- 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.
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