[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16727 ELEVENTH CIRCUIT
JULY 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-01223-CV-CC-1
DAVID G. TURNER,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 8, 2009)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
David Turner appeals pro se the judgment against his complaint that
challenged the levy of penalties against him by the Internal Revenue Service. We
affirm.
I. BACKGROUND
Between 1999 and 2003, Turner filed tax returns that reported zero taxable
income. Between 2000 and 2004, the Revenue Service determined that the returns
were frivolous and assessed Turner a $500 penalty for each return. 26 U.S.C. §
6702. Turner did not pay the penalties.
In January 2001, the Revenue Service notified Turner that it intended to levy
for the penalty assessed for 1999. The notice did not inform Turner of his right to
a hearing. In 2004, the Revenue Service notified Turner that it intended to levy the
civil penalties that had been imposed from 1999 through 2002 and that Turner had
a right to a hearing.
Turner promptly requested a face-to-face hearing regarding all four tax
levies. In his letter, Turner asked the Revenue Service for unspecified “collection
alternatives”; complained of “procedural defects” by the Revenue Service; and
demanded the Revenue Service produce copies of Form 17-A and Form 23-C and
“proof of verification from the Secretary that all applicable law and administrative
procedures have been met pursuant to IRC § 6330.” Turner later mailed a second
letter repeating his demand that the Revenue Service produce documents to prove
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his “underlying liability.” The Revenue Service requested that Turner file his 2003
income tax return and notified Turner that his request for a hearing had been
forwarded to the Appeals Office in Atlanta, Georgia.
In mid-February of 2005, Settlement Officer Janet Green notified Turner
that he would not be considered for collection alternatives unless he filed within
fifteen days both a tax return for 2003 and a collection information statement.
Turner did not comply with the request. After the deadline passed, Appeals
Officer Debra Daigle notified Turner that he would not receive a face-to-face
hearing unless he provided written notice within fifteen days that he was “prepared
to discuss issues relevant to paying [his] tax liability[,] . . . such as an installment
agreement or offer in compromise[,]” and the officer scheduled a hearing by
telephone for March 16, 2005. Officer Daigle also stated that the Appeals Office
would not consider any collection alternatives until Turner filed a tax return for
2003. Turner responded that he was being saddled “with all kinds of
preconditions” and demanded that the Revenue Service cite authority that required
him to file a tax return to obtain a hearing.
On March 16, 2005, Officer Daigle attempted without success to contact
Turner by telephone. Officer Daigle notified Turner that he missed the telephonic
hearing and repeated her request that Turner submit by March 30, 2005, a tax
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return for 2003, a collection information statement, and “additional facts,
information, arguments or legal authority to support [his] position” or she would
assume that Turner did not want a hearing and proceed to resolve his appeal.
Instead of providing the information requested by Officer Daigle, Turner repeated
his demand for documents related to the levies. Turner stated that he “never . . .
agreed to a phone conference in lieu of a face-to-face hearing as the law allows,”
but did not explain why he did not participate in the telephonic hearing.
The Appeals Office sustained the proposed levies and issued a notice of
determination for tax years 2000 through 2002 and a decision letter for tax year
1999. Both the determination and decision found that the Revenue Service had
satisfied “all requirements of applicable law or administrative procedure for the
proposed levy action” and that Turner had failed to provide any “non-frivolous
argument” or information “that could be used to determine whether a less intrusive
collection alternative [was] more appropriate than the proposed levy.” The
determination and decision noted that Turner had failed to file a tax return for 2003
or provide alternatives for collection and concluded that “the levy balance[d] the
need for efficient collection of taxes with [Turner]’s concern that the collection
method be no more intrusive than necessary.” The decision letter stated that
Turner “received a hearing equivalent to a due process hearing except that there
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[was] no right to dispute” the penalty imposed for 1999 because he failed timely to
request a hearing.
Turner filed a complaint against the Commissioner of the Revenue Service
that challenged the decision to sustain the proposed levies. Turner argued that the
Commissioner violated his “right to Due Process” in reaching its decision. Turner
alleged that he was entitled to copies of documents related to the levies; he was
entitled to a face-to-face hearing to confront his “accusers” to “verify that the
named IRS personnel are who they say they are and have the statutory or delegated
authority” to impose the levy; and the Revenue Service could not condition his
right to a hearing on the filing of a tax return for 2003.
