T.C. Memo. 2004-218
UNITED STATES TAX COURT
JOSEPH A. AND CAROL DELVECCHIO, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6893-03L. Filed September 27, 2004.
Joseph A. DelVecchio and Carol DelVecchio, pro sese.
Leonard T. Provenzale, for respondent.
MEMORANDUM OPINION
LARO, Judge: Petitioners, while residing in Stuart,
Florida, petitioned the Court under section 6330(d) to review
respondent’s determination as to his proposed levy upon
petitioners’ property.1 Respondent proposed the levy to collect
1
Unless otherwise noted, section references are to the
applicable versions of the Internal Revenue Code. Rule
references are to the Tax Court Rules of Practice and Procedure.
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Federal income taxes from petitioner Joseph A. DelVecchio of
approximately $189,137.62 for 1987 and $177,448.78 for 1988, and
from petitioner Carol DelVecchio of approximately $129,600.27 for
1987 and $110,905.53 for 1988.2 The case is before the Court on
respondent’s motion for summary judgment under Rule 121.
Petitioners filed a response.
We shall grant respondent’s motion for summary judgment.
Background
Petitioners filed Federal income tax returns for 1987 and
1988. Upon audit, all parties signed Form 872, Consent to Extend
the Time to Assess Tax, allowing respondent until December 31,
1992, to assess “The amount of any Federal Income tax due on any
returns made by or for the above taxpayer(s)” for 1987 and 1988.
A notice of deficiency was issued for those years on January 20,
1994, and trial was held in this Court on April 21, 1999, in
Miami, Florida. An opinion was issued, holding for respondent.
See DelVecchio v. Commissioner, T.C. Memo. 2001-130.3 Decision
was entered for respondent on August 9, 2001, and assessment was
made on November 13, 2001. The decision was affirmed by the
Court of Appeals for the Eleventh Circuit on May 29, 2002.
2
We say “approximately” as these amounts were computed
before the present proceeding and have since increased on account
of interest.
3
In part, the Court decided that petitioners are liable for
certain deficiencies and that Joseph DelVecchio is liable for
additions to tax for fraud.
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On May 29, 2002, respondent mailed to petitioners a Final
Notice--Notice of Intent to Levy and Notice of Your Right to a
Hearing (final notice). On June 28, 2002, petitioners elected to
exercise their right under section 6330 to a hearing with
respondent’s Office of Appeals. Petitioners attached to the form
an explanation of their disagreement with the proposed levy,
stating:
Taxpayers Joseph DelVecchio and Carol DelVecchio
do challenge the IRS Final Notice of Intent to Levy
based on the fact that the federal statutes cited in
the Notice as authorizing the actions in the Notice do
not grant the legal authority for the IRS to Levy any
assets of the two taxpayers named in each of the two
Notices.
Additionally, petitioner Carol DelVecchio claimed relief
from joint liability under section 6015 as to the liability
underlying both the lien and levy.
Both petitioners elected correspondence hearings. On
October 1, 2002, respondent faxed Carol DelVecchio’s certified
transcripts of assessments to her attorney. On November 5, 2002,
respondent sent a letter to Joseph DelVecchio outlining
respondent’s position and attaching Joseph DelVecchio’s certified
transcripts of assessments.
Extensive correspondence was exchanged between respondent
and both petitioners, culminating in a Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
for 1987 and 1988 mailed on April 16, 2003. This notice
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sustained the proposed levy, found the assessment legally
supported and timely made, and denied Carol DelVecchio’s request
for relief from joint liability.
The petition followed.
Discussion
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).
The moving party bears the burden of proving that there is
no genuine issue of material fact, and factual inferences are
drawn 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).4 In responding
4
Petitioners urge respondent’s motion for summary judgment
must be denied because the parties have not entered into any
stipulations. The Court disagrees. Rule 121 does not require
stipulations as a prerequisite to the granting of a motion for
(continued...)
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to a motion for summary judgment, the nonmoving party must do
more than merely allege or deny facts. It must “set forth [in
its response] specific facts showing that there is a genuine
issue for trial. If the * * * [nonmoving] party does not so
respond, then a decision, if appropriate, may be entered against
such party.” Rule 121(d); accord Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986).
Summary judgment may also be granted if evidence submitted
by the nonmoving party is merely colorable or not significantly
probative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). Petitioners have failed to raise any genuine issue of
material fact, and summary judgment is appropriate.
Section 6331(a) provides that if a person who is liable to
pay any tax refuses to pay such tax within 10 days after notice
and demand for payment, the Secretary may collect such tax by
levy on the person’s property. Section 6330 provides that the
Commissioner cannot proceed with collection by levy until the
person has been given notice and the opportunity for
administrative review and, if dissatisfied, with judicial review
of the administrative determination. Davis v. Commissioner, 115
T.C. 35, 37 (2000); Goza v. Commissioner, 114 T.C. 176, 179
(2000). The Court reviews nonliability administrative
4
(...continued)
summary judgment.
