Davis v. Commissioner

RONALD A. DAVIS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Davis v. Commissioner

No. 13532-99L

United States Tax Court

115 T.C. 35; 2000 U.S. Tax Ct. LEXIS 48; 115 T.C. No. 4;

July 31, 2000, Filed

---

An order and decision will be entered for respondent.

Pursuant to sec. 6330(a), I.R.C., R issued a notice of

   intent to levy to P indicating that R intended to collect income

   taxes due for the taxable years 1991, 1992, and 1993. Pursuant

   to sec. 6330(b), I.R.C., P requested a hearing before IRS

   Appeals regarding the proposed collection action. Ultimately,

   Appeals issued a notice of determination to P stating that all

   applicable laws and administrative procedures had been met and

   that collection would proceed.

     Pursuant to sec. 6330(d), I.R.C., P filed a timely petition

   for review with this Court. P contests the Appeals determination

   on the grounds that: (1) The Appeals officer who conducted the

   hearing failed to properly verify that the requirements of any

   applicable law or administrative procedure had been met as

   required by sec. 6330(c)(1), I.R.C., because the Appeals officer

   relied on Form 4340, Certificate of Assessments and Payments, to

   verify the assessments of taxes in issue; (2) P was not afforded

   the type of Appeals hearing that sec. 6330, I.R.C., envisions

   because P was not given the opportunity to subpoena witnesses or

   to examine and cross-examine witnesses; and (3) the notice of

   determination was not signed under penalties of perjury in

   accordance with the requirements of sec. 6065, I.R.C.

     HELD: In the absence of any showing of irregularity in the

   assessments, the Appeals officer's reliance on Form 4340 to

   verify the proper assessment of tax is sufficient for the

   purposes of complying with sec. 6330(c)(1), I.R.C.

     HELD, FURTHER, the right to a hearing before the IRS Office

   of Appeals provided by sec. 6330(b), I.R.C., does not include

   the right to subpoena and examine witnesses.

     HELD, FURTHER, sec. 6065, I.R.C., which generally requires

   that returns and other documents required by the I.R.C. be

   verified under penalties of perjury, does not apply to a

   determination letter issued by Appeals pursuant to sec. 6330,

   I.R.C.

Thomas W. Roberts, for petitioner.

J. Michael Melvin and Robert A. Varra, for respondent.

Ruwe, Robert P.

---

RUWE

OPINION

RUWE, JUDGE: This case is based on a petition filed under section 6330(d). ¹ Respondent has moved for judgment on the pleadings. For convenience, we will combine the facts, which are not in dispute, with our opinion.

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 property belonging to the taxpayer. Section 6331(d) provides that the Secretary is obliged to provide the taxpayer with notice, including notice of the administrative appeals available to the taxpayer, before proceeding with collection by levy on the taxpayer's property. Before 1998, there were no statutory provisions requiring that a taxpayer be given a pre-levy hearing. The constitutionality of the pre-1998 levy procedures has long been settled. See United States v. National Bank of Commerce, 472 U.S. 713">472 U.S. 713, 721, 86 L. Ed. 2d 565">86 L. Ed. 2d 565, 105 S. Ct. 2919">105 S. Ct. 2919 (1985); Haggert v. Hamlin, 25 F.3d 1037">25 F.3d 1037 (1st Cir. 1994); Taylor v. IRS, 192 F.R.D. 223">192 F.R.D. 223, 225 (S.D. Tex. 1999).

In 1998, Congress enacted section 6330 to provide additional protections for taxpayers in tax collection matters. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746. Section 6330 generally provides that the Commissioner cannot proceed with the collection of taxes by way of a levy on a taxpayer's property until the taxpayer has been given notice and an opportunity for a pre-levy administrative hearing by the Internal Revenue Service Office of Appeals (Appeals). After the Appeals hearing, the statute contemplates that Appeals will make a determination. Judicial review of an Appeals determination is available if the taxpayer timely files a petition with this Court or the appropriate District Court of the United States. See sec. 6330(d). If an Appeals hearing is requested, the proposed levy action must normally be suspended during the pendency of the Appeals consideration and any subsequent judicial review. See sec. 6330(e)(1). ²

