Friv Pen Repeater Heads To Tax Court

[The Observer]

DAVID G. TURNER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Release Date: SEPTEMBER 29, 2008


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

OPINION AND ORDER

Plaintiff David G. Turner ("Plaintiff" or "Turner"), a taxpayer proceeding pro se, brings this action against the United States of America seeking an order (1) declaring invalid a decision and a determination by the Internal Revenue Service ("IRS") that allow the IRS to levy upon Plaintiff's personal property to satisfy his tax liabilities; (2) ordering the United States to reimburse Plaintiff for all of his costs in bringing this action; and (3) awarding Plaintiff any punitive damages to which he is entitled. Plaintiff specifically challenges the IRS' alleged failure to hold collection due process hearings pursuant to 26 U.S.C. section 6320 and/or 6330 before issuing the Notice of Decision and Notice of Determination, which were both dated April 14, 2005. The matter is presently before the Court on the United States of America's Motion for Summary Judgment [Doc. No. 49]. Upon consideration of the record, the Court concludes that the United States of America's Motion for Summary Judgment is due to be granted./1/

I. BACKGROUND

For the purposes of deciding this Motion for Summary Judgment, the Court summarizes the following undisputed material facts, which the Court has gathered from the United States of America's Statement of Undisputed Material Facts, Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, and the Court's review of the record. The Court views the facts in the light most favorable to Plaintiff, the non-moving party.

On November 6, 2000, the IRS assessed Plaintiff with a $ 500 penalty for filing a frivolous income tax return under 26 U.S.C. section 6702 in connection with his 1040 income tax return filed for 1999. On June 9, 2003, the IRS assessed Plaintiff a $ 500 penalty for filing a frivolous return under 26 U.S.C. section 6702 in connection with his 1040 income tax return filed for 2000. On March 17, 2003, the IRS assessed Plaintiff $ 500 for filing a frivolous income tax return under 26 U.S.C. section 6702 in connection with his 1040 income tax return filed for 2001. On August 11, 2003, the IRS assessed Plaintiff with a penalty for filing a frivolous income tax return under 26 U.S.C. section 6702 in connection with his 1040 income tax return filed for 2002.

On October 12, 2004, the IRS sent Plaintiff, by certified mail, a Notice of Intent to Levy and Your Right to a Hearing ("Notice of Intent to Levy") for unpaid and outstanding civil penalties assessed against him pursuant to 26 U.S.C. section 6702. This Notice of Intent to Levy concerned Plaintiff's tax liabilities for years 1999 through 2002. A prior Notice of Intent to Levy regarding the tax liability for tax year 1999 had been sent to Plaintiff on January 1, 2001.

On November 5, 2004, Plaintiff sent the IRS an unsigned request for a collection due process hearing ("Form 12153") for tax years 1999 through 2002./2/ In Plaintiff's request for a collection due process hearing, he made the following request and statements:

I request collection alternatives[.] There have been procedural
defects by Internal Revenue Service. I want to see copies of the
90-day letter, Notice and Demand letter (Form 17-A), also Summary
Record of Assessment (Form 23-C). I will also request proof of
verification from the Secretary that all applicable law and
administrative procedures have been met pursuant to IRC section
6330. I am also notifying the service of my intention to make an
audio recording of the hearing pursuant to IRC section 7521.

(See Declaration of Debra Daigle ["Daigle Decl."] paragraph 3; Gov. Ex. 2.)

By letter dated November 15, 2004, Plaintiff supplemented his request for a collection due process hearing and notified the IRS of his intent to record the hearing and bring witnesses to the hearing. Plaintiff also requested in the correspondence the following verification from the Secretary: (1) "proof of jurisdiction"; (2) "Copy of the statutory Notice and Demand [he] was sent"; (3) "Copy of the summary record of assessment"; and (4) "Proof of the underlying liability." (See id. paragraph 4, Gov. Ex. 4.) In his letter of November 15, 2004, Plaintiff stated that this was one of his "many letters" sent to the IRS regarding his tax liabilities. Plaintiff did not include copies of these other letters.

