Opinion
Civil Action No. 02-PC-1976 (GJR).
December 30, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff Gary Ellis brings this action for injunctive relief seeking the production of Internal Revenue Service ("IRS") records under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552(a)(4)(B). The matter before the court is Defendant's Motion to Dismiss [filed May 16, 2003]. The parties have consented to determination of this case by a United States Magistrate Judge under 28 U.S.C. § 636(c). The action is stayed pending resolution of the IRS' Motion to Dismiss.
I.
The IRS moves to dismiss plaintiff's complaint for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). The party bringing an action in federal court bears the burden of showing that the case falls within the court's subject matter jurisdiction and that the court has personal jurisdiction over the parties. Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994). When a challenge to the court's subject matter jurisdiction is lodged as a facial attack on the complaint, the court must accept the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). If the defendant goes beyond the allegations of the complaint and challenges the facts upon which subject matter jurisdiction depends, the court may not presume the truthfulness of the plaintiff's factual allegations, but must resolve disputed issues of fact. Id. at 1003. In such a case, the court's reference to documents outside the pleadings does not convert the Rule 12(b)(1) motion into a Rule 56 motion. Id.
II.
Plaintiff sent a FOIA request to the IRS Ogden Campus Disclosure Office on May 30, 2000 seeking a "valid" Form 23C, Assessment Certificate — Summary Record of Assessments ("Form 23C") for tax years 1994-1998. (Complaint, Addendum, ¶ 1; Declaration of JaNean Ellis, ¶ 3, and attached Ex. A) JaNean Ellis, the disclosure officer for the Ogden Campus Disclosure Office, responded on June 20, 2000 by sending plaintiff a RACS Report-006, Individual Master File ("IMF") Transcripts for years 1966 and 1997, and Non-Master File ("NMF") Transcripts for tax years 1994 through 1997. (JaNean Ellis Declaration, ¶¶ 1-2, 9, and attached Ex. B; Declaration of Gary Ellis, ¶ 9) Ms. Ellis advised plaintiff that documents concerning the tax year 1995 were provided to him previously pursuant to a 1998 FOIA request, that there were no assessments subsequent to tax year 1998, and that the summary record of assessment documents for tax year 1994 were under the jurisdiction of the Austin IRS Center. (JaNean Ellis Declaration, ¶ 9, and attached Ex. B) By letter dated July 20, 2000, the Austin Campus Disclosure Office provided plaintiff with a RACS Report-006 and supporting transcripts for the 1994 tax year. (Declaration of Helene R. Newsome, ¶¶ 5-6, and attached Ex. A; Gary Ellis Declaration, ¶ 9)Plaintiff filed a second FOIA request with the Ogden Campus Disclosure Office on February 6, 2001, seeking verified copies of Form 23C and Form 4340 — Certificates of Assessment and Payments for the tax years 1994 to present; supporting records used in determining plaintiff's alleged income tax liability; and documents reflecting the character of plaintiff's income tax liability. (Complaint, Addendum, ¶ 3; JaNean Ellis Declaration, ¶ 10, and attached Ex. C) JaNean Ellis responded to plaintiff's request on April 12, 2001 by providing RACS Report-006 and IMF Transcripts for tax year 1998; Forms 4549-CG, Income Tax Examination Changes, and Notice of Deficiency for tax years 1996 through 1998; and a blank Form 4506 so that the plaintiff could request a copy of one of his filed tax returns. (JaNean Ellis Declaration, ¶ 12, and attached Ex. D; Gary Ellis Declaration, ¶ 12) Ms. Ellis told plaintiff that the summary record of assessment documents for tax years 1994 through 1997 were provided in responses dated December 28, 1998 and June 20, 2000 and explained that no responsive documents subsequent to 1998 had been found. ( Id.)
Plaintiff submitted a third FOIA request to the Ogden Campus Disclosure Office on April 30, 2002, requesting a copy of Form 23C for tax years 1994 through 1998, or, alternatively, that he be provided a Form 2866, Certificate of Official Record, or other acceptable official document, if no official record of a Form 23C exists. (Complaint, Addendum, ¶ 4; JaNean Ellis Declaration, ¶ 13, and attached Ex. E) JaNean Ellis responded to plaintiff's request on June 4, 2002 by stating that the summary record of assessment documents for tax years 1994 through 1997 had been provided previously in responses dated December 28, 1998 and June 20, 2000; that the summary record of assessment document for 1998 was provided to him in an April 12, 2001 response; and, that an additional assessment had been made for the 1998 tax year since April 12, 2001 which was under the jurisdiction of the Fresno IRS Campus. (JaNean Ellis Declaration, ¶ 15, and attached Ex. F; Gary Ellis Declaration, ¶ 13) On July 10, 2002, the Fresno Campus Disclosure Office provided plaintiff with a RACS Report-006 and supporting transcripts for the 1998 tax year. (Newsome Declaration, ¶¶ 10-11, and attached Ex. B; Gary Ellis Declaration, ¶ 13)
On August 7, 2002, plaintiff filed an administrative appeal with the Commissioner of Internal Revenue in Washington, D.C. asserting that the IRS had not provided a Form 23C for tax years 1994 through 1998 in response to his April 30, 2000 FOIA request. (Complaint, Addendum, ¶ 6; Newsome Declaration, ¶ 12, and attached Ex. C) Plaintiff did not receive a response to his appeal before he filed the instant action on October 16, 2003. (Gary Ellis Declaration, ¶ 14)
Plaintiff asserts that he is entitled to receive certified copies of Form 23C for all income taxes, penalties and interest assessed under 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1 and that the IRS improperly withheld these documents in responding to his FOIA requests. Plaintiff asks that I order the IRS to produce the requested Form 23C for the tax years 1994 to the present, pursuant to 5 U.S.C. § 552(a)(4)(B). Plaintiff requests in the alternative that I order the IRS to produce a Form 2866, Certificate of Official Record, or the equivalent, certifying that the requested Form 23C does not exist.
III.
The IRS argues that the court lacks subject matter jurisdiction to review the agency's production of documents responsive to plaintiff's FOIA requests dated May 30, 2000 and February 6, 2001 because plaintiff did not exhaust his administrative remedies on those requests. The IRS further contends that the entire action should be dismissed as moot because the agency has provided all responsive documents.
Jurisdictional questions must be resolved before the court reaches the merits of a complaint for relief. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 994-95 (1998); Payton v. United States Dep't of Agriculture, 337 F.3d 1163, 1167 (10th Cir. 2003). The requirement that a claimant seeking relief under FOIA's remedial provisions first exhaust administrative remedies is not jurisdictional. Dresser Indust., Inc. v. United States, 596 F.2d 1231, 1238 (5th Cir. 1979); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). Accordingly, a dismissal for failure to exhaust administrative remedies would be proper only under Fed.R.Civ.P. 12(b)(6), not Fed.R.Civ.P. 12(b)(1). I do not reach the merits of the IRS' exhaustion argument because I conclude that this court lacks jurisdiction over plaintiff's claim for injunctive relief.
