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6330
Annotations: Forms and Transcripts: Levy Notice
of Levy and Right to Hearing: Forms and Transcripts Part
1 [Dec.
53,969] Ronald A. Davis
v. Commissioner [Code
Secs. 6065 and 6330
]
Thomas W. Roberts, for the petitioner. J. Michael Melvin and Robert A. Varra, for the respondent. 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 [85-2
USTC ¶9482 ], 472 U.S. 713, 721 (1985); Haggert v. Hamlin,
25 F.3d 1037 (1st Cir. 1994); 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 On 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 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, 98-1 USTC 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 [Dec.
53,803 ], 114 T.C. 176 (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 [Dec. 53,938 ], 114 T.C. -- (2000); Goza v. Commissioner, supra 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 §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 §301.6320-T(e)(1) and the nonexistence of the properly prepared and signed certificate of assessment pursuant to 26 U.S.C. §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 [93-2
USTC ¶50,633 ], 10 F.3d 1440, 1445 (9th Cir. 1993); Hefti
v. IRS [93-2
USTC ¶50,591 ], 8 F.3d 1169, 1172 (7th Cir. 1993); Farr v.
United States [93-1
USTC ¶50,229 ], 990 F.2d 451, 454 (9th Cir. 1993); Geiselman
v. United States [92-1
USTC ¶50,200 ], 961 F.2d 1, 5-6 (1st Cir. 1992); Rocovich
v. United States [91-1
USTC ¶60,072 ], 933 F.2d 991, 994 (Fed. Cir. 1991); United
States v. Chila [89-1
USTC ¶9299 ], 871 F.2d 1015, 1017-1018 (11th Cir. 1989); United
States v. Miller [63-2
USTC ¶12,155 ], 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 [92-2
USTC ¶50,391 ], 970 F.2d 733, 737 (10th Cir. 1992) (quoting Geiselman
v. 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 [Dec.
49,652 ], 102 T.C. 137, 146-147 (1994), affd. [95-1
USTC ¶50,251 ] 53 F.3d 799 (7th Cir. 1995); Sochia v.
Commissioner [Dec.
52,833(M) ], 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 [53-1
USTC ¶9165 ], 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 [96-1 USTC ¶50,292],
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. 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." [Dec.
54,279(M)] [Code
Sec. 41 ]
Thomas W. Roberts, for the petitioner. Karen Nicholson Sommers, for the respondent. MEMORANDUM
OPINION LARO, Judge: This
case is based on a petition filed under section
6330(d) . 1
Respondent moved for summary judgment under Rule 121(a) on Section 6331(a) provides that, if any person liable to pay any tax neglects or refuses to pay the tax within 10 days after notice and demand for payment, the Secretary may collect the tax by levy upon the taxpayer's property. Section 6331(d) provides that the Secretary must provide the taxpayer with notice, including notice of the administrative appeals available to the taxpayer, before proceeding with collection by such a levy. In 1998, Congress enacted section 6330 to provide protections for taxpayers in tax collection matters involving the imposition of a levy on a taxpayer's property. 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 Secretary cannot proceed with the collection of taxes by way of a levy until the taxpayer has been given notice and an opportunity for administrative review of the matter (in the form of an Appeals Office due process hearing). Judicial review of the administrative determination is available if the taxpayer petitions this Court or the appropriate U.S. District Court. See sec. 6330(d) . On Petitioner timely filed a petition seeking judicial review of that determination. Where the validity of the underlying tax liability is properly at issue, the Court will review the matter de novo. Where, as is here, the underlying liability is not at issue, the Court will review the Commissioner's administrative determination for abuse of discretion. See Sego v. Commissioner [Dec. 53,938 ], 114 T.C. 604, 610 (2000). Petitioner alleges in the petition that respondent made the following errors in making his determination: (a) The appeals officer failed to get proper verification from the Secretary that the service met the requirements of any applicable law or administrative procedure as required by §6330(c)(1) , 26 CFR §301.6320-T(e)(1) [sic] and 26 CFR §301.6330-T(e)(1) [sic]. (b) The appeals officer failed to furnish requested documentation prior to the hearing and failed to properly schedule and notify the petitioners of the time and date of the hearing that petitioners requested. (c) These failures resulted in the Petitioner's and their authorized representative's inability to be present and present their case, examine documents or cross examine witnesses against them. We
have assumed that the intended reference in the petition is a
reference to section
301.6330-1T(e)(1) , Temporary Proced. & Admin. Regs., 64
Fed. Reg. 3411 (Jan. 22, 1999), 2
which provides: (e) Matters considered at CDP hearing (1) In general. Appeals has the authority to determine the validity, sufficiency, and timeliness of any CDP [collection due process] Notice given by the IRS and of any request for a CDP hearing that is made by a taxpayer. Prior to issuance of a determination, the hearing officer is required to obtain verification from the IRS office collecting the tax that the requirements of any applicable law or administrative procedure have been met. The taxpayer may raise any relevant issue relating to the unpaid tax at the hearing, including appropriate spousal defenses, challenges to the appropriateness of the proposed collection action, and offers of collection alternatives. The taxpayer also may raise challenges to the existence or amount of the tax liability for any tax period shown on the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for that tax liability or did not otherwise have an opportunity to dispute that tax liability. Finally, the taxpayer may not raise an issue that was raised and considered at a previous CDP hearing under section 6320 or in any other previous administrative or judicial proceeding if the taxpayer participated meaningfully in such hearing or proceeding. Taxpayers will be expected to provide all relevant information requested by Appeals, including financial statements, for its consideration of the facts and issues involved in the hearing. The
Appeals officer relied on a Form 4340, Certificate of Assessment
and Payments, to verify the proper assessments of the taxes in
issue. Generally, courts have held that Form 4340 provides at
least presumptive evidence that a tax has been validly assessed
under section
6203 . See Farr v. United States [93-1
USTC ¶50,229 ], 990 F.2d 451, 454 (9th Cir. 1993); Geiselman
v. United States [92-1
USTC ¶50,200 ], 961 F.2d 1, 5-6 (1st Cir. 1992); Rocovich
v. United States [91-1
USTC ¶60,072 ], 933 F.2d 991, 994 (Fed. Cir. 1991); United
States v. Chila [89-1
USTC ¶9299 ], 871 F.2d 1015, 1017-18 (11th Cir. 1989); United
States v. Miller [63-2
USTC ¶12,155 ], 318 F.2d 637, 638-39 (7th Cir. 1963).
Petitioner's argument that the production of, and reliance by the
Appeals officer on, a Form 4340 to establish a procedurally proper
assessment is an abuse of discretion or irregularity is without
legal support. See We find
petitioner's allegations contained in paragraph (b), set out
above, to be unsupported by the record. On Petitioner's
final allegation of error is that he was precluded from gaining
access to documents and not allowed to cross-examine witnesses. We
rejected these same arguments in We find that respondent did not abuse his discretion when making his determination that "The Collection enforcement action proposed is the appropriate action in this case." Consequently, we shall grant respondent's motion for summary judgment. The decision in this case will indicate that we sustain respondent's administrative determination to proceed with collection against petitioner. To reflect the foregoing, An appropriate order and decision will be entered granting respondent's motion for summary judgment. 1 Unless otherwise indicated, section references are to the Internal Revenue Code applicable to the years in issue. Rule references are to the Tax Court Rules of Practice and Procedure. 2 Sec. 301.6320-1T(e)(1) , Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3402 (Jan. 22, 1999), is substantially similar to section 301.6330-1T(e)(1) , Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999). [Dec.
