Appendix — Selgas v. Commissioner of Internal Revenue (No. 06-1677)

APPENDIX A

Docket No. 23425-04.

United States Tax Court Washington, DC 20217

THOMAS DRENNAN SELGAS, Petitioner

v.

Commissioner of Internal Revenue, Respondent

DECISION

This case was tried on November 1, 2004, at the

Court's trial session in Dallas, Texas. The Court's opinion,

including oral findings of fact, is recorded in the

transcript of the proceedings before Judge Mark V.

Holmes at Dallas, Texas, on November 2, 2005. Following

that opinion, it is

ORDERED that there is a deficiency in income tax, and

an addition to tax, due from petitioner as follows:

Year Deficiency Additions to Tax Under

Sec 6651(a)({1)

2002 $23,303 $592.20

/s/ Mark V. Holmes

Judge

ENTERED: NOV 23, 2005

-Appx la-

APPENDIX B

Docket No. 23425-04.

United States Tax Court Washington, DC 20217

In the matter of:

THOMAS DRENNAN SELGAS, Petitioner

v.

Commissioner of Internal Revenue, Respondent

ORAL FINDINGS OF FACT AND OPINION

Room 591

Terminal Annex Building

207 S. Houston Street

Dallas, Texas

Wednesday,

November 2, 2005

The above-entitled matter came on for bench

opinion, pursuant to notice, at 9:35 a.m.

BEFORE: HON. MARK V. HOLMES

dudge

APPEARANCES:

On behalf of the Petitioner:

NONE

On behalf of the Respondent:

AUDREY M. MORRIS, ESQ.

IRS District Counsel

4050 Alpha Road, 13th Floor

Dallas, Texas 75244

Bench Opinion by Judge Mark V. Holmes

-Appx 2a-

The Court has decided to render oral findings of fact and

opinion, and the following represents the Court's oral

findings of fact and opinion:

This bench opinion is made pursuant to the

authority granted by Section 7459(b) of the Internal

Revenue Code of 1986 as amended and Rule 152 of the

Tax Court's Rules of Practice and Procedure.

Mr. Selgas was a resident of Texas at the time he

filed the petition. There were facts stipulated which are

found.

BACKGROUND

This case began because the IRS noticed that it

had no record of Mr. Selgas filing a federal income tax

return for the tax year 2002. During that year, Mr.

Selgas had worked for a company called Chip Data,

Incorporated, and during that year Chip Data had issued

Mr. Selgas wages in the amount of $104,278 that it

reported to him on the annual Form W-2 for that year. It

also withheld from his wages federal income tax in the

amount of $21,314.62.

Mr. Selgas and the Government stipulated that

during 2002, he also received $50 in interest income from

the Community Credit Union, $11 in dividends from

Deutsche Bank Securities, Incorporated, and had

withheld from interest at the Community Credit Union

$15 for federal income taxes.

On July 19, 2004, after noticing that no return had

come from Mr. Selgas, the Commissioner sent to him a

letter, accompanying a Form 4549,-Income Tax

Examination Changes, associated schedules’. of

computations and a Form 886-A, Explanation of Items. It

stated in boldface on the letter accompanying these forms,

"We have not received your federal income tax return, and

we need you to file your return." The package was signed

by an IRS employee.

Moreover, although this is a contested fact, I

specifically find that attached to this combination of letter

and Forms 4549 and 886-A was another IRS form

-Appx 3a-

entitled, IRC Section 6020b Certification on IRS Form

13496 that was signed by an IRS employee. I make this

finding because the IRS established that it was in keeping

with its practice of preparing SFRs when the taxpayer

has not filed.

Moreover, it was found in the administrative file

attached as well to the notice of deficiency that was later

issued. However, in this letter, it does state, "The officer

of the IRS identified below, authorized by delegation

order 182, certifies the attached pages constitute a valid

return under Section 6020b. This return consists of the

following items: (1) a copy of the Form 1040 which the

IRS used to establish the taxpayer's account on its

computer system, or alternatively a transcript of account

reflecting the entry of data used to establish the

taxpayer's account on the IRS computer system;

"(2) Form 4549, Income Tax Examination Changes;

(3) Form 866-A, Explanation of Items; and (4) this

certification Form 13496. Pursuant to Section 6651(g)(2),

this certification with attachments shall be treated as the

return filed by the taxpayer for purposes of determining

the amount of the additions to tax under paragraphs 2

and 3 of Section 6651(a)."

I do note -- and there's little dispute -- that there

was no Form 1040 attached to this package, and there

also appears to have been no transcript of account. But

the letter itself was found both in the administrative file

and, as I said, attached to this July 19 letter, as well as

the September 14 notice of deficiency, so I do find that it

was sent and that it was sent as part of this package.

As it turns out, it's not all that important that a

substitute for return prepared under 6020b was filed at

all, but I'll get to that a little bit later.

On September 14, 2004, the IRS sent a notice of

deficiency, proposing a deficiency of $23,303, together

with an addition to tax for failure to file of $592.20. The

discerning listener will hear that this is considerably less

than 25 percent of the deficiency amount of more than

-Appx 4a-

$23,000. This is because under Section 6651(b), the

penalty is only assessed on the net amount due after

taking into account, among other things, the withholding

credit that Chip Data, Mr. Selgas's employer, had already

withheld from his wage income.

Attached to this notice of deficiency was another

copy of the July 19 forms, including, I specifically find, the

6020b certification. Mr. Selgas's reaction to this was to

timely file a petition for redetermination of the deficiency.

In his petition, he challenged the notice of

deficiency on several grounds: first, alleging that the tax

had been fully paid; second, that it was based on a naked

assessment with a lack of valid supporting evidentiary

documents necessary and required to "verify and support

transaction codes, document codes, and blocking codes

listed in the individual master file";

Third, that the administrative record was

tampered with and that the IRS's computer systems had

severe programming bugs; four, that the IRS computer

data entry control notices to administer Petitioner's

administrative file were nonexistent or missing; fifth, that

the Petitioner was not engaged in excisable activities;

sixth, that he wasn't involved in_ self-employment

activities; and perhaps most remarkably, seventh, that he

is not nor was gainfully employed despite the receipt of

over $100,000 in wage income from his employer during

the year in question.

Now, several of these grounds are obviously

frivolous. Transaction codes have nothing to do with the

calculation or challenge to the deficiency amount. Mr.

Selgas elaborated in a lengthy reply to the Government's

answer in this case with even more grounds for

challenging the deficiency, saying that the alleged notice

of deficiency is incomplete and unsigned, not signed by

somebody with delegated authority; that the

Commissioner had failed to identify a particular taxing

statute in implementing regulation from which a

-Appx Sa-

deficiency could arise; that the Commissioner had failed

to create a valid substitute for return.

