                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-16727                ELEVENTH CIRCUIT
                                                               JULY 8, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                     D. C. Docket No. 05-01223-CV-CC-1

DAVID G. TURNER,


                                                             Plaintiff-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                            Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                 (July 8, 2009)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     David Turner appeals pro se the judgment against his complaint that
challenged the levy of penalties against him by the Internal Revenue Service. We

affirm.

                                I. BACKGROUND

      Between 1999 and 2003, Turner filed tax returns that reported zero taxable

income. Between 2000 and 2004, the Revenue Service determined that the returns

were frivolous and assessed Turner a $500 penalty for each return. 26 U.S.C. §

6702. Turner did not pay the penalties.

      In January 2001, the Revenue Service notified Turner that it intended to levy

for the penalty assessed for 1999. The notice did not inform Turner of his right to

a hearing. In 2004, the Revenue Service notified Turner that it intended to levy the

civil penalties that had been imposed from 1999 through 2002 and that Turner had

a right to a hearing.

      Turner promptly requested a face-to-face hearing regarding all four tax

levies. In his letter, Turner asked the Revenue Service for unspecified “collection

alternatives”; complained of “procedural defects” by the Revenue Service; and

demanded the Revenue Service produce copies of Form 17-A and Form 23-C and

“proof of verification from the Secretary that all applicable law and administrative

procedures have been met pursuant to IRC § 6330.” Turner later mailed a second

letter repeating his demand that the Revenue Service produce documents to prove



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his “underlying liability.” The Revenue Service requested that Turner file his 2003

income tax return and notified Turner that his request for a hearing had been

forwarded to the Appeals Office in Atlanta, Georgia.

       In mid-February of 2005, Settlement Officer Janet Green notified Turner

that he would not be considered for collection alternatives unless he filed within

fifteen days both a tax return for 2003 and a collection information statement.

Turner did not comply with the request. After the deadline passed, Appeals

Officer Debra Daigle notified Turner that he would not receive a face-to-face

hearing unless he provided written notice within fifteen days that he was “prepared

to discuss issues relevant to paying [his] tax liability[,] . . . such as an installment

agreement or offer in compromise[,]” and the officer scheduled a hearing by

telephone for March 16, 2005. Officer Daigle also stated that the Appeals Office

would not consider any collection alternatives until Turner filed a tax return for

2003. Turner responded that he was being saddled “with all kinds of

preconditions” and demanded that the Revenue Service cite authority that required

him to file a tax return to obtain a hearing.

       On March 16, 2005, Officer Daigle attempted without success to contact

Turner by telephone. Officer Daigle notified Turner that he missed the telephonic

hearing and repeated her request that Turner submit by March 30, 2005, a tax



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return for 2003, a collection information statement, and “additional facts,

information, arguments or legal authority to support [his] position” or she would

assume that Turner did not want a hearing and proceed to resolve his appeal.

Instead of providing the information requested by Officer Daigle, Turner repeated

his demand for documents related to the levies. Turner stated that he “never . . .

agreed to a phone conference in lieu of a face-to-face hearing as the law allows,”

but did not explain why he did not participate in the telephonic hearing.

      The Appeals Office sustained the proposed levies and issued a notice of

determination for tax years 2000 through 2002 and a decision letter for tax year

1999. Both the determination and decision found that the Revenue Service had

satisfied “all requirements of applicable law or administrative procedure for the

proposed levy action” and that Turner had failed to provide any “non-frivolous

argument” or information “that could be used to determine whether a less intrusive

collection alternative [was] more appropriate than the proposed levy.” The

determination and decision noted that Turner had failed to file a tax return for 2003

or provide alternatives for collection and concluded that “the levy balance[d] the

need for efficient collection of taxes with [Turner]’s concern that the collection

method be no more intrusive than necessary.” The decision letter stated that

Turner “received a hearing equivalent to a due process hearing except that there



                                           4
[was] no right to dispute” the penalty imposed for 1999 because he failed timely to

request a hearing.

      Turner filed a complaint against the Commissioner of the Revenue Service

that challenged the decision to sustain the proposed levies. Turner argued that the

Commissioner violated his “right to Due Process” in reaching its decision. Turner

alleged that he was entitled to copies of documents related to the levies; he was

entitled to a face-to-face hearing to confront his “accusers” to “verify that the

named IRS personnel are who they say they are and have the statutory or delegated

authority” to impose the levy; and the Revenue Service could not condition his

right to a hearing on the filing of a tax return for 2003.

