6330 Annotations: Judicial Review of Appeals Determinations: Statute of Limitations- Levy

Notice of Levy and Right to Hearing: Judicial Review of Appeals Determinations: Statute of Limitations

[2001-2 USTC ¶50,735] Jose A. Perez, Plaintiff v. United States of America , Defendant

U.S. District Court, West. Dist. Tex., El Paso Div., 3:00cv00302 GTE, 9/20/2001

[Code Sec. 7401 ]

Jurisdiction: Authorization to commence suit: Collection action: Evidence of authorization.--The government's purported failure to provide a taxpayer with a certified copy of the document authorizing a collection action did not deprive the court of jurisdiction. The government is not required to furnish the party being sued with any document stating that the government has been authorized to bring suit. Courts generally presume that the government has complied with Code Sec. 7401 and obtained the proper authorization to commence a collection action. Nevertheless, two documents submitted by the government--a letter from the Office of Chief Counsel and a declaration from the government's counsel of record--established compliance with Code Sec. 7401 .

[Code Secs. 6330 and 6502 ]

Reducing tax deficiency to judgment: Statute of limitations, extended: Tolling: Collection due process hearing.--A pro se individual unsuccessfully challenged the government's counterclaim to reduce his tax deficiencies to judgment. The taxpayer failed to prove that the government's counterclaim was barred by the 10-year statute of limitations. The taxpayer and his wife had consented to an extension of the limitations period, and his subsequent request for a collection due process hearing further tolled the limitations period. The record demonstrated that the government's counterclaim was filed before the limitations period expired.

ORDER

EISELE, District Judge:

Before the Court is pro se Plaintiff's "Motion to Dismiss Respondent's Original Counterclaim for Lack of Subject Matter Jurisdiction." Defendant has responded, and the Court is prepared to rule. For the reasons provided herein, the Court will deny Plaintiffs' Motion.

I. Background

In June 1988, the Internal Revenue Service ("I.R.S.") assessed additional federal income taxes, penalties, and interest against Plaintiff for tax years 1984 to 1987. Plaintiff alleges that the I.R.S. failed to send him notices of these deficiencies. In 1989, the I.R.S. placed a federal tax lien on all of Plaintiff's real and personal property.

On March 18, 1997 , the I.R.S. served a notice of levy upon Plaintiff's former employer. According to Plaintiff, he never received any such notice prior to the I.R.S. serving his former employer. In March 2000, the I.R.S. sent Plaintiff a final notice of intent to levy. This notice informed Plaintiff that he could request a collection due process hearing before the I.R.S. Office of Appeals. Plaintiff requested this hearing and submitted his appeal in March 2000. On September 7, 2000 , the I.R.S. Office of Appeals rejected his appeal.

Plaintiff filed this action on October 2, 2000 . In the Third Amended Complaint, Plaintiff claims that a federal tax lien placed on his property was procedurally improper due to the United States ' alleged failure to send required notices of deficiency to the Plaintiff. On May 16, 2001 , the United States filed a Counterclaim to reduce the federal tax assessments to judgment. Plaintiff now seeks to dismiss the United States ' Counterclaim, asserting that the Court lacks subject matter jurisdiction over the Counterclaim.

II. Discussion

A. Defendant United States complied with 26 U.S.C. §7401 in filing its Counterclaim.

First, Plaintiff requests that the Court dismiss Defendant's Counterclaim because the Defendant "failed or refused to attach a certified copy of the document in which the Attorney General or a [ United States ] Attorney authorized a cause of action against the" the Plaintiff, pursuant to 26 U.S.C. §7401 (1989).

Section 7401 provides that "[n]o civil action for the collection or recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Secretary [of Treasury or his delegate] ¹ authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced." In a suit by the United States against a party for the collection of taxes, section 7401, by its own terms, does not require the United States to furnish the party sued with any document that the United States has been authorized to bring the suit. Rather, section 7401 merely requires that no civil tax collection action may be brought unless the Secretary of Treasury or his delegate has authorized the proceedings and the Attorney General or his delegate directs the commencement of the action.

Ordinarily, courts may presume that the United States complied with section 7401 and obtained the proper authorization to commence an action for the collection of taxes. United States v. Laeger, No. CIV.A.95-2119, 1996 WL 271615 (W.D. La. March 8, 1996 ). However, when a party denies that the United States has in fact complied with section 7401, "the government must provide proof of authorization." Id. Assuming that the Plaintiff is in fact denying compliance with section 7401, the United States must show that its Counterclaim was in fact authorized.

The United States submits two documents to show that it complied with section 7401 and was in fact authorized to bring the Counterclaim against the Plaintiff. First is a letter from the Office of Chief Counsel for the Department of the Treasury's Internal Revenue Service to a United States Tax Attorney. This document demonstrates that the Secretary of Treasury's delegate authorized the United States ' Counterclaim. The letter requests that the United States Tax Attorney bring the Counterclaim against the Plaintiff. The letter states that "[p]ursuant to [section 7401], we also request that you reduce to judgment the plaintiff's unpaid tax liabilities." This letter demonstrates proper authorization from the Secretary of Treasury to file the Counterclaim against the Plaintiff. United States v. Bodwell [98-1 USTC ¶50,172], No. 97-15316, 1998 WL 21994 (9th Cir. Jan. 15, 1998 ) ("We agree with the district court's finding that the government did have the proper authority to commence this action pursuant to [section 7401]. The court referred to a latter from the Chief Counsel of the Internal Revenue Service authorizing the action. . . ."); United States v. Isaac, No. 91-5830, 1992 WL 159795 (6th Cir. July 10, 1992 ) ("Of course, a letter directly from the Chief Counsel of the Internal Revenue Service would also meet [the section 7401] requirement.").

The second document is a declaration from Thomas Herrin, counsel of record for the United States in the present action. ² Herrin declares that he filed the present Counterclaim at the direction of United States Tax Attorney Louise P. Hytken. This document demonstrates that the Attorney General's delegate directed that the United States ' Counterclaim be filed. United States v. Neilson, No. 91-4175, 1992 WL 501598 (10th Cir. Dec. 23, 1992 ). Therefore, the United States has shown compliance with section 7401. The Plaintiff's "Motion to Dismiss Respondent's Original Counterclaim for Lack of Subject Matter Jurisdiction" cannot be granted on the ground that the United States failed to comply with section 7401.

B. Defendant United States ' Counterclaim is not time barred.

Second, Plaintiff requests that the Court dismiss Defendant's Counterclaim because the Defendant's "action is time barred." Plaintiff contends that the ten-year statute of limitations in 26 U.S.C. §6502(a)(1) bars the United States ' Counterclaim to reduce the federal tax assessments to judgment. According to Plaintiff, he self-assessed his tax on June 6, 1988 , and, thus, the statute of limitations to collect such tax expired June 6, 1998 . Because the United States did not file its Counterclaim until May 16, 2001 , Plaintiff asserts that the United States ' Counterclaim is barred by the statute of limitations.

However, on May 14, 1997 , Plaintiff and his spouse signed an Internal Revenue Service Form 900 which extended the statute of limitations from June 6, 1998 , to December 31, 2000 . See generally Cox v. United States [99-2 USTC ¶50,763], No. Civ.A. 96-2244, 1999 WL 527736 (E.D. La. July 22, 1999 ). Subsequently, in March 2000, ³ pursuant to 26 U.S.C. §6330, Plaintiff requested a due process hearing before the I.R.S. Office of Appeals. Pursuant to 26 U.S.C. §6330(e)(1), this request for a hearing tolled the applicable statute of limitations provided for in 26 U.S.C. §6502(a)(1) for a "period during which such hearing, and appeals therein, are pending." On September 7, 2000 , the I.R.S. Office of Appeals rejected Plaintiff's administrative appeal. Therefore, the applicable statute of limitations was tolled from March 2000 to September 7, 2000 , a period of approximately six months.

The statute of limitations, after the Form 900 extension and the 26 U.S.C. §6330(e)(1) tolling, would have expired approximately ⁴ July 1, 2001 . As noted, the United States filed it Counterclaim on May 16, 2001 . Thus, the United States ' Counterclaim is not time barred. The Plaintiff's "Motion to Dismiss Respondent's Original Counterclaim for Lack of Subject Matter Jurisdiction" cannot be granted on the ground that the United States ' Counterclaim is time barred.

III. Conclusion

IT IS THEREFORE ORDERED that Plaintiffs' Motion ⁵ be, and it is hereby, DENIED as set forth above.

¹ 26 U.S.C. §7701(a)(11)(B) (Supp. 2001) provides that the "term 'Secretary' means the Secretary of the Treasury or his delegate."

² Plaintiff objects to attorney Herrin's declaration, noting a minor technical defect in his declaration under 28 U.S.C. §1746. However, Herrin's declaration need not comply with section 1746 to be considered by the Court. Laughlin v. United States [99-2 USTC ¶50,933], No. 99-CV-810H(POR), 1999 WL 1022185 (S.D. Cal. Oct. 5, 1999 ) ("[D]eclarations by attorneys are admissible if the facts stated in the declaration are matters of which the attorney has knowledge, such as matters occurring during the course of a lawsuit. In [the attorney's] declaration, [the attorney] only makes statements about her employment as an attorney with the Tax Division and about the I.R.S. administrative files of which she has custody because of her role as counsel to the United States in this suit. Therefore, the declaration of [the attorney] is admissible and may be considered by the court." (citations omitted)).

³ The record does not provide the exact date of the request for the hearing.

⁴ Even if Plaintiff requested his hearing on the last day of March 2000, the statute of limitations would not have expired prior to June 1, 2001 .

⁵ Doc. No. 35.

[2002-1 USTC ¶50,259] Jose A. Perez, Plaintiff v. United States of America , Defendant

U.S. District Court, West. Dist. Tex. , El Paso Div., 3:00cv00302 GTE, 10/11/2001 , Previous decision in this same case, 2001-2 USTC ¶50,735

[Code Sec. 6202 ]

Assessment: Form 4340: Summary record of assessment: Evidence.--Taxes were properly assessed against a pro se individual for four tax years. Despite the taxpayer's contention that the taxes were not properly assessed, the IRS presented the taxpayer's Form 4340, which was presumptive proof of a valid assessment. In addition, the IRS also produced a summary record of assessment in the form of a computerized RACS Report-006, which was signed by an assessment officer and confirmed the assessment of the taxes. The taxpayer's objection that the proper summary record of assessment was Form 23C was without merit as the RACS Report-006 replaced Form 23C for assessments taking place after 1984.

[Code Sec. 6303 ]

Evidence: Notice and demand.--A pro se taxpayer's Form 4340 established that a notice of assessment and demand for payment was mailed to the taxpayer as required by Code Sec. 6303 , although the taxpayer claimed not to have received them. The IRS only had to prove that the notice and demand were mailed to the taxpayer, not that the taxpayer received them.

[Code Sec. 6212 ]

Notice of deficiency: Necessity of notice: Self-reported liability.--A pro se taxpayer's contention that the lien filed against his property was invalid because the IRS failed to issue notices of deficiency to him prior to filing the lien failed. The IRS was not required to issue a Code Sec. 6212 notice of deficiency prior to placing the lien on the taxpayer's property. The lien arose from the taxpayer's self-reported liability, not from an understatement of the amount of taxes that he owed.

