Lunsford v. Comm'r of Internal Revenue, 18071–99L.
| Citation | 117 T.C. 183,117 T.C. No. 17 |
| Decision Date | 30 November 2001 |
| Docket Number | No. 18071–99L.,18071–99L. |
| Parties | Joseph D. and Wanda S. LUNSFORD, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent |
| Court | United States Tax Court |
OPINION TEXT STARTS HERE
Taxpayers petitioned for review of IRS' determination to proceed with collection, challenging its method of verification of the assessments. The Tax Court, Ruwe, J., held that IRS appropriately relied on Form 4340, Certificate of Assessments, Payments, and Other Specified Matters, to verify tax assessments in its pre-levy determination.
Decision for IRS.
Foley, J., filed dissenting opinion, in which Chiechi, Laro, Vasquez, and Marvel, JJ., joined. Joyce M. Griggs, for petitioners.
Ross M. Greenberg, for respondent.
R issued a notice of intent to levy, and Ps requested a hearing before an IRS Appeals officer (A) pursuant to sec. 6330, I.R.C. The only issue that Ps raised in their request was whether there was a valid summary record of the assessments of the taxes in question. A sent a letter to Ps that enclosed a Form 4340, Certificate of Assessments and Payments, showing that the assessments were made and invited Ps to raise additional issues, but Ps did not do so. A did not schedule a face-to-face hearing. A issued a notice of determination. Ps timely petitioned the Tax Court for review. The only substantive issue raised in the petition was whether the Form 4340 constituted sufficient verification of the assessments.
Held: Our rules require petitioners to specify the basis upon which they seek relief. Because the only substantive issue that petitioners raised in this judicial proceeding is whether A abused her discretion by relying on a Form 4340 to verify the assessments, and because we have previously decided in Davis v. Commissioner, 115 T.C. 35, 2000 WL 1048515 (2000), that such reliance is appropriate, R may proceed with the proposed collection action.
This case arises from a petition for judicial review filed under section 6330(d)(1)(A).1 We have previously decided that we have jurisdiction in this case. See Lunsford v. Commissioner, 117 T.C. ––––, (2001). For convenience, we combine the facts, which are not in dispute, with our opinion.
Section 6331(a) authorizes the Commissioner to levy against property and property rights where a taxpayer fails to pay taxes within 10 days after notice and demand for payment is made. Section 6331(d) requires the Secretary to send notice of an intent to levy to the taxpayer, and section 6330(a) requires the Secretary to send a written notice to the taxpayer of his right to a hearing. Section 6330(b) affords taxpayers the right to a “fair hearing” before an “impartial” IRS Appeals officer. Section 6330(c)(1) requires the Appeals officer to obtain verification that the requirements of any applicable law or administrative procedure have been met. Section 6330 (c)(2)(A) specifies issues that the taxpayer may raise at the Appeals hearing. The taxpayer is allowed to raise “any relevant issue relating to the unpaid tax or the proposed levy” including spousal defenses, challenges to the appropriateness of collection action, and alternatives to collection. Sec. 6330(c)(2)(A). The taxpayer cannot raise issues relating to the underlying tax liability if the taxpayer received a notice of deficiency or the taxpayer otherwise had an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B).
Section 6330(c)(3), provides that a determination of the Appeals officer shall take into consideration the verification under section 6330(c)(1), the issues raised by the taxpayer, and whether the proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary. Section 6330(d)(1) allows the taxpayer to appeal a determination to the Tax Court or a district court. Section 6330(e)(1) suspends the levy action until the conclusion of the hearing and any judicial review of the determination.