Again, many of these are staples of tax protester

practice. Others are apparently of Mr. Selgas's own

invention, but few if any of them have anything to do with

a challenge to the deficiency as calculated by the

Commissioner.

In the course of trial preparation, Mr. Selgas did

not cooperate with the Government in drafting

stipulations, instead coming up with a _ purported

amended return, arguments based on non-delegation of

the Secretary's power, and similar nonsubstantive

reasons to oppose the deficiency.

After his summary judgment biotion: was denied

shortly after the calendar call, however, a conversion

seems to have occurred, and he began to cooperate with

the stipulation process, ultimately signing a stipulation in

the regular form.

It was a more focused attack on the deficiency,

raising three grounds: still, that he had fully paid the tax

amount due; second, a new argument that he had sent in

not one but two returns before the substitute for return

had been issued by the Commissioner; and, three, that

the substitute for return that had been prepared by the

Commissioner was invalid. Trial was held in Dallas.

DISCUSSION

Point number one, Mr. Selgas's argument that he

had fully paid his tax. The records of the IRS do reflect

withholding, so Mr. Selgas, in effect, does get the benefit

of the withholding from his wages by Chip Data and from

the smaller withholding of interest payment from his

credit union, and the IRS is, of course, obliged, as its

counsel recognizes, to credit these in due course after the

deficiency is determined.

But Mr. Selgas did not proffer any proof that he

had paid the remainder of the amount that was owed. He

had no checks, no money order receipts, no receipts for

cash payments to the IRS. Instead, he pointed to his

-Appx 6a-

individual master file transcript which showed zero

assessment. But, of course, it would show zero

assessment. That's what it should show when a non-filer

timely petitions for a redetermination after reviewing and

receiving his notice of deficiency based on a substitute for

return, which is precisely what Mr. Selgas did here.

My conclusion then, on this first point, is that his

tax was not, in fact, fully paid.

His second attack on the deficiency is that he

really, really did send in returns, not once but twice.

These were attached to the stipulation of facts as Exhibits

1-P and 2-P. These are different returns. They differ a

bit in the amount that was owed. They differ in the

preparer who signed allegedly at the bottom of page 2 of

each of the returns. Neither of these purported returns is

signed or dated by either Mr. or Mrs. Selgas.

Were these returns, in fact, filed? There are at

least three reasons that I find that they were not. First,

Mr. Selgas never mentioned these before. Having been

sent IRS forms that say he did not receive -- that they had

not received any income tax return for the year 2002 and

having participated in very lengthy pretrial maneuvering,

to come up only on the Monday of the calendar call with

additional returns allegedly filed is quite beyond belief.

Second, and perhaps more importantly, neither

one was ever received by the IRS. This means they're not

regarded as filed under Section 7501. Mr. Selgas

presented no proof of mailing by certified or registered

mail or the other ways he could establish that a return

should be regarded as filed by the IRS.

Third, there's no signature on either of these

returns, as I've already said. Section 6061 generally

requires a signature on a return form for that return form

to become a legal return. Now, Mr. Selgas explained that

he did execute a power of attorney, and, in fact, in some

circumstances, someone receiving a power of attorney can

execute a return for a non-signer.

-Appx 7a-

Regulation 1.6061-1(a) states, "Each individual

shall sign the income tax return required to be made by

him, except that the return may be signed for the

taxpayer by" -- and this is important -- "an agent who is

duly authorized in accordance with paragraph (a)(5) or (b)

of Section 1.6012-1 to make such return."

Turning to that section of the regulations, we see

that in regulation 1.6012-1(a)(5), titled, Returns made by

agent, that "the return of income may be made by an

agent if, by reason of disease or injury, the person liable

for the making of the return is unable to make it. The

return may also be made by an agent if the taxpayer is

unable to make the return by reason of continuous

absence from the United States, including Puerto Rico, as

if it were a part of the United States, for a period of at

least 60 days prior to the date prescribed by law for

making the return.

"In addition, a return may be made by an agent if

the taxpayer requests permission in writing of the district

director for the Internal Revenue district in which is

located the legal residence or principal place of business of

the person liable for the making of the return and such

district director determines that good cause exists for

permitting the return to be so made...

“Whenever a return is made by an agent, it must

be accompanied by a power of attorney or copy thereof,

authorizing him to represent his principal in making,

executing or filing the return. A Form 2848, when

properly completed, is sufficient."

Needless to say, Mr. Selgas presented no proof that

he was diseased or injured and so unable to file a return,

nor that he was outside the United States. Instead, he

argued that he had a power of attorney, though no proof

that he had secured consent from the Service to file witha |

signature from a power of attorney, because he had given

the power of attorney, he said, to an IRS employee. He

presented no proof of this, no copy of a power of attorney

form.

-Appx 8a-

And, of course, a Form 2848 as well as general

principles of common law don't allow you to designate an

agent without that agent's consent, and there certainly

was no proof of consent that this particular IRS employee,

whose name Mr. Selgas even had trouble remembering,

had ever consented to be Mr. Selgas's agent for the

purpose of signing either of his two returns.

Finally and more generally, I observed Mr. Selgas.

I don't find him to be credible in the least on any

important part of his testimony and specifically on this

return story. I simply find him to have lied.

Part three of his attack was on the invalidity of the

substitute for return. His argument here is that the

requirements for a substitute for return were not met.

There are two points that I want to make here. One was

that I do find that the substitute for return here was

valid.

Section 6020b of the Code states, "If any person

fails to make any return required by any Internal

Revenue law or regulation made thereunder at the time

prescribed therefor, or makes willfully or otherwise a false

or fraudulent return, the Secretary shall make such

return from his own knowledge and from’ such

information as he can obtain through testimony or

otherwise." The second subpart says, "Any return so

made and subscribed by the Secretary shall be prima facie

good and sufficient for all legal purposes."

Mr. Selgas's argument is that because there was

no Form 1040 prepared by the Commissioner and no

regulation authorizing the Commissioner's activities

promulgated under 6020, that there can be no substitute

for return in his case. But, of course, the authority for the

Commissioner's actions were in the Code, not the

regulation, and there is certainly nothing in Section

6020b that requires a 1040 specifically.

The requirements for a valid substitute for return

have been the subject of some commentary in the case

law, and one of the leading cases in the Tax Court is

-Appx 9a-

Cabirac v. Commissioner, which is 120 TC 163 (2003),

which contains a brief discussion of the requirements and

the development of those requirements of a valid SFR or

substitute for return.

Specifically I'll give a quote from Cabirac which

cites, in turn, to a previous case, Milsap v. Commissioner.

