T.C. Memo. 2002-53
UNITED STATES TAX COURT
JEFFREY S. AND SUSAN L. DUFFIELD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3716-00L. Filed February 25, 2002.
Joyce Griggs, for petitioners.
Ross M. Greenberg and Joanne B. Minsky, for respondent.
MEMORANDUM OPINION
FOLEY, Judge: The issues in this case are whether
respondent has met the requirements of section 63301 and whether
petitioners are liable for the section 6673(a)(1) penalty.
Background
Jeffrey and Susan Duffield resided in Bear, Delaware, when
they filed their petition. The assessments relate to liabilities
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended.
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that petitioners reported on 1988, 1989, 1990, 1992, 1993, 1995,
and 1996 Federal income tax returns.
On June 11, 1999, respondent issued a Notice of Intent to
Levy and Notice of Your Right to a Hearing. On July 8, 1999,
petitioners’ representative filed a Request for a Collection Due
Process Hearing (i.e., Form 12153) and requested a copy of the
assessments. In a letter dated January 19, 2000, respondent’s
Appeals officer asked petitioners to ratify the hearing request.
In a letter dated February 7, 2000, petitioners’ representative
provided the ratification and questioned “the existence of a
valid assessment document”. In an undated letter, the Appeals
officer replied: “Our office believes the information provided
is sufficient to determine that the necessary statutory and
administrative requirements have been met.” The Appeals officer
wrote further: “If, however, you wish to present relevant issues
relating to the unpaid tax in accordance with my earlier
correspondence, I have scheduled time on March 8, 2000, at 1:30
p.m. at the office address above.” Neither petitioners nor their
representative appeared at that time or requested that the
hearing be rescheduled.
On March 8, 2000, the Appeals officer obtained computer
transcripts (transcripts) of petitioners’ accounts. The
transcripts contained petitioners’ Social Security number and the
first four letters of their last name; monetary figures
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representing amounts assessed, identified by respondent’s
transaction codes; and petitioners’ adjusted gross and taxable
income.
On March 16, 2000, respondent issued a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (determination), sustaining the proposed collection
action. In making the determination, respondent relied on the
transcripts to verify the assessments. Respondent, prior to
making his determination, did not give petitioners copies of
these transcripts or Forms 4340, Certificates of Assessments,
Payments, and Other Specified Matters (Forms 4340). On December
22, 2000, respondent’s counsel provided petitioners with a copy
of the transcripts. At trial, on January 8, 2001, respondent
provided petitioner, and introduced into the record, Forms 4340.
Respondent also requested that the Court impose a section
6673(a)(1) penalty.
Discussion
Section 6330(b)(1) provides that if a taxpayer requests a
hearing, “such hearing shall be held by the Internal Revenue
Service Office of Appeals.” Section 6330(c)(1) states: “The
appeals officer shall at the hearing obtain verification from the
Secretary that the requirements of any applicable law or
administrative procedure have been met.” Section 6330(c)(2)(B)
allows challenges to the existence or amount of the underlying
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liability only if petitioners did not receive a notice of
deficiency or have an opportunity to dispute the liability.
Section 6330(d) provides for Tax Court review of the
Commissioner’s determination.
Petitioners do not contest the underlying liabilities but
contend that section 6330(c)(1) requires the production of Form
23C. Respondent contends that the Appeals officer did not abuse
her discretion by relying on the transcripts to verify the
assessments. We agree with respondent. The transcripts
contained the requisite information (i.e., “identification of the
taxpayer, the character of the liability assessed, the taxable
period, if applicable, and the amount of the assessment”, sec
301.6203-1, Proced. & Admin. Regs). Kuglin v. Commissioner, T.C.
Memo. 2002-51.
Where the Commissioner provides the taxpayer with Forms 4340
(i.e., proof of assessment) after the hearing and before trial,
and the taxpayer does not “show at trial any irregularity in the
assessment procedure that would raise a question about the
validity of the assessments”, the taxpayer is not prejudiced.
Nestor v. Commissioner, 118 T.C. ___, ___ (2002) (slip op. at 9).
At trial, petitioners did not show any irregularity in the
assessment procedure. Accordingly, we sustain the respondent’s
determination.
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Respondent contends that petitioners’ position is frivolous
and instituted primarily for delay and that, pursuant to section
6673(a)(1), the Court should impose a penalty on petitioners. We
decline, however, to impose such a penalty in this case.
Contentions we have not addressed are irrelevant, moot, or
meritless.
To reflect the foregoing,
An appropriate order and
decision will be entered.