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On On OPINION In a section 6330(d) appeal, where the validity of the underlying tax liability is properly at issue, the Court will review the liability de novo. Where the underlying liability is not at issue, the Court will review the Commissioner's administrative determination for abuse of discretion. Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 610 (2000). The validity of the underlying tax liability is not at issue in this case; consequently, we review respondent's actions under the abuse of discretion standard. Petitioner alleges two errors by respondent. First, petitioner alleges that the Appeals officer abused his discretion by failing to obtain from the Secretary an assessment document prepared by the assessment officer and certified under oath by an authorized official. Instead, the Appeals officer relied upon computer transcripts to verify the existence of an assessment. Second, petitioner alleges the Appeals officer failed to grant petitioner the requested hearing. Section 6331(a) provides the Secretary with the authority to levy upon the property of a taxpayer who is liable to pay any tax and who neglects or refuses to pay such tax within 10 days after notice and demand for payment. Section 6331(d) provides that the Secretary must provide the taxpayer with notice of intent to levy at least 30 days before the day of the levy. In addition to the notice required by section 6331(d), section 6330 provides the taxpayer with the right to a prelevy hearing. Section 6330(e) generally provides that if the taxpayer has timely requested a hearing with the Appeals Office, the Secretary's levy actions are suspended while the Appeals Office considers the matter and during any appeal therein. Section 6330(c)(1) requires the Appeals officer to "obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." Section 6330(c)(2) provides the taxpayer with the right to raise issues including: Appropriate spousal defenses, challenges to the appropriateness of the collection actions, and offers of collection alternatives. Challenges to the underlying liability may be raised if the taxpayer did not receive a statutory notice of deficiency or otherwise have an opportunity to dispute the underlying liability. Judicial review of the Appeals officer's administrative determination is available in this Court, or if this Court lacks jurisdiction over the type of tax underlying the liability, in the appropriate U.S. District Court. See sec. 6330(d). Issue 1. Verification of the Existence of an Assessment Petitioner contends that the Appeals officer's reliance upon the computer transcript to verify the existence of an assessment does not comply with section 6330(c)(1). In relevant part, section 6330(c)(1) provides "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." Respondent contends that the Appeals officer satisfied this requirement by reviewing the computer transcript to verify the existence of an assessment. Petitioner has not shown any irregularities in the assessment procedure. In this case, reliance upon the computer transcript to verify the existence of an assessment was not an abuse of discretion. Petitioner also contends that he was not given a hearing as required by section 6330. Respondent contends that the Appeals officer scheduled a hearing and provided petitioner with written notice of the hearing. Petitioner has not contended that he did not receive notice of the scheduled hearing. Petitioner did not attend the scheduled hearing and did not attempt to reschedule the hearing. The Court agrees with respondent that petitioner was granted an opportunity for a hearing. Accordingly, we hold that respondent's determination to proceed with the levy is not an abuse of discretion. Issue 2. Section 6673(a)(1) Penalty We decline to impose a penalty under section 6673(a)(1). Contentions we have not addressed are irrelevant, moot, or meritless. To reflect the foregoing, An appropriate order will be issued, and decision will be entered for respondent. 1 Section references are to the Internal Revenue Code applicable to the years in issue. [Dec.
54,661(M)]
Vernice B. Kuglin v. Commissioner [Code
Secs. 6203 , 6320
, 6330 , and 6673
]
Joyce
Griggs, MEMORANDUM
OPINION FOLEY, Judge: The issue for decision is whether respondent has met the requirements of section 6330. 1 Background On June
16 and On On On Discussion 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) provides: "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 determination relating to the section 6330 hearing. Petitioner contends that the Appeals officer abused his discretion by relying on the transcripts to verify the assessment, and that section 6330(c)(1) requires the production of Form 23C. Respondent contends that an Appeals officer, in verifying the assessments, may rely on computer transcripts that contain the requisite information. We agree
with respondent. Section 6203 authorizes the Secretary to make
assessments. The assessment officer, appointed by the Secretary,
makes the assessment by signing the summary record of assessment.
Sec. 301.6203-1, Proced. & Admin. Regs. The summary record of
assessment must "provide identification of the taxpayer, the
character of the liability assessed, the taxable period, if
applicable, and the amount of the assessment." Where the Commissioner provides the taxpayer with Forms 4340 (i.e., proof of assessment) after the hearing and before trial, and the taxpayer does not "show at trial any irregularity in the assessment procedure that would raise a question about the validity of the assessments", the taxpayer is not prejudiced. Nestor v. Commissioner [Dec. 54,655], 118 T.C. --, -- (2002) (slip op. at 9). At trial, petitioner did not show any irregularity in the assessment procedure. Accordingly, we sustain respondent's determination. Respondent contends that petitioner's position is frivolous and instituted primarily for delay and that, pursuant to section 6673(a)(1), the Court should impose a penalty on petitioner. We decline, however, 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. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code as amended. [Dec.
54,663(M)]
Jeffrey S. and Susan L. Duffield v. Commissioner
Joyce
Griggs, MEMORANDUM
OPINION FOLEY, Judge: The issues in this case are whether respondent has met the requirements of section 6330 1 and whether petitioners are liable for the section 6673(a)(1) penalty. Background Jeffrey
and Susan Duffield resided in Bear, On On On Discussion 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(c)(2)(B) allows challenges to the existence or amount of the underlying liability only if petitioners 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 determination. Petitioners do not contest the underlying liabilities but contend that section 6330(c)(1) requires the production of Form 23C. Respondent contends that the Appeals officer did not abuse her discretion by relying on the transcripts to verify the assessments. We agree with respondent. The transcripts contained the requisite information (i.e., "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). Kuglin v. Commissioner [Dec. 54,661(M)], T.C. Memo. 2002-51. Where the Commissioner provides the taxpayer with Forms 4340 (i.e., proof of assessment) after the hearing and before trial, and the taxpayer does not "show at trial any irregularity in the assessment procedure that would raise a question about the validity of the assessments", the taxpayer is not prejudiced. Nestor v. Commissioner [Dec. 54,655], 118 T.C. --, -- (2002) (slip op. at 9). At trial, petitioners did not show any irregularity in the assessment procedure. Accordingly, we sustain the respondent's determination. 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 decline, however, 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. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code as amended. [Dec.