Plaintiff claims that he is entitled to receive a Form 23C for all income taxes, penalties and interest assessed under 26 U.S.C. § 6203 and 26 C.F.R. § 301.6203-1. Plaintiff alleges that the Form 23C is the only document that satisfies the IRS' statutory obligation to furnish the taxpayer with a copy of the record of assessment. Plaintiff also relies on Internal Revenue Manual (IRM) (2000) 3.17.46.2.4(1) which states: "All assessments must be certified by signature of an authorized official on the Summary Record of Assessment (Form 23C, Assessment Certificate — Summary Record of Assessment)."
Internal Revenue Code § 6203 provides: "The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment." 26 U.S.C. § 6203. The Treasury Regulation implementing 26 U.S.C. § 6203 states that the summary record of assessment shall, through supporting records, "provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment." 26 C.F.R. § 301.6203-1. The regulation further provides that if the taxpayer requests a copy of the record of assessment, "he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed." ( Id.)
A summary record of assessment is an aggregate record of assessments that lists all taxes assessed for a given week or date by class of tax. (Ellis Declaration, ¶ 4) The summary record of assessment is supported by transcripts of account. ( Id.) A taxpayer's request for his "Form 23C" or "summary record of assessment" is routinely processed by providing a RACS Report-006 and IMF transcripts, which together contain the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, the amounts assessed, and the signature of the assessment officer. (JaNean Ellis Declaration, ¶¶ 4-5; Gary Ellis Declaration, ¶ 9, and attached Ex. 4) The RACS Report-006 is the functional equivalent of the Form 23C. (JaNean Ellis Declaration, ¶ 6) The Form 23C is a manually-prepared summary of the assessments, whereas the RACS Report-006 is a computer generated summary, but both documents contain the same information and perform the same function. ( Id.) Form 23-C was used prior to the automated RACS Report-006. ( Id.)
Plaintiff's argument that the RACS Report-006 and IMF Transcripts do not constitute a proper summary record of assessment under 26 C.F.R. § 301.6203-1 has been rejected by the courts. See Perez v. United States, 2001 WL 1836185 at *3, 2002-1 U.S.T.C. P 50,259 (W.D.Tex. 2001) (concluding that the RACS Report-006 is the "summary record of assessment" referenced in 26 C.F.R. § 301.6203-1 because the computerized RACS Report-006 replaces IRS Form 23C for assessments taking place after 1984), aff'd 312 F.3d 191 (5th Cir. 2002); Parenti v. IRS, 2003 WL 1548550 at *2, 2003-1 U.S.T.C. P 50,282 (W.D. Wash.) (concluding that IRS' production of RACS-006 and IMF Transcripts was responsive to plaintiff's FOIA request for a summary record of assessment), aff'd 2003 WL 21751828, 2003-2 U.S.T.C. P 50,616 (9th Cir. 2003).
Copies of the unpublished district court opinions in Perez and Parenti are attached to the Recommendation.
The record demonstrates that the IRS provided plaintiff with all documents responsive to his FOIA requests before the commencement of this action. The court thus lacks subject matter jurisdiction over plaintiff's complaint for injunctive relief. See United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142 (1980) (stating that unless plaintiff can demonstrate that an agency improperly withheld agency records, a district court lacks jurisdiction to compel agency compliance with the FOIA disclosure requirements); see, also, Crooker v. United States State Dep't, 628 F.2d 9, 10 (D.C. Cir. 1980) (stating that controversy becomes moot once the agency produces the responsive documents); DeBold v. Stimson, 735 F.2d 1037, 1040 (7th Cir. 1984) (same).
IV.
For the reasons set forth herein, it is
HEREBY ORDERED that:
(1) Defendant's Motion to Dismiss [filed May 16, 2003] is GRANTED;
(2) This civil action is DISMISSED for lack of subject matter jurisdiction;
(3) Each party shall pay his or its own costs and attorney's fees.
United States District Court, W.D. Texas.
Jose A. PEREZ, Plaintiff v. UNITED STATES of America, Defendant.
No. 3:00CCV00302.
Oct. 11, 2001.
MEMORANDUM OPINION
EISELE, District J.
I. Factual Background
*1 On April 5, 1988, pro se Plaintiff filed his federal income tax returns for tax years 1984, 1985, 1986, and 1987. Plaintiff's returns indicated a tax liability of $5867.00 for 1984, $7780.00 for 1985, $5526.00 for 1986, and $1312.00 for 1987. However, Plaintiff failed to tender these amounts to the Internal Revenue Service ("IRS"). Plaintiff does not now deny or challenge the existence of this tax liability. As explained infra, the IRS assessed Plaintiff's taxes in the above amounts on June 6, 1988. On April 17, 1989, the IRS placed a federal tax lien on Plaintiff's property.[FN1] The procedural validity of this tax lien is the subject of the instant civil action.
FN1. The Record before the Court does not identify the property subject to the lien.
On October 2, 2000, Plaintiff filed suit against Charles Rossotti, the Commissioner of Internal Revenue and head of the IRS. Plaintiff's Complaint: (1) alleged procedural irregularities in the execution of the tax lien and sought to quiet title in the property subject to the lien; and (2) alleged the violation of his administrative due process rights in regards to an administrative appeal concerning the IRS levying income Plaintiff received from a former employer. This Court, Judge Harry Lee Hudspeth presiding, in an April 16, 2001, Order, dismissed Plaintiff's civil action regarding the administrative appeal for lack of jurisdiction. However, the Court retained jurisdiction to "decide one issue: Did the IRS issue notices of deficiency prior to filing a federal tax lien against Plaintiff's property?" The Court ordered Plaintiff to amend his complaint to show the United States as the proper Defendant and to satisfy the pleading requirements of 28 U.S.C. § 2410(b).
On May 31, 2001, Plaintiff filed his Third Amended Complaint seeking, pursuant to 28 U.S.C. § 2410, to quiet title to his property encumbered by the federal tax lien. Plaintiff alleges various procedural irregularities by the IRS in placing the lien on his property, and contends that these irregularities render the lien invalid. The Plaintiff asserts that: (1) the IRS never properly assessed his taxes for tax years 1984, 1985, 1986, and 1987; (2) even if the IRS properly assessed his taxes for these tax years, the IRS never provided Plaintiff with notice of this assessment; (3) the IRS failed to issue requisite notices of deficiency prior to placing the lien on his property; and (4) the statute of limitations bars the IRS's attempt to collect his taxes for these tax years. The Plaintiff also contends that the IRS failed to notify him of the levy on his salary, an issue that was the subject of his administrative appeal. On May 16, 2001, the United States filed a Counterclaim seeking to reduce Plaintiff's tax liabilities to judgment.