On February 3, 1999, respondent sent to petitioner a notice of intent to levy regarding petitioner's unpaid income tax liabilities for 1991, 1992, and 1993. Pursuant to section 6330, petitioner had 30 days from February 3, 1999, in which to file a request for a hearing to be held by Appeals. Petitioner made a timely request for such a hearing. In his request for an Appeals hearing, the only disagreement that petitioner expressed regarding the proposed levy was that he did not believe that there were any valid assessments because of the lack of a valid summary record of assessment. Appeals verified the assessments using Form 4340, Certificate of Assessments and Payments, and provided petitioner with a copy. Appeals did not grant petitioner's request to subpoena witnesses and documents for purposes of the Appeals hearing. Subsequently, Appeals sent a "notice of determination" to petitioner. This notice contained the following pertinent language:

             NOTICE OF DETERMINATION

       CONCERNING COLLECTION ACTIONS UNDER SECTION 6330

   Dear Mr. Davis:

   We have reviewed the proposed collection action for the period

   shown above. This letter is your legal Notice of Determination,

   as required by law. A summary of our determination is stated

   below and the enclosed statement shows, in detail, the matters

   we considered at your Appeals hearing and our conclusions.

               * * * * * * *

   SUMMARY OF DETERMINATION:

   The Service's position that the assessment is valid is

   supported. No evidence was presented that Mr. Davis is a

   nonresident alien nor that he had no trade or business or income

   from sources in the US. Mr. Davis did not provide valid income

   tax returns, evidence that he was not liable for taxes nor did

   he address any method of paying the tax liability. A copy of the

   Certificate of Records Payment Form 4340 was provided to Mr.

   Davis.

The enclosed statement stated:

   ATTACHMENT -- 3193

   With the best information available, the requirements of various

   applicable law and administrative procedures have been met. The

   assessments are based on substitutes for returns. The only legal

   requirements before taking general enforcement action are the

   notice and demand and the notice of intent to levy and notice of

   right to a collection due process hearing. Computer records

   indicate that the appropriate notices were sent to the last

   known address. Mr. Davis questioned the 23C assessment and a

   copy of the Certificate of Official Record Form 4340 was

   provided to validate the assessment per Stettler, 98-1 USTC

   50,136 (10th Cir) and Cassity, 1998 U.S. App. LEXIS 10340">1998 U.S. App. LEXIS 10340, 98-1 U.S. Tax Cas. (CCH) 50,463 (9th Cir).

   Manual requirements were met.

   No financial information was provided and therefor no

   alternative collection arrangements could be considered. Mr.

   Davis's issues as to the validity of the assessment were

   addressed however he provided no evidence to support his

   position. The filing of the notice of federal tax lien was filed

   prior to the implementation of the collection due process appeal

   program and therefor is not covered.

   Appeals believes that since no requested financial information

   nor evidence to dispute the liability were provided, we must

   assume that the determination balances the need for efficient

   collection of taxes with the concern as to the intrusiveness of

   the action.

Petitioner timely filed a petition with this Court for review of the Appeals determination, pursuant to section 6330(d). ³

Where the validity of the underlying tax liability is properly at issue, the Court will review the matter de novo. Section 6330(c)(2)(B) provides:

   SEC. 6330(c). Matters Considered at Hearing. --

               * * * * * * *

        (B) Underlying liability. -- The person may also raise

     at the hearing challenges to the existence or amount of the

     underlying tax liability for any tax period IF THE PERSON

     DID NOT RECEIVE ANY STATUTORY NOTICE OF DEFICIENCY FOR SUCH

     TAX LIABILITY OR DID NOT OTHERWISE HAVE AN OPPORTUNITY TO

     DISPUTE SUCH TAX LIABILITY. [Emphasis added.]

Petitioner does not allege that he did not receive a notice of deficiency for the tax liabilities in issue, nor does he allege that he did not have an opportunity to contest the deficiency determinations. Because petitioner failed to aver the facts specified in section 6330(c)(2)(B), which are required to put the underlying tax liability in issue, petitioner's underlying tax liability is not properly before the Court. See Goza v. Commissioner, 114 T.C. 176">114 T.C. 176, 2000 U.S. Tax Ct. LEXIS 19">2000 U.S. Tax Ct. LEXIS 19, 114 T.C. No. 12">114 T.C. No. 12 (2000).