54,690(M)]
Thomas Lou Harris v. Commissioner
Thomas Lou Harris, pro se. Kenneth P. Dale, for the respondent. MEMORANDUM
OPINION FOLEY, Judge: The issue in this case is whether respondent has met the requirements of section 6330. 1 Background Thomas
Lou Harris resided in On In a
letter dated On Discussion 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." Petitioner received the notices of deficiency. Accordingly, the underlying liability is not at issue. Sec. 6330(c)(2)(B). Petitioner contends that the computer transcripts were not adequate proof of assessment. Respondent contends that the Appeals officer did not abuse his discretion by relying on the transcripts to verify the assessments. We agree with respondent. The transcripts contained the requisite information (i.e., "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.). Kuglin v. Commissioner [Dec. 54,661(M)], T.C. Memo. 2002-51. Petitioner further contends that he was not provided with the record of assessment. Where the Commissioner provides the taxpayer with Forms 4340 (i.e., proof of assessment) before trial, and the taxpayer does not "show at trial any irregularity in the assessment procedure that would raise a question about the validity of the assessments", the taxpayer is not prejudiced. Nestor v. Commissioner [Dec. 54,655], 118 T.C. 163, 167 (2002). Prior to trial, petitioner received copies of the Forms 4340 relating to the years in issue. At trial, petitioner did not show any irregularity in the assessment procedure. Accordingly, we sustain the respondent's determination. Contentions we have not addressed are irrelevant, moot, or meritless. To reflect the foregoing, Decision will be entered for respondent. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code as amended. [Dec.
54,697(M)]
[Code
Secs. 6203 , 6320
, and 6330 ]
Joyce Griggs, for the petitioner. John A. Weeda and Judith C. Winkler, for the respondent. MEMORANDUM
FINDINGS OF FACT AND OPINION LARO, Judge: Petitioner seeks judicial review under section 6330(d) 1 of an adverse Appeals Office collection action determination. FINDINGS
OF FACT Some
facts were stipulated. We incorporate by this reference the
parties' stipulation of facts and the accompanying exhibits.
Petitioner resided in Petitioner
failed to file income tax returns for 1992 through 1995.
Respondent prepared substitute returns for each year at issue. On On I do not agree with the collection action of levy and notice of intent to levy [notice date]. The basis of my complaint is what I believe to be the lack of a valid summary record of assessment pursuant to 26 CFR §301.6203-1. Without a valid assessment there is no liability. Without a liability there can be no levy, no notice of intent to levy, nor any other collection actions. On At the time scheduled for the hearing, the Appeals officer placed telephone calls to petitioner's representative at two different telephone numbers provided by the representative. Petitioner's representative was not available at either number. The Appeals officer left messages at both numbers requesting that petitioner's representative contact the Appeals officer to reschedule the hearing. Petitioner's representative did not return either message. On You
allege the assessments and the liabilities are invalid. Statutory
Notice of Deficiency (SND) were sent to you dated Without further cooperation, it is Appeals determination that the proposed collection action balances the need for efficient collection of taxes with the taxpayer's legitimate concern that any collection action be no more intrusive than necessary. Petitioner timely filed a petition for judicial review of that determination. After the time the petition was filed with this Court, but before trial, respondent provided petitioner with copies of the Form 4340, Certificate of Assessments and Payments, for each year at issue. OPINION In the judicial review of a section 6330 determination where the validity of the underlying tax liability is properly at issue, the Court will review the matter de novo. Where the underlying liability is not at issue, the Court will review the Commissioner's administrative determination for abuse of discretion. Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 610 (2000). In this case, the validity of the underlying tax is not at issue; consequently we review respondent's determination under the abuse of discretion standard. Petitioner's sole allegation of error is that the Appeals officer abused her discretion by failing to obtain proper verification of the liability from the Secretary as required by section 6330(c)(1). 2 The Appeals officer relied on the computer transcript of account to verify petitioner's tax liability. Respondent argues that in the absence of any evidence of an irregularity in the assessment, reliance upon the transcript of account as verification of the liability is sufficient to satisfy the requirements of section 6330(c)(1). We agree with respondent. 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 additional procedural protections for taxpayers in tax collection matters involving the imposition of a levy on a taxpayer's property. 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 a hearing). Judicial review of the administrative determination is available if the taxpayer timely petitions this Court or the appropriate United States District Court. Sec. 6330(d). Section 6330(c)(1) requires that 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." Petitioner relies upon section 301.6330-1(e)(1), Proced. & Admin. Regs., to demonstrate that respondent failed to comply with section 6330(c)(1). 3 Section 301.6330-1(e)(1), supra, governs the matters to be considered at the hearing and provides in relevant part: (e) Matters considered at CDP hearing (1) In general. Appeals has the authority to determine the validity, sufficiency, and timeliness of any CDP 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. *** We have
previously held that an Appeals officer may rely on either a Form
4340 or a computer printout of the transcript of account for the
taxpayer to verify the taxpayer's liability and that a valid
assessment has been made. See Moreover, when the Commissioner provides the taxpayer with the Form 4340 (i.e., proof of assessment) after the hearing and before the trial, and the taxpayer does not "show at trial any irregularity in the assessment procedure that would raise a question about the validity of the assessments," the taxpayer is not prejudiced. See Nestor v. Commissioner [Dec. 54.655], 118 T.C. 162, 167 (2002). In this case, petitioner was provided with a copy of the Form 4340 prior to trial. However, petitioner did not allege any irregularities in the assessment procedure. Petitioner also did not present any evidence at trial or otherwise show any irregularity in the assessment procedure. Accordingly, we sustain respondent's determination that the collection action should proceed. Additionally, petitioner has not alleged that the proposed method of collection is inappropriate. Neither has petitioner offered any alternative means of collection, nor has he raised any spousal defenses. Accordingly, we hold for respondent. See Lunsford v. Commissioner [Dec. 54,553], 117 T.C. 183 (2001). Accordingly, Decision will be entered for respondent. 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 Any other issues raised by petitioner at the administrative level are deemed conceded because petitioner did not pursue them at trial and did not file a posttrial brief as required by the Court's rules. See Rule 151(a); Remuzzi v. Commissioner [Dec. 44,510(M)], T.C. Memo. 1988-8, (issue not addressed by the taxpayers on brief deemed conceded) affd. without published opinion 867 F.2d 609 (4th Cir. 1989). 3 Petitioner actually referenced the temporary regulations, sec. 301.6320-1T(e)(1), Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3402-3403 (Jan. 22, 1999) We understand that petitioner intended to reference section 301.6330-1T(e)(1), Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999). Additionally, since this case was submitted final regulations were issued, and are applicable to this case. The final regulations effected no material change to the section cited by petitioner. [2003-2
USTC ¶50,637]
Emil P. Tolotti, Jr., Petitioner-Appellant v. Commissioner of
Internal Revenue, Respondent-Appellee. The Tax
Court properly dismissed an individual's challenge to an adverse
Collection Due Process (CDP) determination where the taxpayer
attempted to dispute his underlying tax liability during his CDP
hearing. The taxpayer received a notice of deficiency and failed
to object to the tax liability at that time. Moreover, the IRS
Appeals officer properly verified the existence and accuracy of
the tax assessments at issue. Thus, the taxpayer failed to raise a
genuine issue of material fact. MEMORANDUM
**
[Dec.