In Plaintiff's request and supplemental request for a collection due process hearing, Plaintiff failed to offer collection alternatives and to submit financial information. The IRS also contends that Plaintiff failed to raise any non-frivolous issues related to the assessed civil penalties./3/

On December 16, 2004, the IRS mailed Plaintiff a letter requesting that he file his 2003 income tax return by December 30, 2004, because he had failed to file a return. On January 11, 2005, the IRS notified Plaintiff by letter that his request for a due process collection hearing had been forwarded to an Appeals Office for consideration.

On February 18, 2005, Settlement Officer Janet Green advised Plaintiff in a letter that no collection alternatives would be considered unless he provided her with an income tax return for 2003 and a Collection Information Statement ("Form 433-A") within 15 days of the letter. Plaintiff did not provide a 2003 income tax return or complete Form 433-A.

On February 22, 2005, Settlement Officer Debra Daigle mailed Plaintiff a letter advising him that, despite his request for a face-to-face hearing, the IRS would not hold a face-to-face conference if he intended to raise items that courts had determined were frivolous or that the Appeals Office does not consider, such as those attributed to moral, religious, political, constitutional, conscientious, or similar grounds. Instead, she scheduled a telephone collection due process conference for March 16, 2005. This letter also informed Plaintiff of the following:

If you are interested in receiving a face-to-face conference, you
must be prepared to discuss issues relevant to paying your tax
liability. These include, for example, offering other ways to pay
the taxes you owe, such as an installment agreement or offer in
compromise. The Internal Revenue Manual determines whether
Appeals can accept your proposal. If you wish to have a
face-to-face conference, please write me within 15 days from the
date of this letter and describe the legitimate issues you will
discuss.

(See Daigle Decl. paragraph 9; Gov. Ex. 10.) This letter also provided that Plaintiff must file a completed 2003 tax return before the IRS would consider any collection alternatives he proposed.

On March 1, 2005, Plaintiff responded to Settlement Officer Green's February 18, 2005 letter, and stated that he was being harassed by the IRS "with all kinds of preconditions" he could not locate in the law. (See Daigle Decl. paragraph 10; Gov. Ex. 11.) Furthermore, he requested that Settlement Officer Green cite the authority in 26 U.S.C. section 6330 that requires the production of an "original, signed tax return" in order to have a collection due process hearing. (Id.) Plaintiff also wrote that "the IRS routinely ignores laws passed by Congress and that it always tries to extract other or greater sums than are required by law." (Id.)

On March 16, 2005, Settlement Officer Daigle attempted to contact Plaintiff by telephone, but the phone number listed on his collection due process request was invalid and no home telephone number was listed for Plaintiff. As a result, Settlement Officer Daigle sent Plaintiff a letter informing him that he was not present for his scheduled telephonic hearing. This letter also requested that Plaintiff furnish Settlement Officer Daigle with the previously requested financial information and the legal authority to support his position by March 30, 2005. Specifically, this letter requested "additional facts, information, arguments or legal authority to support [his] position." (See Daigle Decl. paragraph 12; Gov. Ex. 12.)

On March 21, 2005, Plaintiff responded to Settlement Officer Daigle's letter. In his letter, Plaintiff requested the production of the summary record of assessments, statutory notice of demand for payment, and the required five authorizing signatures related thereto. Plaintiff did not provide Settlement Officer Daigle with the requested financial information, his 2003 tax return, or any legal authority to support his position, nor did he propose any collection alternatives or propose another time for the scheduled telephonic hearing.

Settlement Officer Daigle made the following findings, after providing Plaintiff the opportunity to participate in a collection due process hearing and based on her review of the administrative record (including materials Plaintiff provided):

(a) challenges to the underlying tax were not allowed because
Turner seeks only to contest the frivolous return penalties
assessed against him;

(b) Turner did not present any viable collection alternative or
provide the requested financial statement;

(c) Turner was ineligible for a collection alternative because
his 2003 tax return remained unfiled; and

(d) the preliminary notice was timely.