Where, as in this case, the underlying liability is not in issue, the Court will review the Commissioner's administrative determination for abuse of discretion. See Sego v. Commissioner, 114 T.C. 603">114 T.C. 603, 2000 U.S. Tax Ct. LEXIS 43">2000 U.S. Tax Ct. LEXIS 43, 114 T.C. No. 37">114 T.C. No. 37 (2000); Goza v. Commissioner, supra 14 T.C. at 181-182.

The only error alleged in the petition was stated in paragraph 5 as follows:

   The appeals officer failed to properly verify that the service

   followed the requirements of any applicable law or

   administrative procedure as required by 26 CFR section 301.6320-

   T(e)(1).

The facts upon which petitioner relied to support this alleged error are stated in paragraph 6 of the petition as follows:

   The appeals officer took the position that the assessment is

   valid without verifying that there was in fact an assessment.

   Form 4340 was all that the appeals officer claimed to have

   relied upon without verifying that it was accurate or that it

   was in fact signed by an assessment officer. The Form 4340

   listed a 23C date but the appeals officer did not verify that a

   23C was actually prepared pursuant to his duty under 26 CFR

   section 301.6320 -T(e)(1)and the nonexistence of the properly

   prepared and signed certificate of assessment pursuant to 26 U.S.C. section 6203 and 26 C.F.R. '301.6203-1 was placed in issue. * * *

In petitioner's response in opposition to respondent's motion and at the hearing on the motion, petitioner made three arguments for our consideration. First, petitioner alleges that the Appeals officer who conducted the hearing failed to properly verify that the Internal Revenue Service (IRS) met the requirements of any applicable law or administrative procedure as required by section 6330(c)(1). Specifically, petitioner alleges that the Appeals officer improperly relied on Form 4340 to verify the proper assessments of the taxes in issue (verification issue). Secondly, petitioner argues that he was not afforded the type of due process hearing that section 6330 envisions. Petitioner argues that any meaningful hearing requires that he be able to subpoena witnesses and documents (meaningful hearing argument). Finally, petitioner alleges that the notice of determination was not signed in accordance with the requirements of section 6065 (section 6065 issue).

VERIFICATION ISSUE

Petitioner alleges that the Appeals officer who conducted the hearing failed to properly verify that the IRS met the requirements of any applicable law or administrative procedure as required by section 6330(c)(1). Specifically, petitioner argues that it was improper for the Appeals officer to rely on the Form 4340 to verify that the taxes in question were assessed.

Generally, courts have held that Form 4340 provides at least presumptive evidence that a tax has been validly assessed under section 6203. See Huff v. United States, 10 F.3d 1440">10 F.3d 1440, 1445 (9th Cir. 1993); Hefti v. IRS, 8 F.3d 1169">8 F.3d 1169, 1172 (7th Cir. 1993); Farr v. United States, 990 F.2d 451">990 F.2d 451, 454 (9th Cir. 1993); Geiselman v. United States, 961 F.2d 1">961 F.2d 1, 5-6 (1st Cir. 1992); Rocovich v. United States, 933 F.2d 991">933 F.2d 991, 994 (Fed. Cir. 1991); United States v. Chila, 871 F.2d 1015">871 F.2d 1015, 1017-1018 (11th Cir. 1989); United States v. Miller, 318 F.2d 637">318 F.2d 637, 638-639 (7th Cir. 1963). "Certificates of Assessments and Payments are 'routinely used to prove that tax assessment has in fact been made.' They are 'presumptive proof of a valid assessment.'" Guthrie v. Sawyer, 970 F.2d 733">970 F.2d 733, 737 (10th Cir. 1992) (quoting Geiselman v. United States, supra at 6). The Form 4340 reflecting petitioner's income tax liabilities for the years in issue indicates that those tax liabilities were properly assessed and remain unpaid. Petitioner has not demonstrated any irregularity in the assessment procedure that would raise a question about the validity of the assessments. We therefore hold that it was not an abuse of discretion for Appeals to rely on a Form 4340 in this case for the purpose of complying with section 6330(c)(1).

MEANINGFUL HEARING ARGUMENT

Hearings at the Appeals level have historically been conducted in an informal setting. Section 601.106(c), Statement of Procedural Rules, provides:

   (c) Nature of proceedings before Appeals. Proceedings before the

   Appeals are informal. Testimony under oath is not taken,

   although matters alleged as facts may be required to be

   submitted in the form of affidavits, or declared to be true

   under the penalties of perjury.

