Fred DEUTSCH, Petitioner-;Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee., United States Court of Appeals, Second Circuit., 478 F.3d 450, Docket No. 06-;2361-;ag., Decided: March 2, 2007

Fred DEUTSCH, Petitioner-;Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

478 F.3d 450

Docket No. 06-;2361-;ag.

Decided: March 2, 2007.

Argued: Feb. 23, 2007.

Decided: March 2, 2007.

Ira B. Stechel (John T. Morin and Jenni╜fer L. Marlborough, on the brief), Worm╜ser, Kiely, Galef & Jacobs LLP, New York, NY, for petitioner.

Randolph H. Hutter, Attorney (Eileen J. O'Connor, Assistant Attorney General, and Jonathan S. Cohen, Attorney, on the brief), Tax Division, Department of Justice, Washington, DC, for respondent.

Before KEARSE, CABRANES, and KATZMANN, Circuit Judges.

JOSE A CABRANES, Circuit Judge.

Petitioner Fred Deutsch appeals a deci╜sion of the United States Tax Court grant╜ing the motion for summary judgment of respondent Commissioner of Internal Rev╜enue ("Commissioner"). See Deutsch v. Comm'r of Internal Revenue , 2006 W L 345848 (Tax Ct. Feb. 15, 2006). The Tax Court concluded that petitioner could not challenge the extent of his tax liabilities for 1995, 1996, and 1997 because he previ╜ously had an opportunity to dispute those liabilities.

Petitioner's argument that he should be permitted to challenge the gov╜ernment's assessment of his tax liability for the two years in which petitioner did not file tax returns (1995 and 1996) is without merit. First, the Commissioner's failure to issue a formal notice of deficien╜cy does not-;taken alone-;afford petition╜er the opportunity to challenge his under╜lying liability. See 26 U.S.C. ╖ 6330(c)(2)(B) (permitting "challenges to the existence or amount of the underlying tax liability . . . if the person did not re╜ceive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liabili╜ty ") ( emphasis added); see also Schiff v. United States , 919 F.2d 830, 833 (2d Cir. 1990) ("There is no requirement that the Secretary use a specific form to provide notice of a deficiency to a taxpayer."); Perez v. United States , 312 F.3d 191, 195 (5th Cir.2002) (noting the "substantial precedent that IRS Forms 4340 and 4549 are appropriate sources evidencing the IRS's assessment and notice of tax ar╜rears").

We agree with the Tax Court's con╜clusion that petitioner had a previous op╜portunity to dispute his tax liability. On January 9, 2003, the Commissioner mailed to petitioner's tax attorney a Form 4549, or "Income Tax Examination Changes," containing the Commissioner's estimate of petitioner's tax liabilities. Petitioner's at╜torney signed the form, thereby consent╜ing to an assessment of liability against petitioner and to a waiver of the right to contest such liability in the Tax Court. Petitioner had previously filed with the Internal Revenue Service a Power of At╜torney Form that explicitly authorized pe╜titioner's counsel to act on his behalf for tax purposes for the years in question. Although the Power of Attorney form ex╜cluded the power to "sign certain returns," see Form 2848 ╤ 5, J.A at 87, petitioner concedes that the Form 4549 "did not . . . constitute a return," see Pet'r Br. at 17. Accordingly, the signature of petitioner's attorney was sufficient to preclude future challenges in the Tax Court to the govern╜ment's assessment of his tax liability.

Moreover, we see no reason to con╜clude that the IRS Form 4549's title, "In╜come Tax Examination Changes ," pre╜cludes its use to assess petitioner's tax liability simply because petitioner did not file an original return. J.A. at 35 (empha╜sis added). We have held that "when a taxpayer does not file a tax return, it is as if he filed a return showing a zero amount for the purposes of assessing a deficiency." Schiff , 919 F.2d at 832. Accordingly, any assessment contained in the Form 4549 was effectively a change to the original amount of tax liability claimed by petition╜er-;namely, zero dollars. See also id. ("There is no requirement that the IRS complete a substitute return.").

Finally, petitioner's argument that the Commissioner abused his discretion by de╜clining to accept petitioner's amended tax returns for 1997 is without merit. See Dover Corp. & Subsidiaries v. Comm'r , 148 F.3d 70, 72 (2d Cir.1998) ("[T]here is nothing in either the Internal Revenue Code or the regulations thereunder that requires the IRS to accept the amended tax return in place of the original return previously filed.") (internal quotation marks omitted).

Accordingly, the decision of the Tax Court is AFFIRMED.

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