54,703(M)]
Stephen and Patricia Lindsey v. Commissioner [Code
Secs. 6203 and 6330
]
Stephen and Patricia Lindsey, pro sese. Kerry H. Bryan, 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 genuine issue as to any material fact and that respondent's notice of determination 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). 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, as supplemented. Background On On On On or
about On On Settlement
Officer Carter retired from the Internal Revenue Service on Stephen
and Patricia Lindsey signed the Form 4549 agreeing to the
examination deficiencies for periods ended The taxpayers are also claiming that their tax status is that of "non resident alien". They claim that they have no filing requirements or taxable income for the above periods. ** * The
record does not include a copy of the Form 870 that petitioners
purportedly executed on On After respondent filed an answer to the petition, respondent filed a Motion for Summary Judgment and Declaration, attaching thereto Forms 4340, Certificate of Assessments, Payments, and Other Specified Matters, for each of the years in issue. Petitioners filed a response to respondent's motion. Petitioners assert that material issues of fact remain in dispute regarding the documents that Settlement Officer Carter relied on at the Appeals Office hearing to verify that the requirements of all applicable laws and administrative procedures were met with regard to the disputed assessments. This
matter was called for hearing at the Court's motions sessions held
in Respondent filed a supplement and a second supplement to his Motion for Summary Judgment attaching thereto declarations executed by Settlement Officers Carter and Minder and TXMODA transcripts of account with regard to petitioners' taxable years 1989 through 1993. Petitioners filed a supplemental response to respondent's Motion for Summary Judgment attaching thereto a declaration executed by Mr. Roberts. 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. Section
6330 generally provides that the Commissioner cannot proceed with
collection by way of a 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, with 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 the Tax Court or a Petitioners do not challenge the existence or the amount of their underlying tax liabilities for the years in question. Petitioners simply assert that the settlement officer failed, either before or during the Appeals Office hearing, to verify that respondent made valid assessments against petitioners for the taxes alleged to be due. We disagree. Federal tax assessments are formally recorded on a summary record of assessment. Sec. 6203. The summary record 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. Contrary to petitioners' position, section 6330(c)(1) does not require the Commissioner to rely on a particular document to verify that the requirements of any applicable law or administrative procedure have been met in a collection matter. See Kuglin v. Commissioner [Dec. 54,661(M) ], T.C. Memo. 2002-51. Nor is respondent obliged to provide the taxpayer with a copy of the verification. See Nestor v. Commissioner [Dec. 54,655 ], 118 T.C. 162, 166 (2002). The
record in this case shows that the settlement officer obtained and
reviewed IDRS transcripts of account with regard to petitioners'
taxable years 1989 through 1993 prior to the Appeals Office
hearing. The IDRS transcripts of account contained all the
information prescribed in section 301.6203-1, Proced. & Admin.
Regs. Kuglin v. Commissioner, supra. The record also
includes Forms 4340 and TXMODA transcripts that serve to
supplement and substantiate the information contained in the IDRS
transcripts of account. See Petitioners
have not alleged any irregularity in the assessment process that
would raise a question about the validity of the assessments or
the information contained in the transcripts of account or the
Forms 4340. Petitioners
have 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, we conclude that there is no dispute as to a material fact
and that respondent is entitled to judgment as a matter of law
sustaining the notice of determination dated Finally, we mention section 6673(a)(1), which 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 petitioners pursuant to section 6673(a)(1), we admonish petitioners that the Court will consider imposing such a penalty should they return to the Court and advance similar arguments in the future. 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. Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended. 2 Execution of Form 870, Waiver of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance of Overassessment, by a taxpayer signifies the taxpayer's agreement to adjustments proposed by the Commissioner and the taxpayer's consent to the immediate assessment of the resulting tax liability. 3
At the time that the petition was filed, petitioners resided in [2003-1
USTC ¶50,294]
Stephen Lindsey, et al., Petitioners-Appellants v. Commissioner of
Internal Revenue, Respondent-Appellee. The IRS
settlement officer who conducted married taxpayers' Collection Due
Process hearing properly verified the validity of tax assessments
made against them. The officer obtained and reviewed Integrated
Data Retrieval System transcripts of account for the taxpayers for
the years at issue, and those transcripts, together with Forms
4340 (Certificate of Assessments, Payments, and Other Specified
Matters) contained all of the information necessary to verify that
the applicable statutory and administrative procedure requirements
were satisfied. The Tax
Court properly exercised jurisdiction over married taxpayers'
challenge to the validity of an adverse Collection Due Process
determination. The court has jurisdiction over tax liabilities
that originate from unpaid income taxes, regardless of whether the
underlying tax liability is being disputed. In a
suit in which married taxpayers challenged the validity of an
adverse Collection Due Process (CDP) determination, the Tax Court
properly allowed the IRS to supplement its motion for summary
judgment with additional forms that had not been presented at the
CDP hearing. MEMORANDUM
**
[2003-1
USTC ¶50,512]
Wayne A. Weishan, Marykay Weishan, Petitioners-Appellants v.
Commissioner of Internal Revenue, Respondent-Appellee. The
Ninth Circuit affirmed the Tax Court's decision dismissing a
married couple's challenge of a deficiency determination for one
tax year. The taxpayers acknowledged receipt of the notice of
deficiency, which complied with all statutory requirements. The
court rejected the taxpayers' claim that a Fifth Amendment
violation occurred because they were accorded due process during
their Collection Due Process (CDP) hearing. Moreover, the
taxpayers unsuccessfully asserted that the IRS officer did not
have the requisite authority to asses and collect taxes. Finally,
the Tax Court did not err in denying the taxpayers' motion for a
continuance to engage in discovery. MEMORANDUM
**
[Dec.
54,716(M)]
Michael J. Yacksyzn v. Commissioner [Code
Secs. 6203 and 6213
; Tax Rule 331 ]
Michael J. Yacksyzn, pro se. Wendy S. Harris and Karen Lynne Baker, for the respondent. MEMORANDUM
OPINION ARMEN, Special Trial Judge: This matter is before the Court on respondent's Motion To Dismiss For Failure To State A Claim And To Impose A Penalty Under I.R.C. §6673. 1 As explained in detail below, we shall grant respondent's motion. Background A.
