United States Court of Appeals,

Fifth Circuit.

No. 91–6259

Summary Calendar.

UNITED STATES of America, Plaintiff–Appellee,

v.

Malcolm McCALLUM, Defendant–Appellant.

Sept. 1, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY, DAVIS, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The United States brought this suit in district court in order to collect unpaid federal taxes

owed by Malcolm McCallum. The district court granted the go vernment's motion for summary

judgment and entered judgment against the taxpayer.

On appeal, McCallum argues that the district court erred in granting summary judgment

because the government filed its complaint out of time, because the assessments were unauthorized

and procedurally improper, because the court relied on documents that would have been inadmissible

at trial, and because the district court did not allow him adequate discovery.

McCallum argues that the assessments were procedurally improper because he did not receive

the requisite notice . Because the government presented no evidence that the requisite notice was

sent, we agree that there was a disputed factual issue. Thus, the district court erred in granting the

government's motion for summary judgment. We therefore reverse and remand this case to the

district court.

IThe United States filed this suit in district court seeking to reduce to judgment unpaid federal

taxes, penalties, and interest o wed by Malcolm McCallum for the years 1974 through 1981.

McCallum filed a motion to dismiss the case, arguing that the government filed the case out of time.

The district court denied that motion. The United States filed a motion for summary judgment. The

district court granted that motion and entered a judgment in favor of the go vernment against the

taxpayer in the amount of $239,954.65.

McCallum appeals the district court's judgment.

II

On appeal, McCallum raises basically the same argume nt s he raised in his response to the

governm ent 's mo t ion for summary judgment. McCallum argues that the district court erred in

granting summary judgment because the government filed its complaint out of time. He further

argues that the district court erred in granting summary judgment because the assessments were

unauthorized and procedurally improper, and because he did not receive t he required notice and

demand. He also contends t hat t he district court erred in relying on documents submitted by the

government along with its motion for summary judgment. Finally, McCallum argues that the district

court erred in granting summary judgment before he had an opportuni ty to obtain essential evidence

through discovery.

III

Summary judgment is appropriate if the moving party establishes that there is no genuine issue

of material fact and that it is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); A nderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (198 6). The

granting of a summary judgment motion is reviewed by this court de novo. Walker v. Sears, Roebuck

& Co., 853 F.2d 355, 358 (5th Cir.1988).1 Treas.Reg. § 301.6203–1 provides that an assessment is made when the assessment officer

signs the summary record. The summary record provides the identification of the taxpayer, the

character of the liability assumed, the taxable period, and the amount of the assessment. The

Certificates of Assessments and Payments submitted by the government establish that the Form

23C Assessment certificates were signed on June 20, 1983. In its motion for summary judgment, the U n ited States asserted that a delegate of the

Secretary of the Treasury had made t imely assessments against McCallum for unpaid taxes, penalties,

and interest; that notice and demand for payment had been made; that McCallum had not paid the

amount owed; and that the assessments were entitled to a presumption of correctness. The district

court granted the government's motion without opinion and entered a judgment against the taxpayer.

IV

A

First, McCa llum co nt ends that the government filed its complaint out of time. 26 U.S.C.

Sect ion 6502(a) provides that a tax assessment may be collected by a proceeding in court if such

proceeding is begun within six years after the tax assessment was made. The government contends

that the assessments were made on June 20, 1983, and that the complaint was timely filed on June

19, 1989. McCallum contends that the assessments were actually made on September 9, 1982,

making the government's c o mplaint untimely. The examiner apparently did make his report of

McCallum's tax liabilities on September 9, 1982, but the assessments were not made until June 20,

1983, when the assessment officer signed the F o rm 23C Assessment certificates. 1 Therefore, the

government's complaint was timely filed.

B

Next, McCallum contends that the district court erred in granting summary judgment because

there was a material fact at issue regarding the authorization of the action against him. 26 U.S.C.

Section 7401 provides that the Secretary must authorize any proceeding to recover taxes and that the

Attorney General or his delegate must direct that the proceeding be commence d. Secti on 7103

provides that the Attorney General or his delegate, at the request of the Secretary, may direct a civilaction to be filed in district court to enforce a lien of the United States with respect to a taxpayer's

liabilit y. Section 7701(a)(11)(B) defines "Secretary" as the Secretary of the Treasury or his delegate.