Presently before the Court are Plaintiff's Motion for Summary Judgment, Supplemental Motion for Summary Judgment, and various other motions generally seeking to strike documents and other evidence tendered by the United States. Also before the Court is the United States' Motion for Summary Judgment and Supplemental Motion for Summary Judgment. Based upon the facts established by the Record and noted herein, and the conclusions of law set forth herein, the Court concludes that summary judgment should be granted in favor of the United States.
II. Summary Judgment Standard
*2 Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Lycon, Inc. v. Juenke, 250 F.3d 285, 287 (5th Cir. 2001). Rule 56(c) of the Federal Rules of Civil Procedure provides the summary judgment standard and states that it may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Court will view the evidence and the inferences that may be reasonably drawn from the evidence in a light most favorable to the nonmoving party. Evans v. City of Bishop, 238 F.3d 586, 588-89 (5th Cir. 2000).
III. Factual and Legal Discussion
Pursuant to 26 U.S.C. § 2410(a), Plaintiff has brought suit seeking to quiet title to property on which the IRS placed a tax lien. As noted, the lien was placed on Plaintiff's property for his failure to satisfy tax liabilities for 1984, 1985, 1986, and 1987. Plaintiff contends that various procedural irregularities by the IRS render the lien invalid. In dismissing Plaintiff's claims regarding alleged violations of his procedural due process rights, this Court's Order of April 16, 2001, recognized that the quiet title question is the one issue this Court has jurisdiction to resolve. See generally McCarty v. United States, 929 F.2d 1085, 1087 (5th Cir. 1991) ("a taxpayer can rely on § 2410(a) to challenge the procedural validity of a tax lien"). The Plaintiff challenges the procedural validity of the lien in four general respects: (1) the IRS never properly assessed his taxes for 1984, 1985, 1986, and 1987; (2) even if the IRS properly assessed his taxes for these years, it never provided Plaintiff with notice of this assessment; (3) the IRS failed to issue requisite notices of deficiency prior to placing the lien on his property; and (4) the statute of limitations bars the IRS's attempt to collect his taxes for these years. The Court concludes that Plaintiff's contentions are without merit and that the Record presents no genuine issues of material fact. Because the Plaintiff has no valid defense to the collection of his taxes for tax years 1984, 1985, 1986, and 1987, the Unites States' Motion for Summary Judgment seeking to reduce Plaintiff's tax liabilities to judgment is hereby granted as provided herein.
A. Did the IRS assess Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, and if so, did it provide Plaintiff with the requisite notice of this assessment?
In his Third Amended Complaint and his Motion for Summary Judgment, Plaintiff contends: (1) that the IRS failed to properly assess his taxes for tax years 1984, 1985, 1986, and 1987; and (2) even if the IRS properly assessed his taxes for these years, Plaintiff never received notices of such assessment and demand for payment as required by 26 U.S.C. § 6303. The Court concludes that the IRS did in fact assess Plaintiff's taxes and send the Plaintiff the notices of assessment and demand for payment as required by 26 U.S.C. § 6303.[FN2]
FN2. While Plaintiff's civil action is one to quiet title to his property, the United States has filed a counterclaim seeking to reduce to judgment the taxes, penalties, and interest the United States contends that the Plaintiff owes. The Court notes that the United States Court of Appeals for the Fifth Circuit has held that the failure to give the 26 U.S.C. § 6303 notice of assessment and demand for payment "does not bar the government from bringing a civil action against a taxpayer to collect unpaid taxes." United States v. McCallum, 970 F.2d 66, 70 (5th Cir. 1992). Nevertheless, as provided infra, the Court concludes that the IRS in fact complied with the requirements of Section 6303.
1. The IRS assessed Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987.
*3 26 U.S.C. § 6201(a)(1) generally provides that the Secretary of Treasury is required, within three years of the taxpayer filing his return, to assess all unpaid taxes imposed by the tax code. 26 U.S.C. § 6201(a)(1); 26 C.F.R. § 301.6203-1. An assessment is made by recording the liability of the taxpayer in the office of the Secretary of Treasury. 26 U.S.C. § 6203. 26 C.F.R. § 301-6203-1 provides, inter alia, further elaboration as to how an assessment takes place:
The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer.
In his Third Amended Complaint and his Motion for Summary Judgment, Plaintiff asserts that the IRS did not adhere to the proper procedures in assessing his taxes for 1984, 1985, 1986, and 1987, and thus no valid assessment took place within the three-year limitations period. The Plaintiff avers that the IRS did not comply with the various requirements of 26 C.F.R. § 301-6203-1. The United States, in its Answer, asserts that a valid assessment of Plaintiff's taxes took place. Along with its Response to Plaintiff's Motion for Summary and its own Motion for Summary Judgment, the United States has submitted Plaintiff's IRS Certificate of Assessments, Payments, and Other Specified Matters (commonly and hereinafter referred to as "IRS Form 4340") and a Summary Record of Asessments RACS Report-006 (hereinafter referred to as "RACS Report-006"). The United States contends that Plaintiff's IRS Form 4340 and the RACS Report-006 prove that an assessment of Plaintiff's taxes for 1984, 1985, 1986, and 1987 took place.
The Plaintiff has objected to the introduction of the RACS Report-006, asserting that the RACS Report-006 is not the "summary record of assessment" referenced in 26 C.F.R. § 301-6203-1. The Plaintiff contends that the proper "summary record of assessment" is an IRS Form 23C. Plaintiff's objection is without merit. The computerized RACS Report-006 replaced the IRS Form 23C for assessments taking place after 1984. See Leier v. Department of Treasury, No. 92-0583-CIV-ORL-18, 1993 WL 597116 (M.D.Fla. Nov. 18, 1993); see also Fuller v. Internal Revenue Service, No. Civ.A.96-888, 1997 WL 191034 (Mar. 4, 1997); Federal Tax Coordinator ¶ T-3605 (2d ed.). The Court concludes that the RACS Report-006 is the "summary record of assessment" referenced in 26 C.F.R. § 301-6203-1, and will look to it to ascertain whether the IRS complied with 26 C.F.R. § 301-6203-1.
