
USCA1 Opinion

	




          August 1, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1107                                   JAMES P. HOBBS,                                Plaintiff, Appellant,                                          v.                   COMMISSIONER: INTERNAL REVENUE SERVICE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Selya, and Cyr,                                   Circuit Judges.                                   ______________                                 ____________________            James P. Hobbs on brief pro se.            ______________            Donald  K. Stern,  United  States Attorney,  Loretta  C.  Argrett,            ________________                             ____________________        Assistant Attorney General,  Gary R. Allen,  Charles E. Brookhart  and                                     _____________   ____________________        Jordon L. Glickstein, Attorneys Tax Division, Department of Justice on        ____________________        brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.   Appellant taxpayer James  P. Hobbs appeals                 __________            the dismissal  by the  United States District  Court for  the            District  of  Massachusetts  of  his  complaint  against  the            Internal   Revenue  Service  for  damages  and/or  injunctive            relief.  We affirm the  dismissal essentially for the reasons            given by the district court in its memorandum and order dated            November 30, 1993.  We add only the following comments.                 Hobbs' claims are predicated  on his allegation that the            determination that he owed tax deficiencies for the tax years            1985 and 1986 was  improper.  However, the United  States Tax            Court   has  already  dismissed  Hobbs'  challenge  to  those            deficiencies and  this court  has dismissed Hobbs'  appeal of            that decision  for failure  to prosecute.   Hobbs, therefore,            can  no longer  challenge the  merit of  that determination.1            See Commissioner v. Sunnen, 333 U.S. 591, 598 (1948) (general            ___ ____________    ______            rules of res  judicata apply to tax proceedings involving the                     ___  ________            same claim and the same tax year).                 Hobbs' contention  that  the  district  court  erred  in            determining that  the deficiencies had been properly assessed            is  also without merit.   According to  Hobbs, the assessment                                            ____________________            1.  We   give   no   credit  to   Hobbs'   wholly  conclusory            allegations, unsupported  by  any facts,  that these  rulings            were obtained by  the use  of fraudulent filings  in the  Tax            Court.   See Correa-Martinez v.  Arrillaga-Belendez, 903 F.2d                     ___ _______________     __________________            49,  52 (1st  Cir.  1990) (even  though  complaint is  to  be            construed  liberally,  it cannot  rest  wholly on  conclusory            allegations).              was void because the government failed to provide him with an            adequate and timely notice of deficiency.                   An assessment is made "by recording the liability of the            taxpayer in the office of the Secretary."  26 U.S.C.    6203.            This is accomplished by having an assessment officer fill out            and  sign a "summary record  of assessment," also  known as a            Form  23C.  Geiselman  v. United States,  961 F.2d 1,  5 (1st                        _________     _____________            Cir.), cert. denied, 113 S.Ct. 261 (1992).  In this case, the                   ____  ______            government did not provide the district court with a Form 23C            but with a Certificate of Assessment and Payments (Form 4340)            which listed the Form 23C date.                   A  Certificate   of  Assessment  and  Payments  is  both            "presumptive proof of a valid assessment," id. at 6  (quoting                                                       __            United  States  v. Chila,  871  F.2d  1015, 1018  (11th  Cir.            ______________     _____            1989)), and  "presumptive proof that  the IRS gave  notice of            the assessments  and made  demands of payment  from [Hobbs],"            id.   Hobbs bears the burden of producing evidence to counter            __            these presumptions.   See,  e.g., United States  v. McCallum,                                  ___   ___   _____________     ________            970 F.2d 66, 71 (5th Cir. 1992) (citing cases).                 Hobbs contends  that the  Certificate of  Assessment and            Payments is invalid  because it  is dated May  4, 1993,  well            beyond  the  date the  limitation  period expired.2    For an            assessment to be valid,  it must be made, in  accordance with                                            ____________________            2.  The assessment  must be made  within three  years of  the            filing of the return  which gives rise to the  liability that            is the subject of the assessment.  26 U.S.C.   6501(a).                                         -3-            all rules and regulations of the  Department of the Treasury,            before the expiration  of the limitation period.   See, e.g.,                                                               ___  ___            Brafman  v. United States, 384 F.2d 863, 865 (5th Cir. 1967).            _______     _____________                 Hobbs'  contention is  meritless.   Treasury regulations            provide  that "[t]he date of  the assessment is  the date the            summary record is  signed."  26 C.F.R.   301.6203-1 (emphasis            ______________            added).   As indicated  above, the Certificate of  Assessment            and  Payments  on  which Hobbs  relies  is  not  the "summary            record"  referred   to  in  the  regulation.     Rather,  the            certificate is a supporting document identifying the taxpayer            and explaining the character of  the assessment.  Stallard v.                                                              ________            United States, 12 F.3d 489, 493 (5th Cir. 1994).  Not only is            _____________            there no requirement that  the certificate be prepared within            the statute of limitation period, id., but the Certificate of                                              __            Assessment and Payments  indicates that the  Form 23C was  in            fact dated within the limitation period.3                 Since  Hobbs  made  no  showing  to  the  contrary,  the            district court did not  err in relying on the  Certificate of            Assessment and Payments as proof that Hobbs had been properly            assessed  and had been given  proper notice and  demand.  See                                                                      ___            Geiselman, 961 F.2d at 6.              _________                                            ____________________            3.  The Form 4030  listed the Form 23C date as  June 1, 1987.            Absent evidence to the  contrary, this is sufficient evidence            that the Form  23C was duly signed on that  date.  See United                                                               ___ ______            States  v. Dixon, 672  F.Supp. 503. 505-06  (M.D. Ala. 1987),            ______     _____            aff'd, 849 F.2d 1478 (11th Cir. 1988).            _____                                         -4-                 Affirmed.                  ________                                         -5-
