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Судебные дела / Зарубежная практика  / William A. CARROLL, Plaintiff, v. UNITED STATES of America, Defendant., United States District Court, W.D. Tennessee, Western Division., 217 F.Supp.2d 852, No. 01-2877-G/Bre., May 29, 2002

William A. CARROLL, Plaintiff, v. UNITED STATES of America, Defendant., United States District Court, W.D. Tennessee, Western Division., 217 F.Supp.2d 852, No. 01-2877-G/Bre., May 29, 2002


William A. CARROLL, Plaintiff, v. UNITED STATES of America, Defendant.

United States District Court, W.D. Tennessee, Western Division.

217 F.Supp.2d 852

No. 01-2877-G/Bre.

May 29, 2002.

William A. Carroll, Memphis, TN, pro se.

Jason S. Zarin, U.S. Department of Jus╜tice, Tax Division, Washington, DC, for U.S.


GIBBONS, District Judge.

Plaintiff, William Carroll, filed a com╜plaint seeking to invalidate the determination by the Internal Revenue Service (IRS) to proceed with collection by levy on the penalty imposed pursuant to 26 U.S.C. ╖ 6702(a). On January 22, 2002, the de╜fendant filed its answer to the complaint. On March 18, 2002, the defendant filed a motion for summary judgment. On March 27, 2002, plaintiff responded to the defen╜dant's motion for judgment. The following undisputed facts appear in the record:

1. ═ On or about March 7, 2000, plaintiff filed his 1999 federal income tax re╜turn. (Exh. 1 to defendant's memo╜randum in support of motion.)

2. ═ Plaintiff alleged on his return that the $21,252.84 in wages he received from Federal Express and LSI Temporary Services was not income. Plaintiff showed no taxable income on the form and calculated that he overpaid the amount withheld, $2200.58. Pages three and four of plaintiffs return consist of various arguments against the validity of the Internal Revenue Code which are commonly made by those who op╜pose the tax system. In particular, plaintiff asserted that wages are not taxable income. (Exh. 1.)

3. On June 10, 2000, the IRS assessed the $500 frivolous return penalty authorized by 26 U.S.C. ╖ 6702(a) against plaintiff for his 1999 income tax return. (Decl. Of Linda Bear╜

den, Exh. 2, para. 7; Exh. C.)

4. ═ On September 4, 2000, the IRS mailed a final notice and demand letter to plaintiff. (Decl. of Linda Bearden, Exh. 2, para. 7; Exh. C.)

5. ═ On November 7, 2000, the IRS mailed plaintiff a notice of intent to levy, which proposed a levy to collect the frivolous return penalty assessed against him. (Decl. Of Linda Bear╜den, Exh. 2, para. 3; Exh. A.)

6. ═ On November 14, 2000, plaintiff filed a request for a hearing under 26 U.S.C. ╖ 6330. (Decl. of Linda Bearden, Exh. 2, para. 4; Exh. B.)

7. ═ On May 9, 2001, Linda Bearden, an appeals officer with the IRS, was assigned to conduct the collection due process hearing. (Decl. of Lin╜da Bearden, Exh. 2; para. 5.)

8. ═ Ms. Bearden had no prior involve╜ment with the outstanding penalty which was the subject of the pro╜posed levy. (Decl. of Linda Bear╜den, Exh. 2, para. 5.)

9. ═ On June 12, 2001, Ms. Bearden met with plaintiff at her office. (Decl. of Linda Bearden, Exh. 2, para. 6.)

10. At the meeting, plaintiff did not discuss or offer any collection alter╜natives. (Decl. of Linda Bearden, Exh. 2, para. 6.)

11. Although plaintiff alleged that he did not receive a copy of the notice and demand letter mailed to plain╜tiff on September 4, 2000, plaintiff admitted at the meeting that the address to which the IRS mailed the notice was his current address. (Decl. of Linda Bearden, Exh. 2, para. 7.)

12. At the hearing, plaintiff contended that the assessment of the penalty was improper because: (1) he did not receive a copy of the notice and demand, (2) he was not furnished with proof that the deficiency no╜tice was mailed to him, and (3) wages are not income under 26 U.S.C. ╖ 61. (Decl. of Linda Bear╜den, Exh. 2, para. 8.)