[Code Secs. 6330 and 6502 ]

Limitations periods: Extensions: Tolling.--A pro se taxpayer failed to prove that the government's counterclaim was barred by the 10-year statute of limitations. The taxpayer and his wife had consented to an extension of the limitations period, and his subsequent request for a Collection Due Process hearing further tolled the limitations period. The record demonstrated that the government's counterclaim was filed before the limitations period expired.

MEMORANDUM OPINION

I. Factual Background

EISELE, District Judge:

On April 5, 1988 , pro se Plaintiff filed his federal income tax returns for tax years 1984, 1985, 1986, and 1987. Plaintiff's returns indicated a tax liability of $5867.00 for 1984, $7780.00 for 1985, $5526.00 for 1986, and $1312.00 for 1987. However, Plaintiff failed to tender these amounts to the Internal Revenue Service ("IRS"). Plaintiff does not now deny or challenge the existence of this tax liability. As explained infra, the IRS assessed Plaintiff's taxes in the above amounts on June 6, 1988 . On April 17, 1989 , the IRS placed a federal tax lien on Plaintiff's property. ¹ The procedural validity of this tax lien is the subject of the instant civil action.

On October 2, 2000 , Plaintiff filed suit against Charles Rossotti, the Commissioner of Internal Revenue and head of the IRS. Plaintiff's Complaint: (1) alleged procedural irregularities in the execution of the tax lien and sought to quiet title in the property subject to the lien; and (2) alleged the violation of his administrative due process rights in regards to an administrative appeal concerning the IRS levying income Plaintiff received from a former employer. This Court, Judge Harry Lee Hudspeth presiding, in an April 16, 2001 , Order, dismissed Plaintiff's civil action regarding the administrative appeal for lack of jurisdiction. However, the Court retained jurisdiction to "decide one issue: Did the IRS issue notices of deficiency prior to filing a federal tax lien against Plaintiff's property?" The Court ordered Plaintiff to amend his complaint to show the United States as the proper Defendant and to satisfy the pleading requirements of 28 U.S.C. §2410(b).

On May 31, 2001 , Plaintiff filed his Third Amended Complaint seeking, pursuant to 28 U.S.C. §2410, to quiet title to his property encumbered by the federal tax lien. Plaintiff alleges various procedural irregularities by the IRS in placing the lien on his property, and contends that these irregularities render the lien invalid. The Plaintiff asserts that: (1) the IRS never properly assessed his taxes for tax years 1984, 1985, 1986, and 1987; (2) even if the IRS properly assessed his taxes for these tax years, the IRS never provided Plaintiff with notice of this assessment; (3) the IRS failed to issue requisite notices of deficiency prior to placing the lien on his property; and (4) the statute of limitations bars the IRS's attempt to collect his taxes for these tax years. The Plaintiff also contends that the IRS failed to notify him of the levy on his salary, an issue that was the subject of his administrative appeal. On May 16, 2001 , the United States filed a Counterclaim seeking to reduce Plaintiff's tax liabilities to judgment.

Presently before the Court are Plaintiff's Motion for Summary Judgment, Supplemental Motion for Summary Judgment, and various other motions generally seeking to strike documents and other evidence tendered by the United States . Also before the Court is the United States ' Motion for Summary Judgment and Supplemental Motion for Summary Judgment. Based upon the facts established by the Record and noted herein, and the conclusions of law set forth herein, the Court concludes that summary judgment should be granted in favor of the United States .

II. Summary Judgment Standard

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lycon, Inc. v. Juenke, 250 F.3d 285, 287 (5th Cir. 2001). Rule 56(c) of the Federal Rules of Civil Procedure provides the summary judgment standard and states that it may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Court will view the evidence and the inferences that may be reasonably drawn from the evidence in a light most favorable to the nonmoving party. Evans v. City of Bishop , 238 F.3d 586, 588-89 (5th Cir. 2000).

III. Factual and Legal Discussion

Pursuant to 26 U.S.C. §2410(a), Plaintiff has brought suit seeking to quiet title to property on which the IRS placed a tax lien. As noted, the lien was placed on Plaintiff's property for his failure to satisfy tax liabilities for 1984, 1985, 1986, and 1987. Plaintiff contends that various procedural irregularities by the IRS render the lien invalid. In dismissing Plaintiff's claims regarding alleged violations of his procedural due process rights, this Court's Order of April 16, 2001 , recognized that the quiet title question is the one issue this Court has jurisdiction to resolve. See generally McCarty v. United States [92-1 USTC ¶50,222], 929 F.2d 1085, 1087 (5th Cir. 1991) ("a taxpayer can rely on §2410(a) to challenge the procedural validity of a tax lien"). The Plaintiff challenges the procedural validity of the lien in four general respects: (1) the IRS never properly assessed his taxes for 1984, 1985, 1986, and 1987; (2) even if the IRS properly assessed his taxes for these years, it never provided Plaintiff with notice of this assessment; (3) the IRS failed to issue requisite notices of deficiency prior to placing the lien on his property; and (4) the statute of limitations bars the IRS's attempt to collect his taxes for these years. The Court concludes that Plaintiff's contentions are without merit and that the Record presents no genuine issues of material fact. Because the Plaintiff has no valid defense to the collection of his taxes for tax years 1984, 1985, 1986, and 1987, the Unites States' Motion for Summary Judgment seeking to reduce Plaintiff's tax liabilities to judgment is hereby granted as provided herein.

A. Did the IRS assess Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, and if so, did it provide Plaintiff with the requisite notice of this assessment?

In his Third Amended Complaint and his Motion for Summary Judgment, Plaintiff contends: (1) that the IRS failed to properly assess his taxes for tax years 1984, 1985, 1986, and 1987; and (2) even if the IRS properly assessed his taxes for these years, Plaintiff never received notices of such assessment and demand for payment as required by 26 U.S.C. §6303. The Court concludes that the IRS did in fact assess Plaintiff's taxes and send the Plaintiff the notices of assessment and demand for payment as required by 26 U.S.C. §6303. ²

1. The IRS assessed Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987.

26 U.S.C. §6201(a)(1) generally provides that the Secretary of Treasury is required, within three years of the taxpayer filing his return, to assess all unpaid taxes imposed by the tax code. 26 U.S.C. §6201(a)(1); 26 C.F.R. §301.6203-1. An assessment is made by recording the liability of the taxpayer in the office of the Secretary of Treasury. 26 U.S.C. §6203. 26 C.F.R. §301-6203-1 provides, inter alia, further elaboration as to how an assessment takes place:

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. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer.

In his Third Amended Complaint and his Motion for Summary Judgment, Plaintiff asserts that the IRS did not adhere to the proper procedures in assessing his taxes for 1984, 1985, 1986, and 1987, and thus no valid assessment took place within the three-year limitations period. The Plaintiff avers that the IRS did not comply with the various requirements of 26 C.F.R. §301-6203-1. The United States , in its Answer, asserts that a valid assessment of Plaintiff's taxes took place. Along with its Response to Plaintiff's Motion for Summary and its own Motion for Summary Judgment, the United States has submitted Plaintiff's IRS Certificate of Assessments, Payments, and Other Specified Matters (commonly and hereinafter referred to as "IRS Form 4340") and a Summary Record of Asessments RACS Report-006 (hereinafter referred to as "RACS Report-006"). The United States contends that Plaintiff's IRS Form 4340 and the RACS Report-006 prove that an assessment of Plaintiff's taxes for 1984, 1985, 1986, and 1987 took place.

The Plaintiff has objected to the introduction of the RACS Report-006, asserting that the RACS Report-006 is not the "summary record of assessment" referenced in 26 C.F.R. §301-6203-1. The Plaintiff contends that the proper "summary record of assessment" is an IRS Form 23C. Plaintiff's objection is without merit. The computerized RACS Report-006 replaced the IRS Form 23C for assessments taking place after 1984. See Leier v. Department of Treasury, No. 92-0583-CIV-ORL-18, 1993 WL 597116 (M.D. Fla. Nov. 18, 1993 ); see also Fuller v. Internal Revenue Service, No. Civ.A.96-888, 1997 WL 191034 (Mar. 4, 1997); Federal Tax Coordinator ¶T-3605 (2d ed.). The Court concludes that the RACS Report-006 is the "summary record of assessment" referenced in 26 C.F.R. §301-6203-1, and will look to it to ascertain whether the IRS complied with 26 C.F.R. §301-6203-1.

Plaintiff's IRS Form 4340 is a summary of Plaintiff's tax information contained within his IRS Individual Master File. On its face, the Form 4340 corroborates the United States ' contention that Plaintiff's taxes for 1984, 1985, 1986, and 1987 were assessed within three years of Plaintiff filing his return. Form 4340 notes that Plaintiff filed his tax returns for these tax years on April 5, 1988 , and that the taxes were initially assessed on June 6, 1988 .

By presenting the Court with Plaintiff's IRS Form 4340, the United States has presumptively established the IRS's compliance with 26 U.S.C. §§6201 and 6203, which provide that the Secretary of Treasury is required, within three years of the taxpayer filing his return, to assess all unpaid taxes imposed by the tax code, and record such assessment. It is generally held that a Form 4340 is presumptive proof of a valid assessment and compliance with sections 6201 and 6203. See Valdez v. United States, No. 93-15219, 1994 WL 143071 (9th Cir. Apr. 21, 1994 ) ("Generally, courts have held that IRS Form 4340 provides at least presumptive evidence that a tax has been validly assessed under section 6203."); Ketcham v. United States [99-2 USTC ¶50,796], No. 97-WY-1461-CB, 1999 WL 718550 (D. Colo. July 26, 1999 ) (Form 4340 "presumptively establishes that the assessment was duly made"). "Because Form 4340 is an official document which establishes that assessments were made," where the taxpayer presents no evidence contrary to the information contained within the Form 4340, the taxpayer's contention that no assessment took place should fail as a matter of law. See Hughes v. United States [92-1 USTC ¶50,086], 953 F.2d 531, 535 (9th. Cir. 1992); see also Stallard v. United States [94-1 USTC ¶50,056], 12 F.3d 489, 493 (5th Cir. 1994).

Nevertheless, liberally construed, Plaintiff's pleadings and various motions contend that the information contained in the Form 4340 is inaccurate. Thus, the Court must look beyond the Form 4340 to determine whether the IRS in fact complied with the provisions of the tax code and assessed Plaintiff's taxes for 1984, 1985, 1986, and 1987.

As noted above, 26 C.F.R. §301-6203-1 provides that the assessment shall be made by an assessment officer signing the summary record of assessment, the RACS Report-006. The date of the assessment is the date the RACS Report-006 is so signed. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, and the amount of the assessment.

The Form 4340 provides that the IRS assessed Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, on June 6, 1988 . ³ To corroborate this and to prove that 26 C.F.R. §301-6203-1 was in fact complied with, the United States has submitted to this Court the RACS Report-006 of June 6, 1988 . ⁴ The June 6, 1988 , RACS Report-006, as the summary record of assessment, confirms the assessment of Plaintiff's taxes. Pursuant to 26 C.F.R. §301-6203-1, it is signed by an assessment officer, confirming that the summary assessment took place on June 6, 1988 .

