United States v. Posner, Civ. A. No. 73-368-M.

• Decision Date: 01 December 1975
• Docket Number: Civ. A. No. 73-368-M.
• Parties: UNITED STATES of America v. Leroy A. POSNER and Shirley Posner.
• Court: U.S. District Court — District of Maryland

405 F. Supp. 934

UNITED STATES of America v. Leroy A. POSNER and Shirley Posner.

Civ. A. No. 73-368-M.

United States District Court, D. Maryland.

December 1, 1975.

Garland C. Tanks and John R. Tjaden, Trial Attys., Gen. Litigation Section, Tax Div., U. S. Dept. of Justice, Washington, D.C., for plaintiff.

Eugene Hettleman, Baltimore, Md., for defendants.

MEMORANDUM

JAMES R. MILLER, Jr., District Judge.

The Government filed this suit on April 17, 1973, in two counts. The first count seeks to obtain a judgment against the defendants, Leroy A. Posner and Shirley Posner, jointly and severally, for personal income taxes assessed against them in the amount of $5,847.73, plus interest. The second count seeks to obtain a judgment against Leroy A. Posner, individually, as the responsible officer of Real Estate Corporation of America and Royal Motel, Inc. pursuant to 26 U.S.C. § 6672¹ in the amounts of $995.06 and $7,231.60, respectively, plus interest. At the outset of the trial, the defendants consented to the entry of judgment against them on the first count as to the claim for personal taxes; however, Leroy A. Posner has contended throughout this litigation that the statute of limitations has run on the claims against him under § 6672.

I

The applicable statute of limitations is provided in 26 U.S.C. § 6502(a), which states:

"(a) Length of period. — Where the assessment of any tax imposed by this title has been made within the period of limitation properly applicable thereto, such tax may be collected by levy or by a proceeding in court, but only if the levy is made or the proceeding begun —

"(1) within 6 years after the assessment of the tax, or

"(2) prior to the expiration of any period for collection agreed upon in writing by the Secretary or his delegate and the taxpayer before the expiration of such 6-year period (or, if there is a release of levy under section 6343 after such 6-year period, then before such release).

. . . . . ."

During the trial, the Government introduced two exhibits which are forms signed by Leroy A. Posner and dated April 10, 1967, in which he agrees "to the assessment and collection of a 100% penalty" with respect to the corporations previously mentioned. The Government apparently argues that these agreements activate § 6502(a)(2) and, thereby, permit a suit by the Government for collection to be instituted any time within six years of April 10, 1967.

The simple answer to this argument is that the suit was filed on April 17, 1973, more than six years later. Furthermore, this document consenting to the assessment and collection of the 100% penalty is not the type of agreement referred to in § 6502(a)(2). That section applies to a situation in which an agreement is reached as to a "period for collection." Although Mr. Posner agreed that a penalty assessment and collection could take place, there is no mention in the form of the period during which these events could occur. Therefore, this court proceeding must have begun "within 6 years after the assessment of the tax" as required by § 6502 (a)(1).

At trial, the Government attempted to establish the assessment dates by introduction into evidence of a "Certificate of Assessments and Payments" which was prepared and certified by the Acting Director of the Philadelphia Service Center of the IRS. The Certificate indicates the "23C Date" for the $1,016.01 penalty assessment and the $7,479.74 penalty assessment² to be made December 29, 1967, and April 21, 1967, respectively. The Government argued that the "23C Date" is the date of assessment but presented no evidence of that fact and no other independent evidence of the assessment dates.

The court ruled that the definition of "23C Date" fell within the provisions of Rule 201(b)(2)³ of the Federal Rules of Evidence. Accordingly, the court permitted the Government until November 3, 1975, to submit to this court an affidavit as to the definition of "23C Date" as used in the "Certificate of Assessment and Payments" introduced into evidence by it.

The Government submitted two affidavits. The first signed by Gerald G. Portney, District Director of the IRS for the Baltimore District, deals with information falling outside of the specific request made by the court and cannot be considered at this point in the litigation.

The second affidavit, signed by Norman E. Morrill, Director of the Philadelphia Service Center of the IRS, states that Form 23C from which the term "23C Date" derives is signed by an assessment officer and is "the summary of all assessments for the period involved." Form 23C is, therefore, the "shorthand" designation of the document which the Regulations establish as the sine qua non of the entry of an assessment against a taxpayer.⁴ Reg. § 301.6203-1 provides that "the date of the assessment is the date the summary record is signed by an assessment officer." The court, pursuant to Rule 201 (b)(2) of the Federal Rules of Evidence, therefore, takes 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 assessment were signed by an assessment officer. See also In Re O'Leary, 72-1 USTC § 9287.

A ...