"In Milsap v. Commissioner, 91 TC 926, the Respondent

prepared Forms 1040 containing the taxpayer's name,

address, Social Security number and filing status. The

Forms 1040 contained no information regarding income or

tax and were not subscribed. However, attached to the

Forms 1040 was previously-prepared revenue agent's

report which contained sufficient information from which

to compute the taxpayer's tax liability and was

subscribed. We held that the 1040, together with the

attached revenue agent's report, met the requirements for

a Section 6020b return."

Now, in Cabirac, the revenue agent's report which

contained the information from which the taxpayer could

calculate his taxes was not attached, and so in Cabirac,

the purported substitute for return was held not to be

valid. But from this line of cases, I derive the following

three things that have to be in a substitute for return for

it to be considered a valid substitute for return under

Section 6020b: one, that the taxpayer has to be identified;

two, that there has to be an explanation of the basis for

the computation of the deficiency; and, three, that it has

to be signed by an IRS employee with appropriate

authority.

Each of those three elements are met here. In

Exhibit 6-R and 7-R which, again, I have found was

attached to 6-R originally, are Mr. Selgas's name, Social

Security number, accurate mailing address and such, and

a long explanation of the basis of computation based on

the third-party information that the IRS had, and the last

page, which was, in fact, signed by an IRS employee.

The second reason that I find Mr. Selgas's

argument to be an inadequate attack on the notice of

-Appx 10a-

deficiency is that here I don't think a substitute for return

even matters. The Commissioner can issue a notice of

deficiency without a substitute for return, and the

Commissioner can even assert the addition to tax that he

asserts here under Section 6651(a)(1), the addition to tax

for failure to file, without a substitute for return. It's

Section 6651(a)(2), the failure to pay tax owed as shown

on a return, that can be a problem if there isn't a valid

substitute for return, but that's not the situation here.

So my conclusion is that I find for Respondent as

to the following deficiency and addition to tax: for the tax

year 2002, $23,303, with an addition to tax under Section

6651(a)(1) of $592.20.

This concludes the Court's oral findings of fact and

opinion in this case.

(Whereupon, at 9:57 a.m., the bench opinion in the

above-entitled matter was concluded.) Certificate of

Transcriber and Proofreader

ON THE RECORD REPORTING, INC.

Case Docket No. 23425-04

Case Name Thomas Drennan Selgas

We, the undersigned, do hereby certify that the

foregoing pages, numbers 1 through , inclusive, are the

true, accurate, and complete transcript prepared from the

verbal recording made by electronic recording by Barbara

Wall on November 2, 2005, before the United States Tax

Court at its session in Dallas, Texas, in accordance with

the applicable provisions of the current verbatim

reporting contract of the Court, and have verified the

accuracy of the transcript by comparing the typewritten

transcript against the verbal recording.

Anita Tyler 11/03/05

(Signature Transcriber) (Transcriber Name) (Date)

Laurel H. Stoddard _ 11/04/05

(Signature Proofreader) (Proofreader Name) (Date)

-Appx 1 la-

NDIX

Docket No. 23425-04.

United States Tax Court Washington, DC 20217

In the matter of:

THOMAS DRENNAN SELGAS, Petitioner

Vv.

Commissioner of Internal Revenue, Respondent

TELEPHONE CONFERENCE TRANSCRIPT

Telephone Conference between:

Judge Mark V. Holmes;

Abbey Garber, Assoc Counsel;

Thomas D. Selgas, Petitioner

John O’Neill Green, Counselor;

Tuesday,

August 9, 2005

The above-entitled matter came on for a conference call

pursuant to notice, at 9:48 a.m.

BEFORE: HON. MARK V. HOLMES

Judge

APPEARANCES:

U:

THOMAS D. SELGAS, Petitioner, Attorney Pro Se

JOHN O'NEILL GREEN, ESQ., CO-COUNSEL

On behalf of the Respondent:

ABBEY B. Garber, ESQ.

Internal Revenue Service

4050 Alpha Road, 13th Floor

Dallas, Texas 75244

-Appx 12a-

CONFERENCE CALL

THE COURT: OK, what documents to you think you’re

missing from the record?

SELGAS: Um, well, the returns that according to

everything I know, have been told, and then also

according to, like, the individual master file and stuff that

were filed by my former attorney, um, were not produced.

Um, there was a thirty-day letter, um, I don’t know what

you call it, um, a thirty-day.

COURT: Yeah, they're called thirty-day letter

(unintelligible). What's the full title, Notice of

SELGAS: Well there was a memorandum attached to it

COURT: Notice of Deficiency, or something like that

SELGAS: There was a memorandum attached to it that

said it was illegal and what was produced yesterday,

there’s a hand note that says that that thirty-day letter

that was send to me was illegal. And then, um, there was

a letter that I saw the last time from, uh, a former

attorney, Baxley, dated December 12, 2001, that’s no

longer there, but there was a letter from Revenue Agent

McClain acknowledging receipt of that letter that we got a

copy of yesterday.

COURT: Eh, do you, why don’t you have copies of returns

that were filed on your behalf in your own possession?

SELGAS: Un, they were never sent to me, Your Honor.

COURT: Did you try to retrieve them from the attorney

who filed them on your behalf?

SELGAS: Um, yes Your Honor. And he said that the IRS

took them when they came and, I guess, either raided

their office, or whatever the term was. So he doesn’t have

them.

COURT: Eh (unintelligible)

-Appx 13a-

SELGAS: Pardon?

COURT: What’s the lawyer’s first name, Milton?

SELGAS: Yes, sir.

COURT: (unintelligible), Mr. Garber?

GARBER: (unintelligible), Your Honor.

COURT: Do you know Mr. Baxley’s whereabouts, sir?

GARBER: I do not, although he (unintelligible) more

familiar with it than I am (unintelligible).

COURT: Has he been the subject of Q injunction

campaign by the Justice Department? Mutter, mutter.

Have you found in the IRS records, Mr. Garber, uh, copies

of the tax returns that were filed for the years in issue?

GARBER: Mutter, mutter

COURT: Which in this case is just 2002.

GARBER: I’m not aware of any returns 0)

COURT: Are the returns that you say were filed in your

behalf by Mr. Baxley, this is directed to Mr. Selgas, for

the 2002 tax year?

SELGAS: Uh, there were returns for ’97, 98, 99, 2000,

2001 and 2002, Your Honor.

COURT: Is there anything in the administrative record,

Mr. Garber, that would indicate where these returns are?

GARBER: No, Your Honor, (unintelligible)

SELGAS: Your Honor, if you'll remember, in the last call

Ms. Morris admitted that the returns had been filed when

I objected that they weren't.

COURT: The question was whether they were process-

able or not.

SELGAS: And I, and I, again since I don’t have copies, I'd

like to see what was filed.

-Appx |4a-

APPENDIX D

No. 06-60311

United States Court of Appeals,

Fifth Circuit.

THOMAS DRENNAN SELGAS,

Petitioner - Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent - Appellee.