*4 Plaintiff's IRS Form 4340 is a summary of Plaintiff's tax information contained within his IRS Individual Master File. On its face, the Form 4340 corroborates the United States' contention that Plaintiff's taxes for 1984, 1985, 1986, and 1987 were assessed within three years of Plaintiff filing his return. Form 4340 notes that Plaintiff filed his tax returns for these tax years on April 5, 1988, and that the taxes were initially assessed on June 6, 1988.
By presenting the Court with Plaintiff's IRS Form 4340, the United States has presumptively established the IRS's compliance with 26 U.S.C. § 6201 and 6203, which provide that the Secretary of Treasury is required, within three years of the taxpayer filing his return, to assess all unpaid taxes imposed by the tax code, and record such assessment. It is generally held that a Form 4340 is presumptive proof of a valid assessment and compliance with sections 6201 and 6203. See Valdez v. United States, No. 93-15219, 1994 WL 143071 (9th Cir. Apr. 21, 1994) ("Generally, courts have held that IRS Form 4340 provides at least presumptive evidence that a tax has been validly assessed under section 6203."); Ketcham v. United States, No. 97-WY-1461-CB, 1999 WL 718550 (D.Colo. July 26, 1999) (Form 4340 "presumptively establishes that the assessment was duly made"). "Because Form 4340 is an official document which establishes that assessments were made," where the taxpayer presents no evidence contrary to the information contained within the Form 4340, the taxpayer's contention that no assessment took place should fail as a matter of law. See Hughes v. United States, 953 F.2d 531, 535 (9th. Cir. 1992); see also Stallard v. United States, 12 F.3d 489, 493 (5th Cir. 1994).
Nevertheless, liberally construed, Plaintiff's pleadings and various motions contend that the information contained in the Form 4340 is inaccurate. Thus, the Court must look beyond the Form 4340 to determine whether the IRS in fact complied with the provisions of the tax code and assessed Plaintiff's taxes for 1984, 1985, 1986, and 1987.
As noted above, 26 C.F.R. § 301-6203-1 provides that the assessment shall be made by an assessment officer signing the summary record of assessment, the RACS Report-006. The date of the assessment is the date the RACS Report-006 is so signed. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, and the amount of the assessment.
The Form 4340 provides that the IRS assessed Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, on June 6, 1988.[FN3] To corroborate this and to prove that 26 C.F.R. § 301-6203-1 was in fact complied with, the United States has submitted to this Court the RACS Report-006 of June 6, 1988.[FN4] The June 6, 1988, RACS Report-006, as the summary record of assessment, confirms the assessment of Plaintiff's taxes. Pursuant to 26 C.F.R. § 301-6203-1, it is signed by an assessment officer, confirming that the summary assessment took place on June 6, 1988.
FN3. This was the only assessment of Plaintiff's taxes prior the execution of the tax lien on Plaintiff's property. See infra footnote 9 for a discussion of reassessments subsequent to the filing of the lien.
FN4. The United States has also submitted two other RACS Report-006, from September 11, 1989, and June 11, 1990. These two "summary records of assessments" address reassessments of Plaintiff's taxes after the execution of the lien. See infra footnote 9 for a discussion of reassessments subsequent to the filing of the lien.
*5 While the June 6, 1988, RACS Report-006 does not provide specific information about the Plaintiff's individual assessment, such information is not required to actually appear in the summary record of assessment. The RACS Report-006 does not provide the individual identification of the Plaintiff, the character of the liability assessed against the Plaintiff, the taxable period, or the amount of the Plaintiff's assessment. Indeed, 26 C.F.R. § 301-6203-1 provides that the "summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment." However, the United States Court of Appeals for the Fifth Circuit has held that the specific information about a taxpayer's individual assessment need not appear in the summary record of assessment in order for the summary assessment to be valid. See Stallard, 12 F.3d at 492-94. Rather, the Fifth Circuit provided that the specific information about the taxpayer's assessment need only appear in a "supporting record," as provided by the language of 26 C.F.R. § 301-6203-1. Id. A taxpayer's Form 4340 constitutes as such a supporting record. Id. Moreover, while the summary record of assessment must be signed within the three-year period of limitations, the assessment is valid even if the supporting record is not made during the three-year period, and even if the supporting record is prepared because of the taxpayer's suit against the United States. Id.[FN5] In the present case, the Court concludes that Plaintiffs Form 4340 provides the specific information about the Plaintiff as required by 26 C.F.R. § 301-6203-1.
FN5. The Court notes that Plaintiff relied on the district court's opinion in Stallard v. United States [92-2 USTC ¶ 50,596], 806 F. Supp. 152 (W.D.Tex. 1992), aff'd on other grounds, 12 F.3d 489, 493 (5th Cir. 1994), and not the Fifth Circuit's opinion in the case on appeal. The Fifth Circuit noted about the district court's opinion in Stallard:
The district court held that the IRS failed to assess the penalty tax before the statute of limitations expired. The district court concluded that our opinion in Brafman v. United States requires that all provisions of Treasury Regulation § 301.6203-1 must be met within the limitation period. Although the summary record of assessment on Form 23C was prepared timely, the supporting document, Form 4340 — which provided the information identifying the taxpayer, the character of the tax, and the applicable tax period as required by § 301.6203-1 — was not prepared until February 10, 1992, more than one year after the extended limitation period expired. As conceded by Stallard, though, the district court erred by reading Brafman too broadly. We held in Brafman that the "assessment certificate" must be timely signed by the appropriate official; but the certificate we were referring to in that opinion was the summary record of assessment named in § 301.6203-1. That holding is consistent with § 301.6203-1, which provides that "the assessment shall be made by an assessment officer signing the summary record" and "[t]he date of assessment is the date the summary record is signed by an assessment officer." In contrast, to extend Brafman to require that the supporting record must also be prepared within the prescriptive period would place Brafman in direct conflict with the plain language of § 301.6203-1.
Stallard, 12 F.3d at 493-94 (footnotes omitted).
Therefore, the Court concludes that the IRS properly assessed Plaintiff's taxes as required by 26 U.S.C. § 6201 and 6203 and 26 C.F.R. § 301-6203-1. The June 6, 1988, RACS Report-006, which constitutes as the summary record of assessment, was signed by an assessment officer on June 6, 1988, thus corroborating the information provided in the Form 4340. Further, while the RACS Report-006 does not contain the identification of the Plaintiff, the character of the liability assessed against the Plaintiff, the taxable period, or the amount of the Plaintiff's assessment, such information need not be provided in such RACS Report-006. Rather, as the Fifth Circuit has held, pursuant to 26 C.F.R. § 301-6203-1, such information need only be provided in a supporting record. The Plaintiff's IRS Form 4340 constitutes as such a supporting record, and provides the identification of the Plaintiff, the character of the liability assessed against the Plaintiff, the tax taxable period, and the amount of the Plaintiff's assessment. Thus, a valid assessment took place.
