T.C. Memo. 2002-67

UNITED STATES TAX COURT

JOHNNIE ANN HOLLIDAY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5544-01L. Filed March 19, 2002.

Johnnie Ann Holliday, pro se.

Ann M. Welhaf, for respondent.

MEMORANDUM OPINION

 COHEN, Judge: The within proceeding was commenced in

response to a Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330. Petitioner contends

that the determination was invalid because the Appeals officer

did not deliver to her at the time of the section 6320(b) hearing

certain documents that she demanded in her request for a hearing. 
- 2 -

Unless otherwise indicated, all section references are to the

Internal Revenue Code as amended.

Background

Petitioner resided in Phoenix, Arizona, at the time that she

filed her petition in this case. In response to a notice of

filing Federal tax lien for 1991, 1992, and 1993, petitioner sent

to the Internal Revenue Service (IRS) Office of Appeals a request

for a hearing dated September 27, 2000. The request contained

language challenging petitioner’s tax liability and IRS

procedures but did not address alternative methods of collection.

A hearing was held March 1, 2001, in response to

petitioner’s request. The Appeals officer commenced the hearing

by stating that the purpose of the hearing was “to explore

collection alternatives to the outstanding tax liability for the

tax periods 1991, 1992, and 1993.” Petitioner’s husband spoke

for petitioner at the hearing. The Appeals officer stated that

he had requested the Form 4340, Certificate of Assessments,

Payments and Other Specified Matters, and would mail it to

petitioner when it became available. Petitioner’s husband

asserted that the form had to be provided at the hearing. 

Petitioner’s husband argued that “the IRS agency generally files

bogus tax returns for people”, petitioner was not required to

file a tax return, and petitioner had not received a valid notice

of deficiency.
- 3 -

After the hearing and before the date of the notice of

determination, the Appeals officer sent to petitioner a

“MFTRA-X”. The Appeals officer testified at trial:

Q [By respondent’s counsel] And explain to me

what the difference between a MFTRA-X is and the tax

* * * [module] that you’ve already testified you looked

at.

A [By Appeals officer] The MFTRA-X is a userfriendly transcript of the taxpayer’s account. It is

in plain English. It’s in understandable terms,

whereas the tax module is not.

Q Does it contain--what kind of information does

it contain?

A The MFTRA-X contains the taxpayer’s name, the

taxpayer’s identification number, the type of tax that

is owed, the date of the assessment, and the amount of

the assessment.

Q Why did you mail those to the taxpayers

opposed to the 4340s?

A Well, the MFTRA-X and the 4340, they’re both

obtained from IDRS, and the MFTRA-X is retrievable

faster than a 4340, and I also figured that because it

obtained [sic] the same information, I would forward

the MFTRA-X to the taxpayers.

Q Did you forward that to her prior to the date

that the notice of determination was issued in this

case?

A Yes, I did.

Q Can you explain to the Court what is the

difference between a MFTRA-X and a Form 4340?

A There’s relatively little difference. The

major difference is that the 4340 is certified by the

IRS, whereas the MFTRA-X is not.
- 4 -

On March 15, 2001, a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 was sent to

petitioner. The notice stated in part:

During your hearing your arguments consisted of

disputing the assessment, notice and demand and receipt

of the Statutory Notice of Deficiency.

As explained to you during your hearing, you did not

file your tax returns for the periods 1991, 1992 and

1993 and therefore the Service filed returns for you

based on information filed with the IRS such as 1099

and W-2 information. A Statutory Notice of Deficiency

was mailed to you at your last known address, therefore

per IRC sec. 6330(c)(2)(B) you cannot challenge the

amount or existence of the liability. At your request

a transcript of your account will be sent to you

verifying the legality of the assessment and the fact

that payment has not been made.

You offered no collection alternatives in your hearing

even though you were requested to do so.

You offered no other collection alternatives or

challenges to the appropriateness of the collection

actions and because you offered no collection

alternatives to the lien and would not provide

financial information so collection alternatives to the

lien could be considered, it is the determination of

the Appeals Office that the Director of the Service

Center was correct when he determined the lien should

be filed.