(Daigle Decl. paragraphs 14-15; Gov. Ex. 1.)

On April 14, 2005, the Appeals Office issued a Notice of Determination for tax years 2000, 2001, and 2002, after reviewing the documents provided to it by Plaintiff. A Decision Letter was issued for the 1999 tax year. In both the Notice of Determination and the Decision Letter, the Appeals Office sustained the IRS' proposed levy action. Specifically, with regard to Plaintiff's challenge to the frivolous return penalties (26 U.S.C. section 6702) for 2000, 2001, and 2002, the Notice of Determination sustained the proposed levy for the following reasons:

Since no non-frivolous arguments were made and no information was
provided that could be used to determine whether a less intrusive
collection alternative is more appropriate than the proposed
levy, the levy balances the need for efficient collection of
taxes with the taxpayer's concern that the collection method be
no more intrusive than necessary. The levy action is sustained.

(Gov. Ex. 1 at 2.) In reaching this decision, the Appeals Office found that all applicable requirements, including those articulated under 26 U.S.C. section 6330, were satisfied. The Appeals Office stated the following in this regard:

Based on the available information, all requirements of
applicable law or administrative procedure for the proposed levy
action appear to have been met. The penalty was assessed, notice
and demand were made, the liability remains unpaid, and levy
sources exits [sic]. The Transaction Code (TC) 520 to indicate a
CDP hearing has been requested and put a hold on the account has
been appropriately input on the timely periods. This Settlement
Officer has had no prior involvement with the taxes that are the
subject of this appeal.

(Gov. Ex. 1 at 3-4.) The Decision Letter for 1999 also stated that Plaintiff's "due process hearing request was not filed within the time prescribed under Section 6320 and/or 6330." (Gov. Ex. 3.)

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate where "there is no genuine issue as to any material fact . . . and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In making this determination, the Court "view[s] the evidence and all factual inferences therefrom in the light most favorable to the non-moving party, and resolves all reasonable doubts about the facts in favor of the non-movant." Kingsland v. City of Miami, 382 F.3d 1220, 1226 (11th Cir. 2004); see also Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (footnote, internal citations, and internal marks omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

III. DISCUSSION

A. Statutory Scheme and Standard of Review of Agency Decisions

Section 6331 of the Internal Revenue Code provides that if a person liable to pay a tax neglects or refuses to pay such tax after notice and demand for payment, the IRS may collect such tax by levy on property or rights to property belonging to the taxpayer. 26 U.S.C. section 6331(a). The IRS is required to provide the taxpayer with notice of its intent to levy and notify the taxpayer of the administrative appeals available to the taxpayer before proceeding with the levy. 26 U.S.C. section 6331(d).

Section 6330 of the Internal Revenue Code also provides that the IRS must notify a taxpayer of his right to request a "collection due process hearing" before levy. 26 U.S.C. section 6330(a). The taxpayer has the right to request such a hearing within thirty (30) days after the date of the notice. 26 U.S.C. section 6330(a)(3)(B). "Should a taxpayer fail to request a hearing within thirty days, their right to a hearing prior to the IRS levy is foregone." Carmichael v. Everson, No. Civ. A. 03-4787(DMC), 2004 WL 541119, at *1 (D.N.J. Jan. 27, 2004) (citations omitted). "When a timely written request has not been filed, the taxpayer has the right to an 'equivalent hearing' under Treasury Reg. section 301.6330-1t(i), rather than the statutory [collection due process] hearing." Id.

