T.C. Memo. 2002-27

UNITED STATES TAX COURT

GERALD H. KLAWONN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 7836-01L. Filed January 25, 2002.

Gerald H. Klawonn, pro se.

James R. Rich, for respondent.

MEMORANDUM OPINION

COLVIN, Judge: This lien and levy case arising under

section 6330(d) is before the Court on respondent’s motion for

summary judgment. The issue is whether it is appropriate to

decide by summary judgment that respondent’s determination to
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proceed with collection of petitioner’s tax liabilities was not

an abuse of discretion. For reasons stated below, we grant

respondent’s motion.

Except as otherwise noted, section references are to the

Internal Revenue Code as amended, and Rule references are to the

Tax Court Rules of Practice and Procedure.

Background

Petitioner resided in Brevard, North Carolina, when he filed

his petition.

A. The Lien and Levy Proceeding

On March 13, 2000, respondent issued to petitioner a Notice

of Federal Tax Lien Filing and Notice of Your Right to a Hearing

relating to the filing of a lien in Ohio. On June 27, 2000,

respondent issued to petitioner a Notice of Federal Tax Lien

Filing and Notice of Your Right to a Hearing relating to the

filing of a lien in North Carolina. Petitioner timely requested

a hearing under section 6320(b).

On January 5, 2001, respondent sent petitioner Individual

Master File transcripts for tax years 1986, 1988, 1989, 1995,

1996, and 1998, which identified petitioner, the type of tax, the

tax period, the dates of assessment, and the amounts of

assessment.
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B. The Section 6320(b) Hearing and Respondent’s Notice of

Determination

On March 28, 2001, respondent’s Appeals Office conducted a

hearing under section 6320(b) in petitioner’s case relating to

assessments of his income tax liabilities for tax years 1986,

1988, 1989, 1995, 1996, and 1998. Petitioner attended the

hearing. At the hearing, petitioner questioned whether an

Assessment officer had signed the assessment documents for the

years in issue. The Appeals officer gave petitioner a copy of a

Form 4340, Certificate of Assessments and Payments, for each of

the years in issue. Petitioner did not challenge the

appropriateness of the intended method of collection.

On May 17, 2001, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 (the determination letter), in which respondent

stated that collection from petitioner of his tax liability for

tax years 1986, 1988, 1989, 1995, 1996, and 1998 would proceed.

On June 20, 2001, petitioner filed a petition for lien or levy

action under section 6320(c) or section 6330(d).

Discussion

A. Summary Judgment

We may grant summary judgment if there is no genuine issue

of material fact and a decision may be rendered as a matter of

law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518,

520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
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Commissioner, 90 T.C. 753, 754 (1988). The moving party bears

the burden of proving that there is no genuine issue of material

fact. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985);

Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). No genuine

issues of material fact preclude us from deciding this matter. 

Rule 121(b). We conclude that respondent is entitled to summary

judgment.

B. Analysis

Petitioner does not challenge the existence or amount of his

underlying tax liabilities for the years in issue. Where the

taxpayer’s underlying tax liability is not at issue, we review

the Commissioner's administrative determination for abuse of

discretion. Sego v. Commissioner, 114 T.C. 604, 610 (2000); Goza

v. Commissioner, 114 T.C. 176, 181-182 (2000).

1. Assessment Records

Petitioner contends that the Appeals officer who conducted

the hearing failed to properly verify that the IRS met the

requirements of any applicable law or administrative procedure as

required by section 6330(c)(1), section 301.6320-1T(e)(1),

Temporary Proced. & Admin. Regs., 64 Fed. Reg. 3402 (Jan. 22,

1999), and section 301.6330-1T(e)(1), Temporary Proced. & Admin.

Regs., 64 Fed. Reg. 3411 (Jan. 22, 1999). Specifically,

petitioner argues that the Appeals officer improperly relied on a

Form 4340 to verify that the taxes in question were assessed. 
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Petitioner further contends that respondent did not make a lawful

assessment on a Form 23 C, Summary Record of Assessment, that was

signed and dated by an assessment officer with duly delegated

authority. We disagree.

The Appeals officer properly used a Form 4340 to verify the

assessments of the taxes in issue. A Form 4340 is presumptive

evidence that a tax has been validly assessed under section 6203. 

