                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 2 2005
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    GEORGE E. BOYD,

              Plaintiff-Appellant,

    v.                                                 No. 04-2124
                                              (D.C. No. CIV-03-250 JB/RHS)
    UNITED STATES OF AMERICA,                           (D. N.M.)

              Defendant-Appellee.

    ___________________________

    GEORGE E. BOYD,

              Petitioner-Appellant,
                                                       No. 04-9001
    v.                                           (Tax Court No. 2926-03L)
                                                   (Petition for Review)
    COMMISSIONER OF INTERNAL
    REVENUE,

              Respondent-Appellee.


                          ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and KELLY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       After examining the briefs and appellate records, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Petitioner-appellant George E. Boyd, proceeding pro se, has filed these two

related appeals, challenging procedures of the Internal Revenue Service in levying

on his property to collect unpaid income tax liabilities. We affirm the judgment

of the tax court in No. 04-9001 and the judgment of the district court in No.

04-2124, see Boyd v. United States,    322 F. Supp. 2d 1229 (D.N.M. 2004).

                                  Appeal No. 04-9001

       In 1998 and 2000, the IRS issued notices of deficiency to Mr. Boyd for tax

years 1996, 1997, and 1998. In response to the notices, Mr. Boyd made the

groundless argument that he, as a United States citizen and resident, was not

required to pay taxes on the income derived from sources within the United

States. The IRS assessed the tax, penalties, and interest for the relevant years,

then sent Mr. Boyd notices of balance due: $26,190 for 1996, $17,252 for 1997,

and $29,763 for 1998.   1
                            In May 2002, the IRS mailed to Mr. Boyd final notices of




1
      The notice of balance also includes a $500 penalty for 1997, assessed under
26 U.S.C. § 6682 for allegedly filing false withholding information. Mr. Boyd’s
appeal concerning that penalty is the subject of Appeal No. 04-2124.

                                           -2-
intent to levy and of the right to a collection due process hearing under 26 U.S.C.

§ 6330. 2

       Mr. Boyd requested a hearing, stating his intention to make an audio

recording of the proceeding. He also attached a twelve-page statement, which

argued against the legality of the assessed taxes and requested additional

documentation. The IRS Appeals Office notified Mr. Boyd that it had scheduled

a January 9, 2003, hearing and informed him of its policy prohibiting any

recording. When Mr. Boyd arrived at the appointed time, the appeals officer gave

him copies of transcripts of his accounts for the relevant tax years. Because

Mr. Boyd insisted on recording the proceeding, however, the appeals officer

refused to conduct a face-to-face hearing.




2
       Section 6330 provides that “[n]o levy may be made . . . unless the
Secretary has notified such person in writing of their right to a hearing.”         Id. at
(a)(1). If a taxpayer requests a hearing, then the Internal Revenue Service Office
of Appeals must hold one.      Id. at (b)(1). At the hearing, the appeals office should
“obtain verification from the Secretary that the requirements of any applicable
law or administrative procedure have been met.”          Id. at (c)(1). Hearing issues
relating to the unpaid tax or proposed levy include “appropriate spousal defenses .
. . challenges to the appropriateness of collection actions; and . . . offers of
collection alternatives.”   Id. at (c)(2)(A). The taxpayer may only “challenge[] . . .
the existence or amount of the underlying tax liability for any tax period if [he]
did not receive any statutory notice of deficiency for such tax liability or did not
otherwise have an opportunity to dispute such tax liability.”        Id. at (c)(2)(B).



                                           -3-
       After a review of the record, an appeals officer issued a notice of

determination sustaining the proposed levy. Mr. Boyd appealed to the tax court,

asserting that the appeals officer did not properly determine whether legal and

procedural requirements had been met. He specifically argued that the requested

collection due process hearing should have been held, and that he should have

been allowed to record it. The tax court entered summary judgment in favor of

the Commissioner and, under 26 U.S.C. § 6673, imposed a penalty of $2,500 for

instituting a proceeding primarily for purposes of delay. On appeal, Mr. Boyd

argues that the tax court: (1) should have set aside the notice of determination for

lack of a § 6330 hearing; (2) considered materials outside of the administrative

record; and (3) improperly imposed the penalty.

       Exercising jurisdiction under 26 U.S.C. § 7482(a)(1), we review the legal

determinations of the tax court de novo,      Estate of True v. Comm’r , 390 F.3d 1210,

1217 (10th Cir. 2004), its factual findings for clear error,   id. , and its imposition

of sanctions for abuse of discretion,      Fox v. Comm’r , 969 F.2d 951, 953 (10th Cir.

