Rossi v. US, Civ. No. 89-6317-JO.

• Decision Date: 29 August 1990
• Docket Number: Civ. No. 89-6317-JO.
• Citation: 755 F. Supp. 314
• Parties: Kenneth ROSSI and Anita Rossi, dba Princeton Investment Company, Plaintiffs, v. UNITED STATES of America, B.J. Peters, James Meler, and Carmen Meler, Defendants.
• Court: U.S. District Court — District of Oregon

755 F. Supp. 314

Kenneth ROSSI and Anita Rossi, dba Princeton Investment Company, Plaintiffs, v. UNITED STATES of America, B.J. Peters, James Meler, and Carmen Meler, Defendants.

Civ. No. 89-6317-JO.

United States District Court, D. Oregon.

August 29, 1990.

Kenneth Rossi and Anita Rossi, Bandon, Or., pro se.

Charles H. Turner, U.S. Atty., Portland, Or., David M. Katinsky, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant U.S.

B.J. Peters, Bandon, Or., pro se.

James Meler, Carmen Meler, Portland, Or., pro se.

OPINION AND ORDER

ROBERT E. JONES, District Judge:

Plaintiffs Kenneth and Anita Rossi bring this action to challenge the seizure and sale of plaintiffs' land by the Internal Revenue Service (IRS) to satisfy income tax indebtedness. Plaintiffs challenge the procedural regularity of the tax assessment and the notice of tax liability and demand for payment, or alleged lack of, by the IRS prior to the seizure and sale of plaintiffs' land. Plaintiffs also claim that the IRS unlawfully disclosed plaintiffs' tax return information. Plaintiffs name the United States and the subsequent purchasers of plaintiffs' land as defendants.

Plaintiffs' motion to strike portions of the United States' motion for summary judgment is based upon the Fed.R.Civ.P. 56(e) which provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Specifically, plaintiffs seek to strike the declaration of Roy Browning, the declaration of Jean Duncan, the Recommendation for Jeopardy Assessments, the Certificates of Assessments and Payments and Form 3552.

Plaintiffs challenge the declaration of Roy Browning, a Revenue Officer with the IRS in Fresno, California, on various grounds. Plaintiffs assert that Browning had no personal knowledge of the Recommendations for Jeopardy Assessment ("Recommendations") attached as exhibits to his declaration in violation of Fed.R. Civ.P. 56(e). Although plaintiffs correctly challenge the admissibility of the Recommendations, plaintiffs base their challenge upon erroneous grounds.¹ The proper grounds upon which to challenge the Recommendations is that the Recommendations are not sworn or certified copies as required by Fed.R.Civ.P. 56(e). Plaintiffs' motion to strike the Recommendations for Jeopardy Assessment is granted.

Plaintiffs seek to strike the Certificates of Assessments and Payments, the Forms 4340, and the Summary Record of Assessments, the Form 23C, because Browning failed to attest to those forms. Although authentication of records sought to be introduced in evidence is essential, See Fed.R.Evid. 901, the records in this case are exempt from the usual authentication requirements. The Certificates of Assessments and Payments and the Summary of Assessments are "self-authenticating."²

Fed.R.Evid. 902(4) provides that "a copy of an official record ... including data compilations ... certified as correct ... by a person authorized to make the certification ..." is self-authenticating and the proponent of the evidence need not lay a foundation for the evidence to be admissible. The Forms 4340 and 23C are preceded by a "Certificate of Official Record" signed by the Director of the Ogden Service Center certifying that the attached forms are true. The records are properly certified and thus are self-authenticating.³

Plaintiffs engage in a lengthy discussion of the IRS' computer system in the hopes of striking the Certificates of Assessments and Payments, the Forms 4340. Plaintiffs argue that since the Certificates of Assessments and Payments are merely interpretations of information contained in the Individual Master File ("IMF"),⁴ the Forms 4340 are inadmissible in evidence. Plaintiffs cite to United States v. Buford, 889 F.2d 1406 (5th Cir.1989), for support. The court does not agree with plaintiffs' conclusion that the Certificates of Assessments and Payments are rendered inadmissible in evidence simply because they are transposed from a coded computer printout.