13. Although Ms. Bearden provided plaintiff with copies of portions of the Internal Revenue Code relevant to the assessment of the frivo╜lous return penalty, plaintiff contin╜ued to present argument contesting the authority of the United States to assess and collect income and other taxes. Ms. Bearden termi╜nated the hearing and requested that plaintiff leave her office. (Decl. of Linda Bearden, Exh. 2. para. 9.)

14. Pursuant to plaintiff's request, Ms. Bearden mailed to plaintiff copies of additional Internal Revenue sec╜tions relevant to the IRS's authori╜ty to file a federal tax lien, a copy of the assessment document, and a copy of her job description. (Decl. of Linda Bearden, Exh. 2, para. 10.)

15. Ms. Bearden determined that the issuance of a notice of levy bal╜anced the need for efficient tax col╜lection with plaintiff's arguments against the legitimacy of the frivo╜lous return penalty. (Decl. of Lin╜da Bearden, Exh. 2, para. 11.)

16. Ms. Bearden prepared the appeals case memorandum in this case pri╜or to the issuance of the notice of determination. The memorandum reflects what occurred during the collection due process hearing on June 12, 2002. (Decl. of Linda Bearden, Exh. 2, para. 12; Exh. D.)

17. ═ On September 28, 2001, the Appeals Office mailed plaintiff a notice of determination, based upon Ms. Bearden's recommendation and evaluation of the appear hearing.

(Decl. of Linda Bearden, Exh. 2, para. 13; Exh. E.)

Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Cetotex Corp. v. Catrett , 4 77 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "So long as the movant has met its initial burden of 'demonstrat[ing] the absence of a genuine issue of material fact,'" id . at 323, 106 S.Ct. 2548, the nonmoving party then "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party is unable to make such a showing, summary judg╜ment is appropriate.

Emmons v. McLaughlin , 874 F.2d 351, 353 (6th Cir.1989). In considering a mo╜tion for summary judgment, "the evidence as well as the inferences drawn therefrom must be read in the light most favorable to the party opposing the motion." Kochins v Linden Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986).

Pursuant to Rule 56(e), a "party oppos╜ing a properly supported motion for sum╜mary judgment may not rest upon the mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). A genuine issue of material fact exists "if the evidence [presented by the non-moving party] is such that a reasonable ,jury could return a verdict for the non-mo,ing party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. In essence, the inquiry is "whether the evidence presents a sufficient disagree╜ment to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id . at 251-52, 106 S.Ct. 2505.

Twenty six U.S.C. ╖ 6330 provides a taxpayer with the right to a collection due process (CDP) hearing before a levy may issue against any property. The CDP pro╜vides an opportunity to discuss collection options and liability issues. Section 6330(c)(2) provides:

Issues at hearing.-

(A) In general.-The person may raise at the hearing any relevant issue relating to the unpaid tax or the pro╜posed levy, including-

(i) appropriate spousal defenses;

(ii) challenges to the appropriate╜ness of collection actions; and

(iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer╜in-compromise.

(B) Underlying liability.-The person may also raise at the hearing chal╜lenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not, otherwise have an opportunity to dispute such tax liability.

A taxpayer who is dissatisfied with the hearing determination may seek judicial review, pursuant to 26 U.S.C. ╖ 6330(d).

Plaintiff agrees with the defendant that the validity of his underlying tax lia╜bility for his 1999 return is not properly part of this appeal and that the appropri╜ate standard of review is under an abuse of discretion standard. While the Sixth Cir╜cuit has determined the appropriate stan╜dard of review for administrative agency decisions for penalty determinations to be an abuse of discretion standard, it has not yet addressed the issue in the IRS tax penalty context. Steettech, Ltd. v. United States Environmental Protection Agency , 273 F.3d 652, 655 (6th Cir.2001); Schuck v. Frank, 27 F.3d 194, 197 (6th Cir.1994).