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determinations for abuse of discretion. Sego v. Commissioner,
114 T.C. 604, 610 (2000). The Court reviews determinations of
underlying tax liability de novo. Hoffman v. Commissioner,
119 T.C. 140, 144-145 (2002).
Petitioners concede in their response that the sole issue
for the Court to decide is whether there was an irregularity in
the assessment shown in the transcripts. Where, as here, the
issue is whether a valid assessment was made, non-master-file
transcripts which identify the taxpayers, the character of the
liability assessed, the taxable period, and the amount of the
assessment establish the validity of an assessment, absent a
showing of irregularity. See, e.g., Nestor v. Commissioner,
118 T.C. 162 (2002).
Section 6330(d) and the rule of res judicata act as an
absolute bar to our consideration of collateral issues which have
already been, or should have been, argued before this Court in
DelVecchio v. Commissioner, T.C. Memo. 2001-130. Following the
mandate of section 6330, we will not consider any of petitioners’
arguments which do not, at least on some arguable basis, address
whether there might have been an irregularity in assessment
within the narrow and precise meaning of section 6330.
Petitioners put forth two arguments to support their
conclusion that the assessment was “irregular” and improper.
First, they argue that Form 872 is a “written agreement” and
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therefore precluded respondent from assessing taxes once the
agreement set forth therein lapsed. Petitioners contend that
assessment of the liability found in DelVecchio v. Commissioner,
supra, was improper in that it was made after the period agreed
upon in the Form 872. Second, petitioners argue that respondent
made a nonjeopardy assessment in this case within the prohibited
90-day window following the notice of deficiency. Petitioners
conclude that this alleged improper prior assessment invalidates
all subsequent assessments.5
A. Form 872 Does Not Preclude Assessment
Petitioners argue that respondent is precluded from making
any assessments because all parties signed Form 872 and thereby
extended to December 31, 1992, the time to assess any Federal
income tax due for 1987 and 1988. Petitioners urge that Form 872
constitutes a written agreement with the Commissioner and that
respondent was bound to assess all taxes (including any fraud
penalty) before December 31, 1992. We disagree.
Form 872 is a unilateral waiver by the taxpayer of the
3-year period of limitations of section 6501(a). See, e.g.,
Stange v. United States, 282 U.S. 270, 276 (1931); Schulman v.
Commissioner, 93 T.C. 623, 639 (1989). Petitioners confuse the
5
Petitioners put forward other arguments, trying to assert
wrongdoing by respondent such as alteration of official
documents. We have considered all other arguments and have found
those not discussed to be meritless.
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general 3-year period of limitations specified in section 6501(a)
with the longer period of limitations in section 6501(c)(1)
(fraud). In the liability case, petitioner Joseph DelVecchio was
held to have filed fraudulent returns for both years. Thus, the
indefinite period of limitations for fraud provided for in
section 6501(c)(1) applies to both petitioners. See Vannaman v.
Commissioner, 54 T.C. 1011, 1018 (1970).
Form 872 does not affect the operation of section
6501(c)(1); it operates solely to extend the period of
limitations with respect to the general 3-year period of
limitations in section 6501(a). Once this Court found there was
fraud (with the attending indefinite period of limitations), Form
872 became inapplicable and assessment could be made at any time.
B. Any Prior Assessment Errors Were Harmless
Petitioners allege that respondent made his first assessment
on April 7, 1994, while the 90-day period for filing a petition
in response to the notice of deficiency was still open.
Petitioners argue that this procedural gaffe invalidates the
assessment of November 13, 2001. We disagree.
Even assuming arguendo that petitioners are correct on the
facts, no relief is available since a correct assessment was made
within the appropriate period of limitations. We therefore hold
any errors in assessments to be de minimis harmless error. Had
this issue been presented in the initial proceeding and had
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respondent attempted to assess or collect a tax before this
Court’s decision became final, the remedy available to
petitioners would have been an injunction against collection or
refund of any tax so collected. See sec. 6213(a). A premature
assessment, if any occurred, would not taint this proposed levy,
which seeks to collect an assessment that was timely and validly
made.
C. Conclusion
We hold that: (1) The assessments were valid, see Kuglin v.
Commissioner, T.C. Memo. 2002-51; see also Duffield v.
Commissioner, T.C. Memo. 2002-53, (2) the Appeals officer
satisfied the verification requirement of section 6330(c)(1), see
Yacksyzn v. Commissioner, T.C. Memo. 2002-99, and (3) petitioners
have not demonstrated in this proceeding any irregularity in the
assessment procedure which would raise a question about the
validity of the assessment. See Mann v. Commissioner, T.C. Memo.
2002-48.
To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.