   * * *

Saltzman, IRS Practice and Procedure, par. 9.05[3], at 9-37 (2d ed.

1991), explains:

   Appeals Office conferences are informal. No stenographer is

   present to record the discussions of the facts and the law

   relating to the issue involved. Testimony under oath is not

   taken. Matters alleged as fact must be submitted in the form of

   an affidavit or declared to be true under penalties of perjury.

   * * *

When Congress enacted section 6330 and required that taxpayers be given an opportunity to seek a pre-levy hearing with Appeals, Congress was fully aware of the existing nature and function of Appeals. Nothing in section 6330 or the legislative history suggests that Congress intended to alter the nature of an Appeals hearing so as to compel the attendance or examination of witnesses. When it enacted section 6330, Congress did not provide either Appeals or taxpayers with statutory authority to subpoena witnesses. ⁴ The references in section 6330 to a hearing by Appeals indicate that Congress contemplated the type of informal administrative Appeals hearing that has been historically conducted by Appeals and prescribed by section 601.106(c), Statement of Procedural Rules. The nature of the administrative Appeals process does not include the taking of testimony under oath or the compulsory attendance of witnesses. We therefore hold that a hearing before Appeals pursuant to section 6330 does not include the right to subpoena witnesses.

SECTION 6065 ISSUE

Finally, petitioner alleges that the notice of determination was not signed in accordance with the requirements of section 6065.

   Section 6065 provides:

   SEC. 6065. VERIFICATION OF RETURNS.

     Except as otherwise provided by the Secretary, any return,

   declaration, statement, or other document required to be made

   under any provision of the internal revenue laws or regulations

   shall contain or be verified by a written declaration that it is

   made under the penalties of perjury.

Section 6065 requires returns to contain or be verified by a written declaration that they are made under the penalties of perjury. To facilitate a taxpayer's compliance with this requirement, for example, Form 1040, Individual Income Tax Return, contains a preprinted jurat. ⁵ By signing the jurat included within the Form 1040, a taxpayer satisfies the requirement that his return be executed under penalty of perjury. See Sloan v. Commissioner, 102 T.C. 137">102 T.C. 137, 146-147 (1994), affd. 53 F.3d 799">53 F.3d 799 (7th Cir. 1995); Sochia v. Commissioner, T.C. Memo 1998-294">T.C. Memo 1998-294. Section 6065 was enacted to permit the taxpayer to submit a verified return rather than a notarized return. See, e.g., Cohen v. United States, 201 F.2d 386">201 F.2d 386, 393 (9th Cir. 1953) (construing the predecessor of section 6065). Courts have held that section 6065 does not apply to notices issued by the Commissioner; its requirements are directed at documents that are originated by the taxpayer. See, e.g., Morelli v. Alexander, 920 F. Supp. 556">920 F. Supp. 556 (S.D.N.Y. 1996). We hold that section 6065 does not require an Appeals officer to sign a notice of determination under penalties of perjury.

The relevant facts regarding the proceedings before Appeals are not in dispute. The foregoing analysis disposes of all the grounds upon which petitioner relied in his petition and in his arguments in response to respondent's motion for judgment on the pleadings. We hold that the grounds upon which petitioner relies, as stated in his petition and arguments in response to respondent's motion, do not constitute a basis upon which we can find that the Appeals determination was an abuse of discretion. We will therefore grant respondent's motion.

To reflect the foregoing,

An order and decision will be entered for respondent.

---

Footnotes

• 1. Unless otherwise indicated, section references are to the Internal Revenue Code. Petitioner concedes that he is not entitled to relief under sec. 6320, as originally claimed in the petition.↩

• 2. An exception to the suspension of any levy action is made if the Secretary, pursuant to sec. 6331(a), finds that the collection of tax is in jeopardy. See sec. 6330(f). Another exception applies when the underlying tax liability is not in issue and the court before which the matter is pending has determined that the Secretary has shown good cause not to suspend the levy. See sec. 6330(e)(2)↩.

• 3. Sec. 6330(d)↩ allows a petition to be filed within 30 days of an Appeals determination.

• 4. Compare sec. 7456, giving this Court the specific authority to require the attendance and testimony of witnesses by subpoena.↩

• 5. The jurat is the portion of the Form 1040 which reads: "Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete."↩