A collection due process hearing is conducted before an official of the IRS Office of Appeals who has had no prior involvement with the case. 26 U.S.C. section 6330(b)(3). At the hearing, the appeals officer conducting the hearing will "obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met."/4/ 26 U.S.C. section 6330(c)(1). A taxpayer may then raise "any relevant issue relating to the unpaid tax or proposed levy." 26 U.S.C. section 6330(c)(2)(A). The taxpayer may not, however, raise an issue regarding the existence or amount of an underlying tax liability at the collection due process hearing unless the taxpayer "did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability." 26 U.S.C. section 6330(c)(2)(B); see also Console v. Commissioner of Internal Revenue, No. 08-11064, 2008 WL 3930029, at *1 (11th Cir. Aug. 25, 2008). Finally, the appeals officer must determine whether the proposed collection activity balances the need for the efficient collection of taxes with the legitimate concern of the taxpayer that the collection action be no more intrusive than necessary. 28 U.S.C. section 6330(c)(3)(C).

For appeals from collection due process hearing determinations, the Court reviews the validity of the tax assessments de novo. Konkel v. Commissioner, No. 6:99-CV-1026-ORL-31C, 2000 WL 1819417, at*3 (M.D. Fla. Nov. 6, 2000). "'When the underlying tax liability is not in issue, the court reviews the decision of an appeals officer using an abuse of discretion standard of review.'" Currie v. Internal Revenue Service Comm'r, No. CIVA1:03CV3406WBH, 2005 WL 1155146, at *3 (N.D. Ga. Mar. 31, 2005) (quoting Konkel, 2000 WL 1819417, at *3).

B. Summary of Issues Before the Court

With the above statutory scheme and standards in mind, the Court proceeds to address the issues presented by Plaintiff in the above-styled action. As explained fully infra, the only proper issue before the Court is the propriety of the appeals officer's determination that the IRS may levy Plaintiff's property to satisfy his outstanding tax liability for tax years 2000, 2001, and 2002. The Court lacks subject matter jurisdiction to review the Notice of Decision issued with respect to Plaintiff's tax liability for year 1999, and the validity of Plaintiff's underlying tax liability is also not properly before the Court. The Court addresses the latter issue first.

C. Plaintiff's Underlying Tax Liability

Plaintiff's underlying tax liability is not properly before the Court, and the Court therefore rejects Plaintiff's argument that this Court must review the validity of the tax assessment against him de novo. If a party appealing a section 6330 IRS determination does not allege that he did not receive a notice of deficiency, or that he did not have an opportunity to contest the deficiency determinations, the party's underlying tax liability is not properly before the court, and the court's standard of review is limited to an abuse of agency discretion. Wald v. United States, No. 01-7507-CIV, 2002 WL 442262, at *2 (S.D. Fla. Feb. 12, 2002); Sillavan v. United States, No. 01CV803, 2002 WL 400804, at *3 (N.D. Ala. Jan. 11, 2002). Here, Plaintiff did not allege in any of his correspondence to the IRS that he did not receive statutory notice of deficiency for his tax liability or that he did not otherwise have an opportunity to dispute his tax liability./5/ Consequently, the validity of Plaintiff's underlying tax liability could not have been inquired into at any collection due process hearing to which Plaintiff was entitled. See Console, 2008 WL 3930029, at *1 ("By statute, a [collection due process hearing] may not inquire into the validity of the underlying tax liability unless the taxpayer did not receive 'any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such liability.'"); Sanford v. Commissioner, No. 07-16008, 2008 WL 2531206, at *3 (11th Cir. June 26, 2008) (holding that the taxpayer could not have challenged the existence or amount of his tax liability at the collection due process hearing, as he never argued that he did not receive the Notice of Deficiency). Plaintiff also has not alleged in his Complaint in this case that he did not receive statutory notice of deficiency of his tax liability or that he did not otherwise have an opportunity to dispute his tax liability. Rather, as he did in his correspondence to the IRS, Plaintiff simply discusses various documents that he claims he was entitled to inspect at the collection due process hearing that he requested. Plaintiff's underlying tax liability was not due to be and was not considered below, and it will not be considered before this Court for the reasons stated.