2. The IRS complied with 26 U.S.C. § 6303 and sent Plaintiff a notice of assessment and demand for payment.
The Court has concluded that the IRS properly assessed Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, on June 6, 1988. The Court now addresses Plaintiff's contention that even if the IRS assessed Plaintiff's taxes, the Plaintiff did not receive a notice of assessment and demand for payment as required by 26 U.S.C. § 6303. Section 6303 provides that within sixty days after the making of an assessment of a tax pursuant to section 6203, the Secretary of Treasury shall issue a notice of assessment and demand for payment to a taxpayer who is still liable for unpaid taxes. See generally United States v. McCallum, 970 F.2d 66, 69 (5th Cir. 1992). Plaintiff contends that he never received this section 6303 notice of assessment and demand for payment.
*6 In order to comply with section 6303, the United States must demonstrate that the IRS sent the Plaintiff a notice of assessment and demand for payment by August 7, 1988. The United States' Answer to Plaintiff's Third Amended Complaint averred that the IRS so complied with section 6303. In its Response to Plaintiff's Motion for Summary and in its own Motion for Summary Judgment, the United States again asserted that the IRS fulfilled the requirements of section 6303. To support the contention, the United States again relied on Plaintiff's IRS Form 4340.
Plaintiff's IRS Form 4340 confirms that the IRS sent the Plaintiff a section 6303 notice of assessment and demand for payment by August 7, 1988. Form 4340 provides that the IRS initially sent the Plaintiff a "notice of balance due" on June 6, 1988. The IRS followed this notice with a "delinquency notice" on June 27, 1988. Subsequent delinquency notices followed on March 18, 1991, and June 19, 1995.
The Court concludes that the United States has established through the Plaintiff's Form 4340 that the IRS provided Plaintiff with a notice of assessment and demand for payment as required by section 6303.[FN6] It is generally held that where a taxpayer contends that he did not receive a notice of assessment and demand for payment as required by section 6303, and the United States counters by presenting an IRS Form 4340 indicating that such notice and demand were in fact sent to the taxpayer, the Form 4340 "is sufficient to establish that the notices were sent, and that the notices satisfied the requirements of § 6303(a) by informing the [taxpayer] of the amount owed, and by requesting payment. The IRS does not have to prove that Plaintiffs received the notices, only that they were properly sent." Bliss v. United States, No. CS-92-088-JLQ, 1992 WL 360536 (E.D.Wash. July 8, 1992); see also Hughes, 953 F.2d at 535-36. As noted, Plaintiff does not specifically deny that the IRS sent him the section 6303 notice of assessment and demand for payment, only that he failed to receive it. However, as noted above, courts have generally held that the section 6303 notice and demand is valid even though the taxpayer does not receive actual notice, provided the records of the IRS reflect that notice and demand were mailed. See Bliss, 1992 WL 360536, at *4; Hahn v. United States, No. CV 75-3983-FW, 1977 WL 1119 (C.D.Cal. Mar. 11, 1977) ("As long as the records of the Internal Revenue Service reflect that notice and demand was properly mailed to the taxpayers' last known address, it is irrelevant that the taxpayers did not receive actual notice.").
FN6. Courts have generally held that the form on which a Section 6303 notice of assessment and demand for payment is made is irrelevant as long as it provides the taxpayer with the information required by the statute. See Hughes, 953 F.2d at 536; Bliss v. United States, No. CS-92-088-JLQ, 1992 WL 360536 (E.D.Wash. July 8, 1992). The statute merely requires that the IRS state the amount owed and demand payment. 26 U.S.C. § 6303.
3. Plaintiff's IRS Form 4340 is admissible evidence.
Finally, Plaintiff has objected to the United States' introduction of the IRS Form 4340 as evidence. This Court's April 16, 2001, Order concluded that the Form 4340 is admissible evidence. On the record now before it, the Court is satisfied that the Form 4340 accurately represents the information contained within Plaintiff's IRS Individual Master File. Moreover, it is evident from the above discussion that courts find the Form 4340 admissible. See generally Bliss, 1992 WL 360536, at *3-4; Schmidt v. Internal Revenue Service, 717 F. Supp. 763 (D.Kan. 1989). Courts typically rely upon Federal Rules of Evidence 803(8) and Rule 902(1) to find the Form 4340 admissible. Plaintiff has cited no case law providing that the Form 4340 is not admissible. Therefore, the Court concludes, as it did in its April 16, 2001, Order, that the Plaintiff's IRS Form 4340 is admissible evidence.
B. Was the IRS required to issue Plaintiff a notice of deficiency pursuant to 26 U.S.C. § 6212 prior to placing the tax lien on his property?
*7 Plaintiff's next contention involves whether the IRS complied with the procedural notice requirements in filing the tax lien on Plaintiff's property. In his Third Amended Complaint and his Motion for Summary Judgment, Plaintiff contends that if the IRS failed, pursuant to 26 U.S.C. § 6212, to issue notices of deficiency prior to the filing of the lien, such lien is invalid. The United States asserts that Plaintiff's tax deficiencies that gave rise to the liens are not the type of "deficiencies," as defined by the tax code, that trigger the notice provisions of section 6212. According to the United States, because no notices of deficiency were required prior to placing the lien on Plaintiff's property, the liens are valid. The Court agrees with the United States.
It is generally true that before the IRS may file a lien against a person's property, it must first send him a deficiency notice. 26 U.S.C. § 6212 has been interpreted to provide that if the IRS determines the existence of a tax "deficiency," "[b]efore the IRS may file a lien against a taxpayer's property it must send the taxpayer a notice of deficiency." McCarty, 929 F.2d at 1089. The purpose of the deficiency notice is to enable the taxpayer to challenge the alleged deficiency in Tax Court within ninety days before the payment is due. See 26 U.S.C. § 6213(a); Murray v. Commissioner of Internal Revenue, 24 F.3d 901, 903 (7th Cir. 1994). Conversely, if it is determined that no tax "deficiency" exists, the IRS is not required by section 6212 to send any type of notice of deficiency before placing a lien on a taxpayer's property.
If this Court can determine that the IRS was not required to send the Plaintiff a notice of deficiency before placing a lien on his property, this Court need not address the question of whether the IRS in fact issued any such deficiency notice. The Court begins with the tax code's definition of the term "deficiency."