In its complaint, the government alleged that the action was authorized and requested by the

Chief Counsel, Internal Revenue Service, who is a delegate to the Secretary of the Treasury, and that

the commencement of

t he action was directed on behalf of the Attorney General. In McCallum's

response to the government's motion for summary judgment, he alleged that an improper delegate

acted on behalf of the Secretary to assess him. McCallum did not argue below that this civil action

was not authorized by the Secretary or his delegate, or that this civil action was not directed by the

Attorney General; he did not even mention Sections 7401 or 7403. In U nited States v. Twenty–Two

Firearms, 463 F.Supp. 730, 731 (D.Col.1979), the case on which McCallum relies, the court held

that in the absence of a denial, the authorization of the Secretary or his delegate and the direction of

the Attorney General or his delegate may be presumed. Thus, there was no material fact at issue

belo w regarding the authorization or direction of the action which would have barred the district

court from entering summary judgment.

C

McCallum also argues that he did not receive the notice required by Section 6303(a). Section

6303(a) provides that the Secretary shall provide notice to each person liable for unpaid taxes within

60 days of the assessment. The notice must state the amount and demand payment. In his original

answer, McCallum admitted that demands were made to him for payment , but did not specify the

amount demanded. In his response to the government's motion for summary judgment, however,

McCallum alleged that he did not receive the notice and demand required by Section 6303(a).

In United States v. Jersey Shore State Bank, 781 F.2d 974, 981 (3rd Cir.1986), aff'd, 479

U.S. 442, 107 S.Ct. 782, 93 L.Ed.2d 800 (1987), the Third Circuit held that Section 6303(a) only

requires notice to those individuals aga i nst whom the government can proceed administratively.2 The passage we referred to reads as follows:

Jersey Shore first maintains that, because employers and lenders are

similarly situated under the Code, the procedural requirements applicable to

employers also must be accorded to lenders. But even assuming that § 6303(a)

notice would provide lenders with meaningful information, we are unpersuaded by

this contention. Under the collection mechanisms established by the Code,

employers and lenders are in very different positions. While employers are subject

to the Government's summary collection procedures soon after unpaid employment

taxes are assessed, see, e.g., §§ 6321, 6322, 6331, 6335, the legislative history of §

3505 makes clear that the Government may forcibly collect against a lender only

by filing a civil suit.... An employer therefore has a greater need for an assessment

notice than third-party lenders, who are not subject to summary collection

procedures. Jersey Shore, 479 U.S. at 447, 107 S.Ct. at 785–786. There, the question presented was whether the failure of the gover nment to noti fy a thi rd-party

lender/wage-payer of an assessment against the taxpayer for whic h t he lender might be personally

liable under § 3505 barred collection of the tax in a suit by the government. The Supreme Court

affirmed the result, holding that failure to give Section 6303(a) notice is not a bar to the government's

bringing a civil suit against a lender under Section 3505. The Supreme Court did not specifically

address the Third Circuit's rationale that the government's failure to give notice under Section 6303(a)

cuts off only the government's administrative and not judicial remedies. J ersey Shore, 479 U.S. at

447, 107 S.Ct. at 785.

In Security Industrial Ins. Co. v. U.S., 830 F.2d 581, 587 (5th Cir.1987), this court stated

in dicta that the Supreme Court's language in Jersey Shore "reinforces the view that the lack of notice

under Section 6303(a) deprives the government of administrativ e remedies only." 2 In S ecurity

Industrial, however, we did not decide whether Sec t io n 6303(a) deprives the government only of

administrative remedies. The Sixth, Ninth, and Eleventh Circuits have come to the conclusion that

failure to give notice under Section 6303(a) bars only administrative proceedings. S ee United States

v. Berman, 825 F.2d 1053, 1060 (6th Cir.1987); U.S. v. Kohnke, 923 F.2d 864 (9th Cir. Jan. 18,

1991) (unpublished); U

nited States v. Chila, 871 F.2d 1015, 1019 (11th Cir.1989), cert. denied, 493

U.S. 975, 110 S.Ct. 498, 107 L.Ed.2d 501. Only the Seventh Circuit, in a case decided before the

Supreme Court decided Jersey Shore, has held that lack of § 6303(a) notice bars civil proceedings3 The Certificates of Assessments and Payments refer to "quick assessments." McCallum

assumes in his response to the governments motion for summary judgment that the government

made jeopardy assessments pursuant to § 6861. The government, however, does not allege that

the assessments were jeopardy assessments. as well as administrative proceedings to collect unpaid taxes. U .S. v. Associates Commercial Corp.,

721 F.2d 1094, 1098 (7th Cir.1983). As the Supreme Court indicated in Jersey Shore, the notice

provision in Section 6303(a) was designed to protect taxpayers from the summary admi nistrati ve

powers of the IRS. Such protection is unnecessary when the government initiates a civil proceeding

because the c o mplaint gives the taxpayer notice that the government is proceeding against his

property

. Thus, we hold that failure to give Section 6303(a) notice does not bar the government from

bringing a civil action against a taxpayer to collect unpaid taxes.

