Selgas v. Commissioner

United States Court of Appeals
Fifth Circuit
F I L E D
In the January 16, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 06-60311
Summary Calendar
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THOMAS DRENNAN SELGAS,

Petitioner-Appellant,

VERSUS

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

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Appeal from a Decision of the United States Tax Court
m 23425-04
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Before SMITH, WIENER, and OWEN, I.
Circuit Judges. On July 19, 2004, the Commissioner of In-
ternal Revenue (“the Commissioner”) sent
JERRY E. SMITH, Circuit Judge: Selgas a letter stating that the IRS had not
received a tax return from him for 2002. The
Thomas Selgas received a notice of defi- Commissioner attached a form providing a
ciency from the Internal Revenue Service proposed computation of Selgas’s liability
(“IRS”) and petitioned for redetermination of based on third-party payer information reflect-
his tax liability. The United States Tax Court ing wages of $104,278, interest income of
entered judgment against Selgas, and he ap- $50, and dividend income of $11. The form
peals. We affirm. stated that Selgas was entitled to a standard
deduction of $4,700 and a personal exemption
of $3,000. The form included a computation the return was to be treated as filed by the
showing that Selgas’s tax deficiency was taxpayer for the purpose of determining the
$23,303, against which he was entitled to pre- amount of the delinquency penalty. See 26
payment withholding credits of $21,329, leav- U.S.C. § 6651(a)(2)-(3), (g)(2).
ing a net tax liability of $1,974. The form not-
ed that in addition, Selgas owed $592.20 pur- Selgas timely filed a petition in the Tax
suant to 26 U.S.C. § 6651(a)(1) and (2) be- Court attacking the Commissioner’s calcula-
cause he was late in filing his return and in tions of the existence and amount of his defi-
paying the full amount due. ciency on numerous grounds, all of which
were rejected by the Tax Court. He timely
The Commissioner’s letter informed Selgas filed a motion to vacate the judgment, which
that he could agree to the IRS’s proposed ex- the Tax Court likewise rejected. Selgas as-
amination changes and pay the amount due, re- serts three arguments on appeal: (1) that the
spond within thirty days by filing a return, or Tax Court lacked jurisdiction because the no-
explain why he had not filed a return and tice of deficiency was not promulgated pursu-
would like the IRS to reconsider. Attached to ant to a valid delegation of authority; (2) that
the letter was yet another form, which the decision should be vacated because Selgas
informed Selgas, “Your best course of action was prejudiced by the clerk’s failure to tran-
is to file your own tax return now to claim scribe certain routine scheduling conferences
your credits and deductions as allowed by involving the parties and the court; and
law.” (3) that the Commissioner’s calculation was
incorrect because Selgas filed documents illus-
Selgas made no response.1 On September trating that he was entitled to a refund.
14, 2004, the Commissioner sent him a “No-
tice of Deficiency” pursuant to 26 U.S.C. II.
§ 6212 reflecting a 2002 federal income tax Whether the Tax Court had jurisdiction
deficiency of $23,303 and a delinquency pen- pursuant to a validly issued notice of defi-
alty of $592.20. Attached to the notice were ciency is a matter of law that we review de
several forms reflecting the same computation novo. See Portillo v. Comm’r, 932 F.2d 1128,
and explanation as had appeared in the Com- 1131-32 (5th Cir. 1991). The notice of defi-
missioner’s initial letter as well as a certifica- ciency sent to Selgas was valid, and the Tax
tion by an IRS Operations Manager that the Court appropriately exercised jurisdiction.
documents attached to the notice of deficiency The Tax Court acquires jurisdiction when a
constituted the return prepared for Selgas by taxpayer files a timely petition contesting a
the Commissioner pursuant to 26 U.S.C. notice of deficiency issued by the Commis-
§ 6020(b). The certification further stated that sioner. See 26 U.S.C. § 6213; Portillo, 932
F.2d at 1132.
1
Selgas later claimed that he had filed two un- Selgas claims that the court lacked jurisdic-
signed tax returns during this period. The IRS did tion because the notice sent to him was invalid
not receive them, and the Tax Court did not find
for two reasons: (1) The employee who
Selgas’s testimony on this matter credible. For
signed the deficiencynotice lacked authorityto
reasons explained below, even if these returns were
filed, they were invalid because they lacked the
do so; and (2) the IRS improperly failed to
taxpayer’s signature. prepare a substitute tax return for Selgas be-

2
fore issuing the notice of deficiency. Selgas’s Likewise, Selgas’s argument that the notice
arguments in this vein are irrelevant to the out- of deficiency was invalid because the IRS
come. Citing a delegation order issued as part failed to prepare a proper substitute tax return
of the IRS’s internal operating procedures, is meritless. We need not consider whether
Selgas contends that the Supervisory Program the substitute return was properly calculated
Analyst who signed his deficiency notice and presented on the appropriate forms be-
lacked authority to act on behalf of the Secre- cause, for the purpose of determining a defi-
tary of the Treasury by issuing the deficiency. ciency, there is no need for the Commissioner
The Commissioner states that “Supervisory to prepare a substitute tax return.5 “Where
Program Analyst” is equivalent to Campus De- there has been no tax return filed the deficien-
partment Manager, an official who plainly en- cy is the amount of tax due.”6 Nothing about
joys delegated authority to issue deficiency the notice of deficiency sent to Selgas operat-
notices. ed to defeat the Tax Court’s jurisdiction.