26 U.S.C. § 6211(a) provides that a "deficiency," for tax code purposes, is generally the amount of tax due less the amount the taxpayer reported due on his return.[FN7] See, e.g., Laing v. United States, 423 U.S. 161, 173-74 (1976) ("In essence, a deficiency as defined in the Code is the amount of tax imposed less any amount that may have been reported by the taxpayer on his return. § 6211(a)."); see also Meyer v. Commissioner of Internal Revenue, 97 T.C. 555 (T.C. 1991) ("In general, the term "deficiency" is defined as the amount by which the tax imposed exceeds the sum of the amount of tax shown on the return and the amount of tax previously assessed."). Thus, the tax code employs the term "deficiency" where a taxpayer reports on his return that he owes an amount less than what the IRS determines he actually owes. In this situation, the IRS must issue a section 6212 notice of deficiency before it can place a lien on the taxpayer's property in an effort to collect such liability.[FN8]
FN7. 26 U.S.C. § 621(a) provides:
(a) 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 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 —
(2) the amount of rebates, as defined in subsection (b)(2), made.
FN8. This makes sense. If the taxpayer believes in error, that he owes in taxes the amount reported on his tax return, the IRS should be required to notify the taxpayer that he actually owes a greater amount before it can employ a collection measure, such as placing a lien on property.
*8 In contrast, section. 6211(a) provides that there is no "deficiency," in the tax code sense, where a taxpayer reports on his return that he owes an amount, but simply fails to remit such amount to the IRS. In this circumstance, because there is no "deficiency," the IRS is not required to issue a notice of deficiency before placing a lien on the taxpayer's property, because, presumably, the taxpayer is already on notice as to the amount in taxes he owes to the government.
While the Fifth Circuit has not dealt with this reading of "deficiency" and when section 6212 is triggered, case law from other jurisdictions is in agreement with the above analysis. The Court notes the Seventh Circuit's detailed explanation of when the § 6212 notice provision is triggered:
The IRS is authorized to make various types of assessments ( 26 U.S.C. § 6201), and among the most common are summary assessments and deficiency assessments. The tax owed by an individual taxpayer in accordance with his personal income tax return is technically "assessed" under section 6201(a)(1). A deficiency assessment, by contrast, generally results from a finding that a tax return understates the taxpayer's liability or that the taxpayer failed to file a return. The deficiency is the tax imposed by the IRS, less the tax determined by the taxpayer to be owed on his return. 26 U.S.C. § 6211(a); Laing v. United States, 423 U.S. 161, 96 S.Ct. 473, 46 L.Ed.2d 416 (1976). Unlike a summary assessment, a deficiency assessment requires the IRS to follow a number of statutory steps before it may undertake to collect the deficiency. For instance, the IRS must send the taxpayer a notice of deficiency ( 26 U.S.C. § 6212(a)) and then refrain from further action for ninety days, during which time the taxpayer is authorized to file a petition for a redetermination in the Tax Court. 26 U.S.C. § 6213(a).Murray, 24 F.3d at 902-03 (before Chief Judge Posner and Circuit Judges Ripple and Rovner).
The Court also notes the District Court of Colorado's discussion of when a notice of deficiency is required:
[Taxpayer] claims that the liens and levies filed by [the IRS] against his property for tax years 1987 through 1992 are invalid because no notices of deficiency were issued to him for those tax years as required by 26 U.S.C. § 6212(a). As noted by the District Court in the March 3, 1998 Order denying plaintiffs' motion for temporary restraining order, at p. 3, 26 U.S.C. § 6212(a) is not applicable in the instant action. The record before the court shows that [taxpayer] filed income tax returns for tax years 1987 through 1992 which reflect income tax owed. . . . The tax owed by a taxpayer as a result of the information provided on his personal income tax return is considered to be summarily "assessed" within the meaning of 26 U.S.C. § 6201(a)(1). See Murray v. Commissioner of Internal Revenue, 97 T.C. 555, 559-60 (1991); Murray, 24 F.3d at 903. Accordingly, plaintiffs' claim that the liens and levies filed against [taxpayer]'s property are invalid for failure to comply with statutory deficiency procedures should be dismissed.*9 Gass v. United States Dep't. of the Treasury, No. Civ.A.98-B-75, 1999 WL 250890 (D.Colo. Mar. 30, 1999). See also Ketcham v. United States, No. 97-WY-1461-CB, 1999 WL 718550 (D.Colo. July 26, 1999) ("The plaintiff filed a signed United States Individual Tax Return, Form 1040, for 1993 on August 14, 1994. It showed tax due in the amount of $2561.00, and payment due in the amount of $820.27. . . . [T]he Court finds that the United States was not required to issue a notice of deficiency because the assessed amount was based on Plaintiff's self-reported liability on his 1993 Income Tax return. . . . Therefore, because the plaintiff filed his individual income tax return showing tax due in the amount of $2561.00 and payment due in the amount of $820.27, the IRS was not required to issue a notice of deficiency as Plaintiff contends."); Miklaski v. United States, 18 F. Supp.2d 707 (E.D.Mich. 1997) ("Thus, it is apparent that the IRS based its assessment of plaintiff's liability for taxes and penalties on his tax returns. For this reason, no deficiency notice was required. . . . Plaintiff was not entitled to a notice of deficiency under § 6212. . . ."); Larsen v. United States, No. C96-693d 1996 WL 848210 (W.D.Wash. 1996) ("defendant's assessments were based on plaintiff's filed tax returns, so deficiency notices were not required"); IBEW Local Union No. 640 v. Forman, Civ. No. 94-2431 PHX PGR, 1995 WL 735743 (D.Ariz. Sept. 20, 1995) ("Third, the IRS was not required to issue a notice of deficiency for the 1992 and 1993 tax years because the IRS is authorized by 26 U.S.C. § 6201(a)(1) to assess tax liabilities based on liabilities reported in the joint returns filed by the [taxpayers] without resort to the deficiency assessment procedure."); Meyer v. Commissioner of Internal Revenue, 97 T.C. 555 (T.C. 1991) ("[The IRS] is authorized to immediately (summarily) assess and collect the amount of taxes that are computed and shown due on a taxpayer's original income tax return, as well as the amount of any additional taxes computed and shown due on a subsequently filed amended income tax return. . . . [These] assessments are assessments not subject to the deficiency procedures. . . .").
In summary, the IRS is required to issue a section 6212 notice of deficiency prior to placing a tax lien on a taxpayer's property where such lien is based on the taxpayer understating the amount of taxes owed on his tax return. However, the IRS is not required to issue a section 6212 notice of deficiency prior to placing a tax lien on a taxpayer's property where such lien is based upon the tax return filed by the taxpayer, coupled with such taxpayer's failure to remit the amount owed as indicated by the return.
