Michael E. Nestor v. Commissioner of Internal Revenue

Summary

The Tax Court sustained the Commissioner's determination to proceed with collection of the taxpayer's 1992-97 income tax deficiencies, additions to tax, and interest, holding that section 6330(c)(2)(B) barred him from contesting the underlying liabilities because he had received notices of deficiency for those years, and that the determination was not an abuse of discretion even though the Appeals officer did not furnish assessment records at the hearing, since Forms 4340 produced before trial showed proper assessments and no prejudice resulted. The Court also dismissed for lack of jurisdiction the portion of the case involving the section 6702 frivolous return penalties for 1992-97. Judge Foley, dissenting, joined by Judge Chiechi, would have held the Appeals officer's verification erroneous because the Secretary failed to furnish the record of assessment required by section 6203, and would have remanded for a further hearing. Concurring separately, Judges Halpern, Swift, Laro, and Beghe variously emphasized harmless-error analysis, the continued routine availability of account transcripts and Forms 4340, the narrow scope of the Court's Form 4340 precedent, and recommended procedures for furnishing Forms 4340 at or before collection due process hearings.