T.C. Memo. 2004-273
UNITED STATES TAX COURT
ALBERT M. KUN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent*
Docket No. 16979-02L. Filed November 30, 2004.
Albert M. Kun, pro se.
Rebecca S. Duewer and Paul R. Zamolo, for respondent.
SUPPLEMENTAL MEMORANDUM OPINION
MARVEL, Judge: On October 15, 2004, we received and filed
petitioner’s motion to vacate or revise decision pursuant to Rule
*
This opinion supplements our previously filed opinion in
Kun v. Commissioner, T.C. Memo. 2004-209.
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162.1 In his motion, petitioner moves that we vacate or revise
the decision that we entered on September 21, 2004, in accordance
with our Memorandum Opinion in Kun v. Commissioner, T.C. Memo.
2004-209 (Kun I). In Kun I, we sustained respondent’s
determination that the notice of Federal tax lien filing was an
appropriate enforcement action with respect to petitioner’s 1995,
1996, 1997, 1998, and 1999 income tax liabilities. In the
motion, petitioner alleged that “this Court had no chance to
consider the recent opinion of the United States Supreme Court in
United States v. Galletti (March 23, 2004) 124 S Ct Reporter
1548.” This Supplemental Memorandum Opinion addresses
petitioner’s contention.
Background
We adopt the findings of fact in our prior Memorandum
Opinion, Kun I. For convenience and clarity, we repeat below the
facts necessary for the disposition of this motion.
Petitioner timely filed Federal income tax returns for 1995
through 1999 but failed to pay the amounts shown as due on the
returns. On May 3, 2001, respondent sent to petitioner a Notice
of Federal Tax Lien Filing and Your Right to a Hearing Under IRC
6320 for 1995 through 1999. On June 4, 2001, petitioner mailed
to respondent Form 12153, Request for a Collection Due Process
1
All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code in effect at all relevant times.
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Hearing, requesting a hearing with respect to all 5 taxable
years. Petitioner’s Form 12153 stated: “I believe this bill is
incorrect. These taxes were never assessed.”
On April 22, 2002, petitioner and his representative
attended a hearing before Appeals Officer Serena Wong. At the
hearing, petitioner contended that respondent had not assessed
the income tax liabilities.
On October 11, 2002, the Appeals Office sent to petitioner a
Notice of Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330 (notice of determination). In the
notice of determination, the Appeals Office determined that
petitioner’s income tax liabilities were timely assessed, and the
assessments were “properly based on established law, policy and
procedure.”
On October 30, 2002, petitioner’s petition contesting
respondent’s determination was filed in this Court. In the
petition, petitioner alleged that “the Internal Revenue Service
abused its discretion in making the findings and conclusions it
did and abused its discretion in rejecting petitioner’s offer in
compromise.”
We held a trial in this case on October 22, 2003, at which
petitioner testified. On September 20, 2004, we filed our
Memorandum Opinion in Kun I in which we rejected petitioner’s
contention that the income tax liabilities had not been timely
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assessed. We pointed out that petitioner had not alleged any
specific irregularity in the assessment procedure and that an
Appeals officer may rely on a computer transcript or Form 4340,
Certificate of Assessments, Payments, and Other Specified
Matters, to verify that a valid assessment had been made. After
reviewing the computer transcripts of petitioner’s accounts,2
Appeals Officer Wong had concluded that “Assessments for all
years appear correct and based on established law, policy and
procedure.” We concluded in Kun I that the record contained “no
credible evidence to contradict Appeals Officer Wong’s
conclusion”, and we held that respondent had properly assessed
petitioner’s income tax liabilities. On September 21, 2004, we
entered our decision in accordance with our opinion in Kun I.
