1 Unless otherwise noted, all section references are to the

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

the Tax Court Rules of Practice and Procedure.

T.C. Memo. 2004-94

UNITED STATES TAX COURT

JOHNNY OWINGS MILAM, JR. AND BRENDA RAMSEY MILAM, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 2538-02L. Filed April 6, 2004.

Johnny Owings Milam, Jr. and Brenda Ramsey Milam, pro sese.

Steven M. Webster, for respondent.

MEMORANDUM OPINION

GALE, Judge: This case is before us on respondent’s motion

for summary judgment under Rule 121.1 Respondent contends that

there is no dispute as to any material fact and that respondent’s

determination to proceed with the collection action at issue
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2 Subsequent to a hearing, petitioners submitted their own

motion for summary judgment advancing arguments similar to those

we consider herein. We shall deny petitioners’ motion.

should be sustained as a matter of law. For the reasons

discussed below, we shall grant respondent’s motion.2

Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials. Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy “if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law.” Rule 121(a) and (b); Sundstrand

Corp. v. Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994). The moving party bears the burden of proving

that there is no genuine issue of material fact, and factual

inferences are drawn in a manner most favorable to the party

opposing summary judgment. Dahlstrom v. Commissioner, 85 T.C.

812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).

In support of this motion for summary judgment, respondent

submitted exhibits, an affidavit, and certified Forms 4340,

Certificate of Assessments, Payments, and Other Specified

Matters, for petitioners’ taxable years 1996 and 1997. 
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Petitioners submitted an affidavit in opposition to respondent’s

motion. A hearing on the motion was also held. 

Background

At the time they filed the petition in this case,

petitioners resided in Burgaw, North Carolina.

On April 27, 1999, respondent mailed petitioners a notice of

deficiency determining deficiencies in petitioners’ Federal

income taxes of $4,532 for 1996 and $5,007 for 1997. Petitioners

admit receiving the notice. Petitioners did not file a petition

for redetermination, and the deficiencies plus interest were

assessed on October 25, 1999. A Statutory Notice of Balance Due

covering the foregoing assessments was mailed to petitioners on

the same day. 

On August 25, 2000, respondent filed a Form 668(Y)(c),

Notice of Federal Tax Lien, with the Clerk of Superior Court,

Pender County, North Carolina, covering petitioners’ 1996 and

1997 taxable years. On August 30, 2000, respondent mailed

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

a Hearing Under IRC 6320, covering those same years. In response

to the Notice, petitioners timely filed a Form 12153, Request for

a Collection Due Process Hearing. As grounds for their objection

to respondent’s lien, petitioners alleged the following:

The basis for my appeal is that the notice of lien

and the purported assessments and alleged tax

liabilities are not based on filed income tax returns

or competent evidence. Further, said notice of lien is
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deficient on it’s [sic] face because it is not in

compliance with 26 USC section 6065. 

A face-to-face meeting was held between petitioners and an

Appeals officer on August 22, 2001. On November 5, 2001, the

Appeals officer issued a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330, wherein he

determined: (1) That the requirements of all laws and

administrative procedures had been met; (2) that petitioners had

had a prior opportunity to dispute the underlying tax liability

and were thus precluded from contesting it in the collection

proceeding; and (3) that no other issues had been raised. Based

on these findings, the Appeals officer determined that the lien

was appropriate.

On January 31, 2002, petitioners filed their petition in the

instant case. The petition raises several issues, including: 

(1) Whether “procedurally proper” versions of various documents

were ever issued, including a notice of deficiency, a notice and

demand for payment, and a notice of Federal tax lien; (2) whether

petitioners’ liabilities were properly assessed; (3) whether the

Appeals officer failed to verify that the requirements of any

applicable law or administrative procedure were met, as required

by section 6330(c)(1); and (4) whether respondent erred by

failing to allow petitioners an examination interview and an

administrative appeal prior to issuance of the notice of
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deficiency. The petition also alleges that the underlying tax

liabilities are invalid. 

