STATUTORY REQUIRMENTS

         OF A VALID

         ASSESSMENT

 

 

 

This is a description of the authority used in analyzing a master file account to determine if an assessment has been lawfully made.

 

Howell v. U.S., [96-2] USTC provides the authority for the assessment process that must be followed for a valid enforceable assessment.

 

An assessment pursuant to 26 C.F.R. 301.6203-1, by which the IRS  records and demands payment of tax obligations, is a several step process: 

 

1.  creation of a summary record of assessment,

2.  maintenance of supporting documents,

3.  notification of liable parties and,

4.  upon request by a targeted taxpayer, the production of pertinent information to liable parties.

 

The first step of the assessment process is the creation of a summary record which summarizes all assessments made in a particular district on a particular date.  The date on which an authorized official signs a summary record sheet becomes its “date of creation”.  The summary record sheet must be augmented by supporting records which relate to the summary record.

Supporting records must provide at least four pieces of information:

 

1.  identification of the taxpayer;

2.  the character of the liability assessed;

3.  the taxable period, if applicable; and

4.  the amount of the assessment.  26 C.F.R 301.6203-1.

 

26 C.F.R. 301.6203-1 states 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 sets forth five pieces of information:

 

1.      The name of the taxpayer

2.      The date of assessment

3.      The character of the liability assessed

4.      The taxable period

5.      The amounts assessed

 

This differs from the supporting-records requirements in at least two ways:  the pieces of information required and the purpose for the information.

 

            The information sent to a requesting taxpayer must include all of the pertinent information in the supporting documents section discussed above, plus it must contain the date of assessment.

 

The additional datum required for distribution to the taxpayer –the assessment date—is often found on the supporting records, a copy of which the IRS typically sends to the taxpayer.  There is no prescribed format in which the assessment date is to be sent, other than it be a copy of pertinent parts of the assessment. 

 

Several cases have dealt with the failure of the IRS to send a copy of the actual signed and dated summary record to the taxpayer, all courts have considered this practice acceptable, if the supporting documentation records that a summary record was created.

 

A Form 4340, Certificate of Assessments and Payments, typically contains two date columns titled “Date” and “23C Date”.  In some cases, the validity of Certificates of Assessments and Payments to establish that summary records have been created has been questioned if the “23C date” is missing. The “23C Date” is significant for it provides the sufficient evidence—in the absence of a copy of a Summary Record—that a summary record was indeed created. 

 

The significance of the lack of a “23C Date” has typically been coupled with the failure of the IRS to provide any additional information which indicates that a valid assessment was made, such as a signed summary record.

 

The second difference between the supporting documentation and the documentation sent to the requesting taxpayer is the purpose for which the information is used.  The purpose for the supporting documentation is to allow the IRS to identify the individual parties and calculate how their combined assessments total the aggregate assessment amount which appears on the signed summary record.

 

The purpose for the pertinent information sent to requesting taxpayers is to allow taxpayers to understand for what purpose they have been assessed a tax, interest, or penalty.  According to a General Counsel Memorandum prepared by the Interpretative Division of the IRS, GCM 39392 (August 1, 1985):

 

Treas. Reg. Section 301.6203-1 provides that the copy of the record of assessment furnished to a taxpayer, upon request, shall include the character of the liability assessed. We think the character of the liability assessed includes not only that the liability is tax, interest, or penalty but also the basis for the assessment. 

 

The taxpayer needs to know the basis for an assessment as a necessary part of checking the correctness of the taxpayer’s assessed tax liability.

 

As stated above, we think a copy of the record of assessment is furnished so that the taxpayer can make this check.

 

On Form 4340 and the Privacy Act Transcript the [IRS] does furnish the bases for assessments to taxpayer in certain situations.  We believe the bases for assessments should also be furnished to taxpayer as a pertinent part of the record of assessment under section 6203.

 

The copy of the computer equivalent of a 23C Form, signed by an assessment officer-provides uncontroverted proof that an assessment occurred on a specific date.  This, however, does not establish any of the additional required information.  Stallard v. U.S. [92-2 USTC 50,596], (a signed and dated Form 23C does not identify the taxpayer, identify the character of the liability assessed, identify the tax period, or state that amount of the assessment).

