USCA1 Opinion
August 1, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1107
JAMES P. HOBBS,
Plaintiff, Appellant,
v.
COMMISSIONER: INTERNAL REVENUE SERVICE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Selya, and Cyr,
Circuit Judges.
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James P. Hobbs on brief pro se.
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Donald K. Stern, United States Attorney, Loretta C. Argrett,
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Assistant Attorney General, Gary R. Allen, Charles E. Brookhart and
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Jordon L. Glickstein, Attorneys Tax Division, Department of Justice on
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brief for appellees.
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Per Curiam. Appellant taxpayer James P. Hobbs appeals
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the dismissal by the United States District Court for the
District of Massachusetts of his complaint against the
Internal Revenue Service for damages and/or injunctive
relief. We affirm the dismissal essentially for the reasons
given by the district court in its memorandum and order dated
November 30, 1993. We add only the following comments.
Hobbs' claims are predicated on his allegation that the
determination that he owed tax deficiencies for the tax years
1985 and 1986 was improper. However, the United States Tax
Court has already dismissed Hobbs' challenge to those
deficiencies and this court has dismissed Hobbs' appeal of
that decision for failure to prosecute. Hobbs, therefore,
can no longer challenge the merit of that determination.1
See Commissioner v. Sunnen, 333 U.S. 591, 598 (1948) (general
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rules of res judicata apply to tax proceedings involving the
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same claim and the same tax year).
Hobbs' contention that the district court erred in
determining that the deficiencies had been properly assessed
is also without merit. According to Hobbs, the assessment
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1. We give no credit to Hobbs' wholly conclusory
allegations, unsupported by any facts, that these rulings
were obtained by the use of fraudulent filings in the Tax
Court. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d
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49, 52 (1st Cir. 1990) (even though complaint is to be
construed liberally, it cannot rest wholly on conclusory
allegations).
was void because the government failed to provide him with an
adequate and timely notice of deficiency.
An assessment is made "by recording the liability of the
taxpayer in the office of the Secretary." 26 U.S.C. 6203.
This is accomplished by having an assessment officer fill out
and sign a "summary record of assessment," also known as a
Form 23C. Geiselman v. United States, 961 F.2d 1, 5 (1st
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Cir.), cert. denied, 113 S. Ct. 261 (1992). In this case, the
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government did not provide the district court with a Form 23C
but with a Certificate of Assessment and Payments (Form 4340)
which listed the Form 23C date.
A Certificate of Assessment and Payments is both
"presumptive proof of a valid assessment," id. at 6 (quoting
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United States v. Chila, 871 F.2d 1015, 1018 (11th Cir.
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1989)), and "presumptive proof that the IRS gave notice of
the assessments and made demands of payment from [Hobbs],"
id. Hobbs bears the burden of producing evidence to counter
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these presumptions. See, e.g., United States v. McCallum,
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970 F.2d 66, 71 (5th Cir. 1992) (citing cases).
Hobbs contends that the Certificate of Assessment and
Payments is invalid because it is dated May 4, 1993, well
beyond the date the limitation period expired.2 For an
assessment to be valid, it must be made, in accordance with
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2. The assessment must be made within three years of the
filing of the return which gives rise to the liability that
is the subject of the assessment. 26 U.S.C. 6501(a).
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all rules and regulations of the Department of the Treasury,
before the expiration of the limitation period. See, e.g.,
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Brafman v. United States, 384 F.2d 863, 865 (5th Cir. 1967).
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Hobbs' contention is meritless. Treasury regulations
provide that "[t]he date of the assessment is the date the
summary record is signed." 26 C.F.R. 301.6203-1 (emphasis
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added). As indicated above, the Certificate of Assessment
and Payments on which Hobbs relies is not the "summary
record" referred to in the regulation. Rather, the
certificate is a supporting document identifying the taxpayer
and explaining the character of the assessment. Stallard v.
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United States, 12 F.3d 489, 493 (5th Cir. 1994). Not only is
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there no requirement that the certificate be prepared within
the statute of limitation period, id., but the Certificate of
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Assessment and Payments indicates that the Form 23C was in
fact dated within the limitation period.3
Since Hobbs made no showing to the contrary, the
district court did not err in relying on the Certificate of
Assessment and Payments as proof that Hobbs had been properly
assessed and had been given proper notice and demand. See
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Geiselman, 961 F.2d at 6.
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3. The Form 4030 listed the Form 23C date as June 1, 1987.
Absent evidence to the contrary, this is sufficient evidence
that the Form 23C was duly signed on that date. See United
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States v. Dixon, 672 F. Supp. 503. 505-06 (M.D. Ala. 1987),
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aff'd, 849 F.2d 1478 (11th Cir. 1988).
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Affirmed.
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