- 13 -
See Fed. R. Evid. 103(a)(1); United States v. Jamerson, 549 F.2d
1263, 1266-1267 (9th Cir. 1977); Fuller v. Commissioner, 20 T.C.
308, 314 (1953), affd. 213 F.2d 102 (10th Cir. 1954).
We turn now to the only other issue that petitioner on brief
asks us to address, i.e., “Whether the petitioner was entitled to
9(...continued)
law and procedure. That would mean that the hearing
officer would have had some form of admissible evidence
available “at the hearing.” Since the Certificates
[Forms 4340 in question] the Respondent are [sic] now
trying to use were created after scheduled date of the
hearing, it is clear that they would not have been
available “at the hearing” had it taken place.
Petitioner’s objection to Forms 4340 in question does not
appear to be an evidentiary objection. Petitioner seems to be
arguing that, because respective Forms 4340 with respect to
petitioner’s taxable years 1992 and 1995 were generated as of
Mar. 15, 2002, a date after the dates on which the Appeals
officer scheduled and rescheduled a telephonic hearing with
petitioner (i.e., June 6, 2001, and June 7, 2001, respectively),
those forms may not be used to establish compliance with the
requirement of sec. 6330(c)(1) that “The appeals officer * * * at
the hearing obtain verification from the Secretary that the
requirements of any applicable law or administrative procedure
have been met.” We reject any such argument. See Nestor v.
Commissioner, 118 T.C. 162 (2002). In this connection, peti-
tioner’s objection to Forms 4340 in question appears to be based
on her misunderstanding as to what Form 4340 is. Form 4340 is a
document or transcript that shows as of a stated date the infor-
mation as of that date with respect to a stated taxpayer regard-
ing assessments, payments, and other specified matters that
appears as of that date in the official records of the IRS with
respect to that taxpayer. That Form 4340 is generated as of a
stated date does not mean that the information reflected in such
form did not appear in the official records of the IRS before
such date. In this regard, respective Forms 4340 with respect to
petitioner’s taxable years 1992 and 1995 reflect, and we have
found, that respondent assessed (1) on Nov. 25, 1996, tax, an
addition to tax, and interest with respect to petitioner’s
taxable year 1995, and (2) on Feb. 22, 1999, tax and interest
with respect to petitioner’s taxable year 1992.
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