T.C. Memo. 2002-81
UNITED STATES TAX COURT
STANLEY HOWARD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7913-00L. Filed March 28, 2002.
Joyce Griggs, for petitioner.
John A. Weeda and Judith C. Winkler, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: Petitioner seeks judicial review under section
6330(d)1 of an adverse Appeals Office collection action
determination.
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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FINDINGS OF FACT
Some facts were stipulated. We incorporate by this
reference the parties’ stipulation of facts and the accompanying
exhibits. Petitioner resided in Orofino, Idaho, when the
petition in this case was filed.
Petitioner failed to file income tax returns for 1992
through 1995. Respondent prepared substitute returns for each
year at issue. On March 28, 1997, a statutory notice of
deficiency was issued to petitioner for 1992, and statutory
notices of deficiency for 1993, 1994, and 1995 were issued to
petitioner on October 24, 1997. Respondent assessed $122,183.42
of income tax, penalties, and interest against petitioner for the
years at issue.
On January 11, 2000, respondent issued a Final Notice of
Intent to Levy and Notice of Your Right to a Hearing to
petitioner. Petitioner timely requested a hearing. In his
request for a hearing, petitioner raised a single argument:
I do not agree with the collection action of
levy and notice of intent to levy [notice
date]. The basis of my complaint is what I
believe to be the lack of a valid summary
record of assessment pursuant to 26 CFR §
301.6203-1. Without a valid assessment there
is no liability. Without a liability there
can be no levy, no notice of intent to levy,
nor any other collection actions.
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On April 26, 2000, respondent provided written notification
to petitioner’s representative that a telephone hearing was
scheduled for June 6, 2000, and enclosed copies of respondent’s
computer transcripts of account for each of the tax years at
issue. The Appeals officer relied upon the computer transcripts
of account (a.k.a. MEFTRA or MEFTRA-X) that were contained in the
administrative file as both proof that a valid assessment was
made and verification of petitioner’s liability.
At the time scheduled for the hearing, the Appeals officer
placed telephone calls to petitioner’s representative at two
different telephone numbers provided by the representative.
Petitioner’s representative was not available at either number.
The Appeals officer left messages at both numbers requesting that
petitioner’s representative contact the Appeals officer to
reschedule the hearing. Petitioner’s representative did not
return either message.
On June 14, 2000, respondent sent to petitioner a “NOTICE
OF DETERMINATION CONCERNING COLLECTION ACTION(S) UNDER SECTION
6320 AND/OR 6330” (notice of determination). The notice of
determination states in pertinent part:
You allege the assessments and the
liabilities are invalid. Statutory Notice of
Deficiency (SND) were sent to you dated March
28, 1997 for the 1992 tax year, and October
24, 1997 for the 1993, 1994 and 1995 tax
years. There is no evidence that you
responded to the SNDs either by filing
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amended returns or petitioning the Tax Court.
You are precluded from raising liability as
an issue under IRC 6330(c)(2)(B). You have
not provided any relevant information or
proposed any alternative collection
resolutions. You were offered an opportunity
for a hearing to raise appropriate issues
under the statute. You did not respond to
this opportunity.
Without further cooperation, it is Appeals
determination that the proposed collection
action balances the need for efficient
collection of taxes with the taxpayer’s
legitimate concern that any collection action
be no more intrusive than necessary.
Petitioner timely filed a petition for judicial review of
that determination. After the time the petition was filed with
this Court, but before trial, respondent provided petitioner with
copies of the Form 4340, Certificate of Assessments and Payments,
for each year at issue.
OPINION
In the judicial review of a section 6330 determination where
the validity of the underlying tax liability is properly at
issue, the Court will review the matter de novo. Where the
underlying liability is not at issue, the Court will review the
Commissioner's administrative determination for abuse of
discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000). In
this case, the validity of the underlying tax is not at issue;
consequently we review respondent’s determination under the abuse
of discretion standard.
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Petitioner’s sole allegation of error is that the Appeals
officer abused her discretion by failing to obtain proper
verification of the liability from the Secretary as required by
section 6330(c)(1).2 The Appeals officer relied on the computer
transcript of account to verify petitioner’s tax liability.
Respondent argues that in the absence of any evidence of an
irregularity in the assessment, reliance upon the transcript of
account as verification of the liability is sufficient to satisfy
the requirements of section 6330(c)(1). We agree with
respondent.
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 additional
procedural protections for taxpayers in tax collection matters
2
Any other issues raised by petitioner at the
administrative level are deemed conceded because petitioner did
not pursue them at trial and did not file a posttrial brief as
required by the Court’s rules. See Rule 151(a); Remuzzi v.
Commissioner, T.C. Memo. 1988-8, (issue not addressed by the
taxpayers on brief deemed conceded) affd. without published
opinion 867 F.2d 609 (4th Cir. 1989).
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involving the imposition of a levy on a taxpayer's property.
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 a hearing). Judicial review of the
administrative determination is available if the taxpayer timely
petitions this Court or the appropriate United States District
Court. Sec. 6330(d).
Section 6330(c)(1) requires that 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.” Petitioner relies upon section 301.6330-1(e)(1),
Proced. & Admin. Regs., to demonstrate that respondent failed to
comply with section 6330(c)(1).3 Section 301.6330-1(e)(1),
supra, governs the matters to be considered at the hearing and
provides in relevant part:
3
Petitioner actually referenced the temporary regulations,
sec. 301.6320-1T(e)(1), Temporary Proced. & Admin. Regs., 64 Fed.
Reg. 3402-3403 (Jan. 22, 1999) We understand that petitioner
intended to reference section 301.6330-1T(e)(1), Temporary
Proced. & Admin. Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999).
Additionally, since this case was submitted final regulations
were issued, and are applicable to this case. The final
regulations effected no material change to the section cited by
petitioner.
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(e) Matters considered at CDP hearing
(1) In general. Appeals has the
authority to determine the validity,
sufficiency, and timeliness of any CDP 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. * * *
We have previously held that an Appeals officer may rely on
either a Form 4340 or a computer printout of the transcript of
account for the taxpayer to verify the taxpayer’s liability and
that a valid assessment has been made. See Davis v.
Commissioner, 115 T.C. 35 (2000); Kuglin v. Commissioner, T.C.
Memo. 2002-51; Mann v. Commissioner, T.C. Memo. 2002-48; Wylie
v. Commissioner, T.C. Memo. 2001-65. The information contained
in a Form 4340 that is used to verify the validity of an
assessment is also contained in a computer transcript of account.
Accordingly, the Appeals officer’s reliance upon the computer
transcript as verification of petitioner’s liability satisfied
the requirements of section 6330(c)(1).
Moreover, when the Commissioner provides the taxpayer with
the Form 4340 (i.e., proof of assessment) after the hearing and
before the 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
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not prejudiced. See Nestor v. Commissioner, 118 T.C. 162, 167
(2002). In this case, petitioner was provided with a copy of the
Form 4340 prior to trial. However, petitioner did not allege any
irregularities in the assessment procedure. Petitioner also did
not present any evidence at trial or otherwise show any
irregularity in the assessment procedure. Accordingly, we
sustain respondent’s determination that the collection action
should proceed.
Additionally, petitioner has not alleged that the proposed
method of collection is inappropriate. Neither has petitioner
offered any alternative means of collection, nor has he raised
any spousal defenses. Accordingly, we hold for respondent. See
Lunsford v. Commissioner, 117 T.C. 183 (2001).
Accordingly,
Decision will be entered for
respondent.