54,413(M)]
Service Engineering Trust v. Commissioner. Charles W. and
Loraine Ledford v. Commissioner [Code
Secs. 6330 and 6673
]
Joyce Griggs, for the petitioners. Ross M. Greenberg, for the respondent. MEMORANDUM
FINDINGS OF FACT AND OPINION FOLEY, Judge: The issue in this case is whether respondent has met the requirements of section 6320 . All section references are to the Internal Revenue Code as amended. FINDINGS
OF FACT When the
petitions were filed, the Ledfords operated Service Engineering
Trust, an entity located in On OPINION Section 6320(b)(1) provides that if a taxpayer requests a hearing, "such hearing shall be held by the Internal Revenue Service Office of Appeals." Section 6320(c) provides that section 6330 shall apply to the conduct and judicial review of the hearing. Section 6330(c)(2)(B) allows challenges to the existence or amount of the underlying liability only if the taxpayer did not receive a notice of deficiency or have an opportunity to dispute the liability. Section
6330(d) provides for Tax Court review of the Commissioner's
administrative determination. Where the validity of the underlying
liability is properly at issue, the Court will review the matter
de novo. Petitioners do not dispute the underlying liabilities but contend that section 6330(c)(1) requires the production of Form 23 C. This Court previously has addressed such a contention, holding that "it was not an abuse of discretion for Appeals to rely on a Form 4340 * * * for the purpose of complying with section 6330(c)(1) ." Davis v. Commissioner, supra at 41. Accordingly, respondent's administrative determination was not an abuse of discretion. Petitioners' representative stated that he did not participate in the scheduled hearing because he had not received responses to the interrogatories. Cf. id. (stating that section 6330 does not provide authority to subpoena documents or witnesses). We conclude that petitioners acquiesced to the telephone format, yet chose not to participate. In Katz v. Commissioner [Dec. 54,081 ], 115 T.C. 329, 331-332 (2000), an Appeals officer scheduled a hearing at an Appeals Office, and the taxpayer refused to attend because the location was inconvenient. We held that the parties' subsequent telephone conversation, in which the Appeals officer heard and considered the taxpayer's arguments, met the requirements of a section 6320(b) hearing. See id. at 337-338. We have no evidence as to whether respondent offered to hold a face-to-face hearing. We note that, at trial, petitioners stated that they were provided the opportunity for a hearing and do not challenge the adequacy of the scheduled hearing. No further inquiry into the requirements of section 6320(b) is warranted in this case. Respondent contends that petitioners' position is frivolous and instituted primarily for delay and that, pursuant to section 6673(a)(1) , the Court should impose a penalty on petitioners. We conclude, however, that it is not appropriate to impose such a penalty in this case. Contentions we have not addressed are irrelevant, moot, or meritless. To reflect the foregoing, Appropriate orders and decisions will be entered. [Dec.
54,424(M)]
James and Margarette McMahan v. Commissioner [Code
Secs. 6203 and 6330
]
Joyce Griggs, for the petitioners. Ross M. Greenberg, for the respondent. MEMORANDUM
FINDINGS OF FACT AND OPINION FOLEY, Judge: The issues for decision are whether respondent obtained verification of Federal income tax assessments and whether petitioners are liable for a section 6673(a)(1) penalty. All section references are to the Internal Revenue Code as amended. FINDINGS
OF FACT When the
petition was filed, petitioners resided in On Date and Time of Conference: Thursday,
Place: IRS Appeals Office Neither
petitioners nor their counsel appeared or rescheduled the hearing. On OPINION Section 6330(b)(1) provides that if a taxpayer requests a hearing, "such hearing shall be held by the Internal Revenue Service Office of Appeals." Section 6330(c)(1) states: "The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." Section
6330(d) provides for Tax Court review of the Commissioner's
administrative determination. Where the validity of the underlying
liability is properly at issue, the Court will review the matter
de novo. Petitioners do not dispute the underlying liabilities, or the adequacy of the scheduled hearing, but contend that section 6330(c)(1) requires the production of Form 23 C. This Court previously has addressed such a contention, holding that "it was not an abuse of discretion for Appeals to rely on a Form 4340 * * * for the purpose of complying with section 6330(c)(1) ." Davis v. Commissioner, supra at 41. Accordingly, respondent's administrative determination was not an abuse of discretion. Respondent contends that petitioners' position is frivolous and instituted primarily for delay and that, pursuant to section 6673(a)(1) , the Court should impose a penalty on them. We conclude, however, that it is not appropriate to impose such a penalty in this case. Contentions we have not addressed are irrelevant, moot, or meritless. To reflect the foregoing, An appropriate order and decision will be entered. [Dec.
54,553]
Joseph D. and Wanda S. Lunsford v. Commissioner [Code
Secs. 6330 and 6673
]
Joyce M. Griggs, for the petitioners. Ross M. Greenberg, for the respondent. OPINION RUWE, Judge: This case arises from a petition for judicial review filed under section 6330(d)(1)(A). 1 We have previously decided that we have jurisdiction in this case. See Lunsford v. Commissioner [Dec. 54,552], 117 T.C. -- (2001). For convenience, we combine the facts, which are not in dispute, with our opinion. Section 6331(a) authorizes the Commissioner to levy against property and property rights where a taxpayer fails to pay taxes within 10 days after notice and demand for payment is made. Section 6331(d) requires the Secretary to send notice of an intent to levy to the taxpayer, and section 6330(a) requires the Secretary to send a written notice to the taxpayer of his right to a hearing. Section 6330(b) affords taxpayers the right to a "fair hearing" before an "impartial" IRS Appeals officer. Section 6330(c)(1) requires the Appeals officer to obtain verification that the requirements of any applicable law or administrative procedure have been met. Section 6330(c)(2)(A) specifies issues that the taxpayer may raise at the Appeals hearing. The taxpayer is allowed to raise "any relevant issue relating to the unpaid tax or the proposed levy" including spousal defenses, challenges to the appropriateness of collection action, and alternatives to collection. Sec. 6330(c)(2)(A). The taxpayer cannot raise issues relating to the underlying tax liability if the taxpayer received a notice of deficiency or the taxpayer otherwise had an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). Section 6330(c)(3), provides that a determination of the Appeals officer shall take into consideration the verification under section 6330(c)(1), the issues raised by the taxpayer, and whether the proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary. Section 6330(d)(1) allows the taxpayer to appeal a determination to the Tax Court or a district court. Section 6330(e)(1) suspends the levy action until the conclusion of the hearing and any judicial review of the determination. On
I
do not agree with the collection action of levy and notice of
intent to levy On
On
We must decide whether petitioners are entitled to any relief from the Appeals officer's determination. Where the underlying tax liability is properly at issue in the hearing, we review that issue on a de novo basis. Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 181-182 (2000). However, where the underlying tax liability is not at issue, we review the determination to see whether there has been an abuse of discretion. Nicklaus v. Commissioner [Dec. 54,477], 117 T.C. 117, 120 (2001). In this case, petitioners have not disputed the merits of the underlying tax liability. Our Rules require petitioners to specify the facts upon which they rely for relief under section 6330. A petition filed under section 6330 must contain "Clear and concise lettered statements of the facts on which the petitioner bases each assignment of error". Rule 331(b)(5). Any issue not raised in the assignments of error shall be deemed to be conceded. Goza v. Commissioner, supra at 183. 5 In the entire course of this judicial proceeding, petitioners have raised only one substantive issue that they want to be considered; i.e., whether there was a sufficient record showing that the taxes in issue were assessed under section 6203 and section 301.6203-1, Proced. & Admin. Regs. In their petition to the Tax Court, petitioners alleged the following facts in support of their position: 6. The facts upon which the Petitioner relies, as the basis of the Petitioner's case, are as follows: a) The appeals officer took the position that the assessment is valid without verifying that there was in fact an assessment. b) The appeals officer stated that the courts have ruled that a certified transcript "contains all the documentation to which taxpayers are entitled under 26 U.S.C. §6203" without meeting his duty under 26 CFR §301.6320-T(e)(1) to verify the existence of the underlying documents. c) Although the transcript listed an assessment date, the appeals officer did not verify that a 23C was actually prepared pursuant to his duty under 26 CFR §301.6320-T(e)(1) and the nonexistence of the properly prepared and signed certificate of assessment pursuant to 26 U.S.C. §6203 and 26 C.F.R. §301.6203-1 was placed in issue. d) Without the assessment officer being identified from the assessment certificate neither Petitioner nor the appeals officer can inquire of the assessment officer for verification that he performed his proper function in determining that all conditions precedent, (procedural, administrative and statutory) to the assessment were performed. Petitioners'
trial memorandum, which was filed on the day this case was called
for trial, stated the issue as follows: ISSUES: Whether the hearing officer met the requirements of §6330 by making a determination without requiring the Service to furnish, as timely requested by Petitioner, the assessment document meeting the requirements of 26 CFR 301.6203-1, signed by an assessment officer and certified under oath by the records clerk or other authorized official. Petitioners
included a "Synopsis of Legal Authorities" in their
trial memorandum. This synopsis similarly discussed only the issue
of the existence of an assessment and its verification with a Form
4340. When this case was called for trial, petitioners' counsel gave no indication that petitioners wanted to contest anything other than the issue described in their pleadings and trial memorandum. The Court ordered both parties to file posttrial briefs. Petitioners did not file a posttrial brief. 6 We recently discussed the consequences to a party who fails to advance arguments on brief. In Nicklaus v. Commissioner [Dec. 54,477], 117 T.C. at 120 n.4, we stated: "We conclude that petitioners have abandoned those other arguments and contentions. See Ryback v. Commissioner [Dec. 45,042], 91 T.C. 524, 566 n.19 (1988)." 7 In the instant case, we think it is at least as clear that petitioners have abandoned any arguments that were not raised in their pleadings and trial memorandum. The
argument that petitioners made in their trial memorandum has
already been rejected. In Davis v. Commissioner [Dec.