 

The remaining information, then, must be found on the nine pages of the taxpayer’s (Rogers) IMF, six of the nine pages display the taxpayers (Rogers) name, and all nine pages show his account number and name as “ROGE.”  This suffices.

 

The remainder of the information on the IMF is presented in cryptic form with hundreds of codes, acronyms, numbers, and sundry enigmatic entries.  The IRS offered neither Rogers nor the Court any guide to assist in deciphering the confusing forms.  Indeed, the IRS did not attempt to refer to or rely on the encoded information in asserting its compliance with the statute and the regulations.  Nonetheless, the Court has attempted to make sense of the IMF, relying on its own resources. 

 

Characterization. The following two entries, by their resemblance to Defendant’s Exhibit C, appear to be pertinent portions of the IMF

 

240   120588  58,560.00   8847   29254-715-52122-8

                                                     PEN CODE-618 PRC

 

290   120588            0.00  8847   29254-715-52122-8

                                                     HC  ARC                    INTD   PC

                                                     CORRESPONDDT-   CREDIT DT-

                                                     RCVD DT- 

 

The duty imposed upon the IRS by the regulation is to supply the requisite information upon request.  This is done for a purpose.  It seems to this Court that in return for allowing a summary sheet with entries affecting hundreds or thousands of different taxpayers to be used, the IRS by regulation is required to furnish particularized information concerning the assessment to an assessed party upon the party’s request.  This enables the party to evaluate the propriety of the assessment.

 

The information furnished to the taxpayer (Rogers) is deficient.  Without further information, all that can be learned from the entry is that it is a numbered penalty.  Code 240, nearly as ambiguous as the Penalty Code 618, means nothing more than “Miscellaneous Penalty.”  The Internal Revenue Manual lists that a “Miscellaneous Penalty” refers to numerous penalties.  While as noted above, the significance of the PEN CODE 618 entry may be deciphered by a legal researcher possessing sufficient computer skills, it is practically meaningless to a taxpayer.

 

The information on the IMF did not allow the taxpayer (Rogers) to know the character of the liability assessed so that he could check its correctness.  This Court concludes that the IMF that the IRS sent to the Taxpayer (Rogers) in response to his section 6203 request is deficient.  It fall short of the standards articulated in GCM 39302 (August 1, 1985) and the Treasury regulations to which it refers.

 

Taxable Period.  The taxable period only has to be provided to the taxpayer if applicable.  In the present case the IRS contends it is not applicable.  The IRS claims that the method of assessment of a 26 C.F.R. 301.6372-1 100% Penalty is as follows: a corporation fails to pay withholding taxes for certain taxable periods; upon not paying, the specific party within the corporation that was responsible for having failed to make the payments is assessed a penalty on a separate day for the taxable periods during which the corporation was delinquent.  Therefore, the penalty is assessed at once, and not for a taxable period per se.  Stallard v. United States [94-1 USTC 50,056], rejected such an argument –an argument the Fifth Circuit characterized as “patently specious.”  As Stallard explains,

 

A taxpayer is liable for a penalty under 6672 if, and only if that person is a responsible party.”  That taxpayer is a responsible party if he was both 1) under a duty to collect and : such liability  is imposed only on those who were responsible parties for particular tax periods.

 

To determine whether a person is liability because he has the power to pay those taxes without also considering whether he held that power in the particular tax periods in which the deficiency accrued would be nonsensical.

 

Bureaucratic ineptitude and indifference coupled with judicial admissions made as part of a confused litigation strategy-have combined to produce an untenable argument by the Government; that the assessment of penalty tax under 6672 need not refer to particular tax periods to be valid.  We reject this argument as unsound, contrary to precendent, and contrary to the strictures of the IRS’s own regulations.  Consequently, we conclude that the IRS’s failure here to assess taxes under 6672 for the proper tax period renders that assessment invalid.

 

The opinion of the Fifth Circuit is persuasive.

