Hobbs v. Commissioner of IRS
Case Date: 08/01/1994
Court: United States Court of Appeals
Docket No: 94-1107
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August 1, 1994 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 94-1107 JAMES P. HOBBS, Plaintiff, Appellant, v. COMMISSIONER: INTERNAL REVENUE SERVICE, ET AL., Defendants, Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. A. David Mazzone, U.S. District Judge] ___________________ ____________________ Before Torruella, Selya, and Cyr, Circuit Judges. ______________ ____________________ James P. Hobbs on brief pro se. ______________ Donald K. Stern, United States Attorney, Loretta C. Argrett, ________________ ____________________ Assistant Attorney General, Gary R. Allen, Charles E. Brookhart and _____________ ____________________ Jordon L. Glickstein, Attorneys Tax Division, Department of Justice on ____________________ brief for appellees. ____________________ ____________________ Per Curiam. Appellant taxpayer James P. Hobbs appeals __________ the dismissal by the United States District Court for the District of Massachusetts of his complaint against the Internal Revenue Service for damages and/or injunctive relief. We affirm the dismissal essentially for the reasons given by the district court in its memorandum and order dated November 30, 1993. We add only the following comments. Hobbs' claims are predicated on his allegation that the determination that he owed tax deficiencies for the tax years 1985 and 1986 was improper. However, the United States Tax Court has already dismissed Hobbs' challenge to those deficiencies and this court has dismissed Hobbs' appeal of that decision for failure to prosecute. Hobbs, therefore, can no longer challenge the merit of that determination.1 See Commissioner v. Sunnen, 333 U.S. 591, 598 (1948) (general ___ ____________ ______ rules of res judicata apply to tax proceedings involving the ___ ________ same claim and the same tax year). Hobbs' contention that the district court erred in determining that the deficiencies had been properly assessed is also without merit. According to Hobbs, the assessment ____________________ 1. We give no credit to Hobbs' wholly conclusory allegations, unsupported by any facts, that these rulings were obtained by the use of fraudulent filings in the Tax Court. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d ___ _______________ __________________ 49, 52 (1st Cir. 1990) (even though complaint is to be construed liberally, it cannot rest wholly on conclusory allegations). was void because the government failed to provide him with an adequate and timely notice of deficiency. An assessment is made "by recording the liability of the taxpayer in the office of the Secretary." 26 U.S.C. 6203. This is accomplished by having an assessment officer fill out and sign a "summary record of assessment," also known as a Form 23C. Geiselman v. United States, 961 F.2d 1, 5 (1st _________ _____________ Cir.), cert. denied, 113 S.Ct. 261 (1992). In this case, the ____ ______ government did not provide the district court with a Form 23C but with a Certificate of Assessment and Payments (Form 4340) which listed the Form 23C date. A Certificate of Assessment and Payments is both "presumptive proof of a valid assessment," id. at 6 (quoting __ United States v. Chila, 871 F.2d 1015, 1018 (11th Cir. ______________ _____ 1989)), and "presumptive proof that the IRS gave notice of the assessments and made demands of payment from [Hobbs]," id. Hobbs bears the burden of producing evidence to counter __ these presumptions. See, e.g., United States v. McCallum, ___ ___ _____________ ________ 970 F.2d 66, 71 (5th Cir. 1992) (citing cases). Hobbs contends that the Certificate of Assessment and Payments is invalid because it is dated May 4, 1993, well beyond the date the limitation period expired.2 For an assessment to be valid, it must be made, in accordance with ____________________ 2. The assessment must be made within three years of the filing of the return which gives rise to the liability that is the subject of the assessment. 26 U.S.C. 6501(a). -3- all rules and regulations of the Department of the Treasury, before the expiration of the limitation period. See, e.g., ___ ___ Brafman v. United States, 384 F.2d 863, 865 (5th Cir. 1967). _______ _____________ Hobbs' contention is meritless. Treasury regulations provide that "[t]he date of the assessment is the date the summary record is signed." 26 C.F.R. 301.6203-1 (emphasis ______________ added). As indicated above, the Certificate of Assessment and Payments on which Hobbs relies is not the "summary record" referred to in the regulation. Rather, the certificate is a supporting document identifying the taxpayer and explaining the character of the assessment. Stallard v. ________ United States, 12 F.3d 489, 493 (5th Cir. 1994). Not only is _____________ there no requirement that the certificate be prepared within the statute of limitation period, id., but the Certificate of __ Assessment and Payments indicates that the Form 23C was in fact dated within the limitation period.3 Since Hobbs made no showing to the contrary, the district court did not err in relying on the Certificate of Assessment and Payments as proof that Hobbs had been properly assessed and had been given proper notice and demand. See ___ Geiselman, 961 F.2d at 6. _________ ____________________ 3. The Form 4030 listed the Form 23C date as June 1, 1987. Absent evidence to the contrary, this is sufficient evidence that the Form 23C was duly signed on that date. See United ___ ______ States v. Dixon, 672 F.Supp. 503. 505-06 (M.D. Ala. 1987), ______ _____ aff'd, 849 F.2d 1478 (11th Cir. 1988). _____ -4- Affirmed. ________ -5- |