The government moved for summary judgment on two grounds. First, the
government argued that the district court lacked jurisdiction to consider Turner’s
challenge to the assessment for 1999 because he failed timely to request a hearing.
26 U.S.C. § 6330(d)(1). Second, the government argued that it complied with
administrative procedures regarding Turner’s request for a hearing regarding the
penalties assessed for 2000 through 2002 and Turner failed to make himself
available for the telephonic hearing. The government argued that it was not
required to consider alternative means of collection because Turner raised frivolous
challenges to the levies, refused to file a tax return for 2003, and failed to file a
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collection information statement.
The district court partially dismissed and partially granted summary
judgment in favor of the Revenue Service. The district court ruled that it lacked
subject-matter jurisdiction to consider Turner’s challenge to the levy for tax year
1999 because Turner failed timely to request a hearing. The district court ruled
that the Revenue Service did not abuse its discretion by sustaining the levies
against Turner. The court ruled that the Revenue Service complied with the
administrative requirements before it sought a levy for tax years 2000 through
2002 and concluded that Turner was not entitled to a face-to-face hearing,
particularly when he failed to comply with requests by the Revenue Service for
financial documents. The court also mentioned that, although Turner sought
documents to support the claim of the Revenue Service for the assessments, Turner
“never stated that he had not received these documents previously.”
II. STANDARDS OF REVIEW
We review a summary judgment de novo and view all evidence in the light
most favorable to the non-moving party. Roberts v. Comm’r of Internal Revenue,
329 F.3d 1224, 1227 (11th Cir. 2003).
III. DISCUSSION
The Revenue Service cannot collect penalties by levy unless a taxpayer is
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notified in writing of his right to a hearing. See 26 U.S.C. § 6330(a)(1). In the
course of the hearing, an appeals officer must “obtain verification from the
Secretary that the requirements of any applicable law or administrative procedure
have been met.” Id. § 6330(c)(1). During the hearing, the taxpayer may raise “any
relevant issue relating to . . . the proposed levy,” such as “challenges to the
appropriateness of collection actions” or “offers of collection alternatives[,]” 26
U.S.C. § 6330(c)(2)(A), and is “expected to provide all relevant information
requested[,]” to enable the appeals officer to consider “the facts and issues
involved in the hearing.” 26 C.F.R. § 301.6330-1(e)(1).
The Revenue Service afforded Turner sufficient process. The appeals
officer was entitled to rely on Form 4340 to verify that the Revenue Service had
complied with its administrative procedure when assessing Turner the penalties for
years 1999 through 2002. Turner was not entitled to further proof of compliance in
the absence of evidence of some irregularity in that assessment. Roberts, 329 F.3d
at 1228. Turner also was not entitled to a face-to-face meeting regarding the
levies. A collection hearing “may, but is not required to, consist of a face-to-face
meeting,” 26 C.F.R. § 301.6330-1(d)(2)A-D6, but “will not be granted if the
request for a hearing or other . . . communication indicates that the taxpayer wishes
only to raise irrelevant or frivolous issues concerning that liability.” Id. §
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301.6330-1(d)(2)A-D8. Other than his allegation that the Revenue Service had
committed unspecified “procedural defects,” Turner failed to produce any
“relevant, non-frivolous reasons for disagreement with the proposed levy” that
would entitle him to such a meeting. 26 C.F.R. § 301.6330-1(d)(2)A-D7. The
appeals officer acted within her discretion by offering Turner a hearing by
telephone, but he declined to participate.
Although the district court erred when it determined that it lacked
jurisdiction over Turner’s complaint regarding the 1999 levy, that error was
harmless. The government concedes that Turner did not receive notice of his right
to a hearing regarding his 1999 penalty assessment, but the appeals officer
nevertheless reviewed the procedure afforded to Turner for all relevant tax years.
Turner’s challenge to the adequacy of that process is without merit.
IV. CONCLUSION
The judgment in favor of the Revenue Service is AFFIRMED.
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