While the June 6, 1988, RACS Report-006 does not provide specific information about the Plaintiff's individual assessment, such information is not required to actually appear in the summary record of assessment. The RACS Report-006 does not provide the individual identification of the Plaintiff, the character of the liability assessed against the Plaintiff, the taxable period, or the amount of the Plaintiff's assessment. Indeed, 26 C.F.R. §301-6203-1 provides that 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." However, the United States Court of Appeals for the Fifth Circuit has held that the specific information about a taxpayer's individual assessment need not appear in the summary record of assessment in order for the summary assessment to be valid. See Stallard [94-1 USTC ¶50,056], 12 F.3d at 492-94. Rather, the Fifth Circuit provided that the specific information about the taxpayer's assessment need only appear in a "supporting record," as provided by the language of 26 C.F.R. §301-6203-1. Id. A taxpayer's Form 4340 constitutes as such a supporting record. Id. Moreover, while the summary record of assessment must be signed within the three-year period of limitations, the assessment is valid even if the supporting record is not made during the three-year period, and even if the supporting record is prepared because of the taxpayer's suit against the United States. Id. ⁵ In the present case, the Court concludes that Plaintiffs Form 4340 provides the specific information about the Plaintiff as required by 26 C.F.R. §301-6203-1.

Therefore, the Court concludes that the IRS properly assessed Plaintiff's taxes as required by 26 U.S.C. §§6201 and 6203 and 26 C.F.R. §301-6203-1. The June 6, 1988 , RACS Report-006, which constitutes as the summary record of assessment, was signed by an assessment officer on June 6, 1988 , thus corroborating the information provided in the Form 4340. Further, while the RACS Report-006 does not contain the identification of the Plaintiff, the character of the liability assessed against the Plaintiff, the taxable period, or the amount of the Plaintiff's assessment, such information need not be provided in such RACS Report-006. Rather, as the Fifth Circuit has held, pursuant to 26 C.F.R §301-6203-1, such information need only be provided in a supporting record. The Plaintiff's IRS Form 4340 constitutes as such a supporting record, and provides the identification of the Plaintiff, the character of the liability assessed against the Plaintiff, the tax taxable period, and the amount of the Plaintiff's assessment. Thus, a valid assessment took place.

2. The IRS complied with 26 U.S.C. §6303 and sent Plaintiff a notice of assessment and demand for payment.

The Court has concluded that the IRS properly assessed Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, on June 6, 1988 . The Court now addresses Plaintiff's contention that even if the IRS assessed Plaintiff's taxes, the Plaintiff did not receive a notice of assessment and demand for payment as required by 26 U.S.C. §6303. Section 6303 provides that within sixty days after the making of an assessment of a tax pursuant to section 6203, the Secretary of Treasury shall issue a notice of assessment and demand for payment to a taxpayer who is still liable for unpaid taxes. See generally United States v. McCallum [92-2 USTC ¶50,448], 970 F.2d 66, 69 (5th Cir. 1992). Plaintiff contends that he never received this section 6303 notice of assessment and demand for payment.

In order to comply with section 6303, the United States must demonstrate that the IRS sent the Plaintiff a notice of assessment and demand for payment by August 7, 1988 . The United States ' Answer to Plaintiff's Third Amended Complaint averred that the IRS so complied with section 6303. In its Response to Plaintiff's Motion for Summary and in its own Motion for Summary Judgment, the United States again asserted that the IRS fulfilled the requirements of section 6303. To support the contention, the United States again relied on Plaintiff's IRS Form 4340.

Plaintiff's IRS Form 4340 confirms that the IRS sent the Plaintiff a section 6303 notice of assessment and demand for payment by August 7, 1988 . Form 4340 provides that the IRS initially sent the Plaintiff a "notice of balance due" on June 6, 1988 . The IRS followed this notice with a "delinquency notice" on June 27, 1988 . Subsequent delinquency notices followed on March 18, 1991 , and June 19, 1995 .

The Court concludes that the United States has established through the Plaintiff's Form 4340 that the IRS provided Plaintiff with a notice of assessment and demand for payment as required by section 6303. ⁶ It is generally held that where a taxpayer contends that he did not receive a notice of assessment and demand for payment as required by section 6303, and the United States counters by presenting an IRS Form 4340 indicating that such notice and demand were in fact sent to the taxpayer, the Form 4340 "is sufficient to establish that the notices were sent, and that the notices satisfied the requirements of §6303(a) by informing the [taxpayer] of the amount owed, and by requesting payment. The IRS does not have to prove that Plaintiffs received the notices, only that they were properly sent." Bliss v. United States [92-2 USTC ¶50,528], No. CS-92-088-JLQ, 1992 WL 360536 (E.D. Wash. July 8, 1992); see also Hughes [92-1 USTC ¶50,086], 953 F.2d at 535-36. As noted, Plaintiff does not specifically deny that the IRS sent him the section 6303 notice of assessment and demand for payment, only that he failed to receive it. However, as noted above, courts have generally held that the section 6303 notice and demand is valid even though the taxpayer does not receive actual notice, provided the records of the IRS reflect that notice and demand were mailed. See Bliss [92-2 USTC ¶50,528], 1992 WL 360536, at *4; Hahn v. United States [77-1 USTC ¶9334], No. CV 75-3983-FW, 1977 WL 1119 (C.D. Cal. Mar. 11, 1977) ("As long as the records of the Internal Revenue Service reflect that notice and demand was properly mailed to the taxpayers' last known address, it is irrelevant that the taxpayers did not receive actual notice.").

3. Plaintiff's IRS Form 4340 is admissible evidence.

Finally, Plaintiff has objected to the United States ' introduction of the IRS Form 4340 as evidence. This Court's April 16, 2001 , Order concluded that the Form 4340 is admissible evidence. On the record now before it, the Court is satisfied that the Form 4340 accurately represents the information contained within Plaintiff's IRS Individual Master File. Moreover, it is evident from the above discussion that courts find the Form 4340 admissible. See generally Bliss [92-2 USTC ¶50,528], 1992 WL 360536, at *3-4; Schmidt v. Internal Revenue Service [89-2 USTC ¶9529], 717 F.Supp. 763 (D. Kan. 1989). Courts typically rely upon Federal Rules of Evidence 803(8) and Rule 902(1) to find the Form 4340 admissible. Plaintiff has cited no case law providing that the Form 4340 is not admissible. Therefore, the Court concludes, as it did in its April 16, 2001 , Order, that the Plaintiff's IRS Form 4340 is admissible evidence.

B. Was the IRS required to issue Plaintiff a notice of deficiency pursuant to 26 U.S.C. §6212 prior to placing the tax lien on his property?

Plaintiff's next contention involves whether the IRS complied with the procedural notice requirements in filing the tax lien on Plaintiff's property. In his Third Amended Complaint and his Motion for Summary Judgment, Plaintiff contends that if the IRS failed, pursuant to 26 U.S.C. §6212, to issue notices of deficiency prior to the filing of the lien, such lien is invalid. The United States asserts that Plaintiff's tax deficiencies that gave rise to the liens are not the type of "deficiencies," as defined by the tax code, that trigger the notice provisions of section 6212. According to the United States , because no notices of deficiency were required prior to placing the lien on Plaintiff's property, the liens are valid. The Court agrees with the United States .

It is generally true that before the IRS may file a lien against a person's property, it must first send him a deficiency notice. 26 U.S.C. §6212 has been interpreted to provide that if the IRS determines the existence of a tax "deficiency," "[b]efore the IRS may file a lien against a taxpayer's property it must send the taxpayer a notice of deficiency." McCarty [92-1 USTC ¶50,222], 929 F.2d at 1089. The purpose of the deficiency notice is to enable the taxpayer to challenge the alleged deficiency in Tax Court within ninety days before the payment is due. See 26 U.S.C. §6213(a); Murray v. Commissioner of Internal Revenue [94-1 USTC ¶50,243], 24 F.3d 901, 903 (7th Cir. 1994). Conversely, if it is determined that no tax "deficiency" exists, the IRS is not required by section 6212 to send any type of notice of deficiency before placing a lien on a taxpayer's property.

If this Court can determine that the IRS was not required to send the Plaintiff a notice of deficiency before placing a lien on his property, this Court need not address the question of whether the IRS in fact issued any such deficiency notice. The Court begins with the tax code's definition of the term "deficiency."

26 U.S.C. §6211(a) provides that a "deficiency," for tax code purposes, is generally the amount of tax due less the amount the taxpayer reported due on his return. ⁷ See, e.g., Laing v. United States [76-1 USTC ¶9164], 423 U.S. 161, 173-74 (1976) ("In essence, a deficiency as defined in the Code is the amount of tax imposed less any amount that may have been reported by the taxpayer on his return. §6211(a)."); see also Meyer v. Commissioner of Internal Revenue [CCH Dec. 47,741], 97 T.C. 555 (T.C. 1991) ("In general, the term "deficiency" is defined as the amount by which the tax imposed exceeds the sum of the amount of tax shown on the return and the amount of tax previously assessed."). Thus, the tax code employs the term "deficiency" where a taxpayer reports on his return that he owes an amount less than what the IRS determines he actually owes. In this situation, the IRS must issue a section 6212 notice of deficiency before it can place a lien on the taxpayer's property in an effort to collect such liability. ⁸

In contrast, section.6211(a) provides that there is no "deficiency," in the tax code sense, where a taxpayer reports on his return that he owes an amount, but simply fails to remit such amount to the IRS. In this circumstance, because there is no "deficiency," the IRS is not required to issue a notice of deficiency before placing a lien on the taxpayer's property, because, presumably, the taxpayer is already on notice as to the amount in taxes he owes to the government.

While the Fifth Circuit has not dealt with this reading of "deficiency" and when section 6212 is triggered, case law from other jurisdictions is in agreement with the above analysis. The Court notes the Seventh Circuit's detailed explanation of when the §6212 notice provision is triggered:

The IRS is authorized to make various types of assessments (26 U.S.C. §6201), and among the most common are summary assessments and deficiency assessments. The tax owed by an individual taxpayer in accordance with his personal income tax return is technically "assessed" under section 6201(a)(1). A deficiency assessment, by contrast, generally results from a finding that a tax return understates the taxpayer's liability or that the taxpayer failed to file a return. The deficiency is the tax imposed by the IRS, less the tax determined by the taxpayer to be owed on his return. 26 U.S.C. §6211(a); Laing v. United States [76-1 USTC ¶9164], 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976). Unlike a summary assessment, a deficiency assessment requires the IRS to follow a number of statutory steps before it may undertake to collect the deficiency. For instance, the IRS must send the taxpayer a notice of deficiency (26 U.S.C. §6212(a)) and then refrain from further action for ninety days, during which time the taxpayer is authorized to file a petition for a redetermination in the Tax Court. 26 U.S.C. §6213(a).

