Opinion
12818-22L
02-09-2023
JAMES HARRIS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Lewis R. Carluzzo Chief Special Trial Judge
Pursuant to Rule 152(b), Tax Court Rules of Practice and Procedure, it is
ORDERED that the Clerk of the Court shall transmit herewith to petitioner and to respondent a copy of the pages of the transcript of the trial in the above case before Chief Special Trial Judge Lewis R. Carluzzo at New York, New York, on January 12, 2023, containing his oral findings of fact and opinion rendered at the conclusion of the trial.
In accordance with the oral findings of fact and opinion, decision will be entered for respondent.
James Harris v. Commissioner of Internal Revenue
Docket No. 12818-22L
January 12, 2023
Bench Opinion
Lewis R. Carluzzo, Judge
The Court has decided to render oral findings of fact and opinion in this case and the following represents the Court's oral findings of fact and opinion (bench opinion). Section references made in this bench opinion are to the Internal Revenue Code of 1986, as amended, in effect for the relevant period, and Rule references are to the Tax Court Rules of Practice and Procedure. This bench opinion is made pursuant to the authority granted by section 7459(b) and Rule 152.
The trial in this case was conducted in New York, New York, on January 11, 2023. James Harris appeared unrepresented. Daniel Seger appeared on behalf of respondent. At the time the petition was filed, petitioner lived in New Jersey.
By Order dated July 25, 2022, this section 6330(d) proceeding was assigned pursuant to section 7443A(b)(4) and Rule 182. Except as provided in Rule 152(c), this bench opinion shall not be cited as authority.
The administrative record is the only evidence offered by the parties and admitted into evidence. During the trial the Court advised the parties that judicial notice would be taken of the Court's record in Harris v. Commissioner, docket number 3596-18L. See Estate of Reis v. Commissioner, 87 T.C. 1016, 1027 (1986). We note that some of the documents included in the Court's record in docket number 3596-18L are included in the administrative record entered into evidence in this case.
In a Notice of Determination dated April 21, 2022 (notice) respondent determined that a levy is an appropriate collection action with respect to the assessment of a section 6673 penalty. The amended petition filed in response to the notice challenges: (1) the legitimacy of the administrative hearing that preceded the notice, but petitioner advances no legitimate evidence, reasons or arguments to support that claim, and his challenge in that regard will not be addressed; and (2) the imposition of the section 6673 penalty assessment (penalty). Our focus will be on this challenge to assessment of the penalty, and we note that he is entitled to raise that challenge in this proceeding.
Respondent's records show that a $15,000 "miscellaneous penalty" for 2019 was assessed on February 24, 2020. That penalty was imposed by Order and Decision entered May 23, 2019, in Harris v. Commissioner, docket number 3596-18L. A review of the record in that case shows, as relevant here, (1) that the amount assessed is consistent with the penalty imposed in the above-referenced Order and Decision; (2) petitioner was given appropriate notice of the proceedings that resulted in the above-referenced Order and Decision; and (3) petitioner did not appeal the decision entered in that case.
According to petitioner, the $15,000 assessment is invalid because respondent failed to establish that certain administrative requirements set forth in the Internal Revenue Code have been satisfied. He points out that certain documents that should have been generated prior to the assessment are missing from the administrative record. Although petitioner did not reference the requirements by statute, it is clear that his position is based upon respondent's obligations under section 6751(b). That statute requires supervisory approval of a penalty imposed by respondent before the penalty can be assessed. Petitioner's reliance upon that statute, however, is misplaced. Section 6751(b) applies to penalties imposed by respondent. The penalty here in dispute was imposed by Court order.
In all other respects, the administrative record shows that respondent's settlement officer proceeded as required under section 6330(d), and nothing petitioner has offered or argued establishes otherwise. That being so, decision will be entered for respondent. This concludes the bench opinion in this proceeding. (Whereupon, at 10:35 a.m., the above-entitled matter was concluded.)