Appeal from the United States Tax Court

NO. 23425-04

Before SMITH, WIENER, and OWEN, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Thomas Selgas received a notice of deficiency from

the Internal Revenue Service (“IRS”) and petitioned for

redetermination of his tax liability. The United States

Tax Court entered judgment against Selgas, and he

appeals. We affirm.

E

On July 19, 2004, the Commissioner of Internal Revenue

(“the Commissioner”) sent Selgas a letter stating that the

IRS had not received a tax return from him for 2002. The

Commissioner attached a form providing a proposed

computation of Selgas’s liability based on third-party

payer information reflecting wages of $104,278, interest

income of $50, and dividend income of $11. The form

stated that Selgas was entitled to a standard deduction of

$4,700 and a personal exemption of $3,000. The form

included a computation showing that Selgas’s tax

deficiency was $23,303, against which he was entitled to

prepayment withholding credits of $21,329, leaving a net

-Appx 15a-

tax liability of $1,974. The form noted that in addition,

Selgas owed $592.20 pursuant to 26 U.S.C. § 6651(a)(1)

and (2) because he was late in filing his return and in

paying the full amount due.

The Commissioner’s letter informed Selgas that he could

agree to the IRS’s proposed examination changes and pay

the amount due, respond within thirty days by filing a

return, or explain why he had not filed a return and

would like the IRS to reconsider. Attached to the letter

was yet another form, which informed Selgas, “Your best

course of action is to file your own tax return now to claim

your credits and deductions as allowed by law.”

Selgas made no response.! On September 14, 2004, the

Commissioner sent him a “Notice of Deficiency” pursuant

to 26 U.S.C. § 6212 reflecting a 2002 federal income tax

deficiency of $23,303 and a delinquency penalty of

$592.20. Attached to the notice were several forms

reflecting the same computation and explanation as had

appeared in the Commissioner’s initial letter as well as a

certification by an IRS Operations Manager that the

documents attached to the notice of deficiency constituted

the return prepared for Selgas by the Commissioner

pursuant to 26 U.S.C. § 6020(b). The certification further

stated that the return was to be treated as filed by the

taxpayer for the purpose of determining the amount of the

delinquency penalty. See 26 U.S.C. § 6651(a)(2)-(3), (g)(2).

Selgas timely filed a petition in the Tax Court attacking

the Commissioner’s calculations of the existence and

amount of his deficiency on numerous grounds, all of

1 Selgas later claimed that he had filed two unsigned tax

returns during this period. The IRS did not receive them, and

the Tax Court did not find Selgas’s testimony on this matter

credible. For reasons explained below, even if these returns

were filed, they were invalid because they lacked the taxpayer's

signature.

-Appx 16a-

which were rejected by the Tax Court. He timely filed a

motion to vacate the judgment, which the Tax Court

likewise rejected. Selgas asserts three arguments on

appeal: (1) that the Tax Court lacked jurisdiction because

the notice of deficiency was not promulgated pursuant to

a valid delegation of authority; (2) that the decision

should be vacated because Selgas was prejudiced by the

clerk’s failure to transcribe certain routine scheduling

conferences involving the parties and the court; and (3)

that the Commissioner’s calculation was incorrect because

Selgas filed documents illustrating that he was entitled to

a refund.

Il.

Whether the Tax Court had jurisdiction pursuant to a

validly issued notice of deficiency is a matter of law that

we review de novo. See Portillo v. Comm’, 932 F.2d 1128,

1131-32 (5th Cir. 1991). The notice of deficiency sent to

Selgas was valid, and the Tax Court appropriately

exercised jurisdiction. The Tax Court acquires jurisdiction

when a taxpayer files a timely petition contesting a notice

of deficiency issued by the Commissioner. See 26 U.S.C. §

6213; Portillo, 932 F.2d at 1132.

Selgas claims that the court lack. i jurisdiction because

the notice sent to him was invalid _vr two reasons: (1) The

employee who signed the deficiency notice lacked

authority to do so; and (2) the IRS improperly failed to

prepare a substitute tax return for Selgas before issuing

the notice of deficiency. Selgas’s arguments in this vein

are irrelevant to the outcome. Citing a delegation order

issued as part of the IRS’s internal operating procedures,

Selgas contends that the Supervisory Program Analyst

who signed his deficiency notice lacked authority to act on

behalf of the Secretary of the Treasury by issuing the

deficiency. The Commissioner states that “Supervisory

Program Analyst” is equivalent to Campus Department

-Appx 17a-

Manager, an official who plainly enjoys delegated

authority to issue deficiency notices.

As a general matter, IRS internal operating procedures

confer no rights on individual taxpayers,” but we need not

consider this dispute at great length because, in any

event, no signature is required to render a deficiency

notice valid. A taxpayer is entitled to notice of a

deficiency, but the relevant statute does not mandate any

particular form of notice or specify any content it must

include. See 26 U.S.C. § 6212. Like our sister circuits, we

conclude that a notice of deficiency is valid as long as it

informs a taxpayer that the IRS has determined that a

deficiency exists and specifies the amount of the

deficiency.* The existence of a signature or the identity of

any IRS official who provides one, is superfluous.

Likewise, Selgas’s argument that the notice of deficiency

was invalid because the IRS failed to prepare a proper

substitute tax return is meritless. We need not consider

whether the substitute return was properly calculated

and presented on the appropriate forms because, for the

purpose of determining a deficiency, there is no need for

the Commissioner to prepare a substitute tax return.®

“Where there has been no tax return filed the deficiency is

2 See Smith v. United States, 478 F.2d 398, 400 (5th Cir.

1973); see also Tavano v. Comm’, 986 F.2d 1389, 1390 (11th

Cir. 1993).

33 See Brafman v. United States, 384 F.2d 863, 865 n.4 (5th

Cir. 1967). See also Tavano, 986 F.2d at 1390; Urban v.

Comm, 964 F.2d 888, 889 (1992).

4 See Bokum v. Comm, 992 F.2d 1136, 1139 (11th Cir.

1993); Estate of Yaeger v. Comm’, 889 F.2d 29, 35 (2d Cir.

1990).

5 See 26 U.S.C. §§ 6020(b), 6211(a); United States v.

Stafford, 983 F.2d 25, 27 (5th Cir. 1993) (“[A]lthough [§ 6020(b)]

authorizes the Secretary to file for a taxpayer, the statute does

not require such a filing.”).

-Appx 18a-

the amount of tax due.’ Nothing about the notice of

deficiency sent to Selgas operated to defeat the Tax

Court’s jurisdiction.

III.