53,969], 115 T.C. 35 (2000), the taxpayer argued that the
collection action was improper because of the lack of a
"valid" summary record of assessment. We held that it
was not an abuse of discretion for the Appeals officer to rely on
a Form 4340 to verify that a valid assessment existed. 8
In this case, petitioners were provided with a Form 4340 which showed the assessment date of the taxes in question. The Appeals officer relied on the Form 4340 to verify that section 6203 and the applicable regulations thereunder were satisfied. Petitioners have not pointed to any alleged facts or evidence to suggest that there were any irregularities in the assessment process. The only substantive issue that petitioners have raised in this judicial proceeding is whether the Appeals officer properly relied on a Form 4340 to verify under section 6330(c)(1) that the taxes were properly assessed. We do not construe the instant appeal as being predicated on allegations that respondent failed to offer petitioners a hearing per se. Rather, the gist of petitioners' claim is that the Appeals officer has incorrectly relied on Form 4340 for purposes of verifying the assessments and that the Appeals officer has improperly refused to afford petitioners certain alleged procedural rights with which to challenge the Form 4340. We have already decided those issues contrary to the position taken by petitioners. Davis v. Commissioner, supra. The only relief petitioners are seeking is a remand to Appeals to consider matters which we have previously ruled on. The prayer for relief contained in the petition states: WHEREFORE, Petitioner prays that this case be remanded to the Appeals Office with the following instructions: a) Perform a complete verification as required by 26 C.F.R. §301.6320-T(e)(1), b) Furnish existence thereof to Petitioner including the documents requested in the due process hearing request and c) Hold a meaningful due process hearing as required by law allowing Petitioner to examine all records used by Respondent and to cross examine those persons who created or otherwise relied upon those records to create the alleged assessment that begun the collection action, so that Petitioner can be afforded due process of law prior to any taking. We
do not believe that it is either necessary or productive to remand
this case to IRS Appeals to consider petitioners' arguments. Thus,
we shall decide this case by following our opinion in Of course, there may be cases, where taxpayers were not given a proper opportunity for an Appeals hearing, where it will be appropriate for this Court to require that an Appeals hearing be held. However, we do not believe that this should be done where, as in this case, the only arguments that petitioners presented to this Court were based on legal propositions which we have previously rejected. Procedurally, the case before us is similar to the situation we faced in Goza v. Commissioner [Dec. 53,803], 114 T.C. 176 (2000). In that case the taxpayer objected to the notice of intent to levy, and the case was sent to Appeals for a determination under section 6330. Appeals refused to hear the taxpayer's challenge to the underlying tax liability or to hear the taxpayer's challenges based on frivolous constitutional arguments. The Appeals notice of determination stated: Summary of Determination: It has been determined that the requirements of all applicable laws and administrative procedures have been met. As
you were advised in our letter dated It is therefore deemed that the proposed collection action balances the need for efficient collection of the taxes with the concern that the collection action be no more intrusive than necessary. [Goza v. Commissioner, supra at 178.] The
taxpayer raised the same issues in his petition which included the
following statement: "Petitioner reserves all rights under
the federal Constitution and common law, the filing of this
petition is not intended as a waiver of any of those rights."
Rule 331(b)(4) states that a petition for review of an administrative determination filed pursuant to section 6330 shall contain clear and concise assignments of each and every error which the petitioner alleges to have been committed in the levy determination and any issue not raised in the assignments of error shall be deemed to be conceded. Rule 331(b)(5) states that such a petition shall contain clear and concise lettered statements of the facts on which the taxpayer bases each assignment of error. Petitioner failed to raise a valid challenge to respondent's proposed levy before the Appeals Office. Petitioner continued to assert the same frivolous constitutional claims in his petition for review filed with the Court. The
validity of petitioner's underlying tax liability is not properly
at issue in this proceeding. Moreover, the petition does not
assert (nor is there any basis in the administrative record for
the Court to conclude) that respondent abused his discretion with
respect to spousal defenses or collection matters. See sec.
6330(c)(2)(A). In the absence of a justiciable claim for relief in
the petition for review filed herein, we shall grant respondent's
motion to dismiss for failure to state a claim upon which relief
can be granted. [ We have addressed all of the issues petitioners have raised in this judicial proceeding. We hold that the Appeals officer did not abuse her discretion by relying on the Form 4340 or by refusing to produce other requested documents or witnesses and that respondent may proceed with the proposed levy action. 9 Respondent requests that we impose a section 6673(a)(1) penalty on petitioners. Under the circumstances of this case, we do not believe a penalty should be imposed on petitioners. Respondent's request is denied. An appropriate order and decision will be entered. Reviewed by the Court. WELLS, COHEN, SWIFT, GERBER, WHALEN, and THORNTON, JJ., agree with this majority opinion. CONCURRING HALPERN, J., concurring: I concur with the result reached by the majority. In my concurring report in Lunsford v. Commissioner [Dec. 54,552], 117 T.C. -- (2001), I have offered some comments concerning our authority to dictate to respondent the nature of the hearing required by section 6330(b). I incorporate those comments herein by this reference. WHALEN, BEGHE, and THORNTON, JJ., agree with this concurring opinion. DISSENTING COLVIN, J., dissenting: I voted yes in Lunsford v. Commissioner [Dec. 54,552], 117 T.C. -- (2001) (Lunsford I), because I believe our jurisdiction in that case is provided by the notice of determination. However, I dissent here because I believe the fact that we have jurisdiction does not relieve respondent of the duty to provide an opportunity for a hearing as required by section 6330(b). Because we have jurisdiction, if we had required respondent to provide an opportunity to petitioner to have a hearing, we could have then concluded the case by using whatever procedure is appropriate (e.g., a trial or dispositive motion) without requiring the taxpayer to file a new petition. GALE, J., agrees with this dissenting opinion. DISSENTING LARO, J., dissenting: I respectfully disagree with the opinions adopted by the majority and agree with the dissenting views of Judge Foley. I write separately in this important case to stress the importance of an appeal to a higher court. I also write to stress what I consider to be the legislative mandate that taxpayers must be afforded face-to-face collection due process (CDP) hearings upon all proper requests. The U.S. Department of Justice, the Internal Revenue Service (IRS) Office of Chief Counsel (Chief Counsel) and the IRS Office of Appeals (Appeals) have concluded that all taxpayers possess such a right and that this right may not be denied. See Chief Counsel Advisory 200123060 (June 8, 2001) (the advisory). But for the majority, no one who has considered this issue has concluded differently. 1.
Majority's Factual Finding of an Abandonment of Issues is Contrary
to the Well-Supported Finding of the Trial Judge The majority conclude that petitioners have abandoned all arguments and contentions not articulated clearly in their pleadings and trial memorandum and that petitioners' sole argument in this case was one rejected by the Court in Davis v. Commissioner [Dec. 53,969], 115 T.C. 35 (2000). Judge Foley has concluded differently. As I understand Judge Foley's opinion, at issue in this case (exclusive of the jurisdictional issue) is whether Appeals held the requisite CDP hearing with petitioners (the hearing requirement). Such a conclusion by Judge Foley is adequately supported by the record. Petitioners allege in their petition that they want to meet with Appeals in person and that the failure of Appeals to schedule a face-to-face conference has deprived them of the ability to present their case. The petition prays that the Court direct Appeals to "Hold a meaningful due process hearing as required by law". The
fact that the hearing requirement is at issue is also seen clearly
from the record and from the posttrial brief of respondent, who,
like Judge Foley, but unlike the majority, has been involved in
this judicial proceeding since its start. But for an argument for
sanctions under section 6673, the sole argument that respondent
advances on brief concerns the hearing requirement. 1
Although petitioners failed to file a posttrial brief, their
counsel, Ms. Griggs, stated at trial that "by not having a
hearing date they [petitioners] were not afforded an adequate
right to have a hearing." Tr. at 4. Further, she stated:
"I do not believe that they've been afforded due process
proceedings in this [case by virtue of the lack of a CDP hearing],
and I believe they should be allowed to have a hearing." I am at a loss to reconcile these statements with the majority's conclusions that: (1) "In the entire course of this judicial proceeding, petitioners have raised only one substantive issue that they want to be considered, i.e., whether there was a sufficient record showing that the taxes in issue were assessed under section 6203 and section 301.6203-1, Proced. & Admin. Regs.", (2) "When this case was called for trial, petitioner's counsel gave no indication that petitioners wanted to contest anything other than the issue [discussed by the majority]", and (3) "We do not construe the instant appeal as being predicated on allegations that respondent failed to offer petitioners a hearing per se". Majority op. pp. 6, 8, 10-11. The majority focuses exclusively on their reading of the petition and makes no reference to the statements at trial or, for that matter, Rule 41(b)(1), which mandates that an issue not raised in the pleadings is treated as if raised in the pleadings when it is tried with the express or implied consent of the parties. The fact that the hearing requirement was tried by the express or implied consent of the parties (and, therefore, is at issue in this case) is evidenced not only by the statements of all of the speakers at trial but by the fact that, with the exception of the section 6673 argument, respondent limited his brief to that one issue. E.g., Knapp v. Commissioner [Dec. 44,641], 90 T.C. 430, 439 (1988), affd. [89-1 USTC ¶9169] 867 F.2d 749 (2d Cir. 1989); Ewart v. Commissioner [Dec. 42,432], 85 T.C. 544, 547-548 (1985), affd. [87-1 USTC ¶13,715] 814 F.2d 321 (6th Cir. 1987); Estate of Belcher v. Commissioner [Dec. 41,433], 83 T.C. 227, 227 n.2 (1984) (Court reviewed); Sharon v. Commissioner [Dec. 33,890], 66 T.C. 515, 527 n.5 (1976), affd. [78-2 USTC ¶9834] 591 F.2d 1273, 1275 (9th Cir. 1978); see also Bishop v. Commissioner [Dec. 54,297(M)], T.C. Memo. 2001-82; McGee v. Commissioner [Dec. 54,067(M)], T.C. Memo. 2000-308. The
majority opinion contains no statement as to why the majority do
not respect the factual finding of the trial Judge that the
hearing requirement is at issue. Nor am I aware of any legitimate
reason why, under the facts herein, the majority alone may
consider that issue abandoned. The question of whether a party has
abandoned an issue involves a factual determination that rests on
the facts and circumstances of the case, and the trial Judge is
the one who is best able to make that determination. See Bencker
v. 2.
