T.C. Memo. 2002-94
UNITED STATES TAX COURT
ROBERT HURFORD AND CATHERINE SIMONE HALE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13278-01L. Filed April 8, 2002.
Robert Hurford and Catherine Simone Hale, pro sese.
Robin Ferguson, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This matter is before
the Court on: (1) Respondent’s oral motion to dismiss for lack
of jurisdiction and to strike all allegations in the second
amended petition pertaining to a Notice of Federal Tax Lien filed
October 8, 1998, pertaining to a frivolous return penalty imposed
against petitioners pursuant to section 6702; and (2) respondent’s
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motion to dismiss for failure to state a claim and to impose a
penalty under section 6673.1 Because respondent has presented
matters outside of the pleadings, we shall treat the motion to
dismiss as respondent’s motion for summary judgment pursuant to
Rule 121. See Rule 40.
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).
1
Section references are to sections of the Internal
Revenue Code, as amended, and Rule references are to the Tax
Court Rules of Practice and Procedure.
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As explained in detail below, we shall grant respondent’s
oral motion to dismiss for lack of jurisdiction and to strike
and respondent’s motion for summary judgment. However, we shall
deny respondent’s request for the imposition of a penalty upon
petitioners pursuant to section 6673(a).
Background
On September 22, 1997, petitioners filed a joint Federal
income tax return for 1996 on which they reported $184,041.63 of
wage income, a tax liability of zero, and claimed a refund with
regard to $23,363.87 of withholding tax. On February 9, 1998,
respondent assessed a $500 frivolous return penalty against
petitioners pursuant to section 6702. On October 8, 1998,
respondent filed with the County Recorder in Fresno County,
California, a Notice of Federal Tax Lien listing the $500
penalty imposed under section 6702 as the amount due.
In the meantime, on May 19, 1998, respondent issued a
notice of deficiency to petitioners determining a deficiency of
$46,502 in their Federal income tax for 1996 and an addition to
tax under section 6651(a)(1) of $2,313.81. On May 27, 1998,
petitioners’ then attorney-in-fact, Thomas W. Roberts, wrote a
letter to respondent acknowledging that petitioners received the
notice of deficiency and challenging respondent’s authority to
enter an assessment against petitioners based on a so-called
substitute for return. Petitioners did not file a petition for
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redetermination with the Court contesting the notice of
deficiency.
On July 23, 2000, respondent mailed to petitioners a Final
Notice of Intent to Levy and Notice of Your Right to a Hearing
that stated petitioners owed taxes and statutory additions for
1996 totaling $37,614.14 and that respondent was preparing to
collect the amount due by levy. On August 16, 2000, petitioners
filed with respondent a Request for a Collection Due Process
Hearing that included a request that respondent provide
petitioners with a summary record of assessment, and
verification that all applicable laws and administrative
procedures were met with regard to the assessment and proposed
collection for 1996.
On July 10, 2001, Appeals Officer Eugene Chu conducted an
administrative hearing in petitioners’ case by way of a
telephone conference call with petitioner Robert Hale and his
representative, Brian Malatesta. Prior to the hearing, Appeals
Officer Chu provided petitioners with a Form 4340, Certificate
of Assessments, Payments, and Other Specified Matters, which
showed that, for 1996, respondent entered assessments against
petitioners for: (1) The amounts determined to be due in the
notice of deficiency dated May 19, 1998; and (2) statutory
interest. During the hearing, Mr. Malatesta challenged the
assessments entered against petitioners on the ground that a
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Form 4340 does not satisfy the verification requirement imposed
under section 6330(c)(1).
On October 5, 2001, the Appeals Office issued to
petitioners a Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 stating that respondent
would proceed with collection against petitioners for 1996.
Petitioners filed with the Court a Petition for Lien or Levy
Action Under Code Section 6320(c) or 6330(d) contesting
respondent’s notice of determination.2 Petitioners subsequently
filed an amended petition, and then a second amended petition
that included allegations pertaining to the lien notice filed
October 8, 1998, and the imposition of the frivolous return
penalty under section 6702. Petitioners’ primary contention
remains that the Appeals officer failed to obtain the
verification required under section 6330(c)(1).
Respondent filed a motion to dismiss for failure to state a
claim and to impose a penalty under section 6673. Petitioners
filed a response in opposition to respondent’s motion.
This matter was called for hearing at the Court’s motions
session held in Washington, D.C. Counsel for respondent
appeared at the hearing and presented argument in support of
respondent’s motion. No appearance was made by or on behalf of
2
At the time the petition was filed, petitioners resided
in Fairfield, Cal.
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petitioners at the hearing, nor did they file with the Court a
written statement pursuant to Rule 50(c). During the hearing,
respondent made an oral motion to dismiss for lack of
jurisdiction and to strike all allegations in the second amended
petition pertaining to the Notice of Federal Tax Lien filed
October 8, 1998, and the frivolous return penalty imposed under
section 6702.
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 upon the person’s property. Section
6331(d) provides that, at least 30 days before 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 intent to levy, including notice of the administrative
appeals available to the person.
