871 F.2d 1015 (11th Cir. 1989), 88-3564, United States v. Chila

Docket Nº:88-3564.
Citation:871 F.2d 1015
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John A. CHILA, Defendant-Appellant.
Case Date:April 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1015

871 F.2d 1015 (11th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,


John A. CHILA, Defendant-Appellant.

No. 88-3564.

United States Court of Appeals, Eleventh Circuit

April 27, 1989

Page 1016

Lisa S. Odom, Lloyd T. Asbury, Jacksonville, Fla., for defendant-appellant.

Gary R. Allen, William S. Estabrook and Janet A. Bradley, Tax Div., Asst. Attys. Gen., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, HILL, Circuit Judge, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from a summary judgment granted in favor of the United States in an action brought against a "responsible person" for a 100 percent penalty provided under Section 6672 of the Internal Revenue Code. 1


On August 11, 1980, the Internal Revenue Service undertook to assess John A. Chila, as a responsible person of Professional Concrete Services, Inc., for the total amount of $39,702.76 pursuant to Section 6672 of the IRC for the third and fourth quarters of 1979. On August 6, 1986, the United States brought suit pursuant to Section 7401 of the Internal Revenue Code seeking to reduce the outstanding federal tax liabilities against him to judgment. Following the filing of respective motions for summary judgment by the United States and taxpayer, the parties stipulated as to the undisputed issues. In such stipulation, Chila made the following concession: "John A. Chila was a person required to collect, truthfully account for, and pay over the federal withholding and Social Security taxes of Professional Concrete Services, Inc. for the third and fourth quarters of 1979."

Moreover, Chila did not contest the amount of such taxes. The stipulation identified three documents as having been furnished by the United States to Chila:

(1) Certificate of Assessments and Payments dated October 29, 1987 relating to John A. Chila.

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(2) Form 23 C, Assessment Certificate, Summary Record of Assessments dated 8/11/80.

(3) Form TY 53, account card.

The taxpayer contended that Chila's liability would depend upon a proper assessment by the IRS and that the alleged assessment was faulty in this case because of the failure of the IRS to comply with the requirements of Section 6203 and the regulations pursuant thereto. 2

The defendant contends that the government's assessment of the 100 percent penalty in this case is invalid because the government failed to supply the "pertinent parts of the assessment" as required by this regulation.

Chila also attacked the validity of the lawsuit on the ground that he had not received the "notice and demand" provided for under Section 6303(a) of the Code.

The trial court granted the government's motion for summary judgment, holding that the assessment was validly made and that the Section 6303(a) notice requirement does not apply to a situation in which the United States files a civil action, but applies only where the United States proceeds to make the collection through administrative means.


1. Validity of Assessment

There can be no question but that the documents presented by the United States in support of its assessment clearly met the requirement of the statute that "the summary record (Form 23 C) through [the] supporting records," a Certificate of Assessments and Payments and the Account Card, provided all the information called for in the statute, i.e., identification of the taxpayer, the character of the liability assessed, the taxable period, and the date and amount of the assessment. These documents equally satisfied the requirements of the regulation 26 C.F.R. Sec. 301.6203-1, which precisely track the language of the statute as to what is to be provided to the taxpayer by way of information. The requirement by the regulation that the government provide "the pertinent parts of the assessment" is satisfied by providing any part of the records of the government that supplies the "pertinent information" that both regulation and statute require. This Court has already decided in a case involving the validity of an assessment that the documents here provided by the government met the requirements of the statute and regulation. In United States v. Dixon, 672 F.Supp. 503 (M.D.Ala.1987), subsequently affirmed by a per curiam opinion of this Court, 849 F.2d 1478 (11th Cir.1988), the taxpayer claimed that the absence of a Form 23 C prevented the assessment from being valid. The Court held that by supplying a "Certificate of Assessments and Payments" signed by an IRS officer certifying that it was a true transcript of all the assessments, penalties, interest, and payments on record for the defendant, showing that the defendant was audited and assessed a deficiency and which recorded a "23 C date" was sufficient evidence that 23 C was duly signed on that date. Having decided that the Form 23 C had been duly signed, this Court stated:

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Accordingly, this Court accepts the document "Certificate of Assessments and Payments"...

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