US v. Dixon, Civ. A. No. 86-H-22-N.

• Decision Date: 01 July 1987
• Docket Number: Civ. A. No. 86-H-22-N.
• Citation: 672 F. Supp. 503
• Parties: UNITED STATES of America, Plaintiff, v. Julian DIXON, Defendant.
• Court: U.S. District Court — Middle District of Alabama

672 F. Supp. 503

UNITED STATES of America, Plaintiff, v. Julian DIXON, Defendant.

Civ. A. No. 86-H-22-N.

United States District Court, M.D. Alabama, N.D.

July 1, 1987.

Steven M. Kwartin, Jane Juliano, Trial Attys., John C. Bell, U.S. Atty., D. Broward Segrest, Asst. U.S. Atty., Lance J. Wolf, Trial Atty., Tax Div., Dept. of Justice, Washington, D.C., for plaintiff.

Arthur P. Tranakos, Atlanta, Ga., for defendant.

MEMORANDUM OPINION

HOBBS, Chief Judge.

The United States of America brought this action to recover unpaid federal income taxes for the year 1975 in the amount of $200,997.02, including interest and penalties. On May 22, 1987, the Government filed a motion for summary judgment supported by a document entitled "Certificate of Assessments and Payments." The defendant, Julian Dixon, has also filed a motion for summary judgment which raises two points: (1) that the Internal Revenue Service did not follow the assessment procedures established in 26 U.S.C. § 6203 and 26 C.F.R. 301.6203-1; and (2) that a Notice of Deficiency was not sent to him by certified or registered mail as required by 26 U.S.C. § 6212. Upon consideration of the motions filed herein and the documents and affidavits attached thereto, the Court has determined that the Government is entitled to summary judgment.

I. Assessment

26 U.S.C. § 6203 provides that "the assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment."

26 C.F.R. § 301.6203-1 provides, in part, that "... 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 date of the assessment is the date the summary record is signed by an assessment officer ..." Both parties state in their briefs that this document is known as Form 23-C within the Internal Revenue Service.

The defendant correctly contends that the basis of tax liability is the assessment. For a tax liability to be duly collected, it must be first properly assessed. In order for a tax deficiency to be assessed against a taxpayer, an assessment officer must sign and date a Form 23-C. The defendant rests his argument entirely on the fact that the Government has not been able to produce a copy of or the original of Form 23-C, and has, supposedly, stipulated to its non-existence.

The Government argues that its failure to produce Form 23-C is not fatal to its case. First, the Government states that it stipulated only to the fact that it did not have the original or a copy of Form 23-C in its possession. The Government originally stated that the IRS keeps Form 23-C in its files for only three years, after which it is routinely sent to the Federal Records Center to be stored for thirty years. The Government's attorney has since learned that this is the present procedure, but that in 1979 when the assessment was entered, the IRS kept these forms for six years, nine months, after which they were routinely destroyed. Accordingly, the defendant is correct that the Government does not have in its possession the Form 23-C.

The Government argues, however, that it does not need to produce a copy of Form 23-C in order to satisfy its burden of proof. The Government has attached a copy of a "Certificate of Assessments and Payments" which is signed by an IRS officer certifying that it is a true transcript of all the assessments, penalties, interest, and payments on record for the defendant. This document reflects that on April 15, 1976 the defendant filed a tax return claiming and paying $118,728.45 in taxes. This document also reflects that the defendant was audited and assessed a deficiency of $159,871.02 in unpaid taxes, $7,993.55 in negligence penalty, and $34,247.44 in interest on July 23, 1979.¹

The Government argues that this document which records a "23C Date" of July 23, 1979 is sufficient evidence that Form 23-C was duly signed on that date. Other courts have accepted this document from the Government as proof that the assessment was entered in accordance with the statute and regulations. See United States v. Miller, 318 F.2d 637, 639 (7th Cir.1963) ("The district court properly considered the copy of the official certificate of assessments and payments submitted by the Government in ruling on the motion for summary judgment....that document shows that assessment entries were made ... in the manner prescribed by the statute and the applicable regulation."), quoted with approval in Brafman v. United States, 384 F.2d 863, 867 (5th Cir.1967). See also In re O'Leary, 72-1 U.S.T.C. ¶ 9287 (D.C.Wis.1972) (This court referred to the date reflected in the column headed "23C Date" and stated, "at the foot of the document the District Director has certified that all assessments relating to O'Leary's taxes are set forth therein. The transcript is evidence that a valid assessment was made as indicated."). And, in United States v. Posner, 405 F.Supp. 934, 937 (D.Md.1975), the court took judicial notice that "the term `23C Date' in the `Certificate of Assessments and Payments' introduced in evidence refers to the dates on which the respective summary records of assessments were signed by an assessment officer."

Accordingly, this Court accepts the document "Certificate of Assessments and Payments" submitted by the Government as presumptive proof of a valid assessment. Given that the defendant has produced no evidence to counter this presumption, the Court is satisfied that the Government has established that the claimed tax liability was properly assessed against the defendant.

II. Notice of Deficiency

26 U.S.C. § 6212(a) provides that "if the Secretary determines that there is a deficiency in respect of any tax imposed ... he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail." Subsection (b)(1) further provides that "... notice of a deficiency ... if mailed to the taxpayer at his last known address, shall be sufficient ..." The statute also provides that the notice of deficiency must be mailed before an assessment may be made. 26 U.S.C. § 6213(a).

The defendant argues that the Government must establish that the Notice of Deficiency was mailed. The defendant argues that the Government cannot prove that it mailed a Notice of Deficiency to him since it has not been able to produce records of the mailing, or a domestic return receipt or the envelope in which the Notice was mailed. The defendant has also filed an affidavit that he has never received a Notice of Deficiency.

The Government has submitted a copy...