. 117, 121 (2001).
Although Federal tax assessments are formally recorded on
Form 23-C, we have held that Forms 4340 are presumptive evidence
on which an Appeals officer may rely to verify that an assessment
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was made against a person for purposes of sections 6320 and 6330.
In particular, in Davis v. Commissioner, supra at 40-41, we held:
Generally, courts have held that Form 4340
provides at least presumptive evidence that a tax has
been validly assessed under section 6203. See Huff v.
United States, 10 F.3d 1440, 1445 (9th Cir. 1993);
Hefti v. IRS, 8 F.3d 1169, 1172 (7th Cir. 1993); 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, 1017-1018 (11th Cir. 1989); United States v.
Miller, 318 F.2d 637, 638-639 (7th Cir. 1963).
“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) (quoting Geiselman v. United States,
supra at 6). The Form 4340 reflecting petitioner’s
income tax liabilities for the years in issue indicates
that those tax liabilities were properly assessed and
remain unpaid. Petitioner has not demonstrated any
irregularity in the assessment procedure that would
raise a question about the validity of the assessments.
We therefore hold that it was not an abuse of
discretion for Appeals to rely on a Form 4340 in this
case for the purpose of complying with section
6330(c)(1).
Cf. Nicklaus v. Commissioner, supra at 120-121.
As in Davis v. Commissioner, supra, and Nicklaus v.
Commissioner, supra, petitioner has not shown, or even alleged,
any irregularity in respondent’s assessment procedures, including
the preparation of Form 23-C, that would raise a question as to
the validity of the assessments in this case. Petitioner merely
wants to assure himself that the Forms 23-C were properly
executed. However, consistent with the precedents cited above,
we hold that respondent is not required to produce the Forms 23-C
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without some showing by petitioner of an irregularity in the
process.
Because petitioner has not raised any valid claim, such as a
spousal defense or an alternative means of collection, such
claims are deemed to be conceded. Rule 331(b)(4). Because there
is no dispute as to any material fact and a decision may be
rendered as a matter of law, we shall grant respondent’s Motion
for Summary Judgment, as supplemented.
To reflect the foregoing,
An order granting respondent’s
motion for summary judgment,
as supplemented, and decision
will be entered.