D. Notice of Decision for Tax Year 1999

Plaintiff challenges in this action the Notice of Decision issued with respect to tax year 1999, but this Court lacks subject matter jurisdiction to consider any allegations pertaining to tax year 1999. As the United States of America argues, 26 U.S.C. section 6330(d)(1) restricts judicial review to only a "determination" under section 6330, and no notice of determination was issued for that year. See Orum v. Commissioner of Internal Revenue, 123 T.C. 1,11-12 (2004); Kennedy v. Commissioner of Internal Revenue, 116 T.C. 255, 262-63 (2001). The Appeals Office did not issue a notice of determination for 1999, because Plaintiff's request for a due process hearing was untimely. See 26 U.S.C. section 6330(a)(3)(B) (conferring right to request collection due process hearing within thirty days after issuance of pre-levy notice under section 6330(a)(2)). In this regard, the record reflects that Plaintiff first received a notice of intent to levy with respect to the penalty for tax year 1999 on January 1, 2001, and did not request a hearing for this period within thirty (30) days of the notice. Although Plaintiff timely responded to the notice issued on October 12, 2004, and claims that the first notice is therefore irrelevant, Plaintiff's response to the latter notice is of no consequence as it pertains to tax year 1999. In Carmichael v. Everson, cited supra, the district court, faced with similar facts, reached the same conclusion:

Here, Petitioner has failed to request a [collection due process]
hearing in a timely manner. Indeed, it appears that he did not
request such a hearing at all until after having received his
second notice of intent to levy. Although Petitioner responded to
the second notice within thirty days, the Treasury Regulations
are clear that where a taxpayer does not request a hearing within
thirty days after issuance of the first notice, petitioner loses
the right to such a hearing. Treasury Reg. section
301.6330-1(b)(2), Q-B2, A-B2.

Accordingly, Petitioner Carmichael has failed to timely request
a
[collection due process] hearing. That he responded to his second
notice in a timely matter is of no consequence to the issue of
whether or not he timely responded to first notice of intent to
levy issued by the IRS. Petitioner has lost the right to a
[collection due process] hearing upon the lapse of thirty days
after having received the first notice.

2004 WL 541119, at *2. Insofar as the Court finds Carmichael persuasive, the Court concludes that Plaintiff was only entitled to an equivalent hearing, and Eleventh Circuit law is clear that a taxpayer is not entitled to judicial review following an equivalent hearing. Peterson v. Kreidich, 139 Fed. Appx. 134, 136 (11th Cir. May 13, 2005) (citing 26 C.F.R. section 301.6330-1(i)(1)(2)(Q & A 1-5).

E. Notice of Determination for Tax Years 2000-2002

The Court finds that summary judgment is appropriate with respect to the Notice of Determination regarding tax years 2000-2002 because the Appeals Office complied with the requirements of section 6330 and there was no abuse of discretion. Plaintiff's complaints about the process are legally meritless.