Murray [94-1 USTC ¶50,243], 24 F.3d at 902-03 (before Chief Judge Posner and Circuit Judges Ripple and Rovner).

The Court also notes the District Court of Colorado's discussion of when a notice of deficiency is required:

[Taxpayer] claims that the liens and levies filed by [the IRS] against his property for tax years 1987 through 1992 are invalid because no notices of deficiency were issued to him for those tax years as required by 26 U.S.C. §6212(a). As noted by the District Court in the March 3, 1998 Order denying plaintiffs' motion for temporary restraining order, at p. 3, 26 U.S.C. §6212(a) is not applicable in the instant action. The record before the court shows that [taxpayer] filed income tax returns for tax years 1987 through 1992 which reflect income tax owed. . . . The tax owed by a taxpayer as a result of the information provided on his personal income tax return is considered to be summarily "assessed" within the meaning of 26 U.S.C. §6201(a)(1). See Murray v. Commissioner of Internal Revenue [CCH Dec. 47,741], 97 T.C. 555, 559-60 (1991); Murray [94-1 USTC ¶50,243], 24 F.3d at 903. Accordingly, plaintiffs' claim that the liens and levies filed against [taxpayer]'s property are invalid for failure to comply with statutory deficiency procedures should be dismissed.

Gass v. United States Dep't. of the Treasury [2000-1 USTC ¶50,422], No. Civ.A.98-B-75, 1999 WL 250890 (D. Colo. Mar. 30, 1999). See also Ketcham v. United States [99-2 USTC ¶50,796], No. 97-WY-1461-CB, 1999 WL 718550 (D. Colo. July 26, 1999) ("The plaintiff filed a signed United States Individual Tax Return, Form 1040, for 1993 on August 14, 1994. It showed tax due in the amount of $2561.00, and payment due in the amount of $820.27. . . . [T]he Court finds that the United States was not required to issue a notice of deficiency because the assessed amount was based on Plaintiff's self-reported liability on his 1993 Income Tax return. . . . Therefore, because the plaintiff filed his individual income tax return showing tax due in the amount of $2561.00 and payment due in the amount of $820.27, the IRS was not required to issue a notice of deficiency as Plaintiff contends."); Miklaski v. United States [98-1 USTC ¶50,386], 18 F.Supp.2d 707 (E.D. Mich. 1997) ("Thus, it is apparent that the IRS based its assessment of plaintiff's liability for taxes and penalties on his tax returns. For this reason, no deficiency notice was required. . . . Plaintiff was not entitled to a notice of deficiency under §6212. . . ."); Larsen v. United States , No. C96-693D, 1996 WL 848210 (W.D. Wash. 1996) ("defendant's assessments were based on plaintiff's filed tax returns, so deficiency notices were not required"); IBEW Local Union No. 640 v. Forman [95-2 USTC ¶50,601], Civ. No. 94-2431 PHX PGR, 1995 WL 735743 (D. Ariz. Sept. 20, 1995) ("Third, the IRS was not required to issue a notice of deficiency for the 1992 and 1993 tax years because the IRS is authorized by 26 U.S.C. §6201(a)(1) to assess tax liabilities based on liabilities reported in the joint returns filed by the [taxpayers] without resort to the deficiency assessment procedure."); Meyer v. Commissioner of Internal Revenue [CCH Dec. 47,741], 97 T.C. 555 (T.C. 1991) ("[The IRS] is authorized to immediately (summarily) assess and collect the amount of taxes that are computed and shown due on a taxpayer's original income tax return, as well as the amount of any additional taxes computed and shown due on a subsequently filed amended income tax return. . . . [These] assessments are assessments not subject to the deficiency procedures. . . .").

In summary, the IRS is required to issue a section 6212 notice of deficiency prior to placing a tax lien on a taxpayer's property where such lien is based on the taxpayer understating the amount of taxes owed on his tax return. However, the IRS is not required to issue a section 6212 notice of deficiency prior to placing a tax lien on a taxpayer's property where such lien is based upon the tax return filed by the taxpayer, coupled with such taxpayer's failure to remit the amount owed as indicated by the return.

The present Record before the Court indicates that the tax lien on Plaintiff's property was not based upon Plaintiff understating the amount of taxes owed on his return. Rather, the tax lien on Plaintiff's property is based on Plaintiff's failure to remit the amount he himself indicated that he owed on his return. The United States has established that the taxes reflected on the lien on Plaintiff's property, as of the date of the execution of the lien, were based solely upon the tax liabilities reflected as due on the Plaintiff's tax returns. ⁹ The Plaintiff does not contest this statement. Therefore, section 6212 did not require the IRS to issue a notice of deficiency prior to placing a lien on Plaintiff's property on April 17, 1989 . Because the IRS was not required to send such notice, the issue of whether the IRS actually sent such notice is moot.

C. The IRS's attempts to collect Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, including its Counterclaim seeking to reduce Plaintiff's tax liabilities to judgment, are not time-barred.

The Plaintiff asserts that the United States ' attempt to collect his taxes for 1984, 1985, 1986, and 1987 is time-barred. 26 U.S.C. §6502(a)(1) and 26 C.F.R. §301.6502-1 provide generally that a court proceeding to collect an assessed tax must be made within ten years of the assessment. As noted above, the Court has concluded that the IRS initially assessed Plaintiff's taxes for 1984, 1985, 1986, and 1987 on June 6, 1988 . The Plaintiff contends that the statute of limitations to collect his unpaid taxes expired on June 6, 1998 . Because the United States did not file its Counterclaim until May 16, 2001 , the Plaintiff argues that the Counterclaim is time-barred. The Court disagrees.

26 U.S.C. §6502(a)(1) and 26 C.F.R. §301.6502-1 provide that the ten-year period of collection after assessment may be extended for any period of time agreed upon in writing by the taxpayer and the IRS. On May 14, 1997, Plaintiff and his spouse executed an IRS Form 900. ¹⁰ By its own terms, the Form 900 extended the statutory period to collect Plaintiff's taxes from June 6, 1998, to December 31, 2000. See generally Cox v. United States [99-2 USTC ¶50,763], No. Civ.A. 96-2244, 1999 WL 527736 (E.D. La. July 22, 1999). Subsequently, in March 2000, ¹¹ pursuant to 26 U.S.C. §6330, Plaintiff requested a due process hearing before the IRS Office of Appeals. Section 6330(e)(1) provides that this request for a hearing tolled the otherwise applicable statute of limitations provided for in section 6502(a)(1) for a "period during which such hearing, and appeals therein, are pending." On September 7, 2000, the IRS Office of Appeals rejected Plaintiff's administrative appeal. Therefore, the applicable statute of limitations was tolled from March 2000 to September 7, 2000.

The statutory period to bring an action to collect Plaintiff's taxes, after the Form 900 extension and the section 6330(e)(1) tolling, would have expired sometime after June 1, 2001 . Because the United States ' filed its Counterclaim on May 16, 2001 , the Court concludes that the United States ' attempts to collect and the Counterclaim are not time-barred.

D. This Court is without jurisdiction to decide issues relating to Plaintiff's Administrative Action.

On March 18, 1997 , the IRS served a notice of levy on wages and salary upon Perez's former employer. In his Third Amended Complaint, Plaintiff asserts that the IRS failed to notify him of this levy as required by 26 U.S.C §6331. The levy issue is the subject matter of Plaintiff's administrative action, and, as noted in this Court's April 16, 2001 , Order, jurisdiction over the administrative action does not lie with this Court.

IV. Conclusion

The United States ' Motion for Summary Judgment is hereby granted. The Court is now faced with the task of ascertaining Plaintiff's exact tax liability, with interest and penalties. Therefore, the Court hereby orders the parties to submit briefs to this Court no later than October 22, 2001 , addressing the issue of Plaintiff's exact tax liability, with interest, penalties, and credits, as of November 1, 2001 .

¹ The Record before the Court does not identify the property subject to the lien.

² While Plaintiff's civil action is one to quiet title to his property, the United States has filed a counterclaim seeking to reduce to judgment the taxes, penalties, and interest the United States contends that the Plaintiff owes. The Court notes that the United States Court of Appeals for the Fifth Circuit has held that the failure to give the 26 U.S.C. §6303 notice of assessment and demand for payment "does not bar the government from bringing a civil action against a taxpayer to collect unpaid taxes." United States v. McCallum, 970 F.2d 66, 70 (5th Cir. 1992). Nevertheless, as provided infra, the Court concludes that the IRS in fact complied with the requirements of Section 6303.

³ This was the only assessment of Plaintiff's taxes prior the execution of the tax lien on Plaintiff's property. See infra footnote 9 for a discussion of reassessments subsequent to the filing of the lien.

⁴ The United States has also submitted two other RACS Report-006, from September 11, 1989 , and June 11, 1990 . These two "summary records of assessments" address reassessments of Plaintiff's taxes after the execution of the lien. See infra footnote 9 for a discussion of reassessments subsequent to the filing of the lien.

⁵ The Court notes that Plaintiff relied on the district court's opinion in Stallard v. United States [92-2 USTC ¶50,596], 806 F.Supp. 152 (W.D. Tex. 1992), aff'd on other grounds [94-1 USTC ¶50,056], 12 F.3d 489, 493 (5th Cir. 1994), and not the Fifth Circuit's opinion in the case on appeal. The Fifth Circuit noted about the district court's opinion in Stallard:

The district court held that the IRS failed to assess the penalty tax before the statute of limitations expired. The district court concluded that our opinion in Brafman v. United States requires that all provisions of Treasury Regulation §301.6203-1 must be met within the limitation period. Although the summary record of assessment on Form 23C was prepared timely, the supporting document, Form 4340--which provided the information identifying the taxpayer, the character of the tax, and the applicable tax period as required by §301.6203-1--was not prepared until February 10, 1992 , more than one year after the extended limitation period expired. As conceded by Stallard, though, the district court erred by reading Brafman too broadly. We held in Brafman that the "assessment certificate" must be timely signed by the appropriate official; but the certificate we were referring to in that opinion was the summary record of assessment named in §301.6203-1. That holding is consistent with §301.6203-1, which provides that "the assessment shall be made by an assessment officer signing the summary record" and "[t]he date of assessment is the date the summary record is signed by an assessment officer." In contrast, to extend Brafman to require that the supporting record must also be prepared within the prescriptive period would place Brafman in direct conflict with the plain language of §301.6203-1.

Stallard [94-1 USTC ¶50,056], 12 F.3d at 493-94 (footnotes omitted).

⁶ Courts have generally held that the form on which a Section 6303 notice of assessment and demand for payment is made is irrelevant as long as it provides the taxpayer with the information required by the statute. See Hughes [92-1 USTC ¶50,086], 953 F.2d at 536; Bliss v. United States [92-2 USTC ¶50,528], No. CS-92-088-JLQ, 1992 WL 360536 (E.D. Wash. July 8, 1992 ). The statute merely requires that the IRS state the amount owed and demand payment. 26 U.S.C. §6303.