Petitioner's Form 1040 for 1997 On or
about Petitioner entered zeros on every line of the income section of his Form 1040, specifically including line 7 for wages, line 16 for pensions and annuities, and line 22 for total income. Petitioner also entered a zero on line 39 for tax and a zero on line 53 for total tax. Petitioner then claimed a refund in the amount of $11,229 consisting of withheld Federal income tax. Petitioner attached to his Form 1040 a Wage and Tax Statement, Form W-2, and three Forms 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc. The Form W-2 was from Kerr-McGee Chemical Corp.; it disclosed the payment to petitioner of wages in the amount of $46,659.17 and the withholding of Federal income tax in the amount of $9,253.02. The first Form 1099-R was from Defense Finance and Accounting Service; it disclosed the payment to petitioner of a taxable distribution in the amount of $17,696.88 and the withholding of Federal income tax in the amount of $1,859.28. The second Form 1099-R was from Putnam Fiduciary Trust Co.; it disclosed the payment to petitioner of a taxable distribution in the amount of $585.21 and the withholding of Federal income tax in the amount of $117.04. The third Form 1099-R was from Kerr-McGee Corp. Savings Investment Plan; it disclosed the payment to petitioner of a taxable distribution in the amount of $171.76 and the withholding of no Federal income tax. Finally, petitioner attached to his Form 1040 a 2-page typewritten statement that stated, in part, as follows: I, Michael J. Yacksyzn, am submitting this as part of my 1997 income tax return, even though I know that no section of the Internal Revenue Code: 1) Establishes an income tax "liability" *** ; 2) Provides that income taxes "have to be paid on the basis of a return" *** . 3) In addition to the above, I am filing even though the "Privacy Act Notice" as contained in a 1040 booklet clearly informs me that I am not required to file. It does so in at least two places: a) In one place, it states that I need only file a return for "any tax" I may be "liable" for. Since no Code Section makes me "liable" for income taxes, this provision notifies me that I do not have to file an income tax return. ******* 6) Please note, that my 1997 return also constitutes a claim for refund pursuant to Code Section 6402. 7) It should also be noted that I had "zero" income according to the Supreme Court's definition of income *** . 8) I am also putting the IRS on notice that my 1997 tax return and claim for refund does not constitute a "frivolous" return pursuant to Code Section 6702. ******* 10) In addition, don't notify me that the IRS is "changing" my return, since there is no statute that allows the IRS to do that. B.
Respondent's 30-day Letter and Petitioner's Response By
letter dated By
letter dated C.
Respondent's Deficiency Notice and Petitioner's Response On By
registered letter dated Petitioner
knew that he had the right to contest respondent's deficiency
determination by filing a petition for redetermination with this
Court. However, petitioner chose not to do so. Accordingly, on D.
Respondent's Final Notice and Petitioner's Response On On E.
The Appeals Office Hearing By
letter dated I have verified the validity of the assessment through the examination of a complete computer transcript. Enclosed are copies of transcripts of your accounts for the periods at issue. I have no further legal obligation to consider any challenge to the validity of the assessment in the absence of independent proof that the assessment was defective in some manner. On F.
Respondent's Notice of Determination On You requested a Collection Due Process Hearing under IRC §6330 objecting to proposed levy action. The arguments you submitted with your request for a hearing, and at your hearing have been determined by the courts to be frivolous and without merit. You did not challenge the appropriateness of the proposed collection action or raise any collection alternatives. You are precluded from raising the underlying liability as an issue under IRC §6330(c)(2)(B) because you were previously provided an opportunity to dispute the tax liability and did not elect to do so. G.
Petitioner's Petition On H.
Respondent's Motion To Dismiss As stated, respondent filed a Motion To Dismiss For Failure To State A Claim And To Impose A Penalty Under I.R.C. §6673. Respondent contends that petitioner is barred under section 6330(c)(2)(B) from challenging the existence or amount of his tax liability in this proceeding because he received a notice of deficiency. Respondent also contends that the Appeals officer's review of the transcripts of account, which were provided to petitioner before the Appeals Office hearing, satisfied the verification requirement of section 6330(c)(1). Finally, respondent contends that petitioner's behavior warrants the imposition of a penalty under section 6673. Petitioner
filed an Objection to respondent's motion. Thereafter, pursuant to
notice, respondent's motion 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 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. Section
6330 generally provides that the Commissioner cannot proceed with
collection by way of a levy 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, with
judicial review of the administrative determination. See Section
6330(c) prescribes the matters that 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 the Tax Court or a A.
Dismissal for Failure To State a Claim Petitioner
argues that the assessment made against him is invalid because
respondent failed to demonstrate that petitioner is subject to the
Federal income tax. Petitioner's argument fails for two reasons.
First, there is no dispute in this case that petitioner received
the notice of deficiency dated In addition to the bar imposed by section 6330(c)(2)(B), petitioner's argument that he is not subject to the Federal income tax is frivolous and groundless. See 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 (5th Cir. 1984). Suffice it to say that petitioner is a taxpayer who is subject to the Federal income tax on his wages and pensions. See secs. 1(c), 61(a)(1), (11), 7701(a)(1), (14); Nestor v. Commissioner [Dec. 54,655], 118 T.C. 162, 165 (2002). Petitioner next argues 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 by section 6330(c)(1). We reject petitioner's argument because the record establishes that the Appeals officer obtained and reviewed transcripts of account for petitioner's taxable year 1997. Federal tax assessments are formally recorded on a record of assessment. Sec. 6203. "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." Sec. 301.6203-1, Proced. & Admin. Regs. Section 6330(c)(1) does not require the Commissioner to rely on a particular document to satisfy the verification requirement imposed therein. Duffield v. Commissioner [Dec. 54,663(M)], T.C. Memo. 2002-53; Kuglin v. Commissioner [Dec. 54,661(M)], T.C. Memo. 2002-51. In this regard, we observe that the transcripts of account on which the Appeals officer relied, and which he furnished to petitioner before the hearing, contained all the information prescribed in section 301.6203-1, Proced. & Admin. Regs. See Duffield v. Commissioner, supra; Kuglin v. Commissioner, supra. 6 Petitioner has not alleged any irregularity in the assessment procedure that would raise a question about the validity of the assessments or the information contained in the transcripts of account. See id.; Mann v. Commissioner [Dec. 54,658(M)], T.C. Memo. 2002-48. 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 justiciable issue for review, we conclude that petitioner has failed to state a claim for relief, and we shall grant that part of respondent's motion that moves to dismiss. B.