As a general matter, IRS internal operating III.
procedures confer no rights on individual tax- Selgas was not prejudiced by the clerk’s
payers,2 but we need not consider this dispute failure to record two off-the-record status con-
at great length because, in any event, no signa- ferences. Selgas was afforded a fair trial on
ture is required to render a deficiency notice the merits of the issues he claims were dis-
valid.3 A taxpayer is entitled to notice of a de- cussed at the status conferences. He was not
ficiency, but the relevant statute does not man- prejudiced by the clerk’s failure to record the
date any particular form of notice or specify Tax Court’s “admission,” during a status con-
any content it must include. See 26 U.S.C. ference, that the IRS possessed two unsigned
§ 6212. Like our sister circuits, we conclude tax returns entitling Selgas to relief, even as-
that a notice of deficiency is valid as long as it suming that the Tax Court ever made such a
informs a taxpayer that the IRS has determined statement. In any event, for reasons explained
that a deficiency exists and specifies the below, the fact that the tax returns were un-
amount of the deficiency.4 The existence of a signed strips them of any legal effect and ren-
signature or the identity of any IRS official ders irrelevant the question whether the IRS
who provides one, is superfluous. ever had them.

IV.
Selgas’s claim that the notice of deficiency
2
See Smith v. United States, 478 F.2d 398, 400 is inaccurate because he filed two unsigned tax
(5th Cir. 1973); see also Tavano v. Comm’r, 986 returns illustrating that he was entitled to a re-
F.2d 1389, 1390 (11th Cir. 1993).
3 5
See Brafman v. United States, 384 F.2d 863, See 26 U.S.C. §§ 6020(b), 6211(a); United
865 n.4 (5th Cir. 1967). See also Tavano, 986 States v. Stafford, 983 F.2d 25, 27 (5th Cir. 1993)
F.2d at 1390; Urban v. Comm’r, 964 F.2d 888, (“[A]lthough [§ 6020(b)] authorizes the Secretary
889 (1992). to file for a taxpayer, the statute does not require
such a filing.”).
4
See Bokum v. Comm’r, 992 F.2d 1136, 1139
6
(11th Cir. 1993); Estate of Yaeger v. Comm’r, 889 Laing v. United States, 423 U.S. 161, 174
F.2d 29, 35 (2d Cir. 1990). (1976). See also 26 C.F.R. § 301.6211-1(a).

3
fund in 2002 is neither credible nor relevant. attempt to avoid a few thousand dollars in
Selgas first produced these returns at the cal- legitimate tax liability. The judgment of the
endar call for trial of his case in the Tax Court, Tax Court is AFFIRMED.
claiming that he had filed them before the IRS
sent him the deficiency notice. The IRS had
no record of ever receiving these returns. The
trial judge specifically found Selgas’s testi-
mony to be incredible on this point and deter-
mined that the returns had never been filed.
Selgas provides no reason for us to upset that
plausible factual determination. Likewise, the
Tax Court properly ignored the “corrected
amended” return that Selgas filed just before
trial, because he supplied no evidence substan-
tiating the deductions and other items on the
return that purported to show that he was en-
titled to a substantial refund.

Even if the returns were filed, the fact that
they were unsigned deprives them of legal ef-
fect.7 Selgas claims that he provided power of
attorney to the IRS employee who received
the return, but, again assuming that this is true,
there is no reason to believe that the employee
was required to, or even should have, exer-
cised such power and signed the return. That
duty lay upon Selgas and, at best, he failed to
fulfill it.

V.
Selgas’s arguments are utterly lacking in
merit and, as an aside, his conduct in this liti-
gation appears to have been inconsistent with
that of a litigant endeavoring to aid in the
truthful and efficient resolution of contested
issues of fact and law. We have no sympathy
for Selgas’s behavior or his arguments in de-
fense of what appears to have been a brazen

7
See 26 U.S.C. §§ 6012, 6061(a), 6065; 26
C.F.R. § 1.6061-1(a); Brafman, 384 F.2d at 868;
Reaves v. Comm’r, 295 F.2d 336, 338 (5th Cir.
1961).