Irwin Koff Darline Ruth Koff v. United States ( 1993 )

PER CURIAM:

Upon rehearing, we contemplate the extent to which 28 U.S.C. § 2410 waives the United States’ sovereign immunity from suit in tax cases. Our previous unpublished memorandum, 978 F.2d 715, filed October 23, 1992, is withdrawn.,

I

Irwin and Darline Koff (“the Koffs”), acting pro se, brought suit pursuant to 28 U.S.C. § 2410(a) to quiet title to certain of their property on which the IRS had placed federal tax liens. The Koffs allege that the liens are proeedurally defective, hence invalid. The district court granted summary judgment in favor of the government. We affirm.

The Koffs predicate their claims for relief on 26 U.S.C. § 6203, which provides that, “[u]pon request of the taxpayer, the secretary shall furnish the taxpayer a copy of the record of the assessment.” The Koffs assert that this section entitles them to a copy of the actual document by which the assessment was effected, namely, the “summary record of assessment” on Form 23C. See 26 C.F.R. § 301.6203-1 (“The assessment shall be made by an assessment officer signing the summary record of assessment.”). That the government has failed to produce a copy of the summary record of assessment, they say, implies that no such document exists. The Koffs conclude that a proper assessment has not been proved, and that the liens placed on their property are thus invalid, and should be removed. We reject this analysis.

II

At the threshold, we must determine whether we can reach the merits of the Koffs’ suit. The answer hinges on whether section 2410 serves to abrogate the United States’ sovereign immunity with respect to suits of this kind. This may be a question as to which our decisions are in conflict. Compare Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990), with Arford v. United States, 934 F.2d 229, 232 (9th Cir.1991). For the reasons stated in the separate opinions of Judges Ferguson, O’Scannlain, and Rymer, however, we proceed to the merits of the Koffs’ claim.

III

We reject the Koffs’ contention that section 6203 entitles them to a copy of the summary record of assessment on Form 23C upon request. The regulations promulgated under this section state that “[i]f the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.” Id. This represents a permissible interpretation of section 6203, and we are therefore bound to give it deference. Since the government has produced Certificates of Assessments and Payments on Form 4340, which set forth all the information this regulation requires, the Koffs have already been given all the documentation to which they are entitled by section 6203. See James v. United States, 970 F.2d 750, 755 (10th Cir.1992) (“notices [of assessment] also satisfy 26 U.S.C. § 6203, the requirement that the IRS provide a copy of the record of assessment”).¹

It is settled in this circuit that Certificates of Assessments and Payments are “probative evidence in and of themselves and, in the absence of contrary evidence, are sufficient to establish that ... assessments were properly made.” Hughes v. United States, 953 F.2d 531, 540 (9th Cir.1992). The Koffs presented no evidence whatsoever regarding the assessment made against them. Accordingly, the judgment of the district court is

AFFIRMED.

1 . The Koffs have asked that we issue a writ of mandamus compelling the IRS to produce a copy of their summary -record of assessment. The request is denied.