329 F.3d 1224 (11th Cir. 2003), 02-14128, Roberts v. C.I.R.

Docket Nº:02-14128
Citation:329 F.3d 1224
Party Name:Roberts v. C.I.R.
Case Date:March 13, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1224

329 F.3d 1224 (11th Cir. 2003)

Thomas W. ROBERTS, Petitioner-Appellant,



No. 02-14128

United States Court of Appeals, Eleventh Circuit

March 13, 2003

Page 1225

Thomas W. Roberts, Winter Park, FL, pro se.

Teresa E. McLaughlin, Randolph L. Hutter, John Schumann, Dept. of Justice, Washington, DC, for Respondent-Appellee.

Appeal from a Decision of the United States Tax Court.

Before ANDERSON, BIRCH and BLACK, Circuit Judges.


Thomas W. Roberts appeals the Tax Court's grant of partial summary judgment in favor of the Commissioner of Internal Revenue ("Commissioner") on his petition challenging a tax assessment. He also challenges the assessment of a $10,000.00 penalty for maintaining this action for delay. Because the Tax Court: (1) correctly determined that the appeals officer verified the existence of the assessment, and (2) did not abuse its discretion in imposing sanctions, we AFFIRM.


Roberts reported a tax liability on his 1996 tax return, but did not pay the amount with his return. The Commissioner assessed the amount reported as due on the Roberts return. Roberts requested and received a Collection Due Process ("CDP") hearing. At the CDP hearing, the appeals officer determined that the collection action that was being taken was appropriate. R1-1 at 1, Ex. A at 4. Roberts thereafter filed a petition for lien and/or levy action pursuant to 26 U.S.C. §§ 6320(c) and/or 6330(d), seeking review of the appeals officer's determination, after a CDP hearing, that a collection of tax by levy was appropriate. R1-1 at 1. Roberts argued that the appeals officer failed to get proper verification: (1) of the existence of a valid assessment, i.e., Form 23C, Summary Record of Assessment, (2) that all required notices were given, and (3) that the required procedures were followed prior to the Commissioner's issuing the 1058 letter ("Final Notice, Notice of Intent to Levy and Notice of Your Right to a Hearing," R1-11, Ex. 1 at 3). R1-1 at 2-3. Roberts also asserted that the appeals officer: (1) failed to furnish Roberts's requested documents prior to and during the CDP hearing, (2) improperly relied solely on Form 4340, a computer transcript that details the record of each assessment, R1-11 at 2, in making a determination in the Commissioner's favor, and (3) could not inquire of the assessment officer whether

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he had performed his duties with regard to the assessment because he was not identified on the assessment certificate. R1-1 at 2-4. Roberts requested that his case be remanded to the Appeals Office so that, inter alia, a meaningful due process hearing could be conducted. Id. at 4-5.

The Commissioner answered, claiming, inter alia, that the appeals officer's determination was based on more than Form 4340, but that Form 4340 was sufficient verification that a valid assessment existed where there was no evidence to the contrary. R1-3 at 1-2. The Commissioner also contended that Form 4340, which bore the Form 23C date, was verification that Form 23C was signed. Id. at 2. The Commissioner argued that sanctions were appropriate in this case because Roberts maintained these proceedings to delay paying his taxes. Id. at 2-5. The Commissioner further asserted that Roberts's claims were frivolous because the Tax Court had previously determined, in a case litigated by Roberts as a representative, that his interpretation of the law was incorrect. Id. at 3. Roberts replied, inter alia, that sanctions were inappropriate because: (1) the facts of his case were different from his client's case, (2) an...

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