Selgas was not prejudiced by the clerk’s failure to record

two off-the-record status conferences. Selgas was afforded

a fair trial on the merits of the issues he claims were

discussed at the status conferences. He was not

prejudiced by the clerk’s failure to record the Tax Court’s

“admission,” during a status conference, that the IRS

possessed two unsigned tax returns entitling Selgas to

relief, even assuming that the Tax Court ever made such

a statement. In any event, for reasons explained below,

the fact that the tax returns were unsigned strips them of

any legal effect and renders irrelevant the question

whether the IRS ever had them.

IV.

Selgas’s claim that the notice of deficiency is inaccurate

because he filed two unsigned tax returns illustrating

that he was entitled to a refund in 2002 is neither credible

nor rele-vant. Selgas first produced these returns at the

calendar call for trial of his case in the Tax Court,

claiming that he had filed them before the IRS sent him

the deficiency notice. The IRS had no record of ever

receiving these returns. The trial judge specifically found

Selgas’s testimony to be incredible on this point and

determined that the returns had never been filed. Selgas

provides no reason for us to upset that plausible factual

determination. Likewise, the Tax Court properly ignored

the “corrected amended” return that Selgas filed just

before trial, because he supplied no_ evidence

substantiating the deductions and other items on the

6 Laing v. United States, 423 U.S. 161, 174 (1976). See also

26 C.F.R. § 301.6211-1(a).

-Appx 19a-

return that purported to show that he was entitled to a

substantial refund.

Even if the returns were filed, the fact that they were

unsigned deprives them of legal effect.7 Selgas claims that

he provided power of attorney to the IRS employee who

received the return, but, again assuming that this is true,

there is no reason to believe that the employee was

required to,-or even should have, exercised such power

and signed the return. That duty lay upon Selgas and, at

best, he failed to fulfill it.

V.

Selgas’s arguments are utterly lacking in merit and, as an

aside, his conduct in this litigation appears to have been

inconsistent with that of a litigant endeavoring to aid in

the truthful and efficient resolution of contested issues of

fact and law. We have no sympathy for Selgas’s behavior

or his arguments in defense of what appears to have been

a brazen attempt to avoid a few thousand dollars in

legitimate tax liability. The judgment of the Tax Court is

AFFIRMED.

7 See 26 U.S.C. §§ 6012, 6061(a), 6065; 26 C.F.R. § 1.6061-

1(a); Brafman, 384 F.2d at 868; Reaves v. Comm’, 295 F.2d

336, 338 (5th Cir. 1961).

-Appx 20a-

APPENDIX E

No. 06-60311

United States Court of Appeals,

Fifth Circuit.

THOMAS DRENNAN SELGAS,

Petitioner - Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE,

Respondent - Appeilee.

Petition for Review of an Order of the

Internal Revenue Service (Tax Ct)

ON PETITION FOR REHEARING

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED

ENTERED FOR THE COURT:

/S/ ith

United States Circuit Judge

REHG-3 CLERK’S NOTE

SEE FRAP AND LOCAL

FILED: March 21, 2007 RULES 41 FOR STAY OF

CHARLES R. FULBRIGE IIIT MADATE

CLERK

-Appx 2la-

APPENDIX F

INTERNAL REVENUE CODE SECTIONS:

6020, 6065, 6201, 6211, 6212, 7701(a)(11)-(12)

CHAPTER 61 - INFORMATION AND RETURNS

Subchapter A - Returns and Records

PART II - TAX RETURNS OR STATEMENTS

Subpart D - Miscellaneous Provisions

kkk

§6020. Returns prepared for or executed by Secretary

(a) Preparation of return by Secretary

If any person shall fail to make a return required

by this titleor by regulations prescribed thereunder, but

shall consent to disclose all information necessary for the

preparation thereof, then, and in that case, the Secretary

may prepare such return, which, being signed by such

person, may be received by the Secretary as the return of

such person.

(b) Execution of return by Secretary

(1) Authority of Secretary to execute return

If any person fails to make any return

required by any internal revenue law or regulation

made thereunder at the time prescribed therefor,

or makes, willfully or otherwise, a false or

fraudulent return, the Secretary shall make such

return from his own knowledge and from such

information as he can obtain through testimony or

otherwise.

(2) Status of returns

Any return so made and subscribed by the

Secretary shall be prima facie good and sufficient

for all legal purposes.

PART IV - SIGNING AND VERIFYING OF

RETURNS AND OTHER DOCUMENTS

§6065. Verification of returns

Except as otherwise provided by the Secretary, any

return, declaration, statement, or other document

-Appx 22a-

required to be made under any provision of the internal

revenue laws or regulations shall contain or be verified by

a written declaration that it is made under the penalties

of perjury.

CHAPTER 63 - ASSESSMENT

Subchapter A - In General

kkk

§6201. Assessment authority

(a) Authority of Secretary

The Secretary is authorized and required to make

the inquiries, determinations, and assessments of all

taxes (including interest, additional amounts, additions to

the tax, and assessable penalties) imposed by this title, or

accruing under any former internal revenue law, which

have not been duly paid by stamp at the time and in the

manner provided by law. Such authority shall extend to

and include the following:

(1) Taxes shown on return

The Secretary shall assess all taxes determined

by the taxpayer or by the Secretary as to which

returns or lists are made under this title.

(2) Unpaid taxes payable by stamp

(A) Omitted stamps

Whenever any article upon which a tax is

required to be paid by means of a stamp is sold or

removed for sale or use by the manufacturer

thereof or whenever any transaction or act upon

which a tax is required to be paid by means of a

stamp occurs without the use of the proper stamp,

it shall be the duty of the Secretary, upon such

information as he can obtain, to estimate the

amount of tax which has been omitted to be paid

and to make assessment therefor upon the person

or persons the Secretary determines to be liable for

such tax.

(B) Check or money order not duly paid

-Appx 23a-

In any case in which a check or money order

received under authority of section 6311 as

payment for stamps is not duly paid, the unpaid

amount may be immediately assessed as if it were

a tax imposed by this title, due at the time of such

receipt, from the person who tendered such check

or money order.

(3) Erroneous income tax prepayment credits

If on any return or claim for refund of income

taxes under subtitle A there is an overstatement of

the credit for income tax withheld at the source, or

of the amount paid as estimated income tax, the

amount so overstated which is allowed against the

tax shown on the return or which is allowed as a

credit or refund may be assessed by the Secretary

in the same manner as in the case of a

mathematical or clerical error appearing upon the

return, except that the provisions of section

6213(b)(2) (relating to abatement of mathematical

or clerical error assessments) shall not apply with

regard to any assessment under this paragraph.

(b) Amount not to be assessed

(1) Estimated income tax

No unpaid amount of estimated income tax

required to be paid under section 6654 or 6655

shall be assessed.

(2) Federal unemployment tax

No unpaid amount of Federal unemployment

tax for any calendar quarter or other period of a

calendar year, computed as provided in section

6157, shall be assessed.