Imposition of a Penalty Under Section 6673 We turn now to that part of respondent's motion that moves for the imposition of a penalty on petitioner under section 6673. As relevant herein, 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 penalty in lien and levy cases. Pierson v. Commissioner [Dec. 54,152], 115 T.C. 576, 580-581 (2000); Watson v. Commissioner [Dec. 54,448(M)], T.C. Memo. 2001-213 (imposing a penalty in the amount of $1,500). We are convinced petitioner instituted the present proceeding primarily for delay. In this regard, it is clear that petitioner regards this proceeding as nothing other than as a vehicle to protest the tax laws of this country and to espouse his own misguided views, which we regard as frivolous and groundless. In short, having to deal with this matter wasted the Court's time, as well as respondent's. Under the circumstances, we shall grant that part of respondent's motion that moves for the imposition of a penalty in that we shall impose a penalty on petitioner pursuant to section 6673(a)(1) in the amount of $1,000. In order to give effect to the foregoing, An appropriate order granting respondent's motion and decision will be entered. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 Insofar as petitioner's ultimate tax liability was concerned, respondent gave petitioner credit for the amounts withheld from his wages and pension distributions. However, we note that the determination of a statutory deficiency does not take such withheld amounts into account. See sec. 6211(b)(1). 3
The Assessed deficiency ................................... $ 14,972.20
Assessed penalty ...................................... 748.64
Assessed interest ...................................... 790.03
------------
Subtotal ............................................... 16,510.87
Less: withholding ...................................... -11,229.00
------------
Balance due ............................................ 5,281.87
4 Petitioner stated that "I'll pay the tax, just show me the law that requires me to pay the tax." The Appeals officer identified sec. 1 as "the law that requires [petitioner] to pay this tax.". In this regard, sec. 1(c) imposes a tax on the taxable income of unmarried individuals. Near the end of the hearing, the Appeals officer also provided petitioner with a copy of Pierson v. Commissioner [Dec. 54,152], 115 T.C. 576 (2000), and suggested that he read that opinion. The Pierson case is mentioned infra. 5
At the time that the petition was filed, petitioner resided in 6 We note that sec. 6330(c)(1) also does not require the Commissioner to give the taxpayer a copy of the verification. Nestor v. Commissioner [Dec. 54,655], 118 T.C. 162, 166 (2000). [Dec.
54,727(M)]
Susan P. Obersteller v. Commissioner [Code
Secs. 6203 and 6330
]
Susan P. Obersteller, pro se. T. Richard Sealy III and Catherine Tyson, for the respondent. MEMORANDUM
OPINION SWIFT, Judge: This matter is before us on respondent's motion under Rule 121 for summary judgment. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. The issue for decision is whether respondent abused his discretion in relying upon transcripts of account to verify assessment of petitioner's tax liabilities for purposes of section 6330(c)(1). Background At the
time the petition was filed, petitioner resided in On On On January 11 and 31, 2001, respondent's Appeals Office mailed letters to petitioner inviting petitioner to meet personally with respondent's Appeals officer, and respondent enclosed with those letters copies of petitioner's transcripts of account for 1992 and 1993 (Form MEFTRA) and a "plain language" computer printout of petitioner's account for 1992 and 1993 (the individual master file (IMF)). Between
January 24 and In his letters, respondent's Appeals officer made it clear that respondent was relying on the above referenced transcripts of account, not "Forms 23C", to verify the assessments that were the bases for the lien filing, and that respondent was willing to meet face-to-face with petitioner and petitioner's spouse and representative and to make available to petitioner additional copies of those transcripts. Respondent's letters also suggested specific dates for a face-to-face meeting, but petitioner and petitioner's representative refused to meet with respondent's Appeals officer unless a commitment was made by the Appeals officer to obtain and to have at the meeting a copy of "Forms 23C" relating to petitioner's 1992 and 1993 Federal income taxes. On On Discussion Petitioner asserts that, because respondent refused to provide a copy of a signed "Form 23C" at the collection hearing, respondent's Appeals officer failed to properly verify under section 6330(c)(1) that respondent's lien filing met the requirements of "any applicable law or administrative procedure". We have repeatedly held that, absent irregularities, respondent may rely on Forms 4340 and transcripts of account for the purpose, under section 6330(c)(1), of verifying data relevant to respondent's assessments of tax deficiencies against taxpayers. Nestor v. Commissioner [Dec. 54,655], 118 T.C. 162, 166 (2002); Lindsey v. Commissioner [Dec. 54,703(M)], T.C. Memo. 2002-87; Howard v. Commissioner [Dec. 54,697(M)], T.C. Memo. 2002-81; Holliday v. Commissioner [Dec. 54,678(M)], T.C. Memo. 2002-67; Duffield v. Commissioner [Dec. 54,663(M)], T.C. Memo. 2002-53; Mann v. Commissioner [Dec. 54,658(M)], T.C. Memo. 2002-48. In the alternative, petitioner asserts generally that she did not receive the type of "due process" hearing that is anticipated under section 6330. To the contrary, petitioner and petitioner's representative were repeatedly notified of respondent's willingness to meet, of suggested dates and times for a meeting, and of respondent's willingness to consider any specific, good faith issues raised by petitioner under section 6330(c)(2). Petitioner makes only frivolous arguments. Respondent's Appeals Office did not abuse its discretion in sustaining respondent's lien filing. We shall grant respondent's motion for summary judgment. An appropriate order and decision will be entered. [Dec.