Plaintiff contends that the IRS denied him due process by refusing his request for a face-to-face hearing, but applicable law does not require that the IRS hold a face-to-face hearing. The applicable statute provides that if a "person requests a hearing in writing . . . and states the grounds for the requested hearing, such hearing shall be held by the Internal Revenue Service Office of Appeals." I.R.C. section 6330(b)(1). "The statute does not specify that the hearing will take place in person, or that a taxpayer is guaranteed a right to a face-to-face hearing." Sanford, 2008 WL 2531206, at *3. The Code of Federal Regulations explains that "the formal hearing procedures required under the Administrative Procedure Act, 5 U.S.C. section 551 et seq., do not apply to [collection due process] hearings," which are "informal in nature." 26 C.F.R. section 301.6330-1(d) A-D6. Courts that have considered the issue, including the Eleventh Circuit, have found that a taxpayer's due process rights are not violated when the IRS offers the taxpayer a telephonic hearing only. See Sanford, 2008 WL 2531206, at *3 (holding that the taxpayer's "due process rights were not violated when the IRS offered him a telephone hearing only, rather than a face-to-face hearing"); see also O'Meara v. Waters, 464 F. Supp. 2d 474, 479-80 (D. Md. 2006) (holding that taxpayer had received due process because he was given the opportunity to participate in a telephone conference in which he discussed the substance of his case with an appeals officer); Turner v. United States, 372 F. Supp. 2d 1053,1058 (S.D. Ohio 2005) (finding that the IRS Appeals Office did not violate the plaintiff's right to a fair hearing when it declined the plaintiff's request for an in-person hearing because it offered him a telephone conference or the opportunity to submit his arguments in writing); cf. Barry v. United States, No. 2:06-cv-284-FtM-29SPC, 2008 WL 786325, at *4 (M.D. Fla. Mar. 20, 2008) ("The Code of Federal Regulations governing a [collection due process] hearing makes clear that a face-to-face hearing is not required."); Dean v. United States, No. 3:01-CV-430/LAC, 2002 WL 31662299, at *3 (N.D. Fla. Oct. 23, 2002) (noting that the collection due process hearing does not have to be an in-person meeting between an appeals officer and a taxpayer). Thus, the Court concludes that the IRS did not deny Plaintiff his due process rights by not allowing a face-to-face hearing.

Notwithstanding the foregoing, the record in this case reflects that the Appeals Office actually was willing to provide Plaintiff a face-to-face collection due process hearing, if he raised non-frivolous defenses. However, following a back-and-forth exchange of correspondence, Plaintiff never provided specific, non-frivolous issues that he intended to raise at the collection due process hearing. The Court details the problematic and frivolous nature of Plaintiff's statements and requests to the Appeals Office below.

Instead of raising specific, legitimate issues, Plaintiff first made a generic request for collection alternatives. The appeals officer rightfully advised Plaintiff in subsequent correspondence that he needed to complete a 2003 tax return and a Form 433-A for collection alternatives to be considered. See 26 C.F.R. section 301.6330-1(e)(1) (in a collection due process hearing, a taxpayer is expected to provide "all relevant information requested by Appeals, including financial statements, for its consideration of the facts and issues involved in the hearing"). Plaintiff, however, never submitted the financial information necessary for the Appeals Office to consider collection alternatives. Without this information, the Appeals Office was not required or able to discuss collection alternatives and did not abuse its discretion in not doing so. See Shelko v. United States, No. 5:05-CV-330 (WDO), 2006 WL 2085472, at *3 (M.D. Ga. July 25, 2006) ("Plaintiff's failure to provide the requested information and completed information prohibited the settlement officer from considering an alternate collection action."); Rodriguez v. Commissioner of Internal Revenue, 85 T.C.M. (CCH) 1414 (2003) ("The Commissioner's decision not to process an offer in compromise or a proposed collection alternative from taxpayers who have not filed all required tax returns is not an abuse of discretion."). Plaintiff's mentioning of collection alternatives amounted to nothing more than a frivolous and impermissible attempt by Plaintiff to delay the process. See I.R.C. section 6330(c)(4)(ii)(B) (stating that an issue may not be raised at a collection due process hearing if it is based on a frivolous position or reflects a desire to delay or impede the administration of Federal tax laws).

Plaintiff next stated in a conclusory manner that there were procedural defects by the IRS, but Plaintiff never specified the nature of these purported defects. Plaintiff's failure to do so made and continues to make his claim of procedural defects frivolous. See Sanford, 2008 WL 2531206, at *4 (holding that alleged but unspecified "procedural errors" do not constitute a non-frivolous issue entitling a taxpayer to a face-to-face hearing). Such a conclusory statement contravenes the requirement that a "taxpayer . . . state the grounds for the requested hearing." Id. (quoting I.R.C. section 6330(b)(1)).