Pertinent Legislative History Congress promulgated section 6330 to establish "formal procedures designed to insure due process where the IRS seeks to collect taxes by levy". S. Rept. 105-174, at 67 (1998), 1998-3 C.B. 537, 603. The Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 746, of which section 6330 was a part, fortified taxpayer's rights mainly by the addition of new taxpayer rights. Its enactment followed a year of Congressional investigations and hearings over the future of the IRS, resulting in highly publicized criticisms of the agency's collection methods. Mesa Oil, Inc. v. United States, 86 AFTR 2d 2000-7312, 2001-1 USTC par. 50,130 (D. Colo. 2000). The
Senate Finance Committee believed that the addition of section
6330 would afford to taxpayers in dealing with the IRS rights
which were similar to the rights afforded to all persons in
dealing with any other creditor. S. Rept. 105-174, supra at
67, 1998-3 C.B. at 603. To this end, the committee declared, the
Commissioner would by virtue of section 6330 need henceforth to
"afford taxpayers adequate notice of collection activity and
a meaningful hearing before the IRS deprives them of their
property." 3.
CDP Hearing Allowed as a Matter of Right Section 6330(a) provides unambiguously that taxpayers have a "right to a [CDP] hearing under this section before such levy is made". (Emphasis added.) Although the majority recognize that Appeals did not honor petitioners' request for a face-to-face CDP hearing, the majority hold that petitioners are not entitled to participate (let alone face-to-face with an Appeals officer) in such a hearing. 2 The majority acknowledge that petitioners' request for the hearing was proper. Yet, the majority deny petitioners their legislatively mandated right to meet with Appeals in a CDP hearing because, they find, the petition fails to set forth any position that this Court considers meritorious. 3 The majority conclude without a citation to authority that Appeals need not hold the hearing because "We do not believe that it is either necessary or productive". Majority op. p. 11. The majority misapply relevant statutory text in that their opinion conflicts directly with the explicit requirements of section 6330(a) (taxpayers have a "right to a hearing") and of section 6330(b)(1) ("If the person requests a hearing under subsection (a)(3)(B), such hearing shall be held by the Internal Revenue Service Office of Appeals". (Emphasis added.)). Although the majority may be holding sub silentio that the Court can waive this legislatively mandated right in certain cases, I know of no grant of authority that would allow the Court do so under the facts at hand, especially seeing that Chief Counsel has advised Appeals that it "must" hold a face-to-face CDP hearing with any taxpayer who requests one. See the advisory; cf. Kennedy v. Commissioner [Dec. 54,315], 116 T.C. 255, 262 (2001), wherein the Court noted that "section 6330 does not authorize the Commissioner to waive the time restrictions imposed therein." In fact, respondent has not even asked the Court to consider the right waived in the instant setting. 4.
Need for Appeals To Obtain Verification at the Hearing The majority fail to discuss persuasively the fact that petitioners have alleged in paragraph 6(a) of their petition that "The appeals officer took the position that the assessment is valid without verifying that there was in fact an assessment." Under the statutory scheme, it would appear that petitioners are correct in this assertion. The statute requires explicitly that this verification must come "at the hearing". 4 Sec. 6330(c)(1) ("The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met". (Emphasis added.)). The legislative history reinforces this result by stating that "During the hearing, the IRS is required to verify that all statutory, regulatory, and administrative requirements for the proposed collection action have been met." S. Rept. 105-174, supra at 68, 1998-3 C.B. at 604 (emphasis added). Absent a hearing, I do not see how the Commissioner can meet this "at the hearing" verification requirement. The mere fact that the verification may have come at a time other than "at the hearing" is of no concern. Congress obviously believed it important to require explicitly and unambiguously that this verification occur "at", rather than before or after, the hearing. As the Supreme Court has instructed lower courts as to the proper approach to statutory construction: canons
of construction are no more than rules of thumb that help courts
determine the meaning of legislation, and in interpreting a
statute a court should always turn first to one, cardinal canon
before all others. We have stated time and again that courts must
presume that a legislature says in a statute what it means and
means in a statute what it says there. When the words of a statute
are unambiguous, then, this first canon is also the last: judicial
inquiry is complete. [ 5.
Right To Raise New Issues at the Hearing Section 6330(c)(2)(A) provides unambiguously that a taxpayer "may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy". 5 (Emphasis added.) The legislative history reinforces this result by also stating unambiguously that a taxpayer is entitled to raise any relevant issue at (as opposed to before) the hearing and that relevant issues may "include (but not limited to)" the issues set forth in section 6330(c)(2)(A). S. Rept. 105-174, supra at 68, 1998-3 C.B. at 604; see also H. Conf. Rept. 105-599, supra at 265, 1998-3 C.B. at 1019 (similar language). I conclude that petitioners were entitled to raise at a CDP hearing any relevant issue related to the Commissioner's proposed levy and that the majority are wrong in not allowing petitioners to have a CDP hearing at which to raise relevant issues. 6.
Substituting Their Judgment for the Judgment of Appeals The CDP hearing allows the Appeals officer to exercise his or her judgment as to the propriety of a proposed collection action and to make a resulting determination from matters discussed at the hearing. See, e.g., sec. 6330(c)(2) and (3). Absent an Appeals officer's consideration of issues at a hearing, I do not believe that there is any determination of an Appeals officer that this Court could sustain. Given the statement in the legislative history that this Court is "expected to review the appellate officer's determination for abuse of discretion", S. Rept. 105-174, supra at 68, 1998-3 C.B. at 604; see also H. Conf. Rept. 105-599, supra at 266, 1998-3 C.B. at 1020 (similar language), I find inescapable the conclusion that where an Appeals officer fails to hold a properly requested CDP hearing, that there is an abuse of discretion. Indeed, to my mind, the mere fact that the Appeals officer here did not comply with the statute and hold the legislatively mandated hearing with petitioners, as they properly requested, is a per se abuse of discretion. I disagree with the majority's conclusion that we may decide this case favorably to respondent on the basis of the record at hand. The notice of determination concludes that: (1) All procedural, administrative, and statutory requirements were met; (2) the Form 4340 satisfied the requirements of section 6203; (3) petitioners failed to present any collection alternatives; and (4) balancing of the taxpayer's privacy interests and the need for collection weighed in favor of the proposed levy. Absent a hearing, I do not believe that the Court can properly conclude that the Appeals officer did not abuse his discretion. To be sure, the Appeals officer abused his discretion at least by concluding that all statutory requirements had been met. How could those requirements have been met when respondent never held the statutorily required CDP hearing or performed at the appropriate time the required verification? The legislative history clarifies that the role of this Court as to a proposed levy is limited to reviewing the Appeals officer's determination as to the propriety of a levy, as well as assuring that the procedure requirements have been met. S. Rept. 105-174, supra at 68-69, 1998-3 C.B. at 604-605; see also H. Conf. Rept. 105-599, supra at 266, 1998-3 C.B. at 1020 (similar language). In contrast with the result of the majority's opinion, our role is not to substitute our judgment for that of the Appeals officer as to the propriety of a levy. The conferees provided specifically in their report that they expected that "the appeals officer will prepare a written determination addressing the issues presented by the taxpayer and considered at the hearing", H. Conf. Rept. 105-599, supra at 266, 1998-3 C.B. at 1020, and that the Court must review that determination. 7.