 

In this case, the IRS was required to send taxable period information to the taxpayer (Rogers) .  The taxpayer had a right to know if the penalty stemmed from a period during which he was a responsible and willful person according to 26 C.F.R. 301.6672. As noted above, the copy of the computer equivalent of a 23C Form does not provide information on the taxable periods.  The only other information which the taxpayer (Rogers) received which might contain this information is the IMF.  The IRS has not demonstrated where the information can be found.  The only apparently relevant information, the Court can identify in the IMF is the following entry found on page eight:

 

LAST RET-91  M/E     COND-E   FLC-29   9227

 

   TAX PERIOD  55       8803     REASON CD-   MOD EXT CYC-9318

 

FS-0                   CRINV-       LIEN-4 29254-715-52122-8   CAF- FZ>VT-

 

 

It appears that the “8803” entry in the starred-box may refer to the tax period March, 1988.  However, without any guidance from the IRS and without any adequate explanation for the “55” – or the other codes which surround the entry – the March, 1988 period is nothing more than a guess.  Furnishing, such enigmatic information without any explanation denies the taxpayer’s rights under 26 C.F.R. 301.6203-1.  See GCM 39392 (August 1, 1985).  Accordingly, this Court concludes that the IRS has failed to provide Mr. Rogers with pertinent parts of the record of the assessment which set forth the taxable period in response to Rogers’ section 6203 request.

 

CONCLUSION

 

The IRS failed to meet its burden of proof.  The IRS was required to demonstrate that upon the taxpayers  (Rogers) request, the taxpayer  (Rogers) was sent pertinent parts of the assessment record containing the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, and the amounts assessed.  While the record shows that the IRS did furnish the required name, date, and amount information to the taxpayer (Rogers) , the record fails to show that IRS furnished the requisite information concerning the characterization and taxable period of the assessment.  Consequently, the Court must conclude that a valid and enforceable assessment was not made.  Stallard v. United States [94-1] USTC 50,056, 12F.3d 489 (5th Cir. 1994)

 

 

 

 

David Stallard v. United States

U.S. District Court, West. Dist. Tex., Austin Div.: A-91-CA-954, 10/30/92

 

From the time the taxpayer was notified of a proposed assessment of tax as a responsible person, he did everything in his power to help the IRS clear up and conclude the matter.  He continuously pointed out IRS errors in referring to the wrong period of assessment and requested conferences which the IRS refused.  As a last resort, the taxpayer filed a refund suit to determine the matter.  The taxpayer was entitled to summary judgment on his suit for refund of tax penalties paid and for the release of federal tax liens related to the penalties. 

 

Internal Revenue Code (IRC) 6672 provides generally that any person required “to collect, truthfully account for, and pay over” trust fund taxes who willfully fails to do so or willfully attempts to avoid payment shall be liable for penalties.  However, a tax penalty must be properly assessed and the taxpayer properly noticed before the penalty is enforceable.  IRC 6203, 6303 and 6671(a).See also, Sage v. United States [90-2 USTC 50453], 908 F.2d 18,21 (5th Cir. 1990).  Furthermore, assessment and notice must be completed within the time permitted by the statute of limitations.  See Brafman v. U.S. [67-2 USTC 12,494], 484 F.2d 863, 865 (5th Cir. 1967).

 

Stallard (taxpayer) contends the IRS did not comply with the statutory requirements for assessment or notice within the statute of limitations, as extend by the waiver, and therefore, he is not required to pay the penalty.

 

IRC 6303 provides “Where it is not otherwise provided by this rule, the Secretary shall , as soon as practicable, and within 60 days, after making of an assessment of a tax pursuant to section 6203, give notice to each person liable for the unpaid tax, stating the amount and demanding payment, thereof.”  The accompanying federal regulation, Treasury Regulation 301.6303-1, provides the notice shall identify the individual liable for the unpaid tax, state the amount and demand.

 

IRC 6201 requires the Secretary of the Treasury to assess all penalties which have not been paid.  Section 6203 provides, “The assessment shall be made by recording the liability 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 assessment.”

 

Treasure Regulation 301.6203-1 provides “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 date of the assessment is the date the summary record is signed by an assessment officer.  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.”

 

Neither 6203 nor Treasury Regulation 301.6203-1 provides any guidance when a tax period is “applicable” and must be included in the summary record or the supporting records.  However, trust fund taxes are assessed quarterly.  It is, therefore, undeniable that the taxable period is “applicable” and must be contained in the summary record of assessment or the supporting records and furnished to the taxpayer upon request.