54,734(M)]
Ted L. Williams v. Commissioner [Code
Secs. 6203 and 6330
; Tax Court Rule 121 ]
Ted L. Williams, pro se. Joanne B. Minsky, for the respondent. MEMORANDUM
OPINION CHIECHI, Judge: This case is before the Court on respondent's motion for summary judgment (respondent's motion). We shall grant respondent's motion. Background The record establishes and/or the parties do not dispute the following. Petitioner
resided in Petitioner filed a Federal income tax (tax) return (return) for his taxable year 1995, which showed $8,125.87 as the tax due for that year. When petitioner filed his 1995 return, he did not pay the amount of tax due shown in that return. On On Prior to the Appeals Office hearing, the Appeals officer obtained coded and noncoded (so-called "plain English") versions of computer-generated transcripts (transcripts) of respondent's records with respect to petitioner. Those transcripts identified petitioner, the type of tax assessed, the taxable period, the date of the assessment, and the amount assessed. At the Appeals Office hearing, the Appeals officer relied on the transcripts for the purpose of verifying that respondent made a valid assessment with respect to petitioner's taxable year 1995. The Appeals officer provided to petitioner a copy of the plain English version of those transcripts at the Appeals Office hearing. On (1) The
only legal requirements before taking general enforcement action
are the notice & demand and the notice of intent to levy and
the notice of right to a collection due process hearing. The
assessments were made, and notice & demand for payment, under
IRC6303(a), were sent to your last known address, along with
Publication 1, your rights as a taxpayer. You neglected or refused
to pay the taxes and penalties due. Subsequently, you were sent
the LT11 dated (2) The
issues raised by you on your request are that, for the income tax
due for 1995, you did not earn the alleged taxable income. For the
Civil Penalties for 1996 & 1997, that the penalty is not based
on agency records. With regard to the income tax due for 1995, the
tax was assessed via a tax return filed by you on (3) The proposed collection action for 1995 balances the need for the efficient collection of the tax with your legitimate concern that any collection action be no more intrusive than necessary. [Reproduced literally.] Discussion The Court may grant summary judgment where there is no genuine issue of material fact and a decision may be rendered as a matter of law. Rule 121(b); 2 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). We conclude that there is no genuine issue of material fact regarding the questions raised in respondent's motion. The validity of the underlying tax liability for 1995 is not at issue in this case. 3 Consequently, we shall consider the matters addressed in respondent's motion using an abuse-of-discretion standard. Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 610 (2000); Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 182 (2000). In the petition, petitioner alleged that (1) "the IRS failed to make an assessment in accordance with the requirements of the IR Code and underlying regulations" and that (2) "the procedural due process requirements were not met, since the IRS did not conduct a fair and impartial hearing before an impartial decision maker." Petitioner did not allege in the petition (1) any facts to support petitioner's allegation that he did not receive "a fair and impartial hearing before an impartial decision maker" or (2) any irregularity in respondent's assessment procedure with respect to petitioner's taxable year 1995. In his response to respondent's motion (petitioner's response) and in his affidavit in support of that response (petitioner's affidavit), petitioner abandons the allegations set forth in the petition. Instead, he advances the types of arguments and contentions that we find to be frivolous and groundless and that the courts have repeatedly rejected. 4 In respondent's motion, respondent contends that the Appeals officer's reliance on the transcripts to verify that respondent made a valid assessment with respect to petitioner's taxable year 1995 satisfies the requirements of section 6330(c)(1) that the Appeals officer obtain verification that the requirements of any applicable law or administrative procedure have been met. That is because, according to respondent, (1) those transcripts contained all of the information required under section 301.6203-1, Proced. & Admin. Regs., 5 and (2) petitioner failed to show any irregularity in respondent's assessment procedure with respect to petitioner's taxable year 1995. Respondent further contends in respondent's motion that petitioner received a fair hearing before an impartial decision maker as required by section 6330(b). 6 That is because, according to respondent, the Appeals officer "had no involvement with petitioner's case prior to receiving the file because a request for a CDP hearing was filed. *** [The Appeals officer] also had no prior relationship with petitioner." We agree with respondent. Section 6330(c)(1) does not require the Commissioner of Internal Revenue to rely on a particular document to satisfy the verification requirement imposed by that section. 7 We have held that, absent a showing by the taxpayer of an irregularity in respondent's assessment procedure, it was not an abuse of discretion for the Appeals officer to have relied on certain computer-generated transcripts for purposes of complying with section 6330(c)(1). 8 On the record before us, we find that the Appeals officer's reliance on the transcripts to verify that respondent made a valid assessment with respect to petitioner's taxable year 1995 did not constitute an abuse of discretion. On that record, we further find that the facts that are undisputed for purposes of respondent's motion establish that petitioner received a fair hearing before an impartial decision maker. Based on our examination of the entire record before us, we find that respondent did not abuse respondent's discretion in determining in the notice of determination to proceed with collection with respect to petitioner's taxable year 1995. On that record, we shall grant respondent's motion. Although respondent has not requested a penalty under section 6673(a)(1), this Court is authorized to impose such a penalty in an amount not to exceed $25,000 in cases where it appears to the Court that, inter alia, a proceeding before it was instituted or maintained primarily for delay, sec. 6673(a)(1)(A), or the taxpayer's position in such a proceeding is frivolous or groundless, sec. 6673(a)(1)(B). In Pierson v. Commissioner [Dec. 54,152], 115 T.C. 576, 581 (2000), we issued an unequivocal warning to taxpayers concerning the imposition of a penalty under section 6673(a) on those taxpayers who abuse the protections afforded by sections 6320 and 6330 by instituting or maintaining actions under those sections primarily for delay or by taking frivolous or groundless positions in such actions. In the instant case, petitioner advances, we believe primarily for delay, frivolous and groundless arguments and contentions, thereby causing the Court to waste its limited resources. We shall impose a penalty on petitioner pursuant to section 6673(a)(1) in the amount of $1,000. We have considered all of petitioner's arguments and contentions which are not discussed herein, and we find them to be without merit and/or irrelevant. To reflect the foregoing, An order granting respondent's motion and decision sustaining respondent's determinations and imposing a penalty under section 6673(a)(1) will be entered. 1 Although the Appeals Office hearing was held with respect to the final notice of intent to levy, which pertained to petitioner's taxable years 1995, 1996, and 1997, petitioner petitioned this Court only with respect to his taxable year 1995. Our discussion hereinafter relates only to petitioner's taxable year 1995. 2 Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times. 3 Although not altogether clear, petitioner may have challenged the underlying tax liability for 1995 at the Appeals Office hearing. However, petitioner did not raise any challenge to that liability in the petition. Consequently, petitioner is deemed to have conceded the underlying tax liability for 1995. See Rule 331(b)(4); Lunsford v. Commissioner [Dec. 54,553], 117 T.C. 183, 186 (2001). 4 By way of illustration, petitioner's response asserts, inter alia: 1. The
Affiant [petitioner] can not serve two masters. The Affiant has a
divine covenant with the Affiant's Creator [Exodus 23:32 and
34:26] protected by the common law and the Constitution for
the 2. The Affiant has made a formal Declaration of Allegiance to an American Republic and cancelled the nationality that is held under the 14th amendment (U.S. citizenship) *** the affiant never gave express consent to be or become a citizen and national of the United States: and, has declared allegiance to the republic/ Florida state and claim sole nationality thereof. ******* WHEREFORE *** the Respondent's motion for summary judgment must be denied and vacated for lack of authority over Affiant and that no bona fide contract exists between the Respondent and Affiant. [Reproduced literally.] Petitioner's affidavit asserts, inter alia: 4. The federal
******* 12. The
[Internal Revenue] Service was never created by an Act of Congress
and is listed as an agency, sub-agency or sub-department of the Department
of the Treasury in 31 USC §301 et seq. The Service is an
"alter ego" for "Common Law Trust #62" which
is registered in Puerto Rico, and is therefore inside the
jurisdiction of ******* 22. The only regulations promulgated by the Secretary to implement his collection authority are found at 27 CFR Part 70 and pertains only to matters regarding alcohol, tobacco and firearms. ******* 26. The Service is not in possession of any record maintained under the Privacy Act that shows that the Affiant is a "Taxpayer". 27. The Service is not in possession of any record maintained under the Privacy Act that the Affiant has ever "volunteered" (without treats, duress and coercion by the Service) to file a federal 1040 tax return. 5 Sec. 301.6203-1, Proced. & Admin. Regs., provides in pertinent part: The assessment shall be made by an assessment officer signing 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. *** If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed. 6 Sec. 6330(b) provides in pertinent part: SEC.
