- 9 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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