 

IRS presented four documents to the Court that it contends, when read together, satisfy the requirements of 6203 and 301.6203-1.  These four documents are:

 

1.      the summary record of assessment

2.      the “Proposed Assessment of 100 Percent Penalty” (Form 2751)

3.      the “Certificate of Assessment and Payments” (Form 4340)

4.      the “Request for 100-Percent Penalty Assessment” (Form 2749)

 

The US insists that the “Notice of Penalty Charge” (Form 8449) does not constitute the summary record of assessment or supporting records, “this document is merely to put the taxpayer on notice that the penalty has been assessed and to demand payment.”  Additional, the US does not contend that either of the “Notice of Federal Tax Lien Under Internal Revenue Laws” filed against Stallard are the summary record of assessment or supporting records.

 

The IRS submitted a “Form 23C” which it asserts is a summary record of assessment.  It is dated June 12, 1988 and was signed by an assessment officer.  Other than the assessment officer’s signature, it does not contain any of the 6203 or 301.6203-1 requirements. It does not identify the taxpayer, identify the character the liability assessed, identify the tax period, or state the amount of the assessment.  The IRS admits, “It is a summary of assessments made by one service center that have [been] posted to the Internal Revenue Services main computer for one day.  No individual assessment is shown on a 23C; it only shows totals for the service center for each class of tax.”  Therefore, unless the supporting records satisfy the statutory requirements, there is no evidence that the IRS made a valid assessment against Stallard for the tax period ended March 31, 1982, before the extended statute of limitations expired on December 31, 1990.

 

SUPPORTING RECORDS

 

“Certificate of Assessment and Payments (Form 4340).  The “Certificate of Assessment and Payment” presented to the Court reflects that the IRS assessed the taxpayer (Stallard) a “100% penalty” on June 13, 1988. The Certificate identifies the taxpayer (Stallard), as the taxpayer assessed, by name, address and social security number.  It also reflects June 13, 1988, as the date the IRS claims it assessed the taxpayer (Stallard), reflects the character of the liability (100% penalty), identifies the tax period and states the amount assessed.  In sum, it provides al the specific information required by IRC 6203 and 301.6203-1.  Ordinarily, the “Certificate of Assessment and Payments” is presumptive proof of a valid assessment.  However, for the reasons stated below, the Court does not believe the presumption arises in this case.

 

In Brafman v. United States, the taxpayer contended she was not liable for penalties because the United States had not complied with the requirements of IRC 6203 and Treasury Regulation 301.6203-1.  The assessment officer had not signed the assessment certificate.  The Court quoting United States v. Lehigh [62-1 USTC 9179], 201 F.Supp. 224, 234 (W.D. Ark. 1961) stated, “Neglect to comply with [the procedures outlined in IRC 6203 and Treasure Reg. 301.6203-1] may entail consequences which the neglecting party must be prepared to face, whether such party be the taxpayer or the Government.”  The Court held, “Since the assessment certificate in this case was not signed by the proper official, as prescribed by the applicable Trea. Reg., within the statutory period after the filing of the estate tax return, this suit for collection of any deficiency is barred by the statute of limitations.  The basic message of Brafman is the IRS must strictly comply with IRC 6203 and Treasury Regulation 301.6203-1 and it must do so within the statutory period, or there is not a valid assessment.

 

In this case, the “Certificate of Assessments and Payments” was prepared and executed on February 10, 1992; subsequent to the filing of the lawsuit and, more importantly, subsequent to December 31, 190, the date the extended statute of limitations expired.  If the Court accepts this as presumptive proof that a valid assessment occurred or as any evidence that a valid assessment occurred, the statute of limitations becomes meaningless.  Therefore, a “Certificate of Assessment and Payments’ prepared and executed after the expiration of the statute of limitations is no evidence that a valid assessment occurred.

 

In sum, the IRS refused to follow the IRC and its own regulations and, under the circumstances of this case, demonstrated gross and unjustifiable incompetence.  Stallard did not “lay behind the log” waiting for the limitations period to expire and then claim no valid assessment had occurred.  He in fact did everything within his power to help the IRS clear up and conclude this matter. 

