# Nestor v. Comm'r > United States Tax Court · February 19, 2002 · 118 T.C. 162 URL: https://www.frixlaw.com/law-library/cases/4474187 ## Case - **Full name:** MICHAEL E. NESTOR v. COMMISSIONER OF INTERNAL REVENUE - **Court:** United States Tax Court - **Decided:** February 19, 2002 - **Citations:** 118 T.C. 162; 83 T.C.M. 4364; 118 T.C. No. 10; 2002 U.S. Tax Ct. LEXIS 10 - **Precedential status:** Published - **Opinion:** Concurrence by Swift - **Judges:** "Colvin, John O.","Swift, Stephen J.","Halpern, James S.",Beghe,"Foley, Maurice B." - **Cited by:** 214 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4474187 ## How later opinions describe it (automated extraction) - holding that no bona fide interest would be served in remanding a CDP case for the AO to verify assessment records where records that the Commissioner provided the taxpayer after the CDP hearing showed that the assessments were proper - holding that the computer-generated certificate of assessment satisfied the regulatory requirements - holding that the Secretary or his delegate may issue a notice of deficiency pursuant to sections 6212(a) and 7701(a)(11)(B) and (12)(A)(i) - holding that “the reviewing court shall disregard procedural errors unless the complaining party was prejudiced thereby” ## Opinion text Swift, J., concurring: Arguably, the majority opinion treats all “assessment records” as if they are the same, and states overly broadly, majority op. p. 166 that “Section 6330(c)(1) does not require the Appeals officer to give the taxpayer a copy of the verification that the requirements of any applicable law or administrative procedure have been met.” The quoted language is susceptible of being read to mean that Appeals officers need not give or show to taxpayers copies of computerized transcripts of account or Forms 4340. Surely, we need not so hold in this case. Petitioner is not making that argument. At the Appeals hearing herein, the Appeals officer had a copy of the computerized transcript of account or Forms 4340 relating to petitioner, and nothing in the opinion suggests that the Appeals officer refused to provide petitioner with a copy of those specific documents. 1 As we noted in Davis v. Commissioner, 115 T.C. 35, 41 (2000), procedures in collection hearings under section 6330 were intended by Congress to be handled in a manner similar to procedures used in traditional Appeals hearings. For years, as far as I know without exception and long before enactment of sections 6320 and 6330, respondent’s audit and Appeals representatives, in all collection contexts, have provided to taxpayers copies of transcripts of account and of Forms 4340 relating to the taxpayers. I hope that this opinion will not be read to suggest that such documents, easily and routinely obtained by respondent’s collection personnel and by respondent’s Appeals officers, need no longer be made available to taxpayers and to their representatives, particularly in collection contexts. The new collection procedures under sections 6320 and 6330 should not be interpreted to change the routine availability to taxpayers from respondent’s representatives of transcripts of account and of Forms 4340. In light of comments made in Judge Foley’s dissenting opinion regarding the relationship of the verification requirements of section 6330(c)(1) with taxpayers’ rights under section 6203 (and the related regulations) to obtain from respondent a copy of the “record of the assessment”, some further comments are appropriate regarding those two quite different statutory provisions. In collection hearings, respondent has certain specified verification requirements under section 6330(c)(1) relating to proposed collection activity. We held in Davis v. Commissioner, supra at 41 , that, absent irregularities, the verification requirement with regard to the existence of an assessment (an “applicable” administrative procedure) is satisfied if the Appeals officers obtain Forms 4340 or transcripts of account which corroborate the relevant assessment information regarding the taxpayers. Under section 6203, taxpayers have a right to request and to receive a copy of “the record of assessment”, and if not delivered to the taxpayers by respondent, taxpayers may have a right to sue respondent under the Freedom of Information Act, 5 U.S.C. sec. 552 (2000), and section 601.702(c)(ll), Statement of Procedural Rules, to require respondent to provide the documents requested. See, e.g., Dickstein v. IRS, 846 F.2d 