(c) Compensation of child

Any income tax under chapter 1 assessed against a

child, to the extent attributable to amounts includible in

the gross income of the child, and not of the parent, solely

by reason of section73(a), shall, if not paid by the child,

for all purposes be considered as having also been

properly assessed against the parent.

-Appx 24a-

(d) Required reasonable verification of information

returns

In any court proceeding, if a taxpayer asserts a

reasonable dispute with respect to any item of income

reported on an information return filed with the Secretary

under subpart B or C of part III of subchapter A of

chapter 61 by a third party and the taxpayer has fully

cooperated with the Secretary (including providing,

within a reasonable period of time, access to and

inspection of all witnesses, information, and documents

within the control of the taxpayer as reasonably requested

by the Secretary), the Secretary shall have the burden of

producing reasonable and _ probative information

concerning such deficiency in addition to such information

return.

(e) Deficiency proceedings

For special rules applicable to deficiencies of

income, estate, gift, and certain excise taxes, see

subchapter B.

Subchapter B - Deficiency Procedures in the Case of

Income, Estate, Gift, and Certain Excise Taxes

kkK*

§6211. Definition of a deficiency

(a) In general

For purposes of this title in the case of income, estate,

and gift taxes imposed by subtitles A and B and excise

taxes imposed by chapters 41, 42, 43, and 44 the term

"deficiency" means the amount by which the tax imposed

by subtitle A or B, or chapter 41, 42, 43, or 44 exceeds the

excess of -

(1) the sum of

(A) the amount shown as the tax by the taxpayer

upon his return, if a return was made by the taxpayer and

an amount was shown as the tax by the taxpayer thereon,

plus

(B) the amounts previously assessed (or collected

without assessment) as a deficiency, over -

-Appx 25a-

(2) the amount of rebates, as defined in subsection

(b)(2), made.

(b) Rules for application of subsection (a)

For purposes of this section -

(1) The tax imposed by subtitle A and the tax shown

on the return shall both be determined without regard to

payments on account of estimated tax, without regard to

the credit under section 31, without regard to the credit

under section 33, and without regard to any credits

resulting from the collection of amounts assessed under

section 6851 or 6852 (relating to termination

assessments).

(2) The term "rebate" means so much of an

abatement, credit, refund, or other repayment, as was

made on the ground that the tax imposed by subtitle A or

B or chapter 41, 42, 43, or 44 was less than the excess of

the amount specified in subsection (a)(1) over the rebates

previously made.

(3) The computation by the Secretary, pursuant to

section 6014, of the tax imposed by chapter 1 shall be

considered as having been made by the taxpayer and the

tax so computed considered as shown by the taxpayer

upon his return.

(4) For purposes of subsection (a) -

(A) any excess of the sum of the credits allowable

under sections 24(d), 32, and 34 over the tax imposed by

subtitle A (determined without regard to such credits),

and

(B) any excess of the sum of such credits as shown

by the taxpayer on his return over the amount shown as

the tax by the taxpayer on such return (determined

without regard to such credits), shall be taken into

account as negative amounts of tax.

(c) Coordination with subchapters C and D

In determining the amount of any deficiency for

purposes of this subchapter, adjustments to partnership

items shall be made only as provided in subchapters C

and D.

-Appx 26a-

§6212. Notice of deficiency

(a) In general

If the Secretary determines that there is a deficiency

in respect of any tax imposed by subtitles A or B or

chapter 41, 42, 43, or 44 he is authorized to send notice of

such deficiency to the taxpayer by certified mail or

registered mail. Such notice shall include a notice to the

taxpayer of the taxpayer's right to contact a local office of

the taxpayer advocate and the location and phone number

of the appropriate office.

(b) Address for notice of deficiency

(1) Income and gift taxes and certain excise taxes

In the absence of notice to the Secretary under

section 6903 of the existence of a fiduciary relationship,

notice of a deficiency in respect of a tax imposed by

subtitle A, chapter 12, chapter 41, chapter 42, chapter 43,

or chapter 44 if mailed to the taxpayer at his last known

address, shall be sufficient for purposes of subtitle A,

chapter 12, chapter 41, chapter 42, chapter 43, chapter

44, and this chapter even if such taxpayer is deceased, or

is under a legal disability, or, in the case of a corporation,

has terminated its existence.

(2) Joint income tax return

In the case of a joint income tax return filed by

husband and wife, such notice of deficiency may be a

singie joint notice, except that if the Secretary has been

notified by either spouse that separate residences have

been established, then, in lieu of the single joint notice, a

duplicate original of the joint notice shall be sent by

certified mail or registered mail to each spouse at his last

known address.

(3) Estate tax

In the absence of notice to the Secretary under

section 6903 of the existence of a fiduciary relationship,

notice of a deficiency in respect of a tax imposed by

chapter 11, if addressed in the name of the decedent or

other person subject to liability and mailed to his last

-Appx 27a-

known address, shall be sufficient for purposes of chapter

11 and of this chapter.

(c) Further deficiency letters restricted

(1) General rule

If the Secretary has mailed to the taxpayer a notice

of deficiency as provided in subsection (a), and the

taxpayer files a petition with the Tax Court within the

time prescribed in section 6213(a), the Secretary shall

have no right to determine any additional deficiency of

income tax for the same taxable year, of gift tax for the

same calendar year, of estate tax in respect of the taxable

estate of the same decedent, of chapter 41 tax for the

same taxable year, of chapter 43 tax for the same taxable

year, of chapter 44 tax for the same taxable year, of

section 4940 tax for the same taxable year, or of chapter

42 tax, (other than under section 4940) with respect to

any act (or failure to act) to which such petition relates,

except in the case of fraud, and except as provided in

section 6214(a) (relating to assertion of greater

deficiencies before the Tax Court), in section 6213(b)(1)

(relating to mathematical or clerical errors), in section

6851 or 6852 (relating to termination assessments), or in

section 6861(c) (relating to the making of jeopardy

assessments).

(2) Cross references

For assessment as a deficiency notwithstanding the

prohibition of further deficiency letters, in the case of -

(A) Deficiency attributable to change of treatment

with respect to itemized deductions, see section 63(e)(3).

(B) Deficiency attributable to gain on involuntary

conversion, see section 1033(a)(2)(C) and (D).

(C) Deficiency attributable to activities not

engaged in for profit, see section 183(e)(4). For provisions

allowing determination of tax in title 11 cases, see section

505(a) of title 11 of the United States Code.

(d) Authority to rescind notice of deficiency with

taxpayer's consent The Secretary may, with the consent of

the taxpayer, rescind any notice of deficiency mailed to

-Appx 28a-

the taxpayer. Any notice so rescinded shall not be treated

as a notice of deficiency for purposes of subsection (c)(1)

(relating to further deficiency letters restricted), section

6213(a) (relating to restrictions applicable to deficiencies;

petition to Tax Court), and section 6512(a) (relating to

limitations in case of petition to Tax Court), and the

taxpayer shall have no right to file a petition with the Tax

Court based on such notice. Nothing in this subsection

shall affect any suspension of the running of any period of

limitations during any period during which the rescinded

notice was outstanding.