The Advisory The majority's conclusion that Appeals need not hold a CDP hearing with petitioners is inconsistent with, and unexplainably significantly broader than, the Commissioner's administrative practice on this subject. In the advisory, the Chief Counsel stated that a meeting between Chief Counsel, Appeals, and the U.S. Department of Justice had resulted in the decision that "Appeals would strive to grant, at a minimum, face-to-face conferences to all requesting taxpayers." The advisory was generated when Las Vegas Appeals (L.V. Appeals) informed Chief Counsel that L.V. Appeals intended to no longer schedule a face-to-face or telephonic CDP conference when a taxpayer's request for a CDP hearing set forth only frivolous or constitutional arguments. The Chief Counsel, upon consultation with the U.S. Department of Justice and Appeals, concluded in the advisory that the intended practice did not satisfy the statutory requirements of section 6330. The Chief Counsel advised Appeals (and Appeals agreed) that it had to conduct a face-to-face CDP hearing with any taxpayer that requested such a hearing, regardless of the matter set forth in the request, that the manner of the hearing should be "informal", and that the length of the hearing should hinge on the amount of time necessary to discuss "relevant" issues. The advisory declares unequivocally that: "A taxpayer is entitled to a CDP hearing even if he [or she] will raise only frivolous or constitutional arguments because the appeals officer must cover the statutory requirements of sections [sic] 6330(c)(1) and (3)(C) of verification and balancing." (Emphasis added.) Pursuant to the legislative mandate in section 6330(c)(1), "The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." (Emphasis added.) Pursuant to the legislative mandate of section 6330(c)(3)(C), the Appeals officer must consider "whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary." The fact that the majority does not give proper regard to the Commissioner's administrative practice is, to my mind, a mistake. Section 6330 is a relatively new provision, and the Commissioner is obviously looking to the Courts for guidance as to the proper rules which he must apply to implement that provision properly. Given the fact that he has announced that he is now providing a CDP hearing to all taxpayers who request one, regardless of their motives, I believe it wrong for the majority to undermine that position by usurpation. FOLEY and VASQUEZ, JJ., agree with this dissenting opinion. DISSENTING FOLEY, J., dissenting: I respectfully disagree with the majority's analysis and holding. In order to assert jurisdiction, deny petitioners their statutorily mandated hearing, and expedite the collection process, the majority have bifurcated this case into two opinions, both of which obfuscate the issues, ignore an unambiguous statute, and avoid addressing the most critical issue: Does the exchange of correspondence between respondent and petitioners constitute the hearing required by section 6330(b)(1)? The majority sidestep, rather than address, this issue and choose to focus exclusively on Rule 331(b) and petitioners' Form 12153 (Request for a Collection Due Process Hearing), petition, trial memorandum, and failure to submit a posttrial brief. There is nothing, however, in the majority opinion that justifies denying petitioners their statutorily mandated hearing. Let us be clear. Petitioners requested a hearing. 1 Respondent rejected this request and proceeded to issue a determination. 2 When this case was called for trial the documentary evidence indicated that a hearing had not been offered or held. As the trial judge, I was particularly concerned about whether section 6330 authorized respondent to issue a determination without first holding a hearing. Now I am troubled by the majority's total disregard of the unambiguous hearing requirement of section 6330(b)(1). 1. Section 6330(b)(1) Unambiguously Requires a Hearing The majority state that "We do not construe the instant appeal as being predicated on allegations that respondent failed to offer petitioners a hearing per se". Majority op. pp. 10-11. I do not know what the words "per se" at the end of the foregoing sentence are intended to convey, but I do know that respondent's failure to provide petitioners a hearing is a per se abuse of discretion. Despite the way the majority "construe the instant appeal", petitioners filed Form 12153; requested in their petition that "this case be remanded to the Appeals Office" to "Hold a meaningful due process hearing as required by law"; and reiterated this request at trial when petitioners' counsel stated: "I do not believe they've been afforded proper due process * * *, and I believe they should be allowed to have a hearing." The majority, however, do "not believe that it is either necessary or productive to remand this case to IRS Appeals to consider petitioners' arguments." Majority op. pp. 11-12 (emphasis added). They refuse to follow the unambiguous statutory mandate that if a hearing is requested, "such hearing shall be held by the Internal Revenue Service Office of Appeals." Sec. 6330(b)(1) (emphasis added). The congressional mandate is binding. 3 The majority's assessment of "necessity" and "productivity" is irrelevant. Section 6330(b)(1) is bolstered by section 6330(e)(1)--another unambiguous provision. Section 6330(e)(1) provides that "if a hearing is requested * * *, the levy actions which are the subject of the requested hearing and the running of any period of limitations * * * shall be suspended for the period during which such hearing, and appeals therein, are pending." Thus, because the hearing required by section 6330(b)(1) was not held, respondent cannot proceed with collection by levy against petitioners. Sec. 6330(e)(1). Respondent, who has the responsibility of administering the tax laws, merely contends that petitioners' hearing was conducted via correspondence. Respondent does not contend that a hearing is unnecessary or optional. Indeed, a Chief Counsel Advisory issued 5 months after this case was submitted provides: a taxpayer is entitled to a CDP hearing even if he will raise only frivolous or constitutional arguments because the appeals officer must cover the statutory requirements of sections 6330(c)(1) and (3)(C) of verification and balancing. [Chief Counsel Advisory 200123060 (June 8, 2001); emphasis added.] Respondent
recognizes that if no hearing was conducted, an Appeals officer
obviously could not have obtained at the hearing
"verification from the Secretary that the requirements of any
applicable law or administrative procedure have been met", as
required by section 6330(c)(1), or balanced the need for the
"efficient collection of taxes with the legitimate concern of
the person that any collection action be no more intrusive than
necessary", as required by section 6330(c)(3)(C). The majority position is contrary to both petitioners' and respondent's interpretation of the statute. Section 6330(d)(1) charges us with the responsibility of reviewing, not making, respondent's determination. Under the majority holding in Lunsford v. Commissioner [Dec. 54,552], 117 T.C. -- (2001) (Lunsford I), virtually any piece of paper entitled "Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330" confers jurisdiction on this Court and may ultimately deprive the taxpayer of his statutory right to a hearing. 2. Petitioners Were Not Offered a Hearing The
majority sidestep the hearing issue entirely. Section 6330
requires that the Court decide whether the hearing requested by
petitioners was held, and I shall do so. Respondent, citing Katz
v. Commissioner [Dec. 54,081], 115 T.C. 329 (2000), Konkel
v. Commissioner, 86 AFTR 2d 2000-6939, 2001-2 USTC par. 50,520
(M.D. Fla. 2000), et al., contends that the exchange of
correspondence between petitioners and respondent constitutes the
hearing required by section 6330(b)(1). I reject this contention.