Discussion

Section 6321 imposes a lien in favor of the United States on

all property and rights to property of a person liable for taxes

when a demand for the payment of a person’s liability for the

taxes has been made and the person fails to pay those taxes. 

Such a lien arises when an assessment is made. Sec. 6322. 

Section 6323(a) requires the Secretary to file a notice of

Federal tax lien if such lien is to be valid against any

purchaser, holder of a security interest, mechanic’s lienor, or

judgment lien creditor. Lindsay v. Commissioner, T.C. Memo.

2001-285, affd. 56 Fed. Appx. 800 (9th Cir. 2003).

Section 6320 provides that the Secretary shall furnish the

person described in section 6321 with written notice of the

filing of a notice of lien under section 6323. The notice

required by section 6320 must be provided not more than 5

business days after the day of the filing of the notice of lien. 

Sec. 6320(a)(2). Section 6320 further provides that the person

may request administrative review of the matter (in the form of

an Appeals Office hearing) within 30 days beginning on the day

after the 5-day period. Section 6320(c) provides that the

Appeals Office hearing generally shall be conducted consistent

with the procedures set forth in section 6330(c), (d), and (e). 
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3 For example, the petition alleges that the notice of

deficiency is invalid because it was not signed under penalties

of perjury pursuant to sec. 6065. There is no evidence that this

issue was raised with the Appeals officer, although a similar

argument was made with respect to the Notice of Federal Tax Lien.

Section 6330(c)(2) prescribes the matters that a person may

raise at an Appeals Office hearing. Under that section, a person

may raise any relevant issue related to the unpaid tax or notice

of lien, but the existence or amount of the underlying tax

liability may be contested only 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.” 

Sec. 6330(c)(2)(B); Sego v. Commissioner, 114 T.C. 604, 608-609

(2000); Goza v. Commissioner, 114 T.C. 176, 180-181 (2000).

Section 6330(d) provides for judicial review of the

administrative determination in the Tax Court or a Federal

District Court, as may be appropriate. Where the underlying tax

liability is not at issue, the Court will review the Appeals

officer’s determination for abuse of discretion. Sego v.

Commissioner, supra at 610.

We note at the outset that the petition in the present case

raises several issues that it is not clear were raised with the

Appeals officer.3 However, because none of the issues raised in

the petition has any merit, we need not distinguish between
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issues raised at the administrative level and issues raised for

the first time in the petition.

A. Notice of Deficiency

Petitioners’ first allegation of error is that the notice of

deficiency they received for 1996 and 1997 was invalid because it

was not issued in compliance with section 6065, which generally

provides that documents or statements required to be made under

the internal revenue laws must be subscribed under penalties of

perjury. Petitioners’ argument is without merit. The

requirements of section 6065 are directed at documents

originating with the taxpayer, not respondent. Davis v.

Commissioner, 115 T.C. 35, 42 (2000). Therefore, respondent’s

failure to sign the notice of deficiency under penalties of

perjury does not invalidate it.

B. Verification Requirement

Petitioners also allege that the Appeals officer failed to

satisfy the requirements of section 6330(c)(1), which provides

that the Appeals officer must verify that any applicable law or

administrative procedure has been met. While the Notice of

Determination contains only a general, conclusory statement to

the effect that the applicable laws and administrative

requirements were met, we have examined certified copies of Forms

4340 covering petitioners’ 1996 and 1997 taxable years, and on

that basis we are satisfied that petitioners’ liabilities for
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those years were properly assessed, and that notice of the

assessments and demand for payment were properly made. Absent

some showing of irregularity, the Form 4340 provides presumptive

proof of its contents. Davis v. Commissioner, supra at 41. At

the hearing on respondent’s motion, petitioner husband alleged

several irregularities on the Forms 4340. We have examined these

allegations and find that they are either nonsensical,

contradicted by petitioners’ other admissions, immaterial, or

irrelevant to the collection action at issue. In sum, resolving

all factual inferences in petitioners’ favor, we find no

irregularity with respect to the assessment or collection action

at issue in this case which would cast doubt on the reliability

of the Forms 4340. Therefore, the Appeals officer’s conclusion

that all applicable laws and administrative requirements were met

was not an abuse of discretion.