On October 15, 2004, petitioner’s motion to vacate or revise
opinion together with a memorandum of points and authorities and
2
The parties stipulated to the admissibility of certified
copies of Forms 4340, Certificate of Assessments, Payments and
Other Specified Matters, with respect to petitioner’s accounts
for 1995-99. The Forms 4340 show that petitioner’s income tax
returns were filed and the tax liabilities shown thereon were
assessed on the following dates:
Year Date return filed Date tax assessed
1995 8/13/96 9/16/96
1996 8/18/97 9/15/97
1997 8/17/98 9/21/98
1998 8/16/99 9/20/99
1999 8/14/00 9/25/00
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petitioner’s declaration were filed. In accordance with our
order dated October 15, 2004, respondent submitted a response to
petitioner’s motion, which was filed on November 9, 2004.
Discussion
Rule 162 authorizes a party to file a motion to vacate or
revise a decision, with or without a new or further trial, within
30 days after the decision has been entered, unless the Court
shall otherwise permit. The disposition of a motion to vacate or
revise a decision rests within this Court’s discretion. Vaughn
v. Commissioner, 87 T.C. 164, 166-167 (1986).
Although Rule 162 does not articulate any standard by which
we evaluate a motion to vacate decision, Rule 1(a) provides
guidance on how to fill the gap:
Where in any instance there is no applicable rule of
procedure, the Court or the Judge before whom the
matter is pending may prescribe the procedure, giving
particular weight to the Federal Rules of Civil
Procedure to the extent that they are suitably
adaptable to govern the matter at hand.
We have often referred to rule 60 of the Federal Rules of Civil
Procedure, and cases applying rule 60, to assist us in resolving
issues raised in a motion to vacate decision under Rule 162.
See, e.g., Cinema ‘84 v. Commissioner, 122 T.C. 264, 267-268
(2004) (involving a final decision); Estate of Miller v.
Commissioner, T.C. Memo. 1994-25 (motion filed within 30 days of
decision); Pietanza v. Commissioner, T.C. Memo. 1990-524 (motion
filed within 30 days of order dismissing case for lack of
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jurisdiction), affd. without published opinion 935 F.2d 1282 (3rd
Cir. 1991).
Rule 60(a) of the Federal Rules of Civil Procedure provides
that “Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative
or on the motion of any party and after such notice, if any, as
the court orders.” Rule 60(b) provides that, on motion and upon
such terms as are just, a court may relieve a party of a final
judgment or order for mistake, inadvertence, surprise, or
excusable neglect, newly discovered evidence which by due
diligence could not have been discovered in time to move for a
new trial, fraud, or any other reason justifying relief from the
operation, or because the judgment is void, or has been
satisfied, released or discharged.
In this case, petitioner’s motion simply repeats his
argument, made throughout the proceedings, that respondent did
not timely assess the liabilities in question. He relies upon an
opinion of the United States Supreme Court in United States v.
Galletti, 541 U.S. 114, 124 S. Ct. 1548 (2004), and specifically
on language in the opinion to the effect that an assessment must
be made within 3 years after the return was filed, sec. 6501(a),
and “shall be made by recording the liability of the taxpayer in
the office of the Secretary”, sec. 6203. See id. at ___, 124 S.
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Ct. at 1552. Petitioner contends that “It is clear from the
record that the Respondent failed to comply with this
requirement. The assessment has not been reordered (sic) until
September 11, 2003 well outside the 3 years requirement.” As
respondent points out in his response to petitioner’s motion,
however, petitioner does not state any basis for his belief.
According to respondent, “the record before the Court indicates
that Petitioner’s 1995 through 1999 income tax liabilities were
assessed within 3 years of Petitioner filing his tax returns.”
Petitioner failed to present any evidence at trial in
support of his contention that his 1995-99 income tax liabilities
were not timely assessed, and that failure also infects his
motion. We can find nothing in the record to support his
allegation; in fact, the record demonstrates that the assessments
in question were timely. Moreover, there is nothing in the
Supreme Court’s opinion in United States v. Galletti, supra, to
suggest that our Memorandum Opinion in this case was in error or
that our decision must be vacated.
Petitioner has not asserted sufficient grounds for vacating
the decision, nor has he cited any opinion of any court that
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would support his motion. Consequently, we shall deny
petitioner’s motion to vacate or revise the decision.
An appropriate order
denying petitioner’s motion to
vacate or revise decision will
be issued.