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[NOT FOR PUBLICATION]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