Unlike the correspondence in Katz and Konkel, the
correspondence between petitioners and respondent did not specify
the manner in which the hearing would be conducted. In addition,
respondent's letter failed to clearly delineate that the exchange
of correspondence would constitute the hearing required by section
6330(b)(1). Indeed, the letter to petitioners does not even
mention a hearing. It merely directs that "If you wish to
discuss other matters, such as resolution of the liability[,]
please contact me by Respondent's
contention is inconsistent with the aforementioned Chief Counsel
Advisory. In this advisory, which related to a form letter of the
type in this case, the Commissioner's Chief Counsel opined that
the "hearing envisioned by this letter does not satisfy the
statutory requirements" of section 6330(b). Chief Counsel
Advisory 200123060. It is worth noting that the form letter
referred to in this advisory, unlike the letter sent to
petitioners, stated that "your hearing will consist of review
of your correspondence and consideration of information" in
respondent's possession. The "exchange of correspondence" did not constitute the hearing required by section 6330(b)(1). Although the majority may disagree with my conclusion that the hearing required by section 6330(b)(1) was not held, they may not sidestep this issue and merely conclude that petitioners are not entitled to a hearing. 3. Rationale for Holding Is Unpersuasive In tandem, the majority's holdings in Lunsford I and the majority opinion herein are groundless assertions of jurisdiction and authority. The only justification for the holding herein is that it would be a waste of time to conduct a hearing. This Court is not prescient. Although petitioners' Form 12153, petition, and trial memorandum focus on one issue--the assessments, only petitioners know what issues might be raised at a hearing, particularly in light of the fact they are no longer represented by the disbarred attorney who wrote the documents submitted to the Court. Pursuant to section 6330(c)(2)(A), taxpayers "may raise at the hearing any relevant issue relating to the unpaid tax". (Emphasis added.) The Appeals officer, in the letter which allegedly scheduled the hearing, wrote: "Appeals cannot consider" the validity of the assessments. To the contrary, pursuant to section 6330(c)(1), the Appeals officer must consider the validity of the assessments. Form 4340 is presumptive evidence of a valid assessment, Huff v. United States [93-2 USTC ¶50,633], 10 F.3d 1440, 1446 (9th Cir. 1993), but the presumption is rebuttable. Although the Appeals Office's reliance on such form is not an abuse of discretion in a case in which the taxpayer makes no showing of irregularity, Davis v. Commissioner, supra at 41, a taxpayer, nevertheless, must have an opportunity to make the showing at the hearing required by section 6330(b)(1). The majority's conclusion that respondent should not be required to conduct a hearing because it is not "either necessary or productive to remand this case to IRS Appeals to consider petitioners' arguments", majority op. p. 11, simply ignores and circumvents the statute. Neither Rule 331 nor petitioners' receipt of Form 4340 forecloses relevant questions relating to the assessments or provides an excuse for us to ignore the section 6330(b)(1) hearing mandate. The
bottom line is that a taxpayer who requests a hearing is entitled
to one. Sec. 6330(b)(1). Neither respondent nor the Court has any
discretion about that. CHIECHI, LARO, VASQUEZ, and MARVEL, JJ., agree with this dissenting opinion. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code currently in effect, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 Various IRS forms refer to the Appeals hearing that is contemplated by sec. 6330(b) as a "collection due process" or "CDP" hearing. 3
The Form 12153, Request for a Collection Due Process Hearing, was
attached to a cover letter dated The basis of my complaint is the perceived lack of a valid summary record of assessment pursuant to 26 CFR §301.6203-1. Without a valid assessment there is no liability. I will need to receive a copy of the summary record of assessment signed by the assessment officer. You may send one to me or send me the necessary forms to subpoena the document along with the assessment officer's name and address for delivery of the subpoena. Upon receipt of that document I will have several questions to ask the assessment officer. I assume this can be done in the form of interrogatories. Please forward the procedures for the interrogatories and subsequent depositions of any witnesses that I may wish to call. Mr. Roberts also asked for copies of the "levy" or "levies". However, whether respondent can make such "levies" is the issue before us. 4 Sec. 6203 requires the Secretary to record the liability of the taxpayer and to furnish a copy of the record of assessment to the taxpayer on request. Sec. 301.6203-1, Proced. & Admin. Regs., provides that an assessment officer shall make the assessment and sign the "summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment." 5 See also Merriweather v. Commissioner [Dec. 54,304(M)], T.C. Memo. 2001-88; MacElvain v. Commissioner [Dec. 54,083(M)], T.C. Memo. 2000-320; Howard v. Commissioner [Dec. 54,082(M)], T.C. Memo. 2000-319; Van Fossen v. Commissioner [Dec. 53,887(M)], T.C. Memo. 2000-163. 6 Generally, where a party fails to file a brief on an issue before the Court, we have the authority to hold the party in default under Rule 123(a) and enter decision against the defaulting party or to dismiss the case under Rule 123(b) for failure to prosecute or for failure to comply with the Rules of this Court. See Rule 151(a) ("Briefs shall be filed" on order of the Court). On numerous occasions, we in essence have defaulted or dismissed issues for failure to brief them. Generally, we have accomplished this result by considering the issue waived or conceded. Stringer v. Commissioner [Dec. 42,025], 84 T.C. 693, 704-708 (1985), affd. without published opinion 789 F.2d 917 (4th Cir. 1986); Furniss v. Commissioner [Dec. 54,365(M)], T.C. Memo. 2001-137; McGee v. Commissioner [Dec. 54,067(M)], T.C. Memo. 2000-308; Pace v. Commissioner [Dec.54,056(M)], T.C. Memo. 2000-300; Hartman v. Commissioner [Dec. 53,395(M)], T.C. Memo. 1999-176. 7 We also note that in Nicklaus v. Commissioner [Dec. 54,477], 117 T.C. 117 (2001), the taxpayers raised arguments similar to those raised by petitioners herein. In that case, we examined the pleadings and other documents submitted to this Court and concluded that the taxpayers' arguments were without merit. 8
We note that the petition in this case is essentially the same as
the petition filed with this Court in Davis v. Commissioner
[Dec. 53,969], 115 T.C. 35, 39 (2000). This is not surprising
since the petition was filed by Thomas W. Roberts, who also filed
the petition for the taxpayer in the 9 See also Watson v. Commissioner [Dec. 54,448(M)], T.C. Memo. 2001-213; Serv. Engg. Trust v. Commissioner [Dec. 54,413(M)], T.C. Memo. 2001-181. 1 Respondent's specific argument on brief is that Appeals need not hold a CDP hearing face-to-face and that the correspondence between Appeals and petitioners constituted the requisite hearing. Respondent's brief predates the advisory and is inconsistent with it. 2 While the majority recognize that sec. 6330(a) and (b) provide on their face that taxpayers have a right to a CDP hearing, majority op. p. 2, the majority make no further reference to this "right". 3 The majority essentially find that petitioners would have made only one argument at their CDP hearing, had one in fact been held. I disagree. In Davis v. Commissioner [Dec. 53,969], 115 T.C. 35 (2000), the taxpayer set forth in the request for a CDP hearing only the argument that the Commissioner's assessment was invalid for lack of a valid summary record of assessment. At the CDP hearing, the taxpayer advanced two additional arguments for consideration. 4 The majority conveniently omit from their paraphrasing of sec. 6330(c)(1) that the verification must occur "at the hearing". See majority op. p. 2. 5 The majority conveniently omit from their paraphrasing of sec. 6330(c)(2)(A) that the taxpayer is allowed to raise any relevant issue "at the hearing". See majority op. p. 3. 1 Any reference to a request for a hearing shall be considered a reference to a request meeting the requirements of sec. 6330(a)(3)(B) (i.e., a timely request) unless otherwise stated. 2 References to a "determination" are not intended to imply whether it is a determination that meets the requirements of sec. 6330(c), (d), and (e). 3
When interpreting an unambiguous statute, it is not necessary to
consider the legislative history. Nevertheless, we note that the
legislative history accompanying sec. 6330 further supports our
position. Congress promulgated sec. 6330 to establish "formal
procedures designed to insure due process where the IRS seeks to
collect taxes by levy". S. Rept. 105-174, at 67 (1998),
1998-3 C.B. 537, 603. The Senate Finance Committee stated that the
Commissioner would, pursuant to sec. 6330, be required to
"afford taxpayers adequate notice of collection activity and
a meaningful hearing before the IRS deprives them of their
property." [Dec.
54,615(M)]
Stephen R. Barker v. Commissioner [Code
Secs. 6203 , 6320
, and 6330 ;
Tax Court Rule 331 ]
Stephen R. Barker, pro se. Sheara Gelman, for the respondent. MEMORANDUM
OPINION ARMEN, Special Trial Judge: This matter is before the Court on respondent's Motion for Summary Judgment, as supplemented, filed pursuant to Rule 121(a). 1 Respondent contends that there is no dispute as to any material fact with respect to this collection review matter and that respondent's determination to proceed with collection should be sustained as a matter of law. Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner [Dec. 44,689], 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 [Dec. 48,191], 98 T.C. 518, 520 (1992), affd. [94-1 USTC ¶50,092] 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner [Dec. 44,714], 90 T.C. 753, 754 (1988); Naftel v. Commissioner [Dec. 42,414], 85 T.C. 527, 529 (1985). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be read in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner [Dec. 42,486], 85 T.C. 812, 821 (1985); Jacklin v. Commissioner [Dec. 39,278], 79 T.C. 340, 344 (1982). As explained in detail below, we are satisfied that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. Accordingly, we shall grant respondent's motion. Background On Petitioner attended the Appeals Office hearing in this matter and argued that the assessments for the years in issue were invalid inasmuch as the Appeals officer failed to produce Forms 23-C, Assessment Certificate--Summary Record of Assessments, for each year. Although the Appeals officer did not provide petitioner with Forms 23-C for the years in issue, the Appeals officer did provide petitioner with Forms 4340 (Certificates of Assessments and Payments) for each year. On After filing an answer to the petition, respondent filed a Motion for Summary Judgment. Respondent contends that there is no issue as to a material fact, and that respondent's determination to proceed with collection should be sustained as a matter of law. This
matter was called for hearing at the Court's motions session in Discussion 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 on the person's property. Section 6331(d) provides that at least 30 days prior to enforcing collection by way of a levy on the person's property, the Secretary is obliged to provide the person with a final notice of intent to levy, including notice of the administrative appeals available to the person. In the
Internal Revenue Service Restructuring and Reform Act of 1998 (RRA
1998), Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746, Congress
enacted new sections 6320 (pertaining to liens) and 6330
(pertaining to levies) to provide protections for persons subject
to collection actions. Sections 6320 and 6330 generally provide
that the Commissioner cannot proceed with collection until the
person has been given notice of and the opportunity for an
administrative review of the matter (in the form of an Appeals
Office hearing) and, if dissatisfied, with judicial review of the
administrative determination. See Section 6330(c) prescribes the matters that may be raised by a person at an Appeals Office hearing. Section 6330(c)(1) first provides that the Appeals officer shall obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met. Section 6330(c)(2)(A) provides that a person may raise collection issues such as spousal defenses, the appropriateness of the Commissioner's intended collection action, and possible alternative means of collection. Section 6330(c)(2)(B) provides that the existence and amount of the underlying tax liability can be contested only at an Appeals Office hearing if the person did not receive a notice of deficiency for the taxes in question or did not otherwise have an earlier opportunity to dispute such tax liability. See Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 609 (2000); Goza v. Commissioner, supra. Petitioner contends that before respondent may proceed with the planned levy action, respondent must demonstrate under section 6330(c)(1) that the underlying tax assessments for the years 1994 through 1997 are valid. Petitioner argues that respondent failed to verify or prove that the assessments in question are valid inasmuch as respondent failed to provide petitioner with Forms 23-C. Section 6203 provides: SEC. 6203. METHOD OF ASSESSMENT. The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment. Section
301.6203-1, Proced. & Admin. Regs., requires an assessment to
be made "by an assessment officer signing the summary record
of assessment"; i.e., a Form 23-C. See Nicklaus v.