Nicklaus v. Commissioner, 117 T.C. 117, 121 (2001); Davis v.

Commissioner, 115 T.C. 35, 40 (2000); see also Huff v. United

States, 10 F.3d 1440, 1445 (9th Cir. 1993); Hefti v. IRS, 8 F.3d

1169, 1172 (7th Cir. 1993); Geiselman v. United States, 961 F.2d

1, 5-6 (1st Cir. 1992); United States v. Chila, 871 F.2d 1015,

1017-1018 (11th Cir. 1989). Petitioner has not alleged any

irregularity in the assessment procedure that would raise a

question as to the validity of the assessment. Even though

petitioner asked the Appeals officer for a Form 23 C, it was not

an abuse of discretion for the Appeals officer to use Forms 4340

for purposes of complying with section 6330(c)(1). See Lunsford

v. Commissioner, 117 T.C. No. 159 (2001); Nicklaus v.

Commissioner, supra at 122 n.7; Davis v. Commissioner, supra at

41.

2. Explanation of Appeals and Collection Process

Petitioner alleges that respondent did not provide him with

an explanation of the appeals and collection process as required

by section 3504 of the Internal Revenue Service (IRS)
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Restructuring and Reform Act of 1998 (RRA 1998), Pub. L. 105-206,

112 Stat. 771, which requires the IRS to include in--

any first letter of proposed deficiency which allows

the taxpayer an opportunity for administrative review

in the Internal Revenue Service Office of Appeals an

explanation of the entire process from examination

through collection with respect to such proposed

deficiency, including the assistance available to the

taxpayer from the National Taxpayer Advocate at various

points in the process.

Petitioner received Notices of Federal Tax Lien and timely

requested and received a section 6320(b) hearing. After he

received respondent’s Notice of Determination, he timely filed a

petition for judicial review of respondent’s determination. The

essence of RRA 1998 section 3504 is to provide the taxpayer with

notice of his or her rights throughout the appeals and collection

process. Since petitioner knew of, and pursued, his right to

administrative and judicial review under section 6320, the

failure of the IRS to provide this information did not prejudice

or harm petitioner in any way.

3. Petitioner’s Request for Documents

Petitioner contends that the Appeals officer did not provide

him with documents before the hearing that he had requested and

argues that this prevented him from presenting his case or

effectively examining documents.

Petitioner requested a copy of the Form 23 C. Respondent

sent him a copy of the record of assessment 2 months before the
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1 Petitioner filed motions for continuance and to compel

production of documents on January 17, 2002. Petitioner’s

request for documents includes: The substitute for return filed

for petitioner by respondent, a copy of the Revenue Agent Report,

the name, address, and telephone number of the person who

prepared the substitute return, the statute and/or portion of the

Internal Revenue Manual authorizing preparation of the substitute

return and the delegation of authority to the person who prepared

it, and a copy of Form 23 C. The documents petitioner requested

are not related to any genuine issues in dispute, and suggest

that any further discovery would be for purposes of delay. 

Accordingly, we denied petitioner’s motions for continuance and

to compel production of documents.

2 At the Appeals hearing, petitioner also sought to raise

the argument that his wife should be granted relief from

liability as an innocent spouse under sec. 6015. The Appeals

officer did not consider that issue because Mrs. Klawonn had not

requested a hearing. Petitioner made no claim in his petition

regarding that issue, and so we have not considered it further

here.

hearing and gave him a copy of the Form 4340 at the hearing. As

stated above, it was not an abuse of discretion for the Appeals

officer to rely on the Form 4340; thus, the Appeals officer did

not abuse his discretion in providing petitioner a copy of the

Form 4340 but not the Form 23 C. See Lunsford v. Commissioner,

supra; Nicklaus v. Commissioner, supra. Petitioner has not

stated which other documents he requested or indicated how he was

prejudiced as a result of not receiving them.1

4. Conclusion

As stated above, no genuine issues of material fact are in

dispute. The above discussion rejects all the grounds upon which

petitioner relied in his petition and in his argument in response

to respondent's motion for summary judgment.2 For the reasons
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stated above, we conclude that respondent’s determination to

proceed with collection of the tax liabilities assessed against

petitioner was not an abuse of discretion. Accordingly, we will

grant respondent's motion for summary judgment.

An appropriate order and

decision will be entered.