On April 30, 1999, respondent issued a notice of intent to levy to petitioners. The proposed levy was to collect unpaid income taxes of $83,087.85 for the taxable years 1993, 1994, and 1995. On May 24, 1999, petitioners filed a Form 12153, Request for a Collection Due Process Hearing,2 and raised only the following issue:
I do not agree with the collection action of levy and notice of intent to levy 4–30–99. The basis of my complaint is what I believe to be the lack of a valid summary record of assessment pursuant to 26 CFR § 301.6203–1. Without a valid assessment there is no liability. Without a liability there can be no levy, no notice of intent to levy, nor any other collection actions.3 On September 2, 1999, the Appeals officer wrote a letter to petitioners indicating that the validity of assessments had been verified and attached a Form 4340, Certificate of Assessments and Payments, which clearly shows that the assessments in question were made and remained unpaid. The Appeals officer concluded the letter stating: . Petitioners made no response to this letter. No further proceedings or exchange of correspondence occurred prior to the Appeals officer's determination.
On November 3, 1999, a notice of determination was sent to petitioners by the IRS Appeals Office which sustained the proposed levy. The notice of determination concluded: (1) All procedural, administrative, and statutory requirements were met; (2) the Form 4340 satisfied the requirements of section 6203; 4 (3) petitioners failed to present any collection alternatives; and (4) the proposed levy was justified. On December 2, 1999, petitioners filed a timely petition to the Tax Court.
We must decide whether petitioners are entitled to any relief from the Appeals officer's determination. Where the underlying tax liability is properly at issue in the hearing, we review that issue on a de novo basis. Goza v. Commissioner, 114 T.C. 176, 181–182, 2000 WL 283864 (2000). However, where the underlying tax liability is not at issue, we review the determination to see whether there has been an abuse of discretion. Nicklaus v. Commissioner, 117 T.C. 117, 120, (2001). In this case, petitioners have not disputed the merits of the underlying tax liability.
Our Rules require petitioners to specify the facts upon which they rely for relief under section 6330. A petition filed under section 6330 must contain “Clear and concise lettered statements of the facts on which the petitioner bases each assignment of error”. Rule 331(b)(5). Any issue not raised in the assignments of error shall be deemed to be conceded. Goza v. Commissioner, supra at 183.5
In the entire course of this judicial proceeding, petitioners have raised only one substantive issue that they want to be considered; i.e., whether there was a sufficient record showing that the taxes in issue were assessed under section 6203 and section 301.6203–1, Proced. & Admin. Regs. In their petition to the Tax Court, petitioners alleged the following facts in support of their position:
6. The facts upon which the Petitioner relies, as the basis of the Petitioner's case, are as follows:
a) The appeals officer took the position that the assessment is valid without verifying that there was in fact an assessment.
b) The appeals officer stated that the courts have ruled that a certified transcript “contains all the documentation to which taxpayers are entitled under 26 U.S.C. § 6203” without meeting his duty under 26 CFR § 301.6320–T(e)(1) to verify the existence of the underlying documents.
c) Although the transcript listed an assessment date, the appeals officer did not verify that a 23C was actually prepared pursuant to his duty under 26 CFR § 301.6320–T(e)(1) and the nonexistence of the properly prepared and signed certificate of assessment pursuant to 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203–1 was placed in issue.
d) Without the assessment officer being identified from the assessment certificate neither Petitioner nor the appeals officer can inquire of the assessment officer for verification that he performed his proper function in determining that all conditions precedent, (procedural, administrative and statutory) to the assessment were performed.
Petitioners' trial memorandum, which was filed on the day this case was called for trial, stated the issue as follows:
ISSUES:
Whether the hearing officer met the requirements of § 6330 by making a determination without requiring the Service to furnish, as timely requested by Petitioner, the assessment document meeting the requirements of 26 CFR 301.6203–1, signed by an assessment officer and certified under oath by the records clerk or other authorized official.
Petitioners included a “Synopsis of Legal Authorities” in their trial memorandum. This synopsis similarly discussed only the issue of the existence of an assessment and its verification with a Form 4340.
When this case was called for trial, petitioners' counsel gave no indication that petitioners wanted to contest anything other than the issue described in their pleadings and trial memorandum. The Court ordered both parties to file posttrial briefs. Petitioners did not file a posttrial brief. 6 We recently discussed the consequences to a party who fails to advance arguments on brief. In Nicklaus v. Commissioner, 117 T.C. at 120 n. 4, we stated: 7 In the instant case, we think it is at least as clear that petitioners have abandoned any...
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