⁷ 26 U.S.C. §621(a) provides:

(a) For purposes of this title in the case of income, estate, and gift taxes imposed by subtitles A and B and excise taxes imposed by chapters 41, 42, 43, and 44 the term "deficiency" means the amount by which the tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44 exceeds the excess of--

(1) the sum of

(A) the amount shown as the tax by the taxpayer upon his return, if return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus

(B) the amounts previously assessed (or collected without assessment) as a deficiency, over--

(2) the amount of rebates, as defined in subsection (b)(2), made.

⁸ This makes sense. If the taxpayer believes in error, that he owes in taxes the amount reported on his tax return, the IRS should be required to notify the taxpayer that he actually owes a greater amount before it can employ a collection measure, such as placing a lien on property.

⁹ After the IRS executed the tax lien on Plaintiff's property, the IRS reassessed Plaintiff's taxes for tax years 1984 and 1987 and determined that Plaintiff had, in fact, understated his tax liability for those tax years. On July 26, 1989, Plaintiff executed and signed an IRS Form 4549, designated an Income Tax Examination Changes Form. In the Form 4549, Plaintiff acknowledged that he had understated his taxes for tax year 1984 by $1442.00. Plaintiff's Form 4340 indicates that this additional $1442.00 was assessed by the IRS on September 11, 1989. Furthermore, on March 6, 1990, Plaintiff executed and signed an IRS Proposed Changes to 1987 Income Tax. In this form, Plaintiff also acknowledged that he had understated his taxes for tax year 1987 by $303.00. Plaintiff's Form 4340 also indicates that this additional $303.00 was assessed by the IRS on June 11, 1990. Ordinarily, a determination by the IRS that a taxpayer understated his tax liability on his tax return, thus creating a "deficiency" under the tax code, would require the IRS to issue a 26 U.S.C. §6212 notice of deficiency prior to placing a lien on such taxpayer's property. The Court finds that even though a "deficiency," as defined by 26 U.S.C. §6211 did ultimately exist as to Plaintiff's 1984 and 1987 taxes, such "deficiency" did not exist until well after the lien was placed on the Plaintiff's property. The Court thus concludes that the IRS was not required to send a notice of deficiency and impending lien after the lien's execution, where the lien when issued was procedurally valid. As noted, the reassessment of Plaintiff's taxes took place well after the tax lien had been placed on his property on April 17, 1989, and after Plaintiff already had knowledge of the lien's execution. Furthermore, by signing the Form 4549 and the Proposed Changes to 1987 Income Tax form, the Plaintiff had adequate notice of the reassessments occurring after the execution of the lien on his property. The information in these two forms provided as much information as a section 6212 notice form would have provided. Finally, as to the 1984 tax reassessment of $1442.00, the Plaintiff specifically consented to the "immediate assessment and collection" of the increase in tax liability.

¹⁰ Plaintiff's objections to the introduction and validity of the Form 900 are without merit. The IRS regularly employs the Form 900, and Courts generally accept them as extending the statutory period for collection of unpaid taxes. See generally Cox v. United States [99-2 USTC ¶50,763], No. Civ.A. 96-2244, 1999 WL 527736 (E.D. La. July 22, 1999 ); Foutz v. United States [96-1 USTC ¶50,029], 72 F.3d 802 (10th Cir. 1995). Plaintiff's assertion that the IRS Restructuring and Reform Act of 1998 now requires the IRS to advise the taxpayer of his right to refuse the extension of the statute of limitations for collection is also without merit. The 1998 Act only requires the IRS to advise the taxpayer of his right not to extend the statutory period for actually assessing the tax itself. See 26 U.S.C. §6501(c).

¹¹ The Record does not indicate which date in March 2000 the Plaintiff requested the hearing.

[Dec. 54,495] Gary G. Boyd v. Commissioner

Docket No. 6677-00L., 117 TC --, No. 12, 117 TC 127, Filed September 28, 2001

[Appealable, barring stipulation to the contrary, to CA-6]

[Code Secs. 6330 , 6501 , 6502 , and 6503 ; Tax Court Rule 161 ]

[Collection due process hearing: Statute of limitations: 10-year period: Three-year period: Deficiencies: Evidence, inadequacy of: Levy actions: Certified transcripts: Request for rehearing, denied: Court-appointed counsel.]Held: Petitioner's request for a sec. 6330 hearing suspended the applicable 10-year limitations period for collecting petitioner's Federal income taxes for taxable years 1989 and 1990, and respondent is not time barred from collecting those taxes.Held, further, petitioner has failed to show that he paid the subject tax liabilities for taxable years 1991, 1992, 1993, 1996, and 1997.Held, further, petitioner's request for a new trial is denied.

Gary G. Boyd, pro se. A. Gary Begun, for the respondent.

THORNTON, Judge:

Petitioner seeks review under section 6330(d) of a determination made by respondent's Office of Appeals that respondent's action to collect by levy certain income taxes for 1989, 1990, 1991, 1992, 1993, 1996, and 1997 may proceed. Petitioner contests the levy on grounds that respondent is time barred from collecting taxes for taxable years 1989 and 1990, and that petitioner has already paid the subject tax liabilities for the other years in issue.

Unless otherwise indicated, all section references are to the Internal Revenue Code presently in effect, and all Rule references are to the Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT

The parties have stipulated some of the facts, which we incorporate herein by this reference. When petitioner filed his original and amended petitions, he resided in White Lake , Michigan .

Throughout the years in issue, petitioner was a self-employed, independent contractor who worked as a carpet installer for various companies. For each taxable year in issue, petitioner filed a timely Federal income tax return. ¹ When he filed these returns, petitioner remitted no payments for any of the taxes owed. Respondent assessed tax liabilities against petitioner for these taxable years pursuant to the Federal income tax returns petitioner filed. ²

On February 27, 1999 , respondent mailed to petitioner a letter captioned "Final Notice--Notice of Intent to Levy and Notice of Your Right to a Hearing" for unpaid tax liabilities for taxable years 1989, 1990, 1991, and 1992. Also on February 27, 1999 , respondent's agent mailed to petitioner and to petitioner's former wife, Linda A. Boyd (Linda), a letter captioned "Final Notice--Notice of Intent to Levy and Notice of Your Right to a Hearing" for unpaid tax liabilities for taxable years 1993, 1996, and 1997. Each letter was accompanied by a Form 12153, Request for a Collection Due Process Hearing (Form 12153), which a taxpayer may use to request a section 6330 hearing.

On March 20, 1999 , respondent received from petitioner a completed Form 12153, submitted on behalf of petitioner and Linda, requesting a section 6330 hearing. In that form, petitioner contended, among other things, that the applicable statute of limitations barred collection of his tax liability for taxable year 1989 and that he previously had paid his tax liabilities for taxable years 1990, 1991, 1992, 1993, 1996, and 1997.

By letter dated February 29, 2000 , respondent sent petitioner copies of respondent's transcripts of petitioner's accounts for the subject taxable years. The letter stated that if petitioner felt that he was not properly credited for any payment, he should provide respondent supporting documentation. Petitioner did not provide respondent any documentation to support the allegations contained in his Form 12153.

On April 7, 2000 , respondent sent petitioner a letter informing him that the requested section 6330 hearing would be scheduled for May 4, 2000 , at 2:30 p.m. The letter stated that if petitioner did "not appear for the hearing or call to reschedule, *** [his] case will be closed in Appeals and a Determination Letter will be issued." Petitioner failed to attend the scheduled section 6330 hearing and did not call to reschedule it.

On May 22, 2000 , respondent sent petitioner a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330 (notice of determination). The notice of determination stated that petitioner would not be granted relief pursuant to section 6330 because, among other things, petitioner did not appear at the scheduled section 6330 hearing and did not present any documentation to challenge the assessed tax liabilities. The notice of determination further stated that the 10-year period of limitations for collecting petitioner's 1989 tax liability was still open and that respondent's transcripts of petitioner's account did not show that any payments had been made with respect to petitioner's taxable years 1990, 1992, 1993, 1996, or 1997, and that only two payments (both in 1993) had been made with respect to petitioner's 1991 taxable year.

On June 16, 2000 , in response to the notice of determination, petitioner filed with the Court an imperfect petition. On August 15, 2000 , petitioner filed an amended petition, disputing respondent's determinations on grounds that: (1) The applicable period of limitations bars collection for taxable years 1989 and 1990, and (2) the taxes owed for the taxable years 1991, 1992, 1993, 1996, and 1997 were previously paid.

OPINION

Section 6330 provides for notice and opportunity of a hearing before the Internal Revenue Service (IRS) may levy upon the property of any person. Section 6330(b)(1) provides that if the person requests a hearing, "such hearing shall be held by the Internal Revenue Service Office of Appeals." Section 6330(c)(2)(B) allows challenges to the existence or amount of the underlying tax liability only if the person did not receive a notice of deficiency or have an opportunity to dispute the liability. ³

Section 6330(d) provides for judicial review of the Commissioner's administrative determination. Where the validity of the underlying tax liability is properly in issue, this Court reviews the matter de novo. Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 39 (2000).

Is Respondent Time Barred From Collecting Petitioner's Tax Liabilities for 1989 and 1990?

Petitioner contends that respondent is time barred from collecting his Federal income tax liabilities for taxable years 1989 and 1990. We review this matter de novo. See MacElavain v. Commissioner [Dec. 54,083(M)], T.C. Memo. 2000-320 (a claim that the limitations period has expired constitutes a challenge to the underlying tax liability).

The amount of any Federal income tax imposed generally must be assessed within 3 years after a Federal income tax return is filed. Sec. 6501(a). Where the assessment of Federal income tax is made within the relevant period of limitations, the tax may be collected by levy if the levy is made within 10 years after the assessment of the tax. Sec. 6502(a)(1). ⁴ If the taxpayer requests a hearing under section 6330(a)(3)(B), the levy actions that are the subject of the requested hearing and the running of the period of limitations set forth in section 6502 "shall be suspended for the period during which such hearing, and appeals therein, are pending." Sec. 6330(e)(1).

Respondent assessed petitioner's 1989 and 1990 Federal income tax liabilities on May 21, 1990 , and May 20, 1991 , respectively--i.e., within 3 years after petitioner filed Federal income tax returns for those years. On March 20, 1999 , respondent received petitioner's Form 12153 requesting a section 6330 hearing for, among other years, taxable years 1989 and 1990. Consequently, as of March 20, 1999 , the running of the applicable 10-year limitations period (which as of that date had not expired for taxable years 1989 or 1990) was suspended and remains suspended. See sec. 6330(e)(1); sec. 301.6330-1T(g)(2), A-G1, Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3412 (Jan. 22, 1999). Thus, respondent is not time barred from collecting petitioner's Federal income tax liabilities for taxable years 1989 and 1990.

Petitioner has raised no other issue concerning his Federal income tax liabilities for taxable years 1989 and 1990. We conclude that petitioner is not entitled to the relief he seeks for those years.

Has Petitioner Already Paid His Tax Liabilities for the Other Taxable Years in Issue?

Petitioner contends that he has already paid his Federal income tax liabilities for taxable years 1991, 1992, 1993, 1996, and 1997. Because the validity of the underlying tax liability--i.e., the amount of tax owed that remains unpaid--is properly in issue for these taxable years, we review respondent's determinations for these years de novo. See Landry v. Commissioner [Dec. 54,224], 116 T.C. 60, 62 (2001).