6330. NOTICE AND (b) Right to Fair Hearing.-- ******* (3) Impartial officer.--The hearing under this subsection shall be conducted by an officer or employee who has had no prior involvement with respect to the unpaid tax specified in subsection (a)(3)(A) before the first hearing under this section or section 6320. A taxpayer may waive the requirement of this paragraph. 7 E.g., Lindsey v. Commissioner [Dec. 54,703(M)], T.C. Memo. 2002-87; Kuglin v. Commissioner [Dec. 54,661(M)], T.C. Memo. 2002-51. 8 E.g., Howard v. Commissioner [Dec. 54,697(M)], T.C. Memo. 2002-81; Kuglin v. Commissioner, supra; Mann v. Commissioner [Dec. 54,658(M)], T.C. Memo. 2002-48. [Dec.
54,737(M)]
Kelly V. Kaeckell v. Commissioner [Code
Secs. 6203 and 6330
; Tax Court Rules 121 and 331 ]
Kelly V. Kaeckell, pro se. Karen L. Baker and Charles M. Berlau, for the respondent. MEMORANDUM
OPINION ARMEN, Special Trial Judge: This matter is before the Court on respondent's Motion for Summary Judgment, filed pursuant to Rule 121. 1 Respondent contends that there is no dispute as to any material fact with respect to this levy action, and that respondent's determination to proceed with collection of petitioner's outstanding tax liabilities for the taxable years 1990 through 1996 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, there is no genuine issue as to any material fact and a decision may be rendered as a matter of law. Accordingly, we shall grant respondent's Motion for Summary Judgment. Background Petitioner failed to file Federal income tax returns for the taxable years 1990 through 1996. The record shows that respondent prepared substitutes for return for petitioner's taxable years 1990 through 1996. On Additions to tax
-----------------------------
Year Deficiency Sec. 6651(a)(1) Sec. 6654(a)
1990 ....................... $ 8,855 $2,213.75 $ 579.77
1991 ....................... 1,166 291.50 66.63
1992 ....................... 559 139.75 24.36
1993 ....................... 1,800 450.00 75.43
1994 ....................... 9,154 2,288.50 475.00
1995 ....................... 11,814 2,953.50 640.60
1996 ....................... 544 136.00 28.96
Petitioner
has admitted that he received the On On On On After
filing an answer to the amended petition, respondent filed a
Motion for Summary Judgment asserting that there is no dispute as
to a material fact and that respondent is entitled to judgment as
a matter of law. In particular, respondent contends that the
Appeals officer's review of the TXMODA transcripts of account
dated Petitioner
filed an Objection to respondent's motion. Thereafter, pursuant to
notice, respondent's motion 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 before enforcing collection by 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. Section
6330 generally provides that the Commissioner cannot proceed with
collection by levy 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, with
judicial review of the administrative determination. See Section
6330(c) prescribes the matters that 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. 4
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 the Tax Court or a Petitioner argues 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 by section 6330(c)(1). We reject petitioner's argument because the record establishes that the Appeals officer obtained and reviewed transcripts of account for petitioner's taxable years 1990 through 1996. Federal tax assessments are formally recorded on a record of assessment. Sec. 6203. "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." Sec. 301.6203-1, Proced. & Admin. Regs. Section 6330(c)(1) does not require the Commissioner to rely on a particular document to satisfy the verification requirement imposed therein. Weishan v. Commissioner [Dec. 54,704(M)], T.C. Memo. 2002-88; Lindsey v. Commissioner [Dec. 54,703(M)], T.C. Memo. 2002-87; Tolotti v. Commissioner [Dec. 54,702(M)], T.C. Memo. 2002-86; Duffield v. Commissioner [Dec. 54,663(M)], T.C. Memo. 2002-53; Kuglin v. Commissioner [Dec. 54,661(M)], T.C. Memo. 2002-51. In this regard, we observe that the transcripts of account on which the Appeals officer relied, as well as the transcripts of account that she furnished to petitioner before the hearing, contained all the information prescribed in section 301.6203-1, Proced. & Admin. Regs. See Weishan v. Commissioner, supra; Lindsey v. Commissioner, supra; Tolotti v. Commissioner, supra; Duffield v. Commissioner, supra; Kuglin v. Commissioner, supra. Petitioner
has not alleged any irregularity in the assessment procedure that
would raise a question about the validity of the assessments or
the information contained in the transcripts of account. See 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 justiciable issue
for review, we conclude that respondent is entitled to judgment as
a matter of law sustaining the notice of determination dated Finally, we mention section 6673(a)(1), which 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 will not impose a penalty on petitioner pursuant to section 6673(a)(1) in the present case, we admonish petitioner that the Court shall consider imposing such a penalty should he return to the Court in the future and advance similar arguments. To reflect the foregoing, An order and decision will be entered granting respondent's motion for summary judgment. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure. 2 A TXMODA transcript contains current account information obtained from respondent's master file. "TXMODA" is the command code that is entered into respondent's integrated data retrieval system (IDRS) to obtain the transcript. IDRS is essentially the interface between respondent's employees and respondent's various computer systems. 3
At the time that the petition was filed, petitioner resided in 4
As previously stated, petitioner has admitted that he received the
notice of deficiency dated [Dec.
