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own procedures. These issues are consequently waived.3 “When a
motion for summary judgment is made and supported as provided
in this Rule, an adverse party may not rest upon the mere
allegations or denials of such party’s pleading”. Rule 121(d).
Petitioner’s main argument in opposing summary judgment is
that, as a matter of law, the February 26, 2001, statements of
balance due--statements that he concededly received since he
attached copies to his opposition--are not an adequate “notice
and demand” under Internal Revenue Code section 6331(a) because
they use the word “please” rather than “demand” or one of its
synonyms.
He cites a passage from an unpublished decision, Toussiant
v. Dept. of the Treasury, No. 91-3150 (D.N.J. Aug. 2, 1991),
1991 U.S. Dist. LEXIS 11275 to support his assertion. In
Toussiant, the court wrote that a statement of balance due is not
an adequate “demand”. Such a statement
At most * * * notifies * * * [a taxpayer] of the amount
due and requests that he ‘please’ make payment in a
certain manner. While the Court certainly does not
criticize the IRS for endeavoring to be polite to a
3 Petitioner does object to our consideration of some of the
excerpts from the administrative file, on the ground that the
declaration identifying them was not made by one with personal
knowledge of what occurred during the hearing. However, the
declaration identifying them was made by an IRS attorney
competent to identify them as IRS records, and so they are
presumptively admissible under Fed. R. Evid. 803(8).
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