1992). Under tax court rules,

       [s]ummary judgment may be granted with respect to . . . the legal
       issues in controversy “if the pleadings, answers to interrogatories,
       depositions, admissions, and any other acceptable materials, together
       with the affidavits, if any, show that there is no genuine issue as to
       any material fact and that a decision may be rendered as a matter of
       law.”



                                              -4-
Keene v. Comm’r , 121 T.C. 8, 14 (U.S. Tax Ct. 2003) (quoting T.C. Rule

121(b)). After a careful review of the record, we conclude that none of

Mr. Boyd’s arguments have merit.

       We agree with the tax court that, even assuming that Mr. Boyd was entitled

to record his collection due process hearing, it was “not necessary, and would not

be productive, to remand this case to the Appeals Office in order to afford [him]

another administrative hearing.” R., doc. 17 at 13.    3
                                                           “The ‘rule of prejudicial

error’ (otherwise the doctrine of harmless error), as applied to an administrative

action, provides that the reviewing court shall disregard procedural errors unless

the complaining party was prejudiced thereby.”        Keene, 121 T.C. at 21 (Halpern,

J., concurring). Mr. Boyd has failed to present any reasoned explanation of why,

after a recorded hearing, the Appeals Office would reach a different result.

       Next, we reject Mr. Boyd’s claim that the tax court improperly reviewed

material not contained in the administrative record. Although the Commissioner

submitted forms prepared after the notice of determination, this procedure does

not constitute error. These forms merely summarized and confirmed the contents

of computer records examined by the appeals officer. As such, they were

admissible in the tax court’s summary judgment proceedings.


3
       The United States Tax Court has held that a taxpayer is entitled to make an
audio recording of his § 6330 hearing with the Appeals Office.   Keene, 121 T.C.
at 16.

                                            -5-
      Finally, we turn to the tax court’s imposition of a $2500 fine against

Mr. Boyd. The tax court is authorized to impose a penalty not to exceed $25,000

on a taxpayer when it appears that he instituted a proceeding primarily for delay.

26 U.S.C. § 6673(a)(1)(A). From our review of the briefs and the record, we

discern no legal error in the administrative or tax court proceedings below and we

perceive no merit in Mr. Boyd’s arguments. The tax court did not abuse its

discretion in sanctioning Mr. Boyd.

                                    No. 04-2124

      This matter raises the same issues and arises from the same facts as

No. 04-9001, though it specifically concerns the Notice of Intention to Levy to

collect a $500 penalty from Mr. Boyd for an allegedly false withholding

statement. See 26 U.S.C. § 6682 (providing for civil penalties for false

statements made in connection with the withholding of income taxes). The

district court, rather than the tax court, had jurisdiction over this aspect of

Mr. Boyd’s case. “It is well settled that [the tax court] lacks jurisdiction to

redetermine such penalties.”   Weber v. Comm’r , 122 T.C. 258, 264 (U.S. Tax Ct.

2004) (citing § 6682(c)). And § 6330(d)(1)(B) provides that a taxpayer may

appeal a determination from a collection due process hearing to the district court

if the tax court does not have jurisdiction over the underlying liability.




                                          -6-
       In the district court, Mr. Boyd again argued that the administrative decision

should be set aside for the denial of his request for an audio recording of the

collection due process hearing and the subsequent lack of a face-to-face

proceeding. The district court granted summary judgment against Mr. Boyd and

in favor of respondent for several reasons. It held that: (1) Mr. Boyd was not

entitled to make an audio recording of the collection-due process hearing, so that

his insistence on recording amounted to a waiver of any right to a hearing,        Boyd ,

322 F. Supp.2d at 1232-33; (2) the appeals officer’s review of written materials

submitted by Mr. Boyd demonstrated an awareness of his arguments,             id. at 1233;

(3) in any event, the refusal to permit an audio recording was at most harmless

error, id. at 1233-35; (4) Mr. Boyd’s arguments did not overcome the presumption

that the assessments were valid,   id. at 1235-36; and (5) the IRS satisfied all

statutory notice and assessment requirements,     id. at 1236.

       On appeal, Mr. Boyd asserts that the district court erred in declining to set

aside the administrative decision and in improperly conducting a trial de novo

instead of confining itself to the existing administrative record. Our review of the

record on appeal and consideration of the parties’ briefs reveals that Mr. Boyd has

asserted no creditable arguments. Under the circumstances of this case, the

district court correctly entered summary judgment.




                                            -7-
                                   Conclusion

      We affirm the judgment of the tax court in No. 04-9001 and the judgment

of the district court in No. 04-2124. The mandates shall issue forthwith.



                                                   Entered for the Court


                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




                                        -8-