The present Record before the Court indicates that the tax lien on Plaintiff's property was not based upon Plaintiff understating the amount of taxes owed on his return. Rather, the tax lien on Plaintiff's property is based on Plaintiff's failure to remit the amount he himself indicated that he owed on his return. The United States has established that the taxes reflected on the lien on Plaintiff's property, as of the date of the execution of the lien, were based solely upon the tax liabilities reflected as due on the Plaintiff's tax returns.[FN9] The Plaintiff does not contest this statement. Therefore, section 6212 did not require the IRS to issue a notice of deficiency prior to placing a lien on Plaintiff's property on April 17, 1989. Because the IRS was not required to send such notice, the issue of whether the IRS actually sent such notice is moot.
FN9. After the IRS executed the tax lien on Plaintiff's property, the IRS reassessed Plaintiff's taxes for tax years 1984 and 1987 and determined that Plaintiff had, in fact, understated his tax liability for those tax years. On July 26, 1989, Plaintiff executed and signed an IRS Form 4549, designated an Income Tax Examination Changes Form. In the Form 4549, Plaintiff acknowledged that he had understated his taxes for tax year 1984 by $1442.00. Plaintiff's Form 4340 indicates that this additional $1442.00 was assessed by the IRS on September 11, 1989. Furthermore, on March 6, 1990, Plaintiff executed and signed an IRS Proposed Changes to 1987 Income Tax. In this form, Plaintiff also acknowledged that he had understated his taxes for tax year 1987 by $303.00. Plaintiff's Form 4340 also indicates that this additional $303.00 was assessed by the IRS on June 11, 1990. Ordinarily, a determination by the IRS that a taxpayer understated his tax liability on his tax return, thus creating a "deficiency" under the tax code, would require the IRS to issue a 26 U.S.C. § 6212 notice of deficiency prior to placing a lien on such taxpayer's property. The Court finds that even though a "deficiency," as defined by 26 U.S.C. § 6211 did ultimately exist as to Plaintiff's 1984 and 1987 taxes, such "deficiency" did not exist until well after the lien was placed on the Plaintiff's property. The Court thus concludes that the IRS was not required to send a notice of deficiency and impending lien after the lien's execution, where the lien when issued was procedurally valid. As noted, the reassessment of Plaintiff's taxes took place well after the tax lien had been placed on his property on April 17, 1989, and after Plaintiff already had knowledge of the lien's execution. Furthermore, by signing the Form 4549 and the Proposed Changes to 1987 Income Tax form, the Plaintiff had adequate notice of the reassessments occurring after the execution of the lien on his property. The information in these two forms provided as much information as a section 6212 notice form would have provided. Finally, as to the 1984 tax reassessment of $1442.00, the Plaintiff specifically consented to the "immediate assessment and collection" of the increase in tax liability.
C. The IRS's attempts to collect Plaintiff's taxes for tax years 1984, 1985, 1986, and 1987, including its Counterclaim seeking to reduce Plaintiff's tax liabilities to judgment, are not time-barred.
*10 The Plaintiff asserts that the United States' attempt to collect his taxes for 1984, 1985, 1986, and 1987 is time-barred. 26 U.S.C. § 6502(a)(1) and 26 C.F.R. § 301.6502-1 provide generally that a court proceeding to collect an assessed tax must be made within ten years of the assessment. As noted above, the Court has concluded that the IRS initially assessed Plaintiff's taxes for 1984, 1985, 1986, and 1987 on June 6, 1988. The Plaintiff contends that the statute of limitations to collect his unpaid taxes expired on June 6, 1998. Because the United States did not file its Counterclaim until May 16, 2001, the Plaintiff argues that the Counterclaim is time-barred. The Court disagrees.
26 U.S.C. § 6502(a)(1) and 26 C.F.R. § 301.6502-1 provide that the ten-year period of collection after assessment may be extended for any period of time agreed upon in writing by the taxpayer and the IRS. On May 14, 1997, Plaintiff and his spouse executed an IRS Form 900.[FN10] By its own terms, the Form 900 extended the statutory period to collect Plaintiff's taxes from June 6, 1998, to December 31, 2000. See generally Cox v. United States, No. Civ.A. 96-2244, 1999 WL 527736 (E.D.La. July 22, 1999). Subsequently, in March 2000, [FN11] pursuant to 26 U.S.C. § 6330, Plaintiff requested a due process hearing before the IRS Office of Appeals. Section 6330(e)(1) provides that this request for a hearing tolled the otherwise applicable statute of limitations provided for in section 6502(a)(1) for a "period during which such hearing, and appeals therein, are pending." On September 7, 2000, the IRS Office of Appeals rejected Plaintiff's administrative appeal. Therefore, the applicable statute of limitations was tolled from March 2000 to September 7, 2000.
FN10. Plaintiff's objections to the introduction and validity of the Form 900 are without merit. The IRS regularly employs the Form 900, and Courts generally accept them as extending the statutory period for collection of unpaid taxes. See generally Cox v. United States, No. Civ.A. 96-2244, 1999 WL 527736 (E.D.La. July 22, 1999); Foutz v. United States, 72 F.3d 802 (10th Cir. 1995). Plaintiff's assertion that the IRS Restructuring and Reform Act of 1998 now requires the IRS to advise the taxpayer of his right to refuse the extension of the statute of limitations for collection is also without merit. The 1998 Act only requires the IRS to advise the taxpayer of his right not to extend the statutory period for actually assessing the tax itself. See 26 U.S.C. § 6501(c).
FN11. The Record does not indicate which date in March 2000 the Plaintiff requested the hearing.
The statutory period to bring an action to collect Plaintiff's taxes, after the Form 900 extension and the section 6330(e)(1) tolling, would have expired sometime after June 1, 2001. Because the United States' filed its Counterclaim on May 16, 2001, the Court concludes that the United States' attempts to collect and the Counterclaim are not time-barred.
D. This Court is without jurisdiction to decide issues relating to Plaintiff's Administrative Action.
On March 18, 1997, the IRS served a notice of levy on wages and salary upon Perez's former employer. In his Third Amended Complaint, Plaintiff asserts that the IRS failed to notify him of this levy as required by 26 U.S.C. § 6331. The levy issue is the subject matter of Plaintiff's administrative action, and, as noted in this Court's April 16, 2001, Order, jurisdiction over the administrative action does not lie with this Court.
IV. Conclusion
The United States' Motion for Summary Judgment is hereby granted. The Court is now faced with the task of ascertaining Plaintiff's exact tax liability, with interest and penalties. Therefore, the Court hereby orders the parties to submit briefs to this Court no later than October 22, 2001, addressing the issue of Plaintiff's exact tax liability, with interest, penalties, and credits, as of November 1, 2001.
United States District Court, W.D. Washington.