Subtitle F - Procedure and Administration

CHAPTER 79 - DEFINITIONS

kkkk

§7701. Definitions

(a) When used in this title, where not otherwise distinctly

expressed or manifestly incompatible with the intent

thereof -

(11) Secretary of the Treasury and Secretary

(A) Secretary of the Treasury

The term "Secretary of the Treasury" means the

Secretary of the Treasury, personally, and shall not

include any delegate of his.

(B) Secretary

The term "Secretary" means the Secretary of the

Treasury or his delegate.

(12) Delegate

(A) In general

The term "or his delegate" -

(i) when used with reference to the Secretary of the

Treasury, means any officer, employee, or agency of the

Treasury Department duly authorized by the Secretary of

the Treasury directly, or indirectly by one or more

redelegations of authority, to perform the function

mentioned or described in the context; and

(ii) when used with reference to any other official

of the United States, shall be similarly construed.

-Appx 29a-

ae

APPENDIX G

Selected FOIA Responses from the

Secretary’s Disclosure Office

RESPONSE: To request Petitioner's FOIA Request

regarding Timothy A. Towns:

Dear Mr. Selgas:

This is in response to your Freedom of Information Act

(FOIA) request dated September 18, 2004, received in our

office September 27, 2004.

We have located seven (7) pages of documents in response

to your request.

Responsive to Items 1, 5, 8, and 11, we have enclosed the

Public Information Listing for Timothy A. Towns.

Regarding Items 2, 6, and 10, the Privacy Act protects

information concerning Internal Revenue _ Service

employees. Six items of information have been designated

as public information as specified in 5 CFR 293.311. To

release information, other than these items designated as

public, we must have authorization from the employee.

However, we consider the documents and/or information

provided in our response to be responsive to your request

for Item 2. You are not authorized to receive the

information in Items 6 and 10.

The Public Information Listing will contain the following

information:

1) Name; 2) Present and past position titles and

occupational series; 3) Present and past grades; 4) present

and past annual salary rates; 5) Present and past duty

stations; and 6) Position descriptions, identification of job

elements, and those performance standards (but not

actual performance appraisals) that the release of which

-Appx 30a-

would not interfere with law enforcement programs or

severely inhibit agency effectiveness.

Responsive to Items 3 and 4, we hhave enclosed the

Appointment Affidavits concerning Mr. Towns. IRS

employees take an Oath of Office (appointment affidavit)

upon entering the Service. No additional oaths are

generally required.

Regarding Item 7, The Commissioner has delegated his

authority to various officials in the Internal Revenue

Service to administer the various programs of the Service.

These delegations may be located in the Federal Register,

the Cumulative Bulletin, and the Internal Revenue

Manuals (IRM). IRM 1.2.2, Delegations of Authority,

contains delegation orders that authorize I’.S employees

to do specific duties or activities and are generally issued

by position or title, and not by employee's name. The

Internal Revenue Manuals are available for public

inspection in the Internal Revenue Service Public Access

Centers and are, therefore, not subject to specific request.

Delegation Orders are also available on the IRS website

at http://www.irs.gov. Copies of the IRM may be

requested by writing to the address shown below. We

have, however, enclosed a copy of the position description,

MPD No. 93616.

Internal Revenue Service

FOI Public Access Center

Room 162111R

1111 Constitution Ave. N.W.

Washington, D.C. 20224

No responsive documents were found regarding Item 9.

If you have any questions regarding this correspondence,

contact M McKenzie, #7917705121, at (801) 620-7650

between the hours of 7:00 a.m. and 3:30 p.m. Mountain

-Appx 3la-

Time; or write to: Internal Revenue Service, Ogden

Campus Disclosure Office, MIS 7000, PO Box 9941,

Ogden, UT 84409. Please refer to case control number

MM29-2004-06508.

Sincerely,

/s/ JaNean Ellis

JaNean Ellis

Disclosure Officer

Enclosure(s):

Notice 393

-Appx 32a-

Laces ; ; pest

: Fae

Bye ese)

eee os

fet ae

INTERNAL REVENUE SERVICE

MODERNIZATION POSITION DESCRIPTION

MPD No. 93616

Page 1

Classification: GS-343-15

Classification Title: Supervisory Program Analyst

Organizational Title: Chief Planning and Analysis

Organizational Location: Servicewide

Position Information

Competitive Level Code: 2485

Supervisory Code: 2 (Supervisory)

Bargaining Status: 8888 Non Bargaining Unit.

Risk Level/ADP: 5N (Moderate Risk/Non-ADP)

FLSA Status: Exempt

Full-Working Level: GS-15

Career Ladder PDs: None

Remarks:

Replaces TPD #9€2UI1T as this position is now a

permanent position and is reflected on the blueprint.

SM1 -This position is a Senior Manager (first level

reporting to an executive)

Duties and Responsibilities Approved: 4/10/01

Barbara L. Kelly, Director, Personnel Policy Division

Classification Approved: 4/10/01 Barbara J.

McWhirter, Assistant Director, Office of Workforce

Transition

Richard Bell, Position Classification Specialist

Supervisory Certification: I certify that this is an

accurate statement of the major duties and

responsibilities of this position and its organizational

relationships. and that the position is necessary to carry

out government functions for which I am responsible. This

certification is made with the knowledge that this

information is to be used for statutory purposes relating

-Appx 33a-

to appointment and payment of public funds. and that

false or misleading statements may constitute violations

of such statutes or their implementing regulations.

Signature and Title of Immediate Supervisor: Date:

All other levels of supervision which propose or approve

official statements of duties and responsibilities are

attesting to the same effect as the immediate supervisor.

This position description is intended for use without

modification. Any changes (e.g., pen-and-ink) to the duty

statements, factor leve] descriptions and benchmarks may

jeopardize the classification allocation. Contact the

National Classification Center for further assistance. The

classification of this position may be appealed. Published

standards or other information upon which the

classification is based may be reviewed. Information may

be obtained from the employee's immediate supervisor or

the National Classification Center.

Page 2

Introduction

The incumbent functions as the Chief Planning and

Analysis. Participates with the other third level

management team that is accountable for all programs

under the jurisdiction of the Director. The incumbent is

responsible for high level, cross-functional projects, often

of a confidential nature, and may be delegated the

authority to implement, manage, and evaluate special

programs and projects Serves as the service-center

pathfinder and expert and will be called upon to

participate in policy and decision making activities on

behalf of the Director. In addition, the incumbent provides

program direction to a diverse staff of program analysts.