Commissioner [Dec. 54,477], 117 T.C. 117, 121 (2001). Although
Federal tax assessments are formally recorded on Form 23-C, we
have held that Forms 4340 are presumptive evidence on which an
Appeals officer may rely to verify that an assessment was made
against a person for purposes of sections 6320 and 6330. In
particular, in 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 [93-2 USTC ¶50,633], 10 F.3d
1440, 1445 (9th Cir. 1993); Hefti v. IRS [93-2 USTC ¶50,591],
8 F.3d 1169, 1172 (7th Cir. 1993); Farr v. United States
[93-1 USTC ¶50,229], 990 F.2d 451, 454 (9th Cir. 1993); Geiselman
v. United States [92-1 USTC ¶50,200], 961 F.2d 1, 5-6 (1st
Cir. 1992); Rocovich v. United States [91-1 USTC ¶60,072],
933 F.2d 991, 994 (Fed. Cir. 1991); United States v. Chila
[89-1 USTC ¶9299], 871 F.2d 1015, 1017- 1018 (11th Cir. 1989); United
States v. Miller [63-2 USTC ¶12,155], 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 [92-2 USTC ¶50,391], 970 F.2d 733, 737 (10th Cir.
1992) (quoting Geiselman v. Cf.
Nicklaus v. Commissioner, supra at 120-121. As in Davis v. Commissioner, supra, and Nicklaus v. Commissioner, supra, petitioner has not shown, or even alleged, any irregularity in respondent's assessment procedures, including the preparation of Form 23-C, that would raise a question as to the validity of the assessments in this case. Petitioner merely wants to assure himself that the Forms 23-C were properly executed. However, consistent with the precedents cited above, we hold that respondent is not required to produce the Forms 23-C without some showing by petitioner of an irregularity in the process. Because petitioner has not raised any valid claim, such as a spousal defense or an alternative means of collection, such claims are deemed to be conceded. Rule 331(b)(4). Because there is no dispute as to any material fact and a decision may be rendered as a matter of law, we shall grant respondent's Motion for Summary Judgment, as supplemented. To reflect the foregoing, An order granting respondent's motion for summary judgment, as supplemented, and decision will be entered. 1 All Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code, as amended. 2 The Final Notice of Intent to Levy stated that petitioner owed amounts from prior notices, interest, and additional penalties for the years 1994, 1995, 1996, and 1997 totaling $13,087.62, $840,848.30, $1,007,312.01, and $409,622.75, respectively. [Dec.
54,631(M)]
Gerald H. Klawonn v. Commissioner [Code
Secs. 6203 and 6330
; Tax Court Rule 121 ]
Gerald H. Klawonn, pro se. James R. Rich, for the respondent. MEMORANDUM
OPINION COLVIN, Judge: This lien and levy case arising under section 6330(d) is before the Court on respondent's motion for summary judgment. The issue is whether it is appropriate to decide by summary judgment that respondent's determination to proceed with collection of petitioner's tax liabilities was not an abuse of discretion. For reasons stated below, we grant respondent's motion. Except as otherwise noted, section references are to the Internal Revenue Code as amended, and Rule references are to the Tax Court Rules of Practice and Procedure. Background Petitioner
resided in A. The Lien and Levy Proceeding On On B. The Section 6320(b) Hearing and Respondent's Notice of Determination On On Discussion A. Summary Judgment We may grant summary judgment if there is no genuine issue of material fact and a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner [Dec. 48,191], 98 T.C. 518, 520 (1992), affd. [94-1 USTC ¶50,092] 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner [Dec. 44,714], 90 T.C. 753, 754 (1988). The moving party bears the burden of proving that there is no genuine issue of material fact. Dahlstrom v. Commissioner [Dec. 42,486], 85 T.C. 812, 821 (1985); Jacklin v. Commissioner [Dec. 39,278], 79 T.C. 340, 344 (1982). No genuine issues of material fact preclude us from deciding this matter. Rule 121(b). We conclude that respondent is entitled to summary judgment. B. Analysis Petitioner does not challenge the existence or amount of his underlying tax liabilities for the years in issue. Where the taxpayer's underlying tax liability is not at issue, we review the Commissioner's administrative determination for abuse of discretion. Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 610 (2000); Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 181-182 (2000). 1.
Assessment Records Petitioner contends 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), section 301.6320-1T(e)(1), Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3402 (Jan. 22, 1999), and section 301.6330-1T(e)(1), Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999). Specifically, petitioner argues that the Appeals officer improperly relied on a Form 4340 to verify that the taxes in question were assessed. Petitioner further contends that respondent did not make a lawful assessment on a Form 23 C, Summary Record of Assessment, that was signed and dated by an assessment officer with duly delegated authority. We disagree. The Appeals officer properly used a Form 4340 to verify the assessments of the taxes in issue. A Form 4340 is presumptive evidence that a tax has been validly assessed under section 6203. Nicklaus v. Commissioner [Dec. 54,477], 117 T.C. 117, 121 (2001); Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 40 (2000); see also Huff v. United States [93-2 USTC ¶50,633], 10 F.3d 1440, 1445 (9th Cir. 1993); Hefti v. IRS [93-2 USTC ¶50,591], 8 F.3d 1169, 1172 (7th Cir. 1993); Geiselman v. United States [92-1 USTC ¶50,200], 961 F.2d 1, 5-6 (1st Cir. 1992); United States v. Chila [89-1 USTC ¶9299], 871 F.2d 1015, 1017-1018 (11th Cir. 1989). Petitioner has not alleged any irregularity in the assessment procedure that would raise a question as to the validity of the assessment. Even though petitioner asked the Appeals officer for a Form 23 C, it was not an abuse of discretion for the Appeals officer to use Forms 4340 for purposes of complying with section 6330(c)(1). See Lunsford v. Commissioner [Dec. 54,552], 117 T.C. No. 159 (2001); Nicklaus v. Commissioner, supra at 122 n.7; Davis v. Commissioner, supra at 41. 2.
Explanation of Appeals and Collection Process Petitioner alleges that respondent did not provide him with an explanation of the appeals and collection process as required by section 3504 of the Internal Revenue Service (IRS) Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206, 112 Stat. 771, which requires the IRS to include in-- any first letter of proposed deficiency which allows the taxpayer an opportunity for administrative review in the Internal Revenue Service Office of Appeals an explanation of the entire process from examination through collection with respect to such proposed deficiency, including the assistance available to the taxpayer from the National Taxpayer Advocate at various points in the process. Petitioner
received Notices of Federal Tax Lien and timely requested and
received a section 6320(b) hearing. After he received respondent's
Notice of Determination, he timely filed a petition for judicial
review of respondent's determination. The essence of RRA 1998
section 3504 is to provide the taxpayer with notice of his or her
rights throughout the appeals and collection process. Since
petitioner knew of, and pursued, his right to administrative and
judicial review under section 6320, the failure of the IRS to
provide this information did not prejudice or harm petitioner in
any way. 3. Petitioner's Request for Documents Petitioner contends that the Appeals officer did not provide him with documents before the hearing that he had requested and argues that this prevented him from presenting his case or effectively examining documents. Petitioner requested a copy of the Form 23 C. Respondent sent him a copy of the record of assessment 2 months before the hearing and gave him a copy of the Form 4340 at the hearing. As stated above, it was not an abuse of discretion for the Appeals officer to rely on the Form 4340; thus, the Appeals officer did not abuse his discretion in providing petitioner a copy of the Form 4340 but not the Form 23 C. See Lunsford v. Commissioner, supra; Nicklaus v. Commissioner, supra. Petitioner has not stated which other documents he requested or indicated how he was prejudiced as a result of not receiving them. 1 4. Conclusion As stated above, no genuine issues of material fact are in dispute. The above discussion rejects all the grounds upon which petitioner relied in his petition and in his argument in response to respondent's motion for summary judgment. 2 For the reasons stated above, we conclude that respondent's determination to proceed with collection of the tax liabilities assessed against petitioner was not an abuse of discretion. Accordingly, we will grant respondent's motion for summary judgment. An appropriate order and decision will be entered. 1
Petitioner filed motions for continuance and to compel production
of documents on 2 At the Appeals hearing, petitioner also sought to raise the argument that his wife should be granted relief from liability as an innocent spouse under sec. 6015. The Appeals officer did not consider that issue because Mrs. Klawonn had not requested a hearing. Petitioner made no claim in his petition regarding that issue, and so we have not considered it further here. [Dec.