C. Validity of the Assessments

Petitioners’ next allegation of error is that their 1996 and

1997 liabilities were not properly assessed. As support for this

claim, petitioners assert that the Appeals officer failed to

produce a copy of a “Record of Assessment” upon request.

Petitioners’ contention, even if true, is unavailing. 

Section 6330(c)(1) requires only that the Appeals officer verify

that an assessment has been made; he need not provide such

verification to the taxpayer. Nestor v. Commissioner, 118 T.C.
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162, 166-167 (2002). As previously discussed, the certified

copies of the Forms 4340 for petitioners’ 1996 and 1997 taxable

years establish that petitioners’ liabilities for those years

were properly assessed after petitioners failed to respond to the

notice of deficiency.

D. Validity of the Notice and Demand for Payment

Petitioners’ next contention is that they did not receive a

“procedurally proper” Notice and Demand for Payment with respect

to 1996 and 1997, as required by sections 6321 and 6303.

The certified Forms 4340 indicate that a Statutory Notice of

Balance Due was sent to petitioners on October 25, 1999. When

questioned at the motion hearing, petitioner husband conceded

that he “got something” on that date from the IRS but refused to

concede that it was a Statutory Notice of Balance Due. We

accordingly find that petitioners have failed to show error or

irregularity in the Forms 4340 with respect to the issuance of a

Statutory Notice of Balance Due. A Notice of Balance Due

satisfies the requirement of notice and demand for payment under

section 6303. See Craig v. Commissioner, 119 T.C. 252, 262-263

(2002); Keene v. Commissioner, T.C. Memo. 2002-277; Hall v.

Commissioner, T.C. Memo. 2002-267. Therefore, petitioners’

contention lacks merit.
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E. Notice of Federal Tax Lien

Petitioners next contend that the Notice of Federal Tax Lien

Filing and Your Right to a Hearing Under IRC 6320 and the Notice

of Federal Tax Lien (filed with the Clerk of Superior Court in

Pender County, North Carolina) were invalid because they were not

signed under penalties of perjury as required by section 6065. 

As previously discussed, documents prepared by respondent need

not comply with section 6065. Petitioners admit receiving the

Notice of Federal Tax Lien Filing. Consequently, petitioners

have identified no defect with respect to this notice of the

lien’s filing.

F. Examination Interview and Administrative Appeal

Petitioners also allege error in that they were not given

the opportunity for an “examination interview” or for an

administrative appeal prior to the issuance of the notice of

deficiency. However, it is well established that taxpayers have

no entitlement to any such interview or appeal prior to the

issuance of a notice of deficiency. See, e.g., Luhring v.

Glotzbach, 304 F.2d 560, 563 (4th Cir. 1962); Edwards v.

Commissioner, T.C. Memo. 2002-169 (and cases therein cited). 

Accordingly, the failure by respondent to grant petitioners an

examination interview or administrative appeal prior to issuance

of the notice of deficiency in no way invalidates the notice with
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respect to which the liabilities at issue in this case were

assessed.

G. Underlying Tax Liabilities

Petitioners also raise several issues that attack the

validity of the underlying tax liabilities for 1996 and 1997. 

Since petitioners received a notice of deficiency with

respect to those years and did not petition this Court regarding

that notice, they are now precluded from disputing the existence

or amount of the underlying tax liabilities. Sec. 6330(c)(2)(B);

Nestor v. Commissioner, supra.

H. Conclusion

Petitioners have not raised any spousal defenses, challenges

to the appropriateness of the collection action, or collection

alternatives. We have considered every contention raised by

petitioners, and conclude that there are no genuine issues of

material fact, and that respondent is entitled to judgment as a

matter of law. We shall therefore grant respondent’s motion for

summary judgment. To reflect the foregoing,

An appropriate order and

decision will be entered.