Third Circuit Affirms No Abuse of Discretion in IRS Collection Determination

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 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.¹See 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 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:

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 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:

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, 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. at 1188-89; 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 be reasonable. Dalton, 682 F.3d at 156.

Therefore, for the foregoing reasons, we will affirm the judgment of the Tax Court.

²But 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").