1382 (9th Cir. 1988). In my opinion, that right of taxpayers under section 6203 is not part of respondent’s verification requirements under section 6330(c)(1). Further consideration of other provisions of section 6330 buttresses this analysis. It is helpful to look closely at the specific language not only of section 6330(c)(1), but also of section 6330(c)(2) and (3). Section 6330(c)(1) imposes the affirmative verification requirements on respondent with regard to "applicable law or administrative procedure”. The verification requirements are independent of any issue raised by taxpayers. In this case, any holding that respondent has not satisfied that duty would be inconsistent with Davis v. Commissioner, supra. Section 6330(c)(2) then provides that taxpayers may raise at collection hearings any “relevant” issue. It does not say that taxpayers may raise “any” issue or that the Appeals officers should guess as to what issues the taxpayers might have raised. Section 6330(c)(3) provides similar, express language limiting the scope of collection hearings. Section 6330(c)(3)(B) states that Appeals officers need only consider the “issues raised” by taxpayers, and section 6330(c)(3)(C) states that only “legitimate” concerns of taxpayers need be taken into account in considering the need for efficient collection action. Accordingly, and particularly where taxpayers are making tax protester arguments, in collection hearings under section 6330(b) and in subsequent court proceedings, only issues that are actually raised by taxpayers and that constitute relevant, legitimate, and good faith issues need be considered by Appeals officers and by the courts. The referenced statutory language suggests strongly to me, and I would so hold, that issues not raised, as well as tax protester issues, need not be considered by Appeals officers in collection hearings under section 6330(b) and that tax protester issues may and should be summarily dismissed by the courts. Further, Appeals officers and the courts need not speculate about what issues taxpayers might have raised were they not tax protesters or were they represented by other lawyers. 2 Petitioner herein is a flagrant tax protester. Petitioner did not file his 1990-96 income tax returns until 1997. On the late-filed tax returns petitioner reflected no financial information. Petitioner claimed his wages were not income. At the evidentiary hearing before the Court, petitioner asserted: “Since income taxes are based on self assessment, under Code section 6201, I, alone, can determine what I owe”. At the Appeals hearing and at the hearing before the Tax Court in this case, petitioner raised no relevant, legitimate, or good faith issue, and we have no business speculating as to whether petitioner may ever raise any such issue. The maxim “Justice delayed is justice denied” applies not only to cases eventually decided in favor of taxpayers but also to cases to be decided in favor of respondent, particularly those involving a postponement of tax collection. Respectively, in my opinion, arguments made by taxpayers in administrative and court hearings under sections 6320 and 6330 that implicate only frivolous arguments and that implicate the postponement of the collection of taxes owed should be dealt with by respondent’s Appeals Office and by this Court summarily and decisively. Repeatedly, in connection with the Appeals hearing and the litigation herein, petitioner insisted that he be provided not with a transcript of account or a Form 4340, but rather with a Form 23C and with the Summary Record of Assessment “as provided for in sec. 301.6203-1, Proced. & Admin. Regs.” At the Appeals hearing, petitioner was not interested in obtaining from respondent a copy of the transcript of account or the Form 4340. Like many other tax protesters, petitioner does not regard a computerized transcript of account or a Form 4340 as satisfying either the verification requirements of sec. 6330(c)(1) or the documentation provisions of sec. 301.6203-1, Proced. & Admin. Regs. E.g., Lunsford v. Commissioner, 117 T.C. 183, 187-189 (2001); Davis v. Commissioner, 115 T.C. 35, 40-41 (2000). In the final regulations under sec. 6330, the position is taken that taxpayers may raise in court only issues that actually were raised by the taxpayers at the Appeals hearings. T.D. 8979, 2002- 6 I.R.B. 466 : T.D. 8980 Q&A-F5, 2002- 6 I.R.B. 477 , 487. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4474187. Public record. Not legal advice.