Tucker v. Commissioner

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1368
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BURTON F. TUCKER,
Appellant
v.
COMMISSIONER INTERNAL REVENUE SERVICE
____________________________________
On Appeal from the United States Tax Court
(Tax Court No. 4865-11 L)
Tax Court Judge: Honorable Robert P. Ruwe
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 4, 2012
Before: SMITH, CHAGARES and WEIS, Circuit Judges
(Opinion filed: December 5, 2012 )
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OPINION
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PER CURIAM.
Burton Tucker, proceeding pro se, appeals a United States Tax Court order
granting the Internal Revenue Service’s (IRS) motion for summary judgment and
allowing the IRS to proceed with a collection action. We will affirm.
In 2008, Tucker filed delinquent tax returns for the years 2001 through 2004, but
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he did not pay the liabilities owed on them. He received a “Final Notice of Intent to
Levy” in February 2010, in response to which he invoked his right to a Collection Due
Process (CDP) hearing. 1 See 26 U.S.C. § 6330(b). Tucker enumerated a number of
grounds upon which the assessment process was allegedly flawed, based generally on
procedural and regulatory violations by the agency; for example, he claimed that no
“valid notice[]” of levies had been served upon him, that the tax sought to be collected
was outside of the relevant limitations period, and that the failure to notify him within
sixty days of the assessment process rendered “the entire IRS tax assessment and
collection procedure a nullity.” Tucker also asserted his belief that there were “no signed
4340 Form assessments” for the relevant period, based on the IRS’s failure to provide
him with signed copies of that form. Tucker elected to have his hearing held by
correspondence; however, the record reflects that his subsequent communication with the
agency was limited, as he sought to “challenge . . . the appropriateness of collection
action and that administrative procedures have been met” but did not further elaborate
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A CDP hearing allows “a taxpayer to challenge the propriety of a pending tax lien or
levy, to verify that a collection action against him is appropriate under the law, and to
offer alternatives” to the proposed collection action. Tucker v. Comm’r, 676 F.3d 1129,
1131 (D.C. Cir. 2012) (no relation). A taxpayer may also, in certain circumstances,
challenge the underlying tax liability itself. Id. CDP proceedings are generally informal,
and may comprise “informal oral and written communications between the IRS and the
taxpayer.” Dalton v. Comm’r, 682 F.3d 149, 155 (1st Cir. 2012). At the end of the
process, “the IRS is tasked with deciding whether it is reasonable to proceed with its
intended collection action.” Id.; see also 26 U.S.C § 6330(c)(3) (the proposed levy must
“balance[] the need for the efficient collection of taxes with the legitimate concern of the
person that any collection action be no more intrusive than necessary”).
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upon the basis for his claims. Ultimately, the IRS issued a Notice of Determination
concluding, essentially, that proper procedures were followed and that the “proposed levy
[wa]s the appropriate action” to take.
Tucker sought review in the United States Tax Court, arguing again that IRS
officers “ha[d] not followed their required procedures concerning income tax
collection” and citing a substantially similar set of alleged agency missteps. The IRS
moved for summary judgment, which Tucker did not affirmatively oppose. Observing
that Tucker’s “underlying liabilities [we]re not at issue,” the Tax Court determined that:
The record indicates that respondent’s Appeals Office considered all of
petitioner’s contentions, verified compliance with all applicable laws and
regulations, and considered whether the proposed collection actions
balanced the need for efficient tax collection with petitioner’s concern that
they be no more intrusive than necessary. We conclude that the Appeals
Office did not abuse its discretion in sustaining the levy, and, as a result,
respondent may proceed with collection action as determined in the notice
of determination upon which this case is based.
Tucker v. Comm’r, T.C. Memo. 2012-30, at *6, 8 (T.C. 2012). Tucker timely appealed.
We have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1). “We exercise plenary
review of the Tax Court’s order granting the IRS’[s] summary judgment motion.”
Hartmann v. Comm’r, 638 F.3d 248, 249 (3d Cir. 2011). When, as here, the underlying
tax liability is not in issue, the determination of the IRS Office of Appeals in a collection
due process hearing is reviewed by both the Tax Court and the Court of Appeals for
abuse of discretion. See Kindred v. Comm’r, 454 F.3d 688, 694 (7th Cir. 2006); Living
Care Alternatives of Utica v. United States, 411 F.3d 621, 625 (6th Cir. 2005). Under
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this deferential standard of review, which takes into account both the informal nature of
CDP proceedings and their limited scope, we will “set aside determinations reached by
the IRS during the CDP process only if they are unreasonable in light of the record
compiled before the agency.” Dalton, 682 F.3d at 154–55. Furthermore, judicial review
extends only to those issues raised before the Office of Appeals. Giamelli v. Comm’r,
129 T.C. 107, 115 (T.C. 2007).
As a pro se appellant, Tucker is afforded liberal construction of his filings. Becker
v. Comm’r, 751 F.2d 146, 149 (3d Cir. 1984). But the failure to raise an issue in an
opening brief, even by pro se parties, renders it waived. Eurofins Pharma US Holdings v.