      The government moved for summary judgment on two grounds. First, the

government argued that the district court lacked jurisdiction to consider Turner’s

challenge to the assessment for 1999 because he failed timely to request a hearing.

26 U.S.C. § 6330(d)(1). Second, the government argued that it complied with

administrative procedures regarding Turner’s request for a hearing regarding the

penalties assessed for 2000 through 2002 and Turner failed to make himself

available for the telephonic hearing. The government argued that it was not

required to consider alternative means of collection because Turner raised frivolous

challenges to the levies, refused to file a tax return for 2003, and failed to file a



                                            5
collection information statement.

      The district court partially dismissed and partially granted summary

judgment in favor of the Revenue Service. The district court ruled that it lacked

subject-matter jurisdiction to consider Turner’s challenge to the levy for tax year

1999 because Turner failed timely to request a hearing. The district court ruled

that the Revenue Service did not abuse its discretion by sustaining the levies

against Turner. The court ruled that the Revenue Service complied with the

administrative requirements before it sought a levy for tax years 2000 through

2002 and concluded that Turner was not entitled to a face-to-face hearing,

particularly when he failed to comply with requests by the Revenue Service for

financial documents. The court also mentioned that, although Turner sought

documents to support the claim of the Revenue Service for the assessments, Turner

“never stated that he had not received these documents previously.”

                          II. STANDARDS OF REVIEW

      We review a summary judgment de novo and view all evidence in the light

most favorable to the non-moving party. Roberts v. Comm’r of Internal Revenue,

329 F.3d 1224, 1227 (11th Cir. 2003).

                                 III. DISCUSSION

      The Revenue Service cannot collect penalties by levy unless a taxpayer is



                                          6
notified in writing of his right to a hearing. See 26 U.S.C. § 6330(a)(1). In the

course of the hearing, an appeals officer must “obtain verification from the

Secretary that the requirements of any applicable law or administrative procedure

have been met.” Id. § 6330(c)(1). During the hearing, the taxpayer may raise “any

relevant issue relating to . . . the proposed levy,” such as “challenges to the

appropriateness of collection actions” or “offers of collection alternatives[,]” 26

U.S.C. § 6330(c)(2)(A), and is “expected to provide all relevant information

requested[,]” to enable the appeals officer to consider “the facts and issues

involved in the hearing.” 26 C.F.R. § 301.6330-1(e)(1).

      The Revenue Service afforded Turner sufficient process. The appeals

officer was entitled to rely on Form 4340 to verify that the Revenue Service had

complied with its administrative procedure when assessing Turner the penalties for

years 1999 through 2002. Turner was not entitled to further proof of compliance in

the absence of evidence of some irregularity in that assessment. Roberts, 329 F.3d

at 1228. Turner also was not entitled to a face-to-face meeting regarding the

levies. A collection hearing “may, but is not required to, consist of a face-to-face

meeting,” 26 C.F.R. § 301.6330-1(d)(2)A-D6, but “will not be granted if the

request for a hearing or other . . . communication indicates that the taxpayer wishes

only to raise irrelevant or frivolous issues concerning that liability.” Id. §



                                            7
301.6330-1(d)(2)A-D8. Other than his allegation that the Revenue Service had

committed unspecified “procedural defects,” Turner failed to produce any

“relevant, non-frivolous reasons for disagreement with the proposed levy” that

would entitle him to such a meeting. 26 C.F.R. § 301.6330-1(d)(2)A-D7. The

appeals officer acted within her discretion by offering Turner a hearing by

telephone, but he declined to participate.

      Although the district court erred when it determined that it lacked

jurisdiction over Turner’s complaint regarding the 1999 levy, that error was

harmless. The government concedes that Turner did not receive notice of his right

to a hearing regarding his 1999 penalty assessment, but the appeals officer

nevertheless reviewed the procedure afforded to Turner for all relevant tax years.

Turner’s challenge to the adequacy of that process is without merit.

                                IV. CONCLUSION

      The judgment in favor of the Revenue Service is AFFIRMED.




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