                        T.C. Memo. 2003-317



                      UNITED STATES TAX COURT



               JEFFREY K. RAMSDELL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1694-03L.              Filed November 17, 2003.


     Jeffrey K. Ramsdell, pro se.

     Paul R. Zamolo, for respondent.



                        MEMORANDUM OPINION


     KROUPA, Judge:   This matter is before the Court on

respondent’s Motion for Summary Judgment under Rule 121.1

Petitioner filed the petition in this case in response to a

Notice of Determination Concerning Collection Action(s) under


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                 - 2 -

Section 6330 (Notice of Determination).    The substantive issue to

be decided is whether petitioner’s 1992 and 1993 tax liabilities

were discharged in bankruptcy.    For the reasons stated below, we

grant respondent’s motion.

                             Background

     The record shows and/or the parties do not dispute the

following.2

     Petitioner failed to file timely Federal income tax returns

for 1992 and 1993.    He filed the returns for both years on August

5, 2001.

     On August 2, 2001, 3 days before filing the 1992 and 1993

returns, petitioner filed for chapter 7 bankruptcy in the U.S.

Bankruptcy Court for the Northern District of California.    In his

Schedule E, Creditors Holding Unsecured Priority Claims,

petitioner listed his liability to respondent as $10,9603 plus

penalties and interest for the taxable years 1992, 1993, and

1994.4    On November 6, 2001, the bankruptcy court issued an order

stating that petitioner “is/are granted a discharge under section

727 of Title 11, United States Code (the Bankruptcy Code).”




     2
       At the time he filed the petition, petitioner resided in
Sausalito, California.
     3
       All dollar amounts have been rounded to the nearest
dollar.
     4
         The taxable year 1994 is not at issue here.
                               - 3 -

     Respondent assessed petitioner’s tax liabilities for 1992

and 1993 on November 26 and October 1, 2001, respectively; the

assessments amounted to $15,779 for 1992 and $6,092 for 1993.

     On April 15, 2002, respondent sent petitioner Notices of

Intent to Levy for 1992 and 1993.   On May 30, 2002, petitioner

sent respondent Form 12153, Request for a Collection Due Process

Hearing, in which he contested the collection proceedings with

respect to the years at issue and requested a section 6330

hearing (hearing).   In his statement of reasons for disputing

respondent’s actions, petitioner asserted that his liabilities

were discharged in the bankruptcy proceedings, and that “[t]he

Service has for over 2 years constructive notice of my

situation.”   On November 12, 2002, respondent held a telephonic

hearing with petitioner.

     On January 17, 2003, respondent sent petitioner a Notice of

Determination, stating there was no record that petitioner’s

liabilities were discharged in bankruptcy and indicating

respondent’s intent to proceed with the levy with respect to the

years at issue.5

     Petitioner filed his amended petition contesting the Notice

of Determination with this Court on February 26, 2003.   In the



     5
       The Notice of Determination stated, in the section
captioned “Issues Raised by the Taxpayer” that “[y]ou contend
that the liabilities at issue were discharged in bankruptcy, but
there is no record of that.”
                               - 4 -

petition, petitioner contended that his liabilities for 1992 and

1993 were discharged in the bankruptcy proceedings.

     On July 25, 2003, respondent filed a Motion for Summary

Judgment arguing that petitioner’s tax obligations for 1992 and

1993 were precluded from discharge under the Bankruptcy Code.

                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.   See, e.g., FPL Group,

Inc. v. Commissioner, 116 T.C. 73, 74 (2001).   A motion for

summary judgment will be granted if the pleadings, answers to

interrogatories, depositions, admissions, and 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.    See Rule 121(b); Elec. Arts,

Inc. v. Commissioner, 118 T.C. 226, 238 (2002).   While the moving

party has the burden of proving that no genuine issue of material

fact exists and that it is entitled to judgment as a matter of

law, see, e.g., Rauenhorst v. Commissioner, 119 T.C. 157, 162

(2002), the opposing party must show specific facts exhibiting a

genuine issue for trial, see Celotex Corp. v. Catrett, 477 U.S.

317, 323-324 (1986).

     Where the validity of the underlying liability is not at

issue, the Court will review the administrative determination for

abuse of discretion.   See Sego v. Commissioner, 114 T.C. 604, 610
                                  - 5 -

(2000); Goza v. Commissioner, 114 T.C. 176, 181-183 (2000).      In

this case, respondent’s determination regarding whether

petitioner’s unpaid liabilities were discharged in bankruptcy

requires the interpretation of bankruptcy law.      If respondent’s

determination was based on erroneous views of the law and

petitioner’s unpaid liabilities were discharged in bankruptcy,

then we must reject respondent’s view and find that there was an

abuse of discretion.      See, e.g., Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384, 405 (1990);      Swanson v. Commissioner, 121 T.C. 111,

119 (2003).

     Respondent argues that petitioner’s tax liabilities were not

discharged in the bankruptcy proceedings because they are

precluded from discharge under section 523(a)(1)(B)(ii) of the

Bankruptcy Code.      Petitioner, on the other hand, contends that

the liabilities were discharged.

     As a preliminary matter, we note that we have jurisdiction

to decide whether a tax liability for which collection is at

issue in a section 6330(d)(1) proceeding has been discharged in

bankruptcy.     See Swanson v. Commissioner, supra; Washington v.

Commissioner, 120 T.C. 114, 120-121 (2003).

     Section 523(a)6 of the Bankruptcy Code excludes from a


     6
       Sec. 523(a) of the Bankruptcy Code, 11 U.S.C. sec. 523(a)
(2000), provides, in pertinent part, as follows:

         SEC. 523.   EXCEPTIONS TO DISCHARGE.
                                                       (continued...)
                               - 6 -

discharge under section 727 of the Bankruptcy Code tax

liabilities with respect to which:     (1) A return was not filed,

or (2) a return was filed after its allowed due date and after

the commencement of the 2-year period immediately preceding the

filing date of a bankruptcy petition.

     Respondent argues that because petitioner filed his Federal

tax returns on August 5, 2001, which is both after their original

due dates and after August 3, 1999 (the commencement of the 2

years prior to the filing of the bankruptcy petition), the

discharge of these liabilities is disallowed by section 523(a) of

the Bankruptcy Code.

     In his petition, petitioner does not dispute that the filing

of an overdue return after the commencement of the 2-year period

would preclude discharge of his tax liabilities.    Rather,

petitioner argues that respondent was aware of his tax



     6
      (...continued)
     (a) A discharge under section 727 * * * of this title does
not discharge an individual debtor from any debt--

     (1) for a tax or a customs duty--

               *       *   *   *       *   *    *

     (B) with respect to which a return, if required--

     (i) was not filed; or

     (ii) was filed after the date on which such
return was last due, under applicable law or under any extension,
and after two years before the date of the filing of the
petition; * * *.
                               - 7 -

liabilities for the years in question and assessed them prior to

2001.7   Specifically, petitioner seems to claim that respondent

had filed substitute-for-returns (SFRs) on behalf of petitioner

for the years 1992 and 1993, long before the commencement of the

2-year period preceding the filing of the bankruptcy petition.

The dates on which those SFRs were made, according to petitioner,

are the relevant reference dates in the determination of when the

returns were filed for purposes of section 523 of the Bankruptcy

Code.8

     To avoid the application of section 523(a)(1)(B)(ii) of the

Bankruptcy Code, a taxpayer must file a “return” prior to the

commencement of the 2-year period preceding the filing of the

bankruptcy petition.   See 11 U.S.C. sec. 523(a)(1)(B)(ii).   We

have recently held that SFRs do not constitute returns for

purposes of section 523(a)(1)(B) of the Bankruptcy Code unless

signed by the taxpayer.   See Swanson v. Commissioner, supra at



     7
       In his motion for summary judgment, respondent fails to
respond to petitioner’s argument. It appears that respondent is
convinced that we may not review these issues since, he argues,
they were not raised in the sec. 6330 hearing. See, e.g., Magana
v. Commissioner, 118 T.C. 488 (2002). Contrary to respondent’s
contention, however, it appears that petitioner did raise the
issue of prior notice in the request for a collection due process
hearing. Accordingly, we find that this matter is properly
before us.
     8
       Petitioner states in his amended petition that “the IRS
had in fact knowledge and assessment data for the 1992 [and 1993]
tax [years], as evidenced by a subsequent (1994) tax year ‘Notice
of Levy * * *’ dated 08.16.98.” (Emphasis omitted.)
                                - 8 -

123-124.    There is no support in the record for petitioner’s

allegations that SFRs were ever filed, nor is there support for

his allegation that assessments were made for 1992 and 1993 prior

to 2001.9   In any event, even if we were to believe petitioner’s

contentions that such SFRs were filed, petitioner has not alleged

nor offered any evidence showing that he ever signed SFRs for the

years in question.   Accordingly, petitioner has raised no genuine

issue of material fact, and, therefore, this case is ripe for

summary judgment.


     9
      Petitioner’s claim that respondent had assessed his 1992
and 1993 liabilities prior to 2001 seems to be based, in its
entirety, on a Form 668-W(c), Notice of Levy on Wages, Salary,
and Other Income, (Notice of Levy) for the tax period ending Dec.
31, 1994, that respondent issued petitioner on Sept. 8, 1998.
The Notice of Levy clearly indicates, however, that the unpaid
tax liabilities levied upon are those solely attributable to
1994. As such, the Notice of Levy does not pertain to 1992 or
1993 and thus does not provide any basis for petitioner’s
contention that his tax liabilities for those years were assessed
prior to 2001.

     Further, the Forms 4340, Certificate of Assessments,
Payments, and Other Specified Matters, submitted by respondent
with his motion for summary judgment, reflect that no assessment
for 1992 and 1993 had been made prior to 2001, and do not
indicate that any collection proceedings have been previously
instituted for those years. Form 4340 identifies relevant
assessments, payments, and other specified matters that appear in
the official record of the IRS with respect to a taxpayer. For
purposes of summary judgment, a Form 4340 is presumptive proof of
the validity of the information contained therein, absent
contrary evidence. See Overton v. United States, 2001-2 USTC
par. 50,728, 88 AFTR 2d 6572 (W.D. Okla. 2001), affd. 48 Fed.
Appx. 295 (10th Cir. 2002); see also Hughes v. United States, 953
F.2d 531, 540 (9th Cir. 1992) (stating that Forms 4340 “are
probative evidence in and of themselves and, in the absence of
contrary evidence, are sufficient to establish that notices and
assessments were properly made”).
                                 - 9 -

     We conclude that, because petitioner’s late filings of the

1992 and 1993 Federal tax returns took place after the

commencement of the 2-year period preceding the filing of the

bankruptcy petition, petitioner’s tax liabilities for those years

were not discharged in the bankruptcy proceedings.       See 11 U.S.C.

sec. 523(a)(1)(B)(ii).10   Accordingly, the Appeals officer

correctly determined that respondent could proceed with

collection.   We shall therefore grant respondent’s motion for

summary judgment.

     To reflect the foregoing,


                                             An appropriate order

                                         and decision will be entered.




     10
       None of the cases we have found dealing with 11 U.S.C.
sec. 523(a)(1)(B)(ii) has addressed a situation where the return
was filed late and after the bankruptcy petition date. The plain
language of the section, however, as well as its legislative
history support that sec. 523(a)(1)(B)(ii) is not limited to late
returns filed within the 2-year period preceding the petition,
but also includes late returns filed after the petition date.
See S. Rept. 95-989, at 78 (1978) (“The late return rule applies
* * * to late returns filed after the petition in Title 11 was
filed”).