District courts within the circuit have adopted the abuse of discretion standard in IRS cases citing the legislative history of ╖ 6330(d). H.R. Conf. Rep. No. 105╜599, at 266 (1998); Bonfante v. United States , No. C-2-00-1222, 2002 WL 373407 (S.D.Ohio Jan.29, 2002); Geller v. United States, 88 A.F.T.R.2d 6494, 2001 WL 1346669 at *2 (S.D.Ohio Sept.26, 2001). Under the abuse of discretion standard, a determination will be affirmed unless the court determines with a "definite and firm conviction" that a clear error of judgment has been committed. Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir.1998).

Plaintiff attended the CDP, however he declined to challenge matters allowable un╜der ╖ 6330(c)(2). In particular, plaintiff did not challenge the appropriateness of the intended method of collection, offer an alternative means of collection, or raise a spousal defense. Rather, plaintiff chal╜lenged whether the IRS followed its re╜quired procedures in assessing the penalty and effecting the levy. Plaintiff raises those same issues here, alleging:

1. the final notice which advised him of his right to the CDP was not signed by the Secretary of the Treasury or his delegate,

2. ══ the appeals officer did not obtain verification from the Secretary or his delegate that all requirements of any applicable law or administrative procedures have been met as re╜quired by ╖ 6330(c)(1),

3. ═ no statutory demand for payment was sent using "Form 17,"

4. ═ the person assessing the penalty was ════ not disclosed, and

5. ═ the statutory authority to impose the penalty was not identified.

It is clear from the record that plaintiff received the notice of intent to levy. The address on the notice of intent to levy is the address plaintiff has provided the court as his current and valid address. See United States v. Zolla, 724 F.2d 808, 810 (9th Cir.1984). Furthermore, plaintiff responded to the notice by requesting a CDP.

Plaintiff's contention that he did not receive a particular form, which he deems "the statutory form," and that the IRS failed to produce that particular form at the hearing is unavailing. The particu╜lar form on which a notice of assessment and demand for payment is made is irrele╜vant as long as it provides the taxpayer with all the information required under 26 U.S.C. ╖ 6303(a). Elias v. Conmett, 908 F.2d 521, 525 (9th Cir.1990). The final notice which plaintiff attached to his com╜plaint satisfies those requirements. Thus, plaintiff had no statutory basis for present╜ing a challenge to the underlying tax liabil╜ity at the CDP.

Furthermore, issues 2, 4, and 5, plaintiffs demands for proof of authority to assess penalties and justification to re╜quire payment have absolutely no legal foundation. Certificates of assessments and payments are generally regarded as being sufficient proof and probative evidence, in the absence of evidence to the contrary, of the adequacy and propriety of notices and assessments that have been made. Gentry v. United States, 962 F.2d 555, 55 7 (6th Cir.1992)(citing United States v. Chila, 871 F.2d 1015, 1018 (11th Cir. 1989); Hughes v. United States , 953 F.2d 531, 540 (9th Cir.1992); Zolla , 724 F.2d at 810; United States v. Miller , 318 F.2d 637, 639 (7th Cir.1963)).

Here, as in Gentry , the certificate and the summary record were signed by IRS directors and officers. Once a valid assessment has been conducted, the gov╜ernment enjoys a presumption of official regularity when implementing a summary collection procedure. Koff v. United States , 3 F.3d 1297, 1298 (9th Cir.1993); Gentry , 962 F.2d at 557-58; United States v. Ahrens , 530 F.2d 781, 785 (8th Cir.1976).

Unlike the assessment documents, no signature of a particular official is re╜quired on the notice of intent to levy de╜spite plaintiff's insistence to the contrary in issue 1. The purpose of the notice of intent to levy is to provide a taxpayer upon whose property or rights to property the IRS intends to levy, notice of that inten╜tion and to give them the right to, and the opportunity for, a pre-levy CDP hearing with the IRS Office of Appeals. See 26 C.F.R. ╖ 301.6330-1(a). The final notice received by Carroll was signed by the Chief of the Automated Collection Branch, Betsy Kinter and indisputably provided him with all the information required un╜der 26 U.S.C. ╖ 6303(a). Cf. Sage v. Unit╜ed States , 908 F.2d 18, 22-23 (5th Cir.1990)(holding technical error will not invalidate a ╖ 6303 notice that complies with the literal requirements); Elias v. Connett, 908 F.2d at 525 (holding form on which a notice of assessment and demand for payment is made is irrelevant as long as it pro-,ides taxpayer with ╖ 6303(a) in╜formation).

An IRS appeals officer must base his decision on three factors: 1) the verifica╜tion that the requirements of any applica╜ble law of administrative procedure have been met; 2) the issues raised by the taxpayer; and 3) the balance between the need for efficient tax collection and the legitimate concern of the person that any collection action be no more intrusive than necessary. 26 U.S.C. ╖ 6330(c)(3).

There is no basis in the record for the court to conclude that the defendant abused its discretion. Carroll has present╜ed no facts demonstrating any procedural defect in the assessment of the tax penalty against him. Thus, the court determines that the IRS complied with all applicable laws and procedures. Furthermore, Car╜roll was provided with an opportunity to raise relevant objections at a hearing with an appeals officer who had no prior in╜volvement in his case. Carroll failed to raise a valid challenge to the proposed levy at the CDP. He does not dispute that he was afforded an opportunity to raise issues at the hearing, but disputes the manner in which the hearing was conducted and the authority of the officer to issue the deter╜mination. Rather than provide any basis for his allegation that the officer abused her discretion, Carroll continues to assert the same frivolous claims in the pleadings before this court.

Plaintiff contends that the defen╜dant's motion for summary judgment should be denied because he has not been provided with an opportunity for discov╜ery. Defendant filed a motion for a pro╜tective order upon receiving plaintiff's un╜signed interrogatories and requests for production. Those requests are attached as exhibits to the government's motion for a protective order. Plaintiff filed an objec╜tion to the defendant's motion for protec╜tive order which includes a request that he be allowed to proceed with discovery.

The interrogatories consist of plaintiffs requests that the defendant identify each frivolous argument that plaintiff presented at the CDP. The requests for production are derivative of the demands made at the hearing, which plaintiff insists were not satisfied. Plaintiff sets forth no adequate explanation of how additional discovery can rebut the record or case law before the court.

The relevant official forms and docu╜ments are before the court. The informa╜tion sought by the plaintiff is not relevant to the issues before the court. Nor will the information sought by the plaintiff produce facts to refute the government's evi╜dence that it satisfied the procedural req╜uisite to levy on plaintiff's property. The parties agree that the standard for review is the abuse of discretion standard and the court is confined to the administrative rec╜ord. United States v. Carlo Bianchi and Co., Inc ., 373 U.S. 709, 714, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963). Thus, the court determines that it is appropriate to rule on defendant's motion for summary judgment with no further discovery permitted.

Accordingly, the court finds that the ap╜peals officer did not commit clear legal error. Because there is no evidence of error in judgment by the appeals officer, nor any specific allegation by Carroll that would support a finding of abuse of discre╜tion, the defendant is entitled to summary judgment as a matter of law. The defen╜dant's motion for summary judgment is GRANTED. Defendant's motion for a protective order is denied as moot.

Furthermore, the court determines that based upon the frivolous nature of plaintiff's arguments, plaintiff maintained this action in bad faith. Thus, the United States is entitled to recover a reasonable attorney's fee and related expenses under 28 U.S.C. ╖ 2412(a) and the bad-faith ex╜ception to the American rule, generally denying such recovery in the absence of a contractual or statutory provision. See Reed v. United States , 581 F.Supp. 718, 720-21 (D.Colo.1984); Lovell v. United States , 579 F.Supp. 1047, 1049 (D.C.Wis. 1984); Tibbetts v. Secretary of the Trea╜sury, 577 F.Supp. 911, 915 (D.C.N.C.1984); Collorafi v. United States, 579 F.Supp. 506, 507 (D.C.N.Y.1983); cf. Perkins v. Commissioner of' Internal Revenue , 746 F.2d 1187, 1188-89 (6th Cir.1984).

Counsel for the defendant will file within eleven (11) days of this order his declara╜tion under penalty of perjury, see 28 U.S.C. ╖ 1746, itemizing the number of hours he expended in representing his client in this proceeding, the approximate hourly rate at which the United States has compensated (or will compensate) him for such representation, and any expenses in╜curred in such representation. Plaintiff will be allowed five days after such filing in which to submit any desired response. Entry of a final judgment will await the court's determination of the amount of al╜lowable attorney's fee.


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