54,709(M)]
Debra L. Chase v. Commissioner
[Tax
Court Rule 121 ]
Debra L. Chase, pro se. Sheara L. Gelman, for the respondent. MEMORANDUM
OPINION PANUTHOS, Chief Special Trial Judge: This matter is before the Court on the parties cross-motions for summary judgment pursuant to Rule 121(a). 1 Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner [Dec. 44,689], 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 [Dec. 48,191], 98 T.C. 518, 520 (1992), affd. [94-1 USTC ¶50,092] 17 F.3d 965 (7th Cir. 1994); Zaentz v. Commissioner [Dec. 44,714], 90 T.C. 753, 754 (1988); Naftel v. Commissioner [Dec. 42,414], 85 T.C. 527, 529 (1985). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences will be read in a manner most favorable to the party opposing summary judgment. Dahlstrom v. Commissioner [Dec. 42,486], 85 T.C. 812, 821 (1985); Jacklin v. Commissioner [Dec. 39,278], 79 T.C. 340, 344 (1982). We are satisfied that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law. As explained in detail below, we shall grant respondent's motion for summary judgment and deny petitioner's motion for summary judgment. Background Petitioner
failed to file tax returns for 1995 and 1996. On On On In early
February 2001, Appeals Officer Johnson conducted an administrative
hearing in petitioner's case. By letter to petitioner dated The
Forms 4340 show that, on On Petitioner filed with the Court a Petition for Lien or Levy Action Under Code Section 6320(c) or 6330(d) seeking review of respondent's notice of determination. 2 Petitioner subsequently filed an amended petition that included allegations that respondent failed to obtain verification from the Secretary that the requirements of any applicable law or administrative procedure were met as required under section 6330(c)(1) and respondent failed to consider whether petitioner is liable for Federal income taxes. After respondent filed an answer to the amended petition, petitioner filed a motion for summary judgment asserting that there is no dispute as to a material fact and petitioner is entitled to judgment as a matter of law. Petitioner maintains that respondent's notice of determination is arbitrary and capricious and that the Appeals officer failed to consider properly petitioner's assertion that she did not receive income from a taxable source during 1995 and 1996. Respondent filed an objection to petitioner's motion. Respondent also filed a motion for summary judgment. Respondent contends that petitioner failed to raise any valid claims with respect to the existence or amount of her tax liabilities for 1995 and 1996. Respondent further asserts that the Appeals officer properly verified that the requirements of all applicable laws and administrative procedures were met with regard to the assessment and collection actions taken in this case. Petitioner filed an objection to respondent's motion. This
matter was called for hearing at the Court's motions session held
in Discussion 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 the person's property. Section 6331(d) provides that, at least 30 days before enforcing collection by way of a levy on the person's property, the Secretary is obliged to provide the person with a final notice of intent to levy, including notice of the administrative appeals available to the person. Sections
6320 and 6330 generally provide that the Commissioner cannot
proceed with collection by way of a lien or levy action until the
person has been given notice and the opportunity for an
administrative review of the matter (in the form of an Appeals
Office hearing), and, if dissatisfied, the person has an
opportunity for judicial review of the administrative
determination. See Section
6330(c) prescribes the matters a person may raise at an Appeals
Office hearing. In sum, section 6330(c) provides that a person may
raise collection issues such as spousal defenses, the
appropriateness of the Commissioner's intended collection action,
and possible alternative means of collection. Section
6330(c)(2)(B) provides that the existence and amount of the
underlying tax liability can be contested at an Appeals Office
hearing only if the person did not receive a notice of deficiency
for the taxes in question or did not otherwise have an earlier
opportunity to dispute the tax liability. See Sego v.
Commissioner [Dec. 53,938], 114 T.C. 604, 609 (2000); Goza
v. Commissioner, supra. Section 6330(d) provides for judicial
review of the administrative determination in either the Tax Court
or Petitioner challenges the existence of the asserted tax liabilities for 1995 and 1996 on the grounds that she did not receive income from a taxable source and respondent failed to demonstrate that she is liable for Federal income taxes. Although respondent determined that the income in question is attributable to taxable wages, petitioner never identified the alleged nontaxable source of the income, nor did she expressly deny receiving the wages in question. The record shows that Appeals Officer Johnson gave petitioner every opportunity to produce documentation in support of her position. Petitioner's arguments that she is not subject to Federal income taxes and that she did not earn taxable income during 1995 and 1996 are frivolous and groundless. Goza v. Commissioner, supra. As the Court of Appeals for the Fifth Circuit has remarked: "We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit." Crain v. Commissioner [84-2 USTC ¶9721], 737 F.2d 1417, 1417 (5th Cir. 1984). Petitioner next contends that the Appeals officer failed to obtain verification from the Secretary that the requirements of all applicable laws and administrative procedures were met as required under section 6330(c)(1). We reject petitioner's argument inasmuch as the record shows that the Appeals officer obtained, reviewed and provided petitioner with copies of Forms 4340 with regard to petitioner's account for 1995 and 1996. Federal tax assessments are formally recorded on a record of assessment. Sec. 6203. The summary record of assessment, through supporting records, must "provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment." Sec. 301.6203-1, Proced. & Admin. Regs. We have held that Forms 4340 are presumptive evidence on which an Appeals officer may rely to verify that an assessment was made against a person for purposes of sections 6320 and 6330. Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 40-41 (2000); see Nestor v. Commissioner [Dec. 54,655], 118 T.C. 162, 166-167 (2002). Petitioner has not demonstrated any irregularity in the assessment procedure that would raise a question about the validity of the assessments or the information contained in the Forms 4340. Davis v. Commissioner, supra at 41. Accordingly, we hold that the Appeals officer satisfied the verification requirement of section 6330(c)(1). Cf. Nicklaus v. Commissioner [Dec. 54,477], 117 T.C. 117, 120-121 (2001). Petitioner
has failed to raise a spousal defense, make a valid challenge to
the appropriateness of respondent's intended collection action, or
offer alternative means of collection. These issues are now deemed
conceded. Rule 331(b)(4). In the absence of a valid issue for
review, and there being no dispute as to a material fact, it
follows that respondent is entitled to judgment as a matter of law
sustaining the notice of determination dated Section 6673(a)(1) authorizes the Tax Court to require a taxpayer to pay to the United States a penalty not in excess of $25,000 whenever it appears that proceedings have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceeding is frivolous or groundless. The Court has indicated its willingness to impose such penalties in collection review cases. Pierson v. Commissioner [Dec. 54,152], 115 T.C. 576 (2000). Although we shall not impose a penalty upon petitioner pursuant to section 6673(a)(1), we admonish petitioner that the Court will consider imposing such a penalty should she return to the Court and advance similar arguments in the future. To reflect the foregoing, An order and decision will be entered granting respondent's motion for summary judgment and denying petitioner's motion for summary judgment. 1 Rule references are to the Tax Court Rules of Practice and Procedure. Unless otherwise indicated, section references are to sections of the Internal Revenue Code, as amended. 2
At the time the petition was filed, petitioner was residing in [2003-1
USTC ¶50,199]
Debra L. Chase, Petitioner-Appellant v. Commissioner of Internal
Revenue, Defendant-Appellee. In the
absence of genuine issues of material fact, the Tax Court properly
granted summary judgment to the IRS with respect to a pro se
individual's Tax Court petition. The Tax Court applied the proper
summary judgment standard, and did not substitute its own judgment
for that of the Appeals officer. The taxpayer cited no authority
for her contention that the Tax Court should have followed formal
adjudication procedures under the Administrative Procedure Act.
The taxpayer's contention that the Appeals officer assigned to her
case failed to verify that the requirements of Code
Sec. 6330 were met was properly rejected. The Appeals officer
properly relied on Forms 4340 and the taxpayer produced no
evidence raising any question about the validity of the assessment
or the information contained in the Forms 4340. Finally the
Appeals officer properly refused to consider the taxpayer's
argument that she had no income from any taxable source; she did
not identify a nontaxable source of the income and did not deny
receiving the wages at issue. [Dec.
54,710(M)]
Robert Hurford and Catherine Simone Hale v. Commissioner [Code
Secs. 6203 and 6330
]
[Tax
Court Rule 331 ]
Robert
Hurford and Catherine Simone Hale, pro sese. Robin
Ferguson, for the respondent. |