Laing v. Cmsnr of the IRS , 142 F. App'x 814 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit August 2, 2005
Charles R. Fulbruge III
Clerk
No. 04-51461
Summary Calendar
WESLEY N. LAING,
Plaintiff-Appellant,
VERSUS
COMMISSIONER OF INTERNAL REVENUE,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
( 03-CV-347 )
Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Appellant Wesley Laing filed suit against the United States to
challenge the Government’s filing of a federal tax lien against him
for delinquent trust fund recovery penalty assessments. Laing does
not dispute the validity of the underlying tax liabilities, but
rather argues he never received a first notice of assessment and
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
demand for payment within 60 days as prescribed by 26 U.S.C. §
6303(a). This alleged notice failure, according to Laing,
precludes the Government’s ability to exercise its administrative
collection remedies. The Government filed a motion for summary
judgment, which was granted by the district court.
This Court has previously determined that Internal Revenue
Service (“IRS”) Forms 4340 (Certificate of Assessments, Payments,
and Other Specified Matters), copies of which were submitted by the
Government as part of its summary judgment evidence, are “valid
evidence of a taxpayer’s assessed liabilities and the IRS’s notice
thereof.” Perez v. United States, 312 F.3d 191, 195 (5th Cir.
2002) (citing McCarty v. United States, 929 F.2d 1085, 1089 (5th
Cir. 1991) (observing that Forms 4340 “indicat[e] that [taxpayer]
had received notice of the assessment and demand for payment”)).
Moreover, whether Laing received notice is not material to whether
the IRS sent the notices. Jones v. Cmm’r, 338 F.3d 463, 467 (5th
Cir. 2003). As the district court observed, Laing’s evidence that
he did not receive such notice is limited to an affidavit submitted
by his accountant, which the district court disregarded as being
“based on hearsay and not upon any personal knowledge.” The
district court determined that, without more, Laing did not come
forward with any competent summary judgment evidence establishing
that notice of assessment was not properly provided.
Having carefully reviewed the entire record of this case, and
having fully considered the parties’ respective briefing, we find
2
no reversible error in the district court’s order. We therefore
AFFIRM the final judgment of the district court for the reasons
stated in its order.
AFFIRMED.
3