Respondent introduced certified transcripts of account for petitioner's Federal income taxes for each of the taxable years in issue. These transcripts reflect, among other things, petitioner's tax liabilities for taxable years 1991, 1992, 1993, 1996, and 1997 and all payments received for those liabilities. The transcripts show that petitioner made some payments for his back taxes, but balances remain that are consistent with the amounts that respondent is now attempting to collect.

Petitioner alleges that he previously entered into an agreement with the IRS, pursuant to which certain amounts were withheld from his paychecks and remitted to the IRS to cover his back taxes. Petitioner also contends that he sent money orders to the IRS's Chicago office to pay some of his back taxes.

Petitioner failed to present credible evidence of his alleged payment agreement with the IRS or of the amounts he alleges were withheld from his paychecks or otherwise paid to respondent. Petitioner's self-serving, uncorroborated testimony inadequately substantiates the alleged payments. See Tokarski v. Commissioner [Dec. 43,168], 87 T.C. 74, 77 (1986).

Petitioner did introduce into evidence two 1998 paycheck stubs that indicate two separate withholdings of $157.43, listed on each paycheck stub as "MISC. DEDUCTIONS". Petitioner handwrote "IRS Levy Proceeds" on one of the paycheck stubs. Respondent's transcripts for taxable year 1989 show one $157.43 payment credited to petitioner's account. There is no evidence to establish that the other alleged payment, if it was in fact made, should have been credited to petitioner's tax liabilities for taxable years 1991, 1992, 1993, 1996, or 1997, which are the only years for which petitioner has argued that respondent failed to give him proper credit for payments made.

Petitioner also placed into evidence copies of the fronts of two money orders in the amounts of $299.99 and $434, dated June 10, 1994 , and September 3, 1997 , respectively, and both made payable to the IRS. The evidence does not indicate, however, whether those money orders were ever negotiated. The IRS has no record of having received either money order.

Without credible evidence showing that petitioner made greater payments to the IRS than are reflected in the transcripts, we cannot assume that petitioner previously paid the tax liabilities respondent is now attempting to collect. Accordingly, we conclude that respondent correctly determined that collection efforts for taxable years 1991, 1992, 1993, 1996, and 1997 should proceed.

Petitioner's Request for a New Trial

On brief, petitioner requests that he be granted a new trial and that a "tax attorney" be appointed to represent him. Petitioner contends that with the assistance of a court-appointed attorney he could obtain additional evidence to support his contentions that he has already paid certain Federal income taxes that respondent is seeking to collect. ⁵

A rehearing is an extraordinary measure and will be granted only for good cause shown. Pierce Oil Corp. v. Commissioner [Dec. 8555], 30 B.T.A. 469, 475 (1934). We see no reason to give petitioner a rehearing based on his belated desire to be represented by counsel or on his hope that he might develop evidence that he has failed to develop or present thus far. Petitioner chose to appear at trial pro se and was afforded a full opportunity to be heard and represent himself pursuant to Rule 24(b). Although he could have secured representation for trial if he had so chosen, he has no basis to complain that the Court did not compel him to do so or did not appoint counsel for him. ⁶ See Crane-Johnson Co. v. Commissioner [39-2 USTC ¶9652], 105 F.2d 740 (8th Cir. 1939), affg. [Dec. 10,529] 38 B.T.A. 1355 (1938), affd. [40-2 USTC ¶9756] 311 U.S. 54 (1940). Petitioner has not shown that his failure to present additional evidence was not due to a lack of diligence on his own part or that a new trial is warranted. See Selwyn Operating Corp. v. Commissioner [Dec. 3832], 11 B.T.A. 593, 594-595 (1928); Strasser v. Commissioner [Dec. 43,535(M)], T.C. Memo. 1986-579.

Accordingly, we deny petitioner's request for a new trial.

Decision will be entered for respondent.

¹ For taxable years 1989 and 1990, petitioner filed claiming head of household status. For taxable years 1991 and 1992, petitioner filed claiming a status of married filing separately. For taxable years 1993, 1996, and 1997, petitioner filed claiming a status of married filing jointly.

² The respective assessment dates of petitioner's income tax liability for the subject years were as follows:

                                                                   Assessment

Year                                                           Date

1989 ......................................................   
5/21/90

1990 ......................................................   
5/20/91

1991 ......................................................   
8/03/92

1992 ......................................................   
7/12/93

1993 ......................................................   
6/06/94

1996 ......................................................   
6/02/97

1997 ......................................................   
5/25/98

³ Respondent does not contest that petitioner received no notice of deficiency for any year in issue and otherwise had no opportunity to dispute the underlying tax liability.

⁴ In 1990, Congress amended sec. 6502(a)(1) to extend the period of limitations for the collection of taxes after assessment from 6 years to 10 years. Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub. L. 101-508, sec. 11317(a), 104 Stat. 1388-458. The 10-year limitations period applies to taxes assessed after Nov. 5, 1990 , and to taxes assessed on or before that date if the 6-year limitations period under prior law had not expired as of that date. Id. subsec. (c). Because respondent assessed petitioner's 1989 tax liability on May 21, 1990 , and the 6-year limitations period under prior law had not expired as of Nov. 5, 1990 , the 10-year limitations period applies with respect to petitioner's 1989 tax liabilities. See, e.g., Rocanova v. United States [96-2 USTC ¶50,494], 955 F. Supp. 27 (S.D.N.Y. 1996), affd. [97-1 USTC ¶50,300] 109 F.3d 127 (2d Cir. 1997). Because respondent assessed petitioner's 1990 tax liability after Nov. 5, 1990 , the 10-year limitations period also applies to his 1990 tax liability.

⁵ Petitioner mentioned at the end of trial that he might have some records at home that would evidence his payments to the Internal Revenue Service. We informed petitioner that we would entertain a motion to reopen the record should he find any records of his previous payments. Petitioner never made any such motion.

⁶ Petitioner has no constitutional right to an attorney in this civil matter. See Riland v. Commissioner [Dec. 39,230], 79 T.C. 185, 207 (1982); Cupp v. Commissioner [Dec. 33,459], 65 T.C. 68, 85-86 (1975), affd. without published opinion 559 F.2d 1207 (3d Cir. 1977).

[Dec. 55,588] Don Weber II v. Commissioner.

Docket. No. 15169-03L . 122 TC 258, No. 12. Filed March 22, 2004 . [Appealable, barring stipulation to the contrary, to CA-10]

[Code Secs. 6212, 6320, 6330 and 6682]
[Jurisdiction: Notice of lien filing: Receipt of notice: Statute of limitations: Jurisdiction: Tax Court: Penalties, civil: False withholding allowance.]

On Dec. 19, 2002 , R mailed to P two notices of determination concerning collection action. R issued the first notice with respect to P's liability for unpaid income taxes; R issued the second notice with respect to P's liability for an unpaid civil penalty under sec. 6682, I.R.C. R sent both notices to P by certified mail addressed to him at his last known address. The first notice was returned to R by the U.S. Postal Service marked "unclaimed". By letter dated Aug. 4, 2003 , R's settlement officer sent P courtesy copies of the notices of determination. On Sept. 4, 2003 , P filed a petition for lien or levy action under sec. 6330(d), I.R.C. Thereafter, R filed a motion to dismiss P's petition for lack of jurisdiction on the ground that it was not timely filed. P opposes the granting of R's motion, contending that he did not receive either of the notices of determination until August 2003, at which time he promptly filed his petition with the Court.

Held: The income tax notice of determination that was sent by certified mail to P at P's last known address was sufficient, notwithstanding the fact that P did not receive such notice.

Held, further, the courtesy copy of the income tax notice of determination that R's officer sent P in August 2003 was not a notice of determination under sec. 6320, I.R.C., or sec. 6330, I.R.C., nor did the sending of that copy serve to revive the statutory filing period.

Held, further, because P did not timely file his petition in respect of the income tax notice of determination, this Court lacks jurisdiction to review R's determination to proceed with collection of P's liability for unpaid income taxes.

Held, further, this Court lacks jurisdiction to review R's determination to proceed with collection of P's liability for the unpaid civil penalty under sec. 6682, I.R.C., because it lacks jurisdiction over the underlying liability.

Don Weber II, pro se. James E. Cannon and Julie Jebe, for the respondent.

OPINION

DAWSON, Judge: This case was assigned to Special Trial Judge Robert N. Armen, Jr., pursuant to the provisions of section 7443A(b)(4), and Rules 180, 181, and 182.¹ The Court agrees with and adopts the opinion of the Special Trial Judge, which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

ARMEN, Special Trial Judge : This collection review case is before the Court on respondent's motion to dismiss for lack of jurisdiction. Respondent contends that the Court lacks jurisdiction on the ground the petition for lien or levy action was not timely filed. As discussed in detail below, we shall dismiss the petition for lack of jurisdiction.

Background

The record reflects and/or the parties do not dispute the following facts:

On December 19, 2002 , respondent mailed to petitioner a Notice Of Determination Concerning Collection Action(s) informing petitioner that respondent would proceed with the collection of petitioner's unpaid Federal income taxes for 1992, 1993, 1994, and 1995 (the income tax notice). On December 19, 2002 , respondent also mailed to petitioner a Notice Of Determination Concerning Collection Action(s) informing petitioner that respondent would proceed with the collection of petitioner's unpaid liability for a civil penalty imposed under section 6682 for the taxable period ending December 31, 1997 (the civil penalty notice).²

Respondent mailed the income tax notice and the civil penalty notice to petitioner by certified mail addressed to him at 3500 W. 95th St., No. 6638, Shawnee Msn., Kansas 66206-2052 (the Kansas address).³ On or about January 13, 2003 , the envelope bearing the income tax notice was returned to respondent by the U.S. Postal Service marked "Unclaimed".⁴ The envelope included notations reflecting that the U.S. Postal Service attempted to deliver the notice to petitioner on certain specific dates.

On August 4, 2003 , respondent mailed a letter to petitioner at the Kansas address that stated in pertinent part as follows: "Per our telephone conversation this morning, enclosed are copies of the determination letters previously mailed to you in December 2002, when the letters were originally issued."

On September 4, 2003 , the Court received and filed a petition for lien or levy action. No notice of determination was attached to the petition, nor did the petition identify the specific notice(s) in dispute. The petition arrived at the Court in an envelope bearing a U.S. Postal Service postmark date of August 27, 2003 . In the petition, petitioner listed the Kansas address as his current address.

Respondent filed a motion to dismiss for lack of jurisdiction on the ground the petition was not filed within the 30-day period prescribed in section 6330(d) or section 7502.

Petitioner filed an objection to respondent's motion, asserting that he did not receive either of the notices in question until August 2003, at which time he promptly filed a petition with the Court. Petitioner also questioned why the copies of the notices that he received in August 2003 were undated.

Respondent filed a response to petitioner's objection asserting that the copies of the notices that were forwarded to petitioner in August 2003 were merely courtesy copies. Respondent further explained that the copies sent to petitioner were undated because petitioner's case file was not immediately available and the copies in question were retrieved from respondent's computer files.