In the petition, and in a subsequently filed Motion to

Dismiss for Lack of Jurisdiction, petitioner alleged, among other

things, that: (1) The Appeals officer was biased because he

notified her that arguments in her request for a hearing were

frivolous and without merit; (2) the Appeals officer “tried to

intimidate * * * [her] with threat of court sanctions”; (3) the

Appeals officer did not produce “verification from the Secretary
- 5 -

that the requirements of any applicable law or administrative

procedure have been met”; (4) the Appeals officer “could not

produce any tax return * * * that could have served as the basis

for any such alleged assessment”; (5) she had a right to

challenge the existence of the underlying tax liability because

she did not receive “a valid notice of deficiency”; and (6) there

was no statute establishing an “underlying liability”.

Contemporaneously with filing the petition in this case,

petitioner filed a Motion to Dismiss for Lack of Jurisdiction,

contending that the determination in this case was invalid as a

matter of law because she did not receive a proper hearing. 

Respondent objected to petitioner’s motion to dismiss. In

Petitioner’s Response to Respondent’s Objections to Motion to

Dismiss for Lack of Jurisdiction, petitioner asserted:

(1.) Respondent argues (7) that Petitioner received a

valid Statutory Notice of Deficiency. That Notices

received by Petitioner were invalid.

Before I did anything with respect to the

“Notice,” I first established whether or not it was

sent pursuant to law, whether or not it had the “force

and effect of law,” and whether Mr. Cox had any

authority to send me the notice in the first place.

Petitioner’s motion to dismiss was denied; the Court found that

the determination letter was valid for purposes of invoking the

Court’s jurisdiction in this case.

Prior to trial, respondent sent to petitioner Forms 4340,

certified May 21, 2001. Prior to trial, petitioner filed a
- 6 -

Motion in Limine, seeking to prevent respondent from using any

document or record or presenting any testimony not presented

during the hearing. The Motion in Limine was denied, and, during

the trial, petitioner repeated her objection to each document

offered by respondent. During the trial, petitioner conceded

that she had received the statutory notice of deficiency but

asserted that “it was not valid”. A copy of the Notice of

Deficiency that was received in evidence at trial shows that the

notice was sent to the same address used by petitioner in this

case. The notice determines deficiencies for 1991, 1992, and

1993 and additions to tax under sections 6651(a)(1) and 6654.

Discussion

Upon review of the entire record in this case, it is

apparent that there is no merit to petitioner’s contention that

the statutory notice sent to her for 1991, 1992, and 1993 was

invalid. Petitioner has not shown in fact or as a matter of law

that there was any defect in the assessment that gave rise to the

lien that was the subject of the request for a hearing.

The only issue to be decided is whether the Appeals officer

abused his discretion by sending the notice of determination

after failing to deliver to petitioner at the hearing

“verification from the Secretary that the requirements of any

applicable law or administrative procedure have been met”.
- 7 -

The requirement of a verification is set forth in section

6330(c)(1) and has been the subject of recent Tax Court opinions. 

In Davis v. Commissioner, 115 T.C. 35 (2000), and in Lunsford v.

Commissioner, 117 T.C. 183 (2001), we held that reliance by an

Appeals officer on Form 4340 to verify the assessments was not an

abuse of discretion. In Nestor v. Commissioner, 118 T.C. 162

(2002), we held that, where respondent provides the taxpayer with

Forms 4340 after the hearing and before trial, and the taxpayer

does not show any irregularity in the assessment procedure and is

not, therefore, prejudiced, the failure to provide the forms at

the hearing did not invalidate the determination to proceed with

the collection. We also held that reliance on transcripts other

than Forms 4340 during the hearing, even where copies were not

provided to the taxpayer, was not an abuse of discretion. See

Duffield v. Commissioner, T.C. Memo. 2002-53; Kuglin v.

Commissioner, T.C. Memo. 2002-51.

We conclude that respondent’s determination was not an abuse

of discretion.

Decision will be entered

for respondent.