D

McCallum also argues that the district court erred in granting summary judgment because

he did not receive the notice required by Section 6212. Secti on 6212 provides that when the

Secretary determines that there is a deficiency, he is authorized to send the taxpayer notice of the

deficiency by certified mail or registered mail. Within 90 days after the notice of deficiency is mailed,

the taxpayer can petition the tax court for a redetermination of the defic iency. Section 6213(a).

Section 6213(a) further provides:

Except as otherwise provided in Section 6851, 6852, or 6861, no assessment of a deficiency

... and no levy or proceeding in court for its collection shall be made, begun, or prosecuted

until such notice has been mailed to the taxpayer, nor u nt il t he expiration of such 90–day

perio d ..., no r if a petition has been filed with the Tax Court, until the decision of the Tax

Court has become final.

The government did not allege in its original complaint or its motion for summary judgment that this

is a proceeding under §§ 6851, 6852 or 6861 to which the provisions of §§ 6212 and 6213 do not

apply. 3 Thus, for the purposes of this appeal, we are assuming that the requirements of § 6212 apply.

The government did not allege in its original complaint or its motion for summary judgment4 The government does allege in its original complaint and motion for summary judgment that

notice of the assessment was sent on June 20, 1983.

5 In his original response to the complaint, McCallum admitted receiving some demands for

payment, but did not specify the amount the demands were for.

6 McCallum objected to the Certificates in district court on the grounds that they were

incorrect, not on the grounds that they would have been inadmissible at trial. that it sent McCallum notice of the deficiency as required by Section 6212 or that the 90–day period

had expired. 4 In his reply to the motion for summary judgment, McCallum denied having received

the notice required by § 6212. 5 There is no evidence in the record that such notice was sent. Thus,

there was a disputed factual issue as to whether the notice required by § 6212 was sent. The district

court therefore erred in granting summary judgment.

E

McCallum further contends that the district court erred in relying on the F orm 4340

Certificates of Assessment and Payments. First, he argues that in order for the government to make

a prima facie case, it had to submit the Form 23C assessment and the supporting a ssessment lists.

The government only submitted the Form 4340 Certific at es of Assessments and Payments. A

Certificate of Assessment and Payment, however, has been held to be presumptive proof of a valid

assessment where the taxpayer has produced no evidence to counter that presumption. R ocovich v.

U.S., 933 F.2d 991, 993 (Fed.Cir.1991); Chila, 871 F.2d at 1018. Next, McCallum contends that

the district court e rred in relying on these documents because they would have been inadmissible

evidence at trial. McCallum did not raise this argument below, and therefore we will not address it.

Hone ycutt v. Long, 861 F.2d 1346, 1352 (5th Cir.1988). 6 McCallum, of course, may raise these

objections on remand.

F

Finally, McCallum argues that the district court erred in granting summary judgment because

he was not afforded an opportuni ty to obtain evidence through discov ery to rebut the m oti on.McCallum requested e ach assessment and summary record of assessment. Fed.R.Civ.P. 56(f)

provides:

Should it appear from the affidavi t s of a party opposing the motion that the party

cannot for reasons stated present by affidavit facts essential to justify the party's opposition,

the court may refuse the application for judgment or may order a con tinuance to perm it

affidavits to be obtained or depositions to be taken or discovery to be had or may make such

other order as is just.

McCa llum did not submit an affidavit stating that he could not adequately respond to the

government's motion for summary judgment becau se he needed to obtain documents through

discover y

. Therefore, the district court's failure to order a continuance or delay its ruling was not

error.

V

In conclusion, we hold that the gove rnment filed a timely complaint. We further hold that

failure to give Section 6303(a) notice deprives the government of administrative remedies but not civil

actions. Finally, we hold that the district court erred in granting the government's motion for

summary judgment because there was a disputed factual issue as to whether the requisite notice under

§ 62 12 was given. Therefore, the judgment of the district court is REVERSED, and the case is

REMANDED for further consideration not inconsistent with this opinion.

REVERSED and REMANDED.