This matter was called for hearing at the Court's motions session in Washington , D.C. Counsel for respondent appeared at the hearing and offered argument in support of respondent's motion to dismiss. Although there was no appearance by or on behalf of petitioner at the hearing, petitioner did file with the Court a written statement pursuant to Rule 50(c).

Discussion

Sections 6320 (pertaining to Federal tax liens) and 6330 (pertaining to levies) establish procedures for administrative and judicial review of certain collection actions. As an initial matter, the Commissioner is required to provide a taxpayer with written notice that a Federal tax lien has been filed and/or that the Commissioner intends to levy; the Commissioner is also required to explain to the taxpayer that such collection action may be challenged on various grounds at an administrative hearing. See Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 37 (2000); Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 179 (2000). Sections 6320(a)(2) and 6330(a)(2) provide that the written notice described above shall be given in person, left at the person's dwelling or usual place of business, or sent by certified or registered mail to such person's last known address.

When the Appeals Office issues a Notice Of Determination Concerning Collection Action(s) to a taxpayer following an administrative hearing, section 6330(d)(1) provides that the taxpayer has 30 days following the issuance of such notice to file a petition for review with the Tax Court or, if the Tax Court does not have jurisdiction over the underlying tax liability, with a Federal District Court. See Offiler v. Commissioner [Dec. 53,912], 114 T.C. 492, 498 (2000). The procedure established under section 6330(d)(1) is made applicable to a proceeding regarding a Federal tax lien by way of the cross-reference contained in section 6320(c).

We have held that this Court's jurisdiction under sections 6320 and 6330 depends on the issuance of a valid notice of determination and the filing of a timely petition for review. See Sarrell v. Commissioner [Dec. 54,494], 117 T.C. 122, 125 (2001); Moorhous v. Commissioner [Dec. 54,316], 116 T.C. 263, 269 (2001); Offiler v. Commissioner, supra at 498; see also Rule 330(b).⁵

Although section 6330(d) does not specify the means by which the Commissioner is required to give notice of a determination made under sections 6320 and 6330, we conclude that the method that Congress specifically authorized for sending notices of deficiency in section 6212(a) and (b) certainly should suffice. Accordingly, we hold that a notice of determination issued pursuant to sections 6320 and/or 6330 is sufficient if such notice is sent by certified or registered mail to a taxpayer at the taxpayer's last known address. Cf. sec. 6212(b)(1), (3).⁶ It may be that such a notice of determination is also sufficient if it is given in person or left at the taxpayer's dwelling or usual place of business. Cf. sec. 6330(a)(2). However, we need not, and do not, decide this latter matter.

The Income Tax Notice

The notice of determination pertaining to petitioner's unpaid income tax liabilities was mailed by certified mail to the same address that petitioner listed as his current address in the petition for lien or levy action. Petitioner does not contend that such notice was mailed to an incorrect address. Consequently, we conclude that the income tax notice was mailed to petitioner's last known address, which is sufficient for jurisdictional purposes. See, e.g., Sarrell v. Commissioner, supra at 125.

Under the circumstances, the sole issue for decision with regard to the income tax notice is whether the petition was timely filed. The record reflects that the petition was not filed within the 30-day period prescribed in section 6330(d)(1). In particular, the record shows that respondent mailed the notice of determination to petitioner on December 19, 2002 . Taking into account an intervening weekend and Federal holiday, the 30-day filing period expired on Tuesday, January 21, 2003 . See sec. 7503. However, the petition in this case was not mailed to the Court until August 27, 2003 , and was received and filed on September 4, 2003 --more than 8 months after the income tax notice was mailed. It follows that the petition was not timely filed and we are obliged to dismiss this case for lack of jurisdiction. See McCune v. Commissioner [Dec. 53,988], 115 T.C. 114 (2000).

Petitioner's assertion that his petition should be considered timely filed because he did not actually receive the income tax notice until August 2003 is misplaced. Like a notice of deficiency issued pursuant to section 6213(a), a notice of determination made pursuant to sections 6320 and/or section 6330 serves as a person's "ticket" to the Tax Court. Offiler v. Commissioner, supra at 498; see Frieling v. Commissioner [Dec. 40,284], 81 T.C. 42, 52 (1983). In accordance with longstanding principles governing the validity of a notice of deficiency under section 6213(a), and consistent with our conclusion that the income tax notice was sufficient because it was properly mailed to petitioner's last known address by certified mail on December 19, 2002 , we hold that it is immaterial that petitioner did not receive the notice of determination before the expiration of the 30-day filing period. See King v. Commissioner [88-2 USTC ¶9521], 857 F.2d 676, 679 (9th Cir. 1988), affg. [Dec. 43,864] 88 T.C. 1042 (1987); Teel v. Commissioner [57-2 USTC ¶9998], 248 F.2d 749, 751 (10th Cir. 1957), affg. [Dec. 22,040] 27 T.C. 375 (1956); Yusko v. Commissioner [Dec. 44,274], 89 T.C. 806, 810 (1987); Frieling v. Commissioner, supra at 52.

We further hold that the courtesy copy of the income tax notice that respondent sent to petitioner on August 4, 2003 , was not a notice of determination under section 6320 or 6330; therefore, it could not serve to revive the 30-day filing period. See Teel v. Commissioner, supra; Lerer v. Commissioner [Dec. 29,604], 52 T.C. 358, 362-366 (1969); Powell v. Commissioner [Dec. 52,625(M)], T.C. Memo. 1998-108; Schoenfeld v. Commissioner [Dec. 49,145(M)], T.C. Memo. 1993-303, n.2.

Finally, we do not have the authority to extend our jurisdiction in this case notwithstanding the fact that petitioner did not receive the notice of determination within the 30-day filing period. The Court's jurisdiction is statutorily prescribed under sections 6320 and 6330, and we may not extend the 30-day period for filing a petition for lien or levy action. Axe v. Commissioner [Dec. 31,377], 58 T.C. 256, 259 (1972); see Lamont v. Commissioner [Dec. 49,331(M)], T.C. Memo. 1993-469.

Consistent with the preceding discussion, we shall grant respondent's motion to dismiss, in that we lack jurisdiction to review the income tax notice on the ground the petition for lien or levy action was not timely filed.

The Civil Penalty Notice

As previously mentioned, the Court's jurisdiction under sections 6320 and 6330 is limited to cases in which the underlying tax liability is of a type over which the Court normally has jurisdiction. Sec. 6330(d); Van Es v. Commissioner [Dec. 54,080], 115 T.C. 324, 328-329 (2000) (case dismissed for lack of jurisdiction on the ground the Court lacks jurisdiction to review the frivolous return penalty imposed under section 6702); Moore v. Commissioner [Dec. 53,802], 114 T.C. 171, 175 (2000) (case dismissed for lack of jurisdiction on the ground the Court lacks jurisdiction to review the trust fund recovery penalty imposed under section 6672).

The record reflects that the civil penalty notice is based on the assessment of a penalty against petitioner pursuant to section 6682. It is well settled that this Court lacks jurisdiction to redetermine such penalties. Sec. 6682(c); Castillo v. Commissioner [Dec. 41,940], 84 T.C. 405, 411 (1985); Fischer v. Commissioner [Dec. 50,262(M)], T.C. Memo. 1994-586 n.3. Because we lack jurisdiction over the tax liability underlying the civil penalty notice, we are obliged to dismiss the matter for lack of jurisdiction on that ground. See Barnhill v. Commissioner [Dec. 54,739(M)], T.C. Memo. 2002-116; cf. Lunsford v. Commissioner [Dec. 54,553], 117 T.C. 159 (2001).

To reflect the foregoing,

An order will be entered dismissing this case for lack of jurisdiction.

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 Sec. 6682(a) generally provides that an individual shall be liable for a civil penalty if such individual is found to have made a false statement regarding the correct amount of income tax withholding on wages and/or backup withholding.

³ Respondent proved the mailing of the notice of determination through the introduction of a postmarked copy of a certified mail list. Cf. Magazine v. Commissioner [Dec. 44,124], 89 T.C. 321, 326-327 (1987) (holding that for purposes of sec. 6212, the Commissioner must produce direct evidence to establish the fact that a notice of deficiency was mailed).

⁴ The record does not reflect whether the civil penalty notice was returned to respondent undelivered.

⁵ Petitioner did not raise any challenge to the validity of either of the notices of determination in question.

⁶ Sec. 6212(b)(1) and (3) provides in pertinent part as follows:

SEC. 6212. NOTICE OF DEFICIENCY.

* * * * * * *

(b) Address for notice of deficiency. --

(1) Income and gift taxes and certain excise taxes. --* * * notice of a deficiency * * * if mailed to the taxpayer at his last known address, shall be sufficient * * *.

* * * * * * *

(3)Estate tax. --* * * notice of a deficiency * * *, if addressed in the name of the decedent or other person subject to liability and mailed to his last known address, shall be sufficient * * *.

[Dec. 55,704(M)] Tim W. Holliday v. Commissioner.

Dkt. No. 13020-02L , TC Memo. 2004-172, July 22, 2004 .

[Appealable, barring stipulation to the contrary, to CA-9]

[Code Sec. 6330]
Liens and levies: Collection Due Process hearings: Issues raised at hearing: Appeals officer: Abuse of discretion: Form 4340. --

An IRS Appeals officer's refusal to consider a taxpayer's meritless arguments with respect to the underlying tax liabilities or to permit the taxpayer to make an audio or other recording of the Collection Due Process (CDP) hearing was harmless error. The Appeals officer properly obtained verification that applicable law and administrative procedures were met but was not required to provide such verification to the taxpayer at the hearing. Forms 4340, Certificates of Assessment, were presumptive proof that notice and demand was mailed to the taxpayer absent some showing that the forms were irregular. The Appeals officer was not required to provide the taxpayer with the basis on which the taxpayer was subject to tax or interest as such inquiries were meritless.

[Code Sec. 6330]
Jurisdiction: Tax Court: Liens and levies: Collection Due Process: Delegation of authority. --

The IRS was allowed to proceed with collection of a taxpayer's unpaid tax liability. Alleged defects in the hearing did not invalidate the notice of determination or deprive the Tax Court of jurisdiction. The taxpayer's claim that there was no delegation of authority pursuant to which the notice of determination could be issued was meritless.

[Code Sec. 6330]
Liens and levies: Collection Due Process hearings: Suspension of statute of limitations: Notice of determination. --

The IRS was allowed to proceed with collection of a taxpayer's unpaid tax liability. The taxpayer's contention that the 10-year limitations period on collection had expired for one of the tax years at issue was rejected. The limitations period was suspended when the taxpayer requested a CDP hearing within the 10-year limitations period.

Tim W. Holliday, pro se; Laurel M. Costen, for respondent.

MEMORANDUM OPINION

GALE, Judge: This case arises from a petition for review under section 6330(d)¹ of respondent's determination to proceed with a proposed levy to collect petitioner's 1992, 1993, 1994, 1995, 1996, 1997, and 1998 Federal income tax liabilities. The issue for decision is whether respondent may proceed with the proposed levy. We hold that he may.