Section 6330 generally provides that the Commissioner
cannot proceed with collection by way of a levy action until the
person has been given notice and the opportunity for an
administrative review of the matter (in the form of an Appeals
Office hearing), and if dissatisfied, the person has an
opportunity for judicial review of the administrative
determination. See Davis v. Commissioner, 115 T.C. 35, 37
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(2000); Goza v. Commissioner, 114 T.C. 176, 179 (2000). Section
6330 was enacted under the Internal Revenue Service
Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-
206, sec. 3401, 112 Stat. 685, 746, and is effective with
respect to collection actions initiated more than 180 days after
July 22, 1998, i.e., January 19, 1999. See RRA 1998 sec.
3401(d), 112 Stat. 750.
Section 6330(c) prescribes the matters a person may raise
at an Appeals Office hearing. In sum, section 6330(c) 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 at an Appeals
Office hearing only 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 the tax liability. See Sego
v. Commissioner, 114 T.C. 604, 609 (2000); Goza v. Commissioner,
supra. Section 6330(d) provides for judicial review of the
administrative determination in either the Tax Court or Federal
District Court.
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Respondent’s Oral Motion To Dismiss and To Strike
The Tax Court is a court of limited jurisdiction and we may
exercise our jurisdiction only to the extent authorized by
Congress. Sec. 7442; Judge v. Commissioner, 88 T.C. 1175, 1180-
1181 (1987); Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
Respondent moves to dismiss for lack of jurisdiction and to
strike the allegations in the second amended petition pertaining
to the lien filed October 8, 1998, and the assessment and
collection of the frivolous return penalty imposed under section
6702. There is no dispute that the lien in question was filed
on October 8, 1998–-a date that precedes the effective date of
section 6330. It follows that the Court lacks jurisdiction to
review the lien action in this proceeding. Consequently, we
shall grant respondent’s oral motion to dismiss and to strike.
Respondent’s Motion for Summary Judgment
Petitioners contend that the Appeals officer failed to
obtain verification from the Secretary that the requirements of
all applicable laws and administrative procedures were met as
required under section 6330(c)(1). Respondent maintains that
there is no dispute as to a material fact on this point and that
respondent is entitled to judgment as a matter of law sustaining
the notice of determination dated October 5, 2001. We agree
with respondent.
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Federal tax assessments are formally recorded on a record
of assessment. Sec. 6203. The summary record of assessment,
through supporing records, must “provide 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.
Section 6330(c)(1) does not require the Commissioner to
rely upon a particular document to verify that the requirements
of any applicable law or administrative procedure have been met
in a collection matter. See Kuglin v. Commissioner, T.C. Memo.
2002-51. We have held that Forms 4340 are presumptive evidence
on which an Appeals officer may rely to verify that an
assessment was made against a person for purposes of sections
6320 and 6330. Davis v. Commissioner, 115 T.C. 35, 40-41
(2000); see Nestor v. Commissioner, 118 T.C. 162, 166-167
(2002).
The record shows that, prior to the Appeals Office hearing
in this matter, the Appeals officer reviewed Form 4340 with
regard to petitioners’ account for 1996, and provided
petitioners with a copy of the same. The Form 4340 is
presumptive evidence that all applicable laws and administrative
procedures were met as required under section 6330(c)(1).
Moreover, petitioners have not demonstrated any irregularity in
the assessment procedure that would raise a question about the
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validity of the assessments or the information contained in the
Form 4340. Davis v. Commissioner, supra at 41. Accordingly, we
hold that the Appeals officer satisfied the verification
requirement of section 6330(c)(1). Cf. Nicklaus v.
Commissioner, 117 T.C. 117, 120-121 (2001).
Petitioners have failed to raise a spousal defense, make a
valid challenge to the appropriateness of respondent’s intended
collection action, or offer alternative means of collection.
These issues are now deemed conceded. Rule 331(b)(4). In the
absence of a valid issue for review, and there being no dispute
as to a material fact, it follows that respondent is entitled to
judgment as a matter of law sustaining the notice of
determination dated October 5, 2001.
Respondent’s Request for the Imposition of a Penalty Under
Section 6673(a)
Section 6673(a)(1) authorizes the Tax Court to require a
taxpayer to pay to the United States a penalty not in excess of
$25,000 whenever it appears that proceedings have been
instituted or maintained by the taxpayer primarily for delay or
that the taxpayer’s position in such proceeding is frivolous or
groundless. The Court has indicated its willingness to impose
such penalties in collection review cases. Pierson v.
Commissioner, 115 T.C. 576 (2000). Although we shall not impose
a penalty upon petitioners pursuant to section 6673(a)(1), we
admonish petitioners that the Court will consider imposing such
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a penalty should they return to the Court and advance similar
arguments in the future.
To reflect the foregoing,
An order and decision will be
entered granting respondent’s oral
motion to dismiss for lack of
jurisdiction and to strike and
respondent’s motion for summary judgment
and denying respondent’s request for the
imposition of a penalty pursuant to
section 6673(a).