Alan Dino PARENTI, Plaintiff, v. INTERNAL REVENUE SERVICE, Defendant
No. C02-5286 RBL.
Filed June 6, 2002. Feb. 11, 2003.
Alan Dino Parenti, Carlsborg, WA, plaintiff, pro se.
Jennifer L Best, U.S. Department of Justice Tax Division, Ben Franklin Station, Washington, DC, for Internal Revenue Service, defendant.
Jennifer L Best, for Charles O Rossotti, Commissioner, defendant.
Jennifer L Best, for Charles Schmidt, Chief, Special Procedures, defendant.
Jennifer L Best, for James T Aurand, Revenue Officer, defendant.
Jennifer L Best, for Malia A Berumen, Disclosure Officer, Seattle, defendant.
Jennifer L Best (See above), for S Walters, Disclosure Specialist Seattle, defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
LEIGHTON, J.
*1 This matter comes before the Court on cross motions for summary judgment. Plaintiff has commenced this action pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, seeking an order compelling defendant, the Internal Revenue Service, to provide a Summary Record of Assessment Plaintiff alleges that the IRS failed to provide a "procedurally proper Summary Record of Assessment, pursuant to 26 U.S.C. § 6203 and 26 C F R § 301.6203-1" The IRS asserts that it properly responded to plaintiff's requests and all pertinent documents have been provided
BACKGROUND
In a letter sent to the Seattle Disclosure Office of the IRS dated October 5, 2001, plaintiff requested a Summary Record of Assessment (SRA) for the 1994 tax year The IRS responded to plaintiff's request by letter dated November 27, 2001 The letter contained four pages of plaintiff's IMF transcripts along with an explanation relating to SRAs and supporting documentation The letter informed plaintiff that in order to obtain a copy of his SRA he must contact the Ogden Campus Disclosure Office
Plaintiff responded by sending two additional letters to the Seattle Office indicating that he believed the November 27, 2001 letter was an inadequate response Plaintiff also resubmitted his request for an SRA The Seattle Office responded by letter dated February 11, 2002, and indicated that it considered his request complete and informed plaintiff to contact the Ogden Office On April 30, 2002, the Seattle Office also sent a letter in response to two different letters plaintiff had sent to Collection Office personnel This letter once again informed plaintiff that SRAs were available only from the Ogden Office and the Seattle Office considered his request complete
Meanwhile, on or about October 23, 2001, the Ogden Office received a FOIA request from plaintiff for an SRA The Ogden Office responded to plaintiff's request by letter dated March 11, 2002 The letter contained copies of plaintiff's IMF transcripts-literal for 1994 as well as copies of RACS-006 transcripts relating to assessments pertaining to the 1994 tax year The RACS-006 is an aggregate record of assessment that lists all taxes assessed for a given week or date by class of tax The IRS informed plaintiff that the SRA, also known as the Form 23C or RACS-006, is the assessment document signed by the assessment officer, and through supporting documentation, such as IMF transcripts, it is possible to identify individual taxpayers, the character of the liability assessed, the date of the assessment, the tax period, and the amount of the assessment Plaintiff maintains that the IRS failed to furnish a procedurally proper SRA The IRS asserts that all documents responsive to plaintiff's request have been provided and this action is, therefore, moot
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, "specific facts showing that there is a genuine issue for trial" Celotex Corp v. Catrett, 477 U.S 317, 324 (1986) "The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient" Triton Energy Corp v. Square D Co, 68 F.3d 1216, 1221 (9th Cir1995) Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment Anderson v. Liberty Lobby, Inc, 477 U S 242, 248 (1986) In other words, "summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor" Triton Energy, 68 F.3d at 122
DISCUSSION
*2 In order to prevail on a motion for summary judgment in an FOIA action, an agency must show that a reasonable search for responsive records was conducted See Patterson v. IRS, 56 F.3d 832, 841 (7th Cir1995) Federal courts may enjoin an agency upon a showing that an agency (1) improperly (2) withheld (3) agency records See 5 U.S C § 552(a)(4)(B), Kissinger v. Reporter's Comm For Freedom of the Press, 445 U S 136, 150 (1980) Each of these criteria must be met before a district court may formulate remedies and force an agency to comply with a FOIA request See United States Dept of Justice v. Tax Analysts, 492 U S 136, 142 (1989) If all documents responsive to a request have been produced, the substance of the controversy disappears and the suit should be dismissed as moot since the disclosure sought has already been made See Crooker v. United States State Dept., 628 F.2d 9 (D C Cir1980)Here, plaintiff contends that the IRS failed to properly respond and produce the requested SRA The method of assessment is regulated by 26 C F R § 301.6203-1 which states, in part, that
"The assessment shall be made by an assessment officer signing the summary record of assessment The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of the assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed"
The regulations do not require that the "pertinent" information is kept in any specific form, only that it is reflected in the "supporting records" See United States v. Chila, 871 F.2d 1015, 1017 (11th Cir1989)
The record in this case shows that the IRS conducted a reasonable search and provided plaintiff with all of the pertinent information required by regulation 26 C F R § 301 6203-1 The Seattle Office properly responded to each of plaintiff's requests by researching plaintiff's account information, providing copies of the IMF transcripts, and referring him to the Ogden Office to obtain additional documents, namely the RACS-006 or Form 23C Furthermore, the Ogden Office appropriately responded to plaintiff's requests by providing the IMF transcript-literal[FN1] and the RACS-006 documents Accordingly, the Court finds that plaintiff has received copies of all documents responsive to his FOIA request, and the action should be dismissed as moot
FN1. An IMF transcript-literal, as opposed to an IMF transcript-specific, is in a form which is more easily understood by a taxpayer and includes the following pertinent information the taxpayer's name, the date of the assessment, the character of the liability assessed, the taxable period assessed, and the amount of the tax assessed
PROPER PARTY DEFENDANT
Plaintiff has named the IRS as well as the Commissioner of Internal Revenue and four individual agency employees as defendants in this action The district court has jurisdiction over the agency that allegedly violated the FOIA, but individual agency employees are not proper party defendants See Thompson v. Walbran, 990 F.2d 403, 405 (8th Cir1993) Accordingly, the action against the Commissioner of Internal Revenue Charles O Rossotti and individual employees Charles W. Schmidt, James T Aurand, Malia A Berumen, and Sheila Walters is dismissed
CONCLUSION
*3 For all of the foregoing reasons, the Court GRANTS defendant's Motion for Summary Judgment (Dkt # 18) and for the same reasons DENIES plaintiff's Motion for Summary Judgment (Dkt # 19) Pursuant to this Order, plaintiff's complaint is hereby dismissed with prejudice.