Plaintiff also stated in his initial and supplemental requests for a collection due process hearing that he wanted to see copies of the 90-day letter, the notice and demand letter, and a summary record of assessment. Tellingly, Plaintiff never stated that he had not received these documents previously. See Sanford, 2008 WL 2531206, at *4 (noting that the taxpayer "repeatedly demanded proof from the IRS that it had sent a Notice of Deficiency, but in his many letters, pleadings to the Tax Court, or his briefs to this court, [the taxpayer] never alleged that he had not received the notice"). In any event, the Eleventh Circuit has held that the IRS is not required to produce proof that a Notice of Deficiency was sent. Id; see also Ford v. United States, No. Civ.A. 02-F-553-S, 2003 WL 21744233, at *3 (M.D. Ala. June 9, 2003) (holding that an appeals officer is not required to produce the statutory notice and demand at the collection due process hearing). Plaintiff was entitled to receive a copy of the summary record of assessment. See 26 U.S.C. section 6203. However, "a [taxpayer] is not prejudiced by having received copies of the records of assessment only after the [collection due process] hearing, where the petitioner received a copy of the Forms 4340 prior to the hearing," Roberts v. Commissioner of Internal Revenue, 329 F.3d 1224, 1228 (11th Cir. 2003). Insofar as Plaintiff never advised the appeals officer that he had not received a copy of the record of assessment or the Forms 4340, the appeals officer properly deemed this documentation request frivolous, too./6/ The Court therefore finds that Plaintiff was not denied due process by the Appeals Office's refusal to provide Plaintiff the documentation requested, and the Court deems the request for documentation frivolous.

Plaintiff also stated that he would request at the hearing proof of verification from the Secretary that all applicable law and administrative procedures had been met, but the law is clear that the IRS does not have to provide a taxpayer with verification as part of the collection due process hearing. See Roberts, 329 F.3d at 1228 (noting that section 6330(c)(1) does not require the appeals officer to provide the taxpayer with a copy of the verification that the requirements of the applicable statutes or regulations have been met); see also Ford, 2003 WL 21744233, at *3 (same); Hardy v. United States, No. CV-02-CO-2005-E, 2003 WL 21541358, at *4 (N.D. Ala. June 3, 2003) (same); Gregory v. United States, No. CIVA1:02-CV-889-CC, 2003 WL 701218, at *2 (N.D. Ga. Jan. 15, 2003) (same); Johnson, 2002 WL 32003906, at *5 (same); Herip v. United States, No. 1:02CV0540, 2002 WL 31002855, at *6 (N.D. Ohio July 25, 2002) (same)./7/

In sum, the Court finds that the IRS did not violate Plaintiff's due process rights or abuse its discretion when it sustained the levy action. The IRS repeatedly requested that Plaintiff identify specific, non-frivolous issues that he intended to raise at any face-to-face hearing, but Plaintiff failed to do so in either his initial request for a collection due process hearing or in his follow-up correspondence. Plaintiff simply continued to raise the non-specific issues that he raised before and focused on making negative comments about the IRS in general. The IRS also offered Plaintiff a telephonic hearing, but Plaintiff did not make himself available at that hearing. Further, despite responding to the letter scheduling the telephonic hearing, Plaintiff did not suggest another mutually convenient time and place for another hearing. Contrary to the arguments of Plaintiff, he was not entitled to receive documentation from the appeals officer either before or at any collection due process hearing, especially in the absence of any claim by Plaintiff that he had not previously received copies of the requested or equivalent documents. Plaintiff also was not entitled to have collection alternatives considered before he provided his 2003 tax return and a completed Form 433-A, and his request for consideration of collection alternatives without an accompanying willingness to provide the requisite financial information rendered his request frivolous. Plaintiff's arguments were frivolous when he presented them to the IRS, and his arguments do not fare better before this Court. The Notice of Determination issued by the IRS is due to be upheld, as there was no abuse of discretion on the agency's part.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the United States of America's Motion for Summary Judgment [Doc. No. 49].

SO ORDERED this 29th day of September, 2008.

