# Nestor v. Comm'r > United States Tax Court · February 19, 2002 · 118 T.C. 162 URL: https://www.frixlaw.com/law-library/cases/4474189 ## 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 Beghe - **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/4474189 ## 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 Beghe, J., concurring: The majority acknowledge that section 6203 requires the Secretary, upon request of the taxpayer, to furnish the taxpayer a copy of the record of the assessment but observe that neither section 6330(c)(1) nor the regulations thereunder require the Appeals officer to furnish “the taxpayer a copy of the verification that the requirements of any applicable law or administrative procedure have been met.” Majority op. p. 166. Nor, I would add, does section 6330(c)(1) by its terms require the Appeals officer to furnish a copy of the record of the assessment at the hearing. However, as the dissent points out, it is difficult to see how the Appeals officer could have verified that the requirements of all applicable laws had been met when respondent had not complied with section 6203. In any event, it should be standard procedure in collection cases for the Appeals officer, no later than the commencement of the hearing, to furnish the taxpayer a Form 4340 confirming the assessment. In so doing, the Appeals officer will provide the taxpayer minimum assurance that the amounts claimed by the Service in the lien or levy proceeding notice are due and owing. By furnishing the taxpayer a Form 4340 at or before the hearing, the Service will remove any excuse of the taxpayer for not coming to grips with the relevant issues described in section 6330(c)(2). In the case at hand, the Appeals officer’s failure to furnish the taxpayer a Form 4340 at or before the hearing was harmless error. As the majority correctly hold, no purpose would be served by remanding this case for a hearing when the only defect was the Appeals officer’s failure to provide a document that has now been provided, and which conclusively establishes the obligation that the Service seeks to enforce. Because petitioner has already shown a penchant for causing delay and taking frivolous and groundless positions, this is not. an appropriate case for imposing any sanction on respondent for delay in furnishing the Form 4340. However, a taxpayer who could show that he suffered genuine harm as a result of the Service’s delay in furnishing the Form 4340 should be entitled to a remedy. Cf. Shea v. Commissioner, 112 T.C. 183, 207-209 (1999). For example, a taxpayer who shows that respondent’s delay in furnishing Form 4340 caused the taxpayer to incur additional interest, and that no significant aspect of the delay can be attributed to the taxpayer, might be entitled to an abatement of interest under section 6404(e) from the date of the administrative hearing until the Service furnishes the taxpayer Form 4340. By providing evidence of the assessment at or before the hearing as a matter of course, the Service satisfies section 6203, and avoids unnecessary delay and expense and any possible sanction. I dissented in dismay in Johnson v. Commissioner, 117 T.C. 204, 218 (2001), from the Court’s continued abstention from taking jurisdiction in collection disputes over the $500 section 6702 frivolous return penalty. Our decision in Johnson required that the case be dismissed, entitling a taxpayer patently seeking delay to achieve his goal by refiling in the District Court. I concur that the Johnson precedent requires us to dismiss the portion of the case at hand that relates to the frivolous return penalties. This will allow petitioner to refile the frivolous return penalty issue for all years (1990-97) in the District Court, even as collection of the assessed deficiencies in petitioner’s income tax, additions to tax, and interest for the years 1992-97 goes forward. The resultant splitting of what should have been and remained one collection proceeding will entail an absurd waste of time and other resources. I renew my plea for congressional enactment of an explicit grant of jurisdiction to this Court to provide one-stop shopping in all cases under sections 6320 and 6330. A possible model is the amendment of section 6214(a) by the Tax Reform Act of 1986, Pub. L. 99-514, sec. 1554 (a), 100 Stat. 2754 , which furnished jurisdiction to the Tax Court to review the Commissioner’s determination to collect the addition to tax under section 6651(a)(2). See Downing v. Commissioner, 118 T.C. 23, 27 (2002). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4474189. Public record. Not legal advice.