In Buford, supra, defendant challenged his conviction of various tax crimes. Prior to trial, the district court granted defendant's request to review his IMF in camera. The district court, however, failed to conduct the in camera review. At trial, for impeachment purposes only, the United States asked the defendant if he filed his tax returns. Defendant responded that he did file his tax returns. The United States then introduced the testimony of an IRS records custodian to contradict defendant's testimony. The Fifth Circuit found the district court abused its discretion by not conducting the in camera review of the IMF, while admitting conflicting secondary evidence. The Fifth Circuit remanded the case to the district court to conduct the in camera review.

In Buford, the Fifth Circuit did not mandate that the IMF be introduced in evidence or state that Certificates of Assessments and Payments are inadmissible. The Fifth Circuit merely concluded that the best evidence of the contents of the IMF is the IMF itself and not conflicting secondary evidence. See Fed.R.Evid. 1002. In the present case, plaintiffs do not dispute the numbers on the Certificates of Assessments and Payments or the fact that plaintiffs did not file income taxes. Plaintiffs do not dispute the contents of the IMF. Plaintiffs rather are attacking the entire system of the IRS in transcribing and storing information instead of pointing to any specific item or possible error. This court is not the proper forum for such an attack.

Plaintiffs further challenge the Forms 4340 on the basis that these forms are hearsay.⁵ The Forms 4340 are not hearsay because these records fit within the "public records" exception. Fed.R. Evid. 803(8). "Records ... or data compilations ... of public offices or agencies setting forth ... the activities of the office or agency ..." are not excluded by the hearsay rule. Fed.R.Evid. 803(8). There can be no doubt that the activities of the employees of the IRS include the charting and tracking of the assessment, collection and payment of taxes.

Plaintiffs claim that the inclusion of dates from the Form 23C in the Forms 4340 renders the Forms 4340 inadmissible. The date inclusion merely creates a double hearsay issue; the 23C date must fit within a hearsay exception and the Forms 4340 which contain the date must also fit within a hearsay exception. The "public records" exception to the hearsay rule admits the Forms 4340 as well as the 23C date contained within the Forms 4340. Plaintiffs' motion to strike the Forms 4340 and the 23C dates is denied.

Plaintiffs next move to strike Browning's declaration because of Browning's failure to include in his declaration a delegation order, a statement of Browning's authority. Browning states that he made a jeopardy assessment against the plaintiffs, but fails to mention the authority pursuant to which he made the jeopardy assessment in his declaration. This omission is not fatal because the documents which the United States seeks to introduce are self-authenticating. The United States' failure to lay a proper foundation regarding Browning's authority to make a jeopardy assessment against the plaintiffs is permissible.⁶

Plaintiffs claim that Browning did not possess personal knowledge regarding the entry of the plaintiffs' address in the IRS computer. As already mentioned, plaintiffs too narrowly construe the personal knowledge requirement. Plaintiffs' motion to strike the sentence of Browning's declaration relating to the plaintiffs' address as the address appeared on the IRS computer at the time the assessments were made is denied.

The IRS is required to send notice of tax liability and demand payment. 26 U.S.C. § 6303(a). Plaintiffs seek to strike exhibit 3 to Browning's declaration, Form 3552, on the ground that the form does not sufficiently comply with the requirements of 26 U.S.C. § 6303(a). The court cannot declare as a matter of law whether Form 3552 satisfies the statutory requirements. Plaintiffs' motion to strike Form 3552 is denied.

Plaintiffs next attack the declaration of Jean Duncan, a Revenue Officer with the IRS in Portland, Oregon. Plaintiffs assert that Duncan's statement regarding the lack of an Oregon residence of plaintiffs is a misstatement. Plaintiffs point to exhibit 5 attached to Duncan's declaration which lists...