-Appx 34a-

Knowledge Required

Comprehensive knowledge of IRS mission, organization,

policies, practices and procedures, including the program

areas of the Director.

Extensive knowledge of the service center organization,

policies, practices and procedures, functional programs,

operations, and processes assigned to the Director.

In-depth knowledge of advanced management principles,

theories, and practices and their applicability to IRS

programs, functions, and objectives.

Expert knowledge of a wide range of analytical and

evaluative methods and techniques to review and

evaluation proposals, conduct studies, develop

recommendations, and to analyze new or revised policies

and procedures.

Ability to demonstrate initiative, originality, and

creativity of a high order to render sound judgments on a

wide range of complex management and policy issues to

the Director and other top management officials.

Exceptional communication skills in order to effectively

represent the Director or IRS in meetings, conferences,

and presentations with higher-levels of executives within

the agency, other government agencies, or with Members

of Congress and/or their staffs.

I. Program Scope and Effect

Directs administrative activities. The incumbent's efforts

and recommendations will often result in substantive

program changes, procedural changes, revised program

emphasis, or organizational changes that have or could

have Service-wide significance. These efforts and

recommendations often involve sensitive or controversial

matters. The effectiveness of the incumbent directly

-Appx 35a-

affects the functioning of the office, as well as the

Director's proficiency to formulate policy and plan short-

range and long-range objectives.

II. Organizational Setting

The position is directly accountable to a position at the

SES level.

Page 3

III. Supervisory and Managerial Authority

Exercised

Advises the Director and other top management officials.

The incumbent directs key organizational programs which

comprises significant resources and/or assets. As such is

delegated managerial authority to set annual, multi-year,

or similar long-range financial and budgetary plans.

Determines objectives that need additional emphasis;

determines best approach or solution for resolving budget

shortages; and executes activities which support

development of goals and objectives related to high levels

of program management and development or formulation.

Personally coordinates the recommendation of and/or

solution to major projects or problems arising in

connection with operating policies, programs, workloads,

and objectives, etc. And coordinates with other managers

and program officials.

Additionally, the incumbent:

Plans work to be accomplished by subordinates,

sets and adjusts short-term priorities, and

prepares schedules for completion of work.

Assigns work to subordinates based on priorities,

selective consideration of the difficulty and

requirements of assignments, and the capabilities

of employees.

-Appx 36a-

Evaluates work performance of subordinates and

makes recommendations for outstanding

performance recognition or disciplinary action.

Gives advice, counsel, or instruction to employees

on both work and administrative matters.

Interviews candidates for positions in the team;

recommends appointment, promotion, or

reassignment to such positions.

Hears and resolves complaints for employees,

referring group grievances and more serious

unresolved complaints to a higher level supervisor

of manager.

Effects minor disciplinary measures, such as

warnings and reprimands, recommending other

action in more serious cases.

Identifies developmental and training needs of

employees, providing or arranging for needed

development and training.

Initiates ways to improve production or increase

the quality of the work directed.

Develops or participates in setting performance

standards.

Approves and disapproves leave and recommends

action in unusual cases.

Page 4

IV. Nature and Purpose of Contacts

Contacts are with IRS officials at all levels, both

internally and externally, and with various groups and

individuals outside the Service, officials of other federal

-Appx 37a-

agencies, Members of Congress, state tax and law

enforcement officials, and public information media.

Contacts may take place in meetings, conferences,

briefings, speeches, presentations, or oversight hearings

and may require extemporaneous responses to unexpected

or hostile questioning. Preparation typically includes

briefing packages or similar presentation materials and

may require extensive analytical input by the incumbent

and subordinates.

Contacts are made to convey the Director's decisions,

policies, and views; to ensure effective operations; to

present recommendations and proposals; to negotiate

results and resolve some issues; and to gain cooperation

and coordinate a wide range of activities. The incumbent ~

must use leadership and similar skills to obtain the

desired results.

V. Difficulty of Typical Work Directed

The position accomplishes work through the

administrative direction of others at least 25 percent of

the time comparable to the GS-13 or higher level

VI. Other Conditions:

Coordination of the work of subordinates requires

significant and extensive coordination and integration of a

number of important program segments and projects

involving work comparable in difficulty to the GS-13 or

higher level. Supervisicn at this level involves major

recommendations, which have a direct and substantial

effect on the organization and projects managed. Makes

recommendations in areas comparable to those involving

significant internal and external program and _ policy

issues affecting the overall organization, or restructuring,

reorienting, recasting immediate and long rang goals,

objectives, plans, and schedules to meet substantial

changes in legislation, program authority, and/or funding.

-Appx 38a-

GENERAL RESPONSIBILITIES

Fosters a high profile of the IRS Occupational Safety and

Health Program by assuring employees' awareness of

potential safety hazards, promptly reporting all injuries

and affecting corrective actions necessary to eliminate

safety and health hazards in the work area.

EQUAL EMPLOYMENT OPPORTUNITY

Practices sound position management in assigning work,

combining/separating duties, establishing/abolishing

positions and in fulfilling other personnel management

duties and responsibilities.

Page 5

SECURITY AWARENESS

Participates in the administration of the Information

Security Program to protect taxpayer data. Ensures a

high degree of subordinate employee awareness of and

compliance with the need to protect sensitive (e.g.,

taxpayer, personnel, procurement, etc.) data within or

through systems under their control. Ensures the effective

delivery of services targeted to assure all managers and

employees are aware of their roles and responsibilities for

the protection of sensitive data. Conducts training for

employees and promotes security awareness to prevent

any lapses.

Final Classification:

GS-343-15, Supervisory Program Analyst

-Appx 39a-

RESPONSE: To request for the 2002 return purportedly

made by the Secretary for the Petitioner:

Dear Mr. Selgas:

This is in response to your Freedom of Information Act

(FOIA) request dated October 20. 2004. which was

received by the Ogden Campus Disclosure Office and

subsequently transferred and received in our Los Angeles

Office on November 4,2004. In order to assist the Ogden

Office, we have accepted the transfer of this case.

Our research shows that there is no copy of a Form

1040, U.S. Individual Income Tax Return, for the

calendar ending December 31.2002, in the

Substitute for Return Administrative file; therefore

we have no documents responsive to your request.

Enclosed is Notice 393 that explains the exemptions and

provides your appeal rights. Please be advised that a

request under the Freedom of Information Act or Privacy

Act in no way postpones or delays administrative

examination, investigation or collect actions.

If you have any questions, please contact Carrie L.

Kawahara, Senior Disclosure Specialist, Badge Number

95-00053, at 213-576-3635,300 N. Los Angeles Street,

Mail Stop 1020. Los Angeles. CA 90012. Refer to Case

Number 95-2005-00342.

Sincerely,

/s/ Susan J. Hernandez

Disclosure Officer

Los Angeles Office

-Appx 40a-