                          T.C. Memo. 1999-52



                      UNITED STATES TAX COURT



         KENNETH E. AND LOIS M. EDWARDS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 257-98.                Filed February 25, 1999.



     Kenneth E. and Lois M. Edwards, pro sese.

     Jeremy L. McPherson, for respondent.



                          MEMORANDUM OPINION

     GERBER, Judge:   Respondent determined a deficiency in

petitioners’ 1993 Federal income tax in the amount of $83,430 and

a penalty under section 6662(a)1 in the amount of $16,686.    The



     1
       Unless otherwise stated, all section references are to the
Internal Revenue Code in effect for the taxable year in issue,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
                                - 2 -

issue for our consideration is whether, as petitioners contend,

respondent’s determination of a deficiency is procedurally

flawed.

     Petitioners believe that respondent’s issuance of their

deficiency notice was an improper assessment of tax.    At the time

of trial, the Court surmised that petitioners’ argument was

without merit.    After reviewing the parties’ briefs, we are

convinced that petitioners’ position is without merit.

Essentially, petitioners are confused about the chronology of the

deficiency and assessment processes.

     Petitioners Kenneth and Lois Edwards, husband and wife,

resided in Citrus Heights, California, at the time they filed

their petition.    Despite 6 months of correspondence, offers to

have meetings, and reassurances that no assessment had been made

at that time, petitioners did not meet or confer on the merits of

the determination with respondent's counsel.

     Instead, they chose to file interrogatories requesting

documents connected with the deficiency process, Form 23-C

(Assessment Certificate) and Form 4340 (Certificate of Assessment

and Payments) connected with the assessment process, and the

names of the persons who had determined the deficiency and

prepared the requested forms.    Respondent advised petitioners

that their interrogatories were premature and procedurally

flawed.2   Respondent also extended an offer of a meeting where


     2
       On brief, petitioners raised the issue that respondent’s
answer to the interrogatories was unsatisfying. But petitioners
never moved, under Rule 104(b), to compel a further and better
                                                   (continued...)
                                - 3 -

petitioners would be able to see relevant portions of their

administrative file.   Petitioners did not agree to meet with

respondent.   The parties did not stipulate any facts.

     On brief, petitioners raised concerns about respondent’s

failure to deliver copies of the two forms requested in

petitioners’ interrogatories.   The request for Forms 23-C and

4340 reflects petitioners’ misunderstanding of or confusion about

the deficiency and assessment processes.   The requested forms

usually contain information about a taxpayer’s account, including

any assessment or payment that has been made including the

assessment date, the identity of taxpayer, the amount and type of

liability assessed, and the applicable time period.   See

Saltzman, IRS Practice and Procedure, par. 10.02, at 10-4 and

par. 14.05[1], at S14-8 (2d ed. 1991 and Supp. 3 1998).     If, in a

situation similar to petitioners’, no assessment has been made,

these forms would contain little or no information.

     Respondent then moved to dismiss for failure to prosecute

properly, and the motion was calendared for hearing at the

scheduled trial session.   At the hearing, petitioners stated that

they would not present evidence on the adjustments to income

determined by respondent in the deficiency notice.    Petitioners

only wished to pursue their procedural claim that respondent’s

notice of deficiency was an improper attempt to assess a tax

liability.



     2
      (...continued)
answer from respondent, so we shall not discuss it further.
                               - 4 -

     Section 6201(a) gives the Commissioner broad authority to

assess and collect taxes.   That authority is restricted, however,

by the general requirement that, with respect to certain types of

tax, a notice of deficiency must first be sent to the taxpayer

before assessment and/or collection of the tax.    Sec. 6213(a).

Upon issuance of a notice of deficiency, a taxpayer may challenge

the correctness of the deficiency determination in this Court by

filing a petition within a specified period of time.    Id.    If a

petition is timely filed, the Commissioner is precluded from

assessing or collecting the tax deficiency until the Tax Court’s

decision is final.   Id.

     These procedures ensure that a deficiency cannot be assessed

and/or collected without petitioners' being provided an

opportunity to show respondent to be in error.    Because

petitioners filed a petition in this case, the deficiency amount

cannot be assessed or collected until our decision is final.

     Though petitioners contend that respondent improperly

assessed their tax, there is no evidence that respondent failed

to comply with the deficiency procedure or improperly assessed

any tax.   No assessment has been made concerning respondent’s

determination for the 1993 tax year.   Petitioners, although given

the opportunity to dispute the correctness of the deficiency and

penalty, have chosen to present no substantive evidence regarding

respondent's determination for the 1993 tax year.    We accordingly
                              - 5 -

hold that petitioners have failed to show that respondent’s

determination is in error.

     In light of the foregoing,


                                      Decision will be entered for

                              respondent.