Clarence Cooper
United States District Judge

FOOTNOTES

/1/ The Court notes that Plaintiff has improperly filed "Plaintiff's Reply Brief in Opposition to Defendant's Motion for Summary Judgment." As this document is a sur-reply that Plaintiff did not obtain leave from the Court to file, the sur-reply brief will not be considered. See Fedrick v. Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)

/2/ On November 19, 2004, the IRS returned the unsigned Form 12153 to Plaintiff and requested that he return a signed copy to the IRS by December 4, 2004. Plaintiff complied with this request.

/3/ The Court deems this contention to be a legal issue to be decided by the Court.

/4/ The Court notes that the terms " appeals officer" and " settlement officer" are often used interchangeably. See, e.g., Central Valley AG Enterprises v. United States, 531 F.3d 750, 758 (9th Cir. 2008); Kieft Bros. West, Inc. v. Commissioner of Internal Revenue Services, Civil Action No. 06-cv-00691-WYD-BNB, 2008 WL 1817996, at *1 (D. Colo. Apr. 21, 2008).

/5/ The Court notes that "[f]or a section 6702 penalty, the IRS does not have to provide a statutory notice of deficiency prior to assessment of the penalty." Dean v. United States, No. 3:01-CV-430/LAC, 2002 WL 31662299, at *5 (N.D. Fla. Oct. 23, 2002); see also Rohner v. United States, No. 5:02-CV-2309, 2003 WL 21456733, at *5 n.3 (N.D. Ohio May 16, 2003) ("[T]here is no requirement that a notice of deficiency be issued with respect to the section 6702 frivolous return penalty.").

/6/ Many courts have held that a taxpayer is not entitled to receive any documentation at a collection due process hearing. Ray v. United States, No. 04-0420-CV-W-ODS, 2004 WL 2284282, at *2 (W.D. Mo. Aug. 30, 2004) (stating that there is no requirement that the taxpayer receive documentation at a collection due process hearing that supports the imposition of penalties); Johnson v. United States, No. 3:01CV486/RV/MD, 2002 WL 32003906, at *5 (N.D. Fla. Dec. 13, 2002) ("There is no requirement that the IRS provide taxpayers with any documentation or produce any witnesses as part of the collection due process hearing.").

/7/ The record nevertheless reflects that the appeals officer relied on Forms 4340. Absence contrary evidence, such forms are a valid verification that the requirements of any applicable law or administrative procedure have been met. Roberts, 329 F.3d at 1228; see also Sergio v. United States, No. Civ.A.1:04-CV2898RWS, 2005 WL 646360, at *2 (N.D. Ga. Feb. 3, 2005); Dean, 2002 WL 31662299, at *5.

[ASITStands]

Where is it that he's heading for Tax Court?

You've cited a Northern District of Georgia decision and not Tax Court. It's interesting that the Court did not dismiss on lack of jurisdiction, alleging the case should go to Tax Court.

It adds to the discussion of where and how frivolous penalties can be challenged.

[Nikki]

Mr. Turner already had his chance in Tax Court. For some strange reason, he did not prevail on his arguments.

[ASITStands]

Mr. Turner already had his chance in Tax Court. For some strange reason, he did not prevail on his arguments.

Probably not strange at all, but my question was why the heading on the thread says, "Friv Pen Repeater Heads to Tax Court," when the cited case was in District Court?

Am I missing something? I made an allowance for the fact he appeared to be challenging the frivolous penalties in district court, something that's allowed, but why the heading?

[The Observer]

My attempt at humor was probably way too subtle, especially in light that Nikki found that this person had already gone to Tax Court. My intent was for the headline to convey that because of his failure to prevail in District Court, and given the propensity of stubborness in the TP population, this TP would be heading to Tax Court next. With Nikki's revelation, the headline should have probably read "Friv Pen Repeater Heads To Appeals"

[ASITStands]

Ok. Fair enough.

I guess humor doesn't register so well with me today.