 

 

Joseph R. Pursifull v. United States

U.S. District Court, So. Dist. Ohio, Wst. Div.; C-1-91-0248, 3/26/92

 

Jurisdiction is alleged pursuant to 28 U.S.C. 1340, 1346, 2410.  Plaintiff contends,

 

1.  the IRS failed to follow the mandated procedures for making a valid assessment and

2.      levy

3.      the IRS failed to comply with the notice and demand requirements of 26 USC 6303(a) and 6331(d)

4.      the IRS deprived him of property in violation of the taxing and due process clauses of the Constitution and

5.      violated numerous other provisions including 26 USC 6201, 6203, 6204, 6321, 6322, 6501(c)(3) and regulations 26 CFR 301.6201-1, 301.6204-1, 601.103(a) & (b).

 

“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.”  26 USC 6203.  Pursuant to regulation:

 

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 date of the assessment is the date the summary record is signed by an assessment officer.  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.

 

Within sixty days of the assessment, the IRS must “give notice to each person liable for the unpaid tax, stating the amount due and demanding payment thereof.  Such notice shall be left at the dwelling or usual place of business of such person, or shall be sent by mail to such person’s last known address.”  26 USC 6303.

 

The government attempted to establish, during trial, the date of assessment by use of the 23C Date on a Certificate of Assessments and Payments.  The court ruled that “the definition of  ‘23C Date’ fell within “ Federal Rule of Evidence 201(b)(2) because it was capable of “accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Posner [76-1 USTC 9224], 405 F.Supp. at 936 & n.3.  The court granted the government time to submit an affidavit as to the definition of the 23C Date.  After such an affidavit was submitted, the court took judicial notice that the 23C Date referred to the date on which the summary records of assessment were signed by the assessment officer.  Id. at 936-37.  Posner does not dictate the result in this case because here the United States seeks to use the 23C Date to establish not only the date of assessment, but also the fact that a valid assessment was made by the signing and dating of summary records, such as Forms 23C, by an assessment officer.

 

In United States v. Dixon [87-2 USTC 9485], 672 F.Supp. 503 (M.D. Ala. 1987), affd., 849 F.2d 1478 (11th Cir. 1988), the IRS admitted that it no longer possessed the signed Form 23C.  Instead, it relied on the 23C Date on a certified copy of the Certificate of Assessments and Payments to establish a valid assessment.  The Dixon court noted that other courts had accepted this document as proof that an assessment had been entered in accordance with the statute and regulations and that the Posner court took judicial notice of the significance of the 23C Date.  Accordingly, the Dixon court accepted the Certificate of Assessments and Payments as presumptive proof of a valid assessment.  Because the taxpayer produced no evidence to counter this presumption, the Court found that the government established that the tax liability at issue was properly assessed.  In the instant case, unlike Dixon, the United States has not claimed that it no longer has the signed and dated Form 23C, which constitutes proof of valid assessment preferable to that of the 23C Date.

 

Plaintiff has submitted a copy of a May 7, 1991 request for documents, allegedly served on the United States Attorney, that seeks copies of the signed summary records of assessments, Form 23C, and of the 6303 Notice and Demands.  Plaintiff contends that the United States has not responded to his discovery request, and the United States has not addressed this allegation.  On March 9, 1992, plaintiff filed a motion to compel, to which a response is not yet due. Generally, the IRS need only provide an inquiring taxpayer with “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.”  26 CFR 301.6203-1.  In this Court, however, plaintiff is more than an inquiring taxpayer.  He is a litigant in a civil adversarial matter who is entitled to request discovery and receive a response from his opponent.  Therefore, it is inappropriate to grant summary judgment until plaintiff has had an opportunity to complete adequate discovery.

 

Moreover, Dixon and the other cases cited by the United States establish only that the Certificates of Assessments and Payments submitted by the United States enjoy a presumption of validity. In the instant case, plaintiff submitted an April 1990 IRS memorandum indicating that Forms 23C had been generated by computer, were unsigned, and were invalid under the current regulations.  This memorandum, absent any explanation by the United States, raises a question as to whether the summary records or Forms 23C relating to plaintiff’s assessments were properly signed and dated.  Accordingly, plaintiff has rebutted the presumption of validity, making summary judgment improper.

 

 

 

Robert Alan Jones v. United States

U.S. Court of Appeals, 9th Circuit; 93-16960 7/13/95.  Reversing and remanding a District Court decision, 93-2 USTC 50,446

 

A genuine issue of fact existed as to whether the IRS had assessed the trust fund recovery penalties within the period of limitation.

