Joseph D. and Wanda S. Lunsford - Page 9




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               The argument that petitioners made in their trial memorandum           
          has already been rejected.  In Davis v. Commissioner, 115 T.C. 35           
          (2000), the taxpayer argued that the collection action was                  
          improper because of the lack of a “valid” summary record of                 
          assessment.  We held that it was not an abuse of discretion for             
          the Appeals officer to rely on a Form 4340 to verify that a valid           
          assessment existed.8  Id. at 40-41.  Form 4340 provides at least            
          presumptive evidence that a valid assessment of a tax has been              
          made.  Nicklaus v. Commissioner, supra at 121; Davis v.                     
          Commissioner, supra at 40; Hefti v. IRS, 8 F.3d 1169, 1172 (7th             
          Cir. 1993), affg. 71A AFTR 2d 93-4833, 92-1 USTC par. 50,192                
          (C.D. Ill. 1992).  A Form 4340 is not conclusive proof of an                
          assessment.  For example, where the Form 4340 does not list a               
          “23C date” (i.e., the date on which the actual assessment was               
          made), further examination is required to determine whether an              
          assessment was made.  See Huff v. United States, 10 F.3d 1440,              
          1446 (9th Cir. 1993); Brewer v. United States, 764 F. Supp. 309,            
          315-316 (S.D.N.Y. 1991).  However, where the taxpayer can point             
          to no evidence of any irregularity in the assessment process, the           
          presumption of a valid assessment remains intact.  Nicklaus v.              


               8We note that the petition in this case is essentially the             
          same as the petition filed with this Court in Davis v.                      
          Commissioner, 115 T.C. 35, 39 (2000).  This is not surprising               
          since the petition was filed by Thomas W. Roberts, who also filed           
          the petition for the taxpayer in the Davis case.  Mr. Roberts was           
          disbarred from practice before this Court on June 18, 2001, and             
          was removed as petitioners’ counsel on July 18, 2001.                       





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