54,739(M)]
Brad L. Barnhill v. Commissioner [Code
Secs. 6203 and 6330
]
[Code
Secs. 6682 and 7442
]
Brad L. Barnhill, pro se. Edward J. Laubach, Jr., for the respondent. MEMORANDUM
FINDINGS OF FACT AND OPINION GERBER, Judge: Petitioner appeals respondent's determination to proceed with collection of a 1996 tax liability comprising $11,172.81 in income tax and a $532.76 section 6682 1 penalty. After the petition was filed, respondent moved to dismiss the section 6682 penalty for lack of this Court's jurisdiction. The issues for our consideration are as follows: (1) Whether we have jurisdiction over the portion of the petition that relates to the section 6682 penalty, and (2) whether respondent's determination to proceed with collection of petitioner's assessed income tax for 1996 was an abuse of discretion. FINDINGS
OF FACT Petitioner,
who resided in On On On OPINION We must decide: (1) Whether to dismiss for lack of jurisdiction with respect to the penalty assessed petitioner under section 6682; and (2) whether respondent's determination to proceed with collection of petitioner's assessed income tax liability was an abuse of discretion. I. Motion To Dismiss for Lack of Jurisdiction During 1997, respondent assessed a $532.76 penalty under section 6682 on the basis that petitioner provided false information with respect to withholding for 1996. Respondent moved to dismiss the petition for lack of jurisdiction insofar as it seeks review of this penalty. Respondent contends that this Court does not have jurisdiction over a section 6682 penalty. Section 6682(c) provides that deficiency procedures "shall not apply in respect to the assessment or collection of any penalty imposed by *** [this section]." See Castillo v. Commissioner [Dec. 41,940], 84 T.C. 405, 411 (1985). 2 Accordingly, we lack jurisdiction over petitioner's claim with respect to the section 6682 penalty. II. Abuse of Discretion The petition in this case was filed under section 6330. Petitioner alleged numerous claims including, but not limited to, claims of procedural and substantive defects in both the assessment of his income tax deficiency for 1996 and the section 6330 hearing. In particular, petitioner argues that he was not afforded a "fair hearing" because he did not receive a Form 4340, Certificate of Assessments and Payments, and was deprived of his right to subpoena documents and witnesses and confront witnesses. In regard to the 1996 tax liability, respondent argues that petitioner's contentions that he did not receive a "fair" hearing are either irrelevant or refuted by the transcript of petitioner's account. As explained later in this opinion, we conclude that there was no abuse of discretion. A.
Verification of Petitioner's Account Petitioner contends that he was not shown a Form 4340 at his hearing before Appeals. We note that petitioner also contended that he did not receive a statutory notice of deficiency. Upon further inquiry at trial, however, it became apparent that he had received a notice of deficiency. 3 Accordingly, we approach with caution petitioner's contention that he was not shown a Form 4340. Section 6330 provides that, upon request and in the circumstances described therein, a taxpayer has a right to a "fair hearing". Sec. 6330(b). A "fair hearing" requires, inter alia, that the conducting officer receive verification from the Secretary that the requirements of applicable law and administrative procedure have been met. Sec. 6330(c). In satisfying this requirement, the Secretary may use a Form 4340. Lunsford v. Commissioner [Dec. 54,553], 117 T.C. 183, 187-188 (2001). One week before trial, respondent provided petitioner with a transcript of petitioner's account. A transcript of a taxpayer's account and a Form 4340 contain the same information, insofar as pertinent here. A transcript contains transaction codes, whereas a Form 4340 contains a conversion of the codes into descriptive terms. At trial, petitioner exhibited his understanding of the transaction codes. Accordingly, the transcript provided petitioner with the same information as a Form 4340 and satisfies the requirement that he be provided with a verification of his account. See Nestor v. Commissioner [Dec. 54,655], 118 T.C. 162 (2002); Kuglin v. Commissioner [Dec. 54,661(M)], T.C. Memo. 2002-51. B.
The Right To Subpoena Documents and Witnesses, Etc. Petitioner argues that section 6330, as written, does not provide for a "fair hearing". Petitioner argues that a "fair hearing" must include the right to subpoena documents and witnesses, confront witnesses, submit evidence, etc. We hold that a "fair hearing" under section 6330 does not require the formalities requested by petitioner. The
right to subpoena documents and witnesses, confront witnesses,
etc., is essential only in a formal adjudication; i.e., an
"adjudication required by statute to be determined on the
record after opportunity for an agency hearing". 5 U.S.C.
sec. 554 (2000) (Administrative Procedure Act (APA) sec. 554). We
have already held that section 6330 hearings are not formal
adjudications. Katz v. Commissioner [Dec. 54,081], 115 T.C.
329, 337-339 (2000); Petitioner contends that the requirements set forth under 5 U.S.C. sec. 556 (APA sec. 556) apply to a section 6330 hearing. APA section 556 provides for the right of a party to "present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examinations as may be required for a full and true disclosure of the facts." Petitioner, however, has extracted this language out of the context. In order for APA section 556 to apply, the hearing must be a formal adjudication. See APA sec. 554; Lunsford v. Commissioner [Dec. 54,552], 117 T.C. 159 (2002). As already explained, the hearing before Appeals is intended to be informal. In addition, a recent regulation provides that "The formal hearing procedures required under the Administrative Procedure Act, 5 U.S.C. sec. 551, et. seq. do not apply to *** [section 6330 hearings]". Sec. 301.6330-1(d), A-D6, Proced. & Admin. Regs. This regulation also provides that a face-to-face interview is not required at a section 6330 hearing and that a taxpayer does not have the right to subpoena and examine witnesses. Sec. 301.6330-1(d), Proced. & Admin. Regs. Accordingly, we hold that respondent did not abuse his discretion in determining to proceed with the proposed collection action in this case. Petitioner set forth other contentions on brief and at trial. To the extent not herein discussed, petitioner's contentions have been rendered moot by our holding or are without merit. To reflect the foregoing, An appropriate order and decision will be entered. 1 Unless otherwise indicated, all section references are to the Internal Revenue Code. 2 See also Van Es v. Commissioner [Dec. 54,080], 115 T.C. 324 (2000) (holding, in a sec. 6330 case, that the Tax Court lacked jurisdiction over a sec. 6702 penalty for the filing of a frivolous return and granted the Commissioner's motion to dismiss for lack of jurisdiction). 3 PETITIONER: There is no evidence of a notice of deficiency being issued. *** THE COURT: Well, did you receive a notice of deficiency? PETITIONER: I received something that told me it was a 90-day letter. THE COURT: That is a notice of deficiency. |