 

In an action to collect a tax, the government bears the initial burden of proof.  Oliver v. US [91-1 USTC 50,010], 921 F.2d 916, 919 (9th Cir. 1990).  The assessment of tax ordinarily establishes the government’s prima facie case, so it becomes incumbent on the taxpayer to establish an issue of fact. Id.

 

The government’s position is that it can collect from a “responsible person” “at any time,” without regard to any statute of limitations.  We agree with the Fifth Circuit, that “[t]he assessment itself must be made within three years of the filing of the return giving rise to the [responsible person] liability.”  Stallard v. United States [94-1 USTC 50, 056], 12 F.3d 489, 493 (5th Cir. 1994)

 

In the case at bar, the government introduced three items of evidence regarding the assessment:

 

1.      A July 27, 1990 certificate of official record certifying a Form 23C summary record of assessment dated November 19, 1984

2.      A July 26, 1990 certificate of official record certifying a Form 4340 certificate of assessments and payments for Mr. Jones for the third quarter of 1982, also dated July 26, 1990

3.      A undated form 2751, “Proposed Assessment of 100 Percent Penalty” to Mr. Jones, listing the penalties for all the 1981 and 1982 quarters. 

 

No affidavits were introduced to show when the 4340 or 2751 were prepared.

 

Mr. Jones argues that the details of these documents themselves establish a genuine issue of fact as to whether the assessment was made prior to 1990.  He is right.  The 23C says on its face that it was made November 19, 1984 and is signed on that date, which would be timely, but it does not identify any party as having been assessed.  It recites that the assessments “are specified in supporting records, “but those records were not offered as evidence.  There was no evidence to show that the 4340 or 2751 was the supporting records referred to in the 23C, and some evidence to show the contrary, that they were prepared in 1990.  One was undated, and other said on its face that it was prepared in 1990.

 

None of the amounts for taxes or penalties on the 23C prepared in 1984 match any of the assessments now claimed against Mr. Jones.  Evidently multiple taxpayers’ taxes and penalties are accumulated in the totals on the 23C.  No penalties for excise taxes are shown on the current portion of the form, and no penalties for withholding taxes are shown on the deficiency portion of the form.  There is no separate category for penalties standing alone:  On its face, the form is inconsistent with the claim now made by the government against Mr. Jones for Section 6672 penalties encompassing both unpaid excise and unpaid withholding taxes.

 

If there were some way to reconcile what the form says with what the government claims, it was incumbent on the government to submit evidence so demonstrating.  The Form 4340 says on its second page that it was prepared in 1990, so it cannot be the “supporting record[ ]” referred to in the 1984 Form 23C.  It appears to be an analysis prepared by the government during litigation.  Likewise the undated Proposed Assessment of 100 Percent Penalty, Form 2751, shows no indication of when it was prepared.  The evidence supports the inference that no assessment was made until 1990 for the amounts now claimed against Mr. Jones.  So late an assessment would be too late under the statute of limitations.

 

Thus, Mr. Jones has established a genuine issue of fact as to whether the amounts now claimed by the IRS were assessed within the statute of limitations period. “Official certificates, such as Form 4340, can constitute proof of the fact that the assessments were actually made.  Where the official certificates do not support the proposition which must be proved, however, and lend themselves to an inference that the proposition is false, then the existence of official certificates does not suffice for summary judgment.  One must read the official documents to see what they say.  It is insufficient merely that they exist.  The issue of fact arises not only because the form 4340 was prepared after the three years limitation period had expired.  Stallard v. United States.  In addition to the lateness of the date of assessment, the numbers on the Form 23C did not match up with the amounts assessed.  A notice of assessment prepared many years after the taxes allegedly became due, where there is evidence that the amounts were not assessed within the three year statute of limitations, is insufficient for summary judgment.  The dates and the discrepancies establish a genuine issue of fact with rebuts the presumption of timely assessment. 

 

The presumption in favor of the IRS was rebutted, as to the timeliness of assessment.  The summary judgment is reversed, because there was a genuine issue of fact as to whether the assessment was timely, and if it was, whether Mr. Jones was a “responsible person” who “willfully” failed to pay over at least some of the taxes which became due after the receiver was appointed.