Background

Petitioner was a resident of American Canyon , California , when his petition was filed.

Petitioner timely filed a 1992 individual Federal income tax return reporting tax due of $716. After correcting the return for computational and clerical errors, respondent assessed the tax due thereon of $1,061 on June 7, 1993 .

Petitioner did not timely file a Federal income tax return for 1993 or 1995. On October 6, 1997 , respondent prepared a substitute for return for each year, and on May 18, 1998 , respondent assessed tax of $2,903 for 1993 and $6,138 for 1995.² Petitioner filed 1993 and 1995 individual Federal income tax returns on September 21 and 18, 1998, respectively. Respondent subsequently abated the assessment for each year to reflect the tax reported on petitioner's returns after correcting for computational and clerical errors.

Petitioner filed a 1994 individual Federal income tax return on September 21, 1998 ; an assessment of $2,974 was made with respect to that return.

Petitioner did not timely file a Federal income tax return for 1996. On September 14, 1998 , respondent prepared a substitute for return, and 3 days later petitioner submitted a return that was filed as an amended return. The return petitioner submitted reported $5,805 of tax due, which respondent assessed.

Petitioner timely filed 1997 and 1998 individual Federal income tax returns, reporting tax due of $7,037 and $7,842, respectively, which respondent assessed.

On September 21, 2000 , petitioner filed amended returns for 1993, 1994, 1995, 1996, and 1997 reporting the tax due on each amended return as zero. Respondent treated these amended returns as claims for refund and denied them.

On April 9, 2001 , respondent issued a Letter 1058, Final Notice, Notice of Intent to Levy and Notice of Your Right to a Hearing, to petitioner for the unpaid balances of the aforementioned assessments for the tax years 1992, 1993, 1994, 1995, 1996, 1997, and 1998. On May 1, 2001 , petitioner submitted to respondent a Form 12153, Request for a Collection Due Process Hearing. In his request, petitioner advised that he would have a stenographer present at the hearing.

By letter dated May 3, 2002 , the Appeals officer advised petitioner that neither stenographic nor audio recording of the hearing would be permitted. A hearing was held on May 22, 2002 , during which petitioner was not permitted to make an audio or stenographic recording. The Appeals officer also refused to consider petitioner's arguments related to the underlying tax liabilities covered by the levy notice.

On July 11, 2002 , a notice of determination concerning collection action(s) under section 6320 and/or 6330 was mailed to petitioner in which the Appeals officer recommended proceeding with the levy. On August 12, 2002 , petitioner timely petitioned this Court for review of the determination.

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 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.

Section 6330 generally provides that the Secretary cannot proceed with the collection of taxes by way of a levy on a taxpayer's property until the taxpayer 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 Davis v. Commissioner [Dec. 53,969], 115 T.C. 35, 37 (2000); Goza v. Commissioner [Dec. 53,803], 114 T.C. 176, 179-180 (2000). Section 6330(c)(2) specifies issues that the taxpayer may raise at the hearing. The taxpayer may raise "any relevant issue relating to the unpaid tax or the proposed levy" including spousal defenses, challenges to the appropriateness of collection actions, and alternatives to collection. Sec. 6330(c)(2)(A). The taxpayer also may challenge the underlying tax liability if the taxpayer did not receive a statutory notice of deficiency or did not otherwise have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B). Section 6330(c)(3) provides that the determination of the Appeals officer shall take into consideration, inter alia, the issues raised by the taxpayer. We review the determination de novo when the underlying tax liability is in dispute, Goza v. Commissioner, supra at 181-182, and under an abuse of discretion standard when it is not, Sego v. Commissioner [Dec. 53,938], 114 T.C. 604, 610 (2000); Goza v. Commissioner, supra at 182.

Two of the principal arguments petitioner raises are that he did not receive the hearing to which he was entitled under section 6330 because he was not permitted to record the hearing and that the Appeals officer refused to consider arguments pertaining to the underlying tax liabilities (because petitioner reported those liabilities as due on his returns). The hearing in this case was conducted, and the determination issued, before our Opinions in Keene v. Commissioner [Dec. 55,213], 121 T.C. 8 (2003), and Montgomery v. Commissioner [Dec. 55,501], 122 T.C. 1 (2004), in which we held, respectively, that a taxpayer in a section 6330 hearing is entitled to make an audio recording thereof, and to dispute the underlying tax liability even where the taxpayer reported the liability as due on his return.³ At trial, we afforded petitioner the opportunity to raise any issue he considered relevant to the proposed levy or the underlying tax liabilities.⁴ We consider those arguments below.

Petitioner argues that the notice of determination was invalid, and we therefore lack jurisdiction, because the hearing he received was defective in several respects. We disagree. The defects in the hearing alleged by petitioner do not invalidate the notice and deprive us of jurisdiction. See Lunsford v. Commissioner [Dec. 54,552], 117 T.C. 159, 164 (2001).

Petitioner next argues that his hearing was invalid and collection may not proceed because the Appeals officer refused to provide him with verification, and did not verify at the hearing, that the requirements of any applicable law or administrative procedure were met, as required under section 6330(c)(1). Petitioner admitted in his petition and at trial that, at the hearing, the Appeals officer would not allow petitioner to see the Appeals officer's copies of the transcripts of account. On the basis of the foregoing, we are satisfied that the Appeals officer obtained verification at the hearing; he was not required to provide any such verification to petitioner. See Nestor v. Commissioner [Dec. 54,655], 118 T.C. 162, 166-167 (2002).

Petitioner next claims that he did not receive notice and demand for payment (as required by section 6303(a)) with respect to the liabilities for any of the taxable years in question, and that the Appeals officer did not consider his contentions in this regard. Petitioner's claim of nonreceipt is belied by the certified copies of Forms 4340, Certificate of Assessments, Payments and Other Specified Matters, in evidence for each year, which show that statutory notices of balance due were issued for each year. Absent some showing of irregularity in the Forms 4340, which petitioner has not made, those records serve as presumptive evidence that notice and demand pursuant to section 6303(a) was mailed to petitioner. See Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); United States v. Chila [89-1 USTC ¶9299], 871 F.2d 1015, 1019 (11th Cir. 1989); Craig v. Commissioner [Dec. 54,933], 119 T.C. 252, 261-262 (2002). Respondent also relies on the notice of intent to levy issued in this case as satisfying section 6303(a). See Hughes v. United States [92-1 USTC ¶50,086], 953 F.2d 531, 536 (9th Cir. 1992); Standifird v. Commissioner [Dec. 54,889(M)], T.C. Memo. 2002-245, affd. [2003-2 USTC ¶50,652] 72 Fed. Appx. 729 (9th Cir. 2003). In light of the Appeals officer's review of the transcripts of account, we are satisfied that he obtained sufficient verification that the requirements of applicable laws and procedures had been met.

Petitioner also advanced a claim at trial that the period of limitations for collection of his 1992 liability had expired. The period for collection following assessment is 10 years. Sec. 6502(a). If a hearing is requested under section 6330(a)(3)(B), the running of the period of limitations for collection is suspended for the period during which the hearing, and appeals therein, are pending. Sec. 6330(e)(1); Boyd v. Commissioner [Dec. 54,495], 117 T.C. 127, 130-131 (2001). Further, the period for collection shall not expire before the 90th day after the day on which there is a final determination in the hearing. Sec. 6330(e)(1). Petitioner's 1992 liability was assessed on June 7, 1993 , and petitioner requested a hearing under section 6330(a)(3)(B) on May 1, 2001 ; i.e., within the 10-year period following the June 7, 1993 , assessment. Accordingly, the period of limitations for collection of petitioner's 1992 liability is suspended and has not expired.

Further, with respect to the underlying tax liabilities, petitioner contends that he asked the Appeals officer to tell him which Internal Revenue Code section makes him liable for tax and whether that section is within subtitle A. Petitioner further claims that he inquired as to what "legislative regulation" makes him liable for interest. In both instances, the Appeals officer apparently refused to consider these inquiries. These are frivolous issues that the Appeals officer might have responded to but was certainly not required to consider. Suffice it to say that petitioner reported wage income for each of the years in question and such income is taxable pursuant to sections 1(a)-(c), 61(a)(1), and 62. See also United States v. Romero [81-1 USTC ¶9276], 640 F.2d 1014, 1016 (9th Cir. 1981). As to petitioner's interest liability, section 6601 provides for the imposition of interest on unpaid tax liabilities, and section 6601(g) provides for the assessment and collection of that interest. See also sec. 301.6601-1, Proced. & Admin. Regs. In sum, the challenges to the existence or amount of the underlying tax liabilities that petitioner advanced either at his hearing or in the instant proceeding are meritless.

Finally, petitioner raised a frivolous argument to the effect that there had been no delegation of authority from the Secretary to issue the notice concerning his hearing under section 6330 or to conduct it, and accordingly his hearing was null and void for want of notice from, or its conduct by, the Secretary himself. For the purposes presented here, the Secretary has delegated the authority to issue a final notice of intent to levy to certain IRS employees. See Delegation Order 191 (Rev. 3), effective June 11, 2001 , Internal Revenue Manual, sec. 1.2.2.5.3; see also Craig v. Commissioner [Dec. 54,933], 119 T.C. 252, 263 (2002). The statute itself provides that the hearing is to be conducted by an officer or employee of the IRS Office of Appeals, not the Secretary. Sec. 6330(b)(1), (3).

Having considered all of petitioner's arguments and found them meritless, we conclude that the Appeals officer's failure to permit petitioner to make an audio or other recording of his hearing was harmless error. Similarly, since petitioner has raised only meritless arguments with respect to the underlying tax liabilities, the Appeals officer's refusal to consider arguments concerning the underlying tax liabilities was also harmless error. In these circumstances, we do not believe it is "either necessary or productive" to remand this case for a recorded hearing where an Appeals officer might consider petitioner's meritless arguments concerning his underlying tax liabilities. See Lunsford v. Commissioner [Dec. 54,552], 117 T.C. at 183, 189; see also Keene v. Commissioner [Dec. 55,213], 121 T.C. at 19-20; Kemper v. Commissioner [Dec. 55,214(M)], T.C. Memo. 2003-195. As petitioner has not raised a spousal defense, challenged the appropriateness of collection actions, or offered collection alternatives, and the arguments he has raised are meritless, we sustain respondent's determination to proceed with the levy at issue. To reflect the foregoing,

Decision will be entered for respondent.

¹ Unless otherwise noted, section references are to the Internal Revenue Code as amended.

² Respondent concedes that notices of deficiency for these years were not received by petitioner.

³ Certain portions of the underlying tax liabilities were attributable to adjustments respondent made pursuant to sec. 6213(b)(1). However, we do not consider whether, pursuant to sec. 6213(b)(2), petitioner previously had an "opportunity to dispute" these portions within the meaning of sec. 6330(c)(2)(B) because in this proceeding petitioner has, in any event, raised only meritless arguments with respect to his underlying tax liabilities.

⁴ In light of the fact that petitioner sought, but was denied, recordation of the hearing, we resolve all doubts in petitioner's favor, treating any issue or argument he raised at trial or in any written submission as having been raised at his hearing.