                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-18-2009

Wayne Frederick v. Commissioner of Inte
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1376




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CLD-166                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1376
                                      ___________

                               WAYNE G. FREDERICK,
                                               Appellant

                                           v.

                    COMMISSIONER OF INTERNAL REVENUE
                     ____________________________________

                      On Appeal from the United States Tax Court
                               (Tax Ct. No. 12437-06L)
                     Tax Court Judge: Honorable James S. Halpern
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     April 23, 2009

           Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges

                             (Opinion filed: May 18, 2009)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Wayne G. Frederick appeals an order of the United States Tax Court sustaining the

decision of the Internal Revenue Service (“IRS”) to proceed with a collection against him

pursuant to the Internal Revenue Code, 26 U.S.C. §§ 6320 and 6330. We will affirm.
       Frederick’s 2004 tax return indicated that he had a tax liability of $5,394, but

withholdings of only $3,414.1 He did not pay the tax owed. The IRS assessed

Frederick’s tax liability and the appropriate additions to tax for failure to timely pay,

failure to pay estimated tax, and interest. See 26 U.S.C. §§ 6651(a)(2); 6654; and 6601.

On September 17, 2005, the IRS issued a Final Notice of Intent to Levy. In response,

Frederick filed a timely request for a Collection Due Process Hearing, asserting that his

“[e]mployer is not withholding the proper amount,” and that he was not liable for any

resulting tax underpayment. Following a telephone conference with an IRS Appeals

Officer, the Appeals Office rejected Frederick’s contention and issued a final Notice of

Determination, concluding that the Notice of Intent to Levy was appropriate.

       On June 28, 2006, Frederick filed a petition in Tax Court, challenging the Notice

of Determination. He maintained that he was not responsible for any tax liability beyond

the amount that had already been withheld from his wages. The parties filed a

“Stipulation of Facts,” which set forth the procedural history of the case and included a

number of exhibits. The Tax Court sustained the Appeals Office’s determination, noting

that a taxpayer is required to report and pay tax on his income, even where his employer

failed to withhold the correct amount of tax.

       Frederick filed a timely notice of appeal. On appeal, he submitted a “Motion for



   1
     The latter amount consisted of $2,631 withheld by Frederick’s employer from his
earned wages, and $783 withheld by the Defense Finance and Accounting Service from a
retirement distribution.

                                                2
Reconsideration,” which we construe as a motion for summary reversal of the Tax

Court’s decision. The Commissioner opposes this motion and seeks summary affirmance.

       We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We exercise plenary review

over the Tax Court’s conclusions of law, and review any factual findings for clear error.

See PNC Bancorp, Inc. v. Comm’r of Internal Revenue, 212 F.3d 822, 827 (3d Cir.

2000). We will affirm for substantially the same reasons set forth in the Tax Court’s

opinion.

       Frederick claims that the full amount of the assessed liability is “beyond his

responