T.C. Memo. 2003-293

UNITED STATES TAX COURT

ERNEST L. COLLINS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 11532-02L. Filed October 21, 2003. 

Ernest L. Collins, pro se.

Caroline R. Krivacka, for respondent.

MEMORANDUM OPINION

HOLMES, Judge: Ernest L. Collins, a resident of Tennessee

when he filed his petition, claims to believe that there is no

law requiring him to pay income tax. He has certainly declined

to file returns for much of the last decade. This attracted

respondent’s attention, and led to this litigation over

respondent’s authority to levy against petitioner’s property. 
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Today, we determine that respondent did not abuse his discretion

in deciding to proceed with collection of petitioner’s unpaid tax

liabilities, and will grant his motion for summary judgment. 

Background

In 1998, respondent issued notices of deficiency for

petitioner’s 1992-94 tax years. Petitioner did not pay, and he 

challenged the determined deficiencies in this Court. As trial

approached, petitioner stipulated to a decision conceding the

full amounts shown, and we entered decision on October 26, 2000.

On February 26, 2001, respondent mailed notices of

assessment and statements of the balance due for each of the 3

years at issue. Petitioner again chose not to pay and in May

2001 was sent notices of intent to levy. By August of that year 

he still had not paid and so was sent the standard notice telling

him that he was entitled to a hearing. Petitioner asked for one,

and it was finally held in June 2002.

In his request for a hearing, petitioner put the IRS on

notice of his view that its tax collection procedures violated

the Fourth and Fifth Amendments but focused his objection on what

he called the absence of a valid assessment and demand for

payment. He also stated that he could not pay the taxes even if

they had been validly assessed and demanded. 

At the hearing, the Appeals officer reviewed the Form 4340

--the Certificate of Assessments, Payments, and Other Specified
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Matters--for each year and determined that the IRS had mailed

valid assessment and demand notices. She also looked at

collection alternatives, but her review of IRS records showed

that petitioner had not filed an income tax return since at least

1994. Thus, following 2 Administration, Internal Revenue Manual

(CCH), sec. 5.8.3.2, at 16,281, she did not pursue any collection

alternatives. 

After the hearing, the IRS sent petitioner a notice of

determination that it would proceed with collection; petitioner

then petitioned for review.

Discussion

In his petition, petitioner made barebones assertions that

the IRS had failed to offer him a fair and impartial hearing,

failed to provide a fair and impartial officer, and failed to

follow its own procedures. He also renewed his objection to the

adequacy of the notices of assessment and demands for payment

that respondent had sent him.

Respondent denied these allegations and now moves for

summary judgment. 

Because this Court has already decided the question of

petitioner’s tax liability in its 2000 decision, that liability

is no longer at issue, and we will review respondent’s 

determination for abuse of discretion. See Davis v. Commissioner,

115 T.C. 35, 39 (2000).
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1 References to “Rules” are to the Tax Court Rules of

Practice and Procedure.

2 We note that the Chief Counsel has taken the position

that the Administrative Procedure Act’s provision for judicial

review of informal adjudication, 5 U.S.C. sec. 706(2)(A)-(D)

(2000) should apply. Office of Chief Counsel Notice CC-2003-016,

at 29 (May 29, 2003). We have not ourselves taken a position on

the merits of that assertion, but that type of review would

likely be easier if a uniform procedure were in place, whenever

the Commissioner moves for summary judgment, to put before a

reviewing court the record (or at least the parts of it on which

either party relies). See James Madison Ltd. ex rel. Hecht v.

Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996). 

Summary judgment is appropriate where “there is no genuine

issue as to any material fact and * * * a decision may be

rendered as a matter of law.” Rule 121(b), Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).1 Respondent’s summary

judgment motion was originally unaccompanied by certified copies

of the Forms 4340 that the Appeals officer referred to during

petitioner’s hearing and on which she relied in making her

determination. However, in a supplemental filing respondent

rectified this omission. Petitioner, in his response, also

attached copies of the February 26, 2001, letters that he

received. Respondent represented at a hearing on this motion

that he does not object to their consideration. The evidence

before respondent is now before the Court.2 

In opposing the motion, petitioner does not contest

respondent’s proof that both the hearing and the officer who ran

it were impartial; nor does he contest that the IRS followed its
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3 Petitioner does object to our consideration of some of the

excerpts from the administrative file, on the ground that the

declaration identifying them was not made by one with personal

knowledge of what occurred during the hearing. However, the

declaration identifying them was made by an IRS attorney

competent to identify them as IRS records, and so they are

presumptively admissible under Fed. R. Evid. 803(8).

own procedures. These issues are consequently waived.3 “When a

motion for summary judgment is made and supported as provided 

in this Rule, an adverse party may not rest upon the mere

allegations or denials of such party’s pleading”. Rule 121(d).

Petitioner’s main argument in opposing summary judgment is

that, as a matter of law, the February 26, 2001, statements of

balance due--statements that he concededly received since he

attached copies to his opposition--are not an adequate “notice

and demand” under Internal Revenue Code section 6331(a) because

they use the word “please” rather than “demand” or one of its

synonyms.

He cites a passage from an unpublished decision, Toussiant

v. Dept. of the Treasury, No. 91-3150 (D.N.J. Aug. 2, 1991), 

1991 U.S. Dist. LEXIS 11275 to support his assertion. In

Toussiant, the court wrote that a statement of balance due is not

an adequate “demand”. Such a statement

At most * * * notifies * * * [a taxpayer] of the amount

due and requests that he ‘please’ make payment in a

certain manner. While the Court certainly does not

criticize the IRS for endeavoring to be polite to a
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4 As petitioner is careful to point out, this was dictum--

the court in Toussiant found an adequate “demand” in other timely

notices that the IRS had sent to the taxpayer. Toussiant v.

Dept. of the Treasury, No. 91-3150, slip op. at 8-9 (D.N.J. Aug.

2, 1991).

taxpayer, nevertheless, this “notice” does not satisfy the

requirements of § 6303(a) * * *.[4]

If only to ensure that computer-assisted legal research

databases place a “negative treatment indicated” flag on this

excerpt, we stress again that this Court rejects the notion that

magic words are required to make a sufficient “demand” on a

taxpayer who owes taxes. We have repeatedly held that the Code’s

requirement of “notice and demand” in such sections as 6303(a)

and 6331(a) is met when the Commissioner informs a taxpayer “of

the amount owed and [requests] payment.” See, e.g., Koenig v.

Commissioner, T.C. Memo. 2003-40; Schaper v. Commissioner, T.C.

Memo. 2002-203; Weishan v. Commissioner, T.C. Memo. 2002-88. We

have also specifically held that notices of balance due--

precisely the sort of notices respondent sent to petitioner--

“[constitute] a notice and demand for payment under section

6303(a).” Craig v. Commissioner, 119 T.C. 252, 262-263 (2002);

Koenig v. Commissioner, supra.

Respondent’s decision to proceed with collection was no

abuse of discretion. There being no other issues to be decided,
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An order and decision granting

respondent’s motion will be

entered.