                    T.C. Summary Opinion 2010-10



                      UNITED STATES TAX COURT



                  ALLAN L. BLANK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1928-09S.              Filed January 26, 2010.



     Allan L. Blank, pro se.

     Nathan H. Hall, for respondent.



     RUWE, Judge:   The petition in this case was filed pursuant

to the provisions of section 74631 of the Internal Revenue Code

and in response to a Notice of Determination Concerning

Collection Action(s) Under Section 6320 and/or 6330 (notice of

determination).   This case is before the Court on respondent’s


     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended, and all Rule references are
to the Tax Court Rules of Practice and Procedure.
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motion for summary judgment.   Pursuant to section 7463(b), the

decision to be entered is not reviewable by any other court, and

this opinion shall not be treated as precedent for any other

case.

                            Background

     Petitioner resided in California at the time he filed the

petition.

     On January 26, 2009, a partially illegible but timely

petition was filed contesting a notice of determination

concerning petitioner’s 2004 tax year, a copy of which was

attached to his petition.   On March 17, 2009, petitioner filed an

amended petition contesting the notice of determination, stating:

“IRS never supplied documentation as requested.   At no time did

IRS produce documents as regards income.”

     After this case had been calendared for trial at the

February 1, 2010, San Francisco, California, trial session of

this Court, respondent filed a motion for summary judgment

captioned “Motion for Partial Summary Judgment” (motion for

summary judgment).   In the preamble thereof, however, respondent

moves “for summary adjudication in respondent’s favor, upon all

issues presented in this case.”   A few weeks later, respondent

filed a supplement to the motion for summary judgment, clarifying
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that respondent is seeking summary adjudication “for the 2004

year dealing with petitioner’s Collection Due Process.”2

     In the motion for summary judgment respondent alleges that

petitioner’s only dispute is with the underlying tax liability,

that respondent sent to petitioner’s last known address a notice

of deficiency for taxable year 2004 and that petitioner filed a

petition with the Tax Court, that the Tax Court entered a

decision resolving petitioner’s underlying liability for the 2004

taxable year, and that respondent’s Appeals officer “took into

consideration the full administrative record before sustaining

the Final Notice–-Notice of Intent to Levy.”

     Attached to the motion for summary judgment was a

declaration by respondent’s Appeals officer wherein she states

that her determination to proceed with collection was “based on a

full review of the administrative record before me.”   Attached to

the Appeals officer’s declaration were 11 exhibits, the last of

which was a Form 4340, Certificate of Assessments, Payments, and




     2
       Attached to the amended petition was a notice of
deficiency dated Oct. 20, 2008, regarding petitioner’s 2005 tax
year. Respondent, in his answer to the amended petition, alleges
that the petition in this case is timely with respect to both the
collection action for tax year 2004 and the deficiency action for
tax year 2005. In the light of the impropriety of filing one
petition to contest both a notice of determination and a notice
of deficiency, the Court, by order dated Jan. 15, 2010, severed
the deficiency and collection cases. The deficiency case has
been returned to the Court’s general docket for further
proceedings and assigned docket No. 31250-09S.
                               - 4 -

Other Specified Matters, for petitioner’s 2004 tax year that was

current through October 27, 2009.

     In respondent’s motion for summary judgment, respondent

indicates that petitioner objects to the granting of the motion.

                            Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted where there is no genuine issue as to any material fact

and a decision may be rendered as a matter of law.   Rule 121(a)

and (b); see also Sundstrand Corp. v. Commissioner, 98 T.C. 518,

520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Naftel v.

Commissioner, 85 T.C. 527, 529 (1985).    The moving party bears

the burden of proving that there is no genuine issue of material

fact, and factual inferences will be read in a manner most

favorable to the party opposing summary judgment.    Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985); Naftel v. Commissioner,

supra at 529.   However, if there exists any reasonable doubt as

to the facts at issue, the motion must be denied.    Wells v.

Commissioner, T.C. Memo. 2010-5 (citing Espinoza v. Commissioner,

78 T.C. 412, 416 (1982)).

     Respondent’s allegation that petitioner’s underlying tax

liability for 2004 has been assessed pursuant to a decision of

this Court would, if true, normally preclude petitioner from
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contesting his underlying tax liability.    However, the Form 4340

attached to respondent’s motion for summary judgment appears to

be inconsistent with respondent’s allegation that the assessment

was made pursuant to a decision of this Court.    The Form 4340

gives no indication that a notice of deficiency was mailed to

petitioner or that the assessment was made pursuant to a decision

of this Court.   Rather, the Form 4340, indicating an assessment

date of December 17, 2007, states:     “Additional tax assessed by

examination agreed audit deficiency prior to 30 or 60 day

letter”.   This statement on the Form 4340 seems to contradict

respondent’s allegation that respondent mailed to petitioner a

statutory notice of deficiency for taxable year 2004 on July 17,

2006, and that the tax was assessed pursuant to a decision of

this Court.   The apparent inconsistency between respondent’s

allegation and the Form 4340 raises sufficient doubt about the

factual basis for respondent’s motion for summary judgment so as

to require us to deny the motion.

     Form 4340 is normally a readable and understandable history

of transactions and events concerning a taxpayer’s account for a

particular taxable period, see Tufft v. Commissioner, T.C. Memo.

2009-59, and is “‘generally regarded as being sufficient proof,

in the absence of evidence to the contrary, of the adequacy and

propriety of notices and assessments that have been made.’”       Orum

v. Commissioner, 123 T.C. 1, 9 (2004) (quoting Gentry v. United
                               - 6 -

States, 962 F.2d 555, 557 (6th Cir. 1992)), affd. 412 F.3d 819

(7th Cir. 2005).

     In lien and levy cases under sections 6320 and 6330 we have

encouraged respondent to include a Form 4340 when making a motion

for summary judgment.   The Chief Counsel of the Internal Revenue

Service has recognized the importance of submitting a Form 4340

to the Court when filing motions for summary judgment and has

instructed his attorneys as follows:

     A certified copy of an updated Form 4340 transcript
     should also be submitted with all summary judgment
     motions. The Form 4340 transcript has been
     consistently requested by Tax Court judges in summary
     judgment cases. Even though this transcript is
     prepared after the issuance of the notice of
     determination, submission of the Form 4340 is not a
     violation of the record rule because it generally
     contains the same information originally reviewed by
     the appeals or settlement officer in making the CDP
     determination. See Bowman v. Commissioner, T.C. Memo.
     2007-114. * * * [Chief Counsel Notice CC-2009-010
     (Feb. 13, 2009).]

     Of course, it is of equal importance that any Form 4340 used

to support a motion for summary judgment be verified as correctly

describing the events and assessment shown on the Form 4340.

Thus, the Chief Counsel has instructed his attorneys:    “The Form

4340 should be reviewed thoroughly and any issues raised by

entries on the Form 4340, or inconsistencies with other

documents, should be explained in the motion.”   Id.    We agree.

     On the basis of the record before us, we will deny

respondent’s motion for summary judgment, as supplemented.    This
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case remains calendared for trial at the Court’s February 1,

2010, San Francisco, California, trial session, where the parties

will have an opportunity to clarify and attempt to support their

positions.

     To reflect the foregoing,


                                              An appropriate order will

                                         be issued.