BioAlliance Pharma SA, 623 F.3d 147, 161 n.15 (3d Cir. 2010); Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (per curiam). Similarly, we will not review claims that
are raised for the first time on appeal. Becker, 751 F.2d at 152 n.6.
Before this Court, Tucker argues one claim that he properly raised before both the
agency and the Tax Court: he insists that deficiencies in the Form 4340s presented to him
by the agency—specifically, their lack of signatures—rendered proceedings a nullity.
His argument, however, appears to be premised on a misunderstanding of the relevant
statutory and regulatory requirements. A tax assessment must be made “in accordance
with rules or regulations prescribed by the Secretary.” 26 U.S.C. § 6203. Under the
promulgated regulations:
The assessment shall be made by an assessment officer signing the
summary record of assessment. The summary record, through supporting
records, shall provide identification of the taxpayer, the character of the
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liability assessed, the taxable period, if applicable, and the amount of the
assessment. The amount of the assessment shall, in the case of tax shown
on a return by the taxpayer, be the amount so shown, and in all other cases
the amount of the assessment shall be the amount shown on the supporting
list or record. The date of the assessment is the date the summary record is
signed by an assessment officer.
26 C.F.R. § 301.6203-1. Furthermore, if a taxpayer requests a copy of this record, he is
to 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.Tucker’s understandable confusion likely arises from the multiple, overlapping
documents in play. The “Summary Record” to which the above regulation refers, and
which must be signed and prepared in accordance with its requirements, is known as the
Form 23C or (more recently) the Form RACS 006. See March v. IRS, 335 F.3d 1186,
1188 (10th Cir. 2003) (“Historically, the document reviewed and signed by the
assessment officer has been Form 23C.”). Form 4340, by contrast, is not the actual
summary record of assessment, but instead “details the assessments made and the
relevant date that a Summary Record of Assessment was executed.” Id.; see also Perez v.
United States, 312 F.3d 191, 193 (5th Cir. 2002) (distinguishing between Form 4340 and
the RACS “Summary Record of Assessments”). Form 4030 is, in effect, a computer
printout reflecting the current state of assessment. “[C]ourts have generally held that the
IRS need not provide a taxpayer with a copy of the actual Summary Record of
Assessment” to fulfill its obligations to the taxpayer but may instead send a Form 4340,
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which “creates a presumption that a Summary Record of Assessment, whether on Form
23C or RACS Report 006, was validly executed and certified.” March, 335 F.3d. at1188–89; see also Gentry v. United States, 962 F.2d 555, 558 (6th Cir. 1992) (“Neither
the Tax Code nor the Treasury Regulations require[s] those pertinent parts [furnished to
the taxpayer] to be original documents, and the IRS has selected the certificate of
assessments and payments as the means for providing the information specified.”). There
is no indication in the record that the forms provided to Tucker were actually defective or
otherwise suspect—for example, by failing to identify the date of assessment. See Huff
v. United States, 10 F.3d 1440, 1446 (9th Cir. 1993). To the extent that any signature
was required on the Form 4340, see Taylor v. IRS, 69 F.3d 411, 419 (10th Cir. 1995), 2
the IRS introduced a signed, certified, and updated copy of the Form 4340 report in the
proceedings before the Tax Court, and Tucker has not meaningfully challenged these
exhibits nor explained how he was prejudiced by the initial, alleged deficiency. See
Roberts v. Comm’r, 329 F.3d 1224, 1228 (11th Cir. 2003) (“[A] petitioner is not
prejudiced by having received copies of the records of assessment only after the CDP
hearing.”). Thus, on the record before us and before the Tax Court, we conclude that the
IRS did not abuse its discretion by determining that it complied with the relevant statutes
and regulations; furthermore, its “subsidiary factual and legal determinations” appear to
2
But see Stallard v. United States, 12 F.3d 489, 493–94 (5th Cir. 1994) (suggesting that
the signing requirement of the regulations does not apply to a “supporting record”);
Hovind v. Comm’r, T.C. Memo. 2006-143, at *13 (T.C. 2006) (collecting cases for the
proposition that “[f]orms 4340 are not required to be signed”).
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be reasonable. Dalton, 682 F.3d at 156.
Therefore, for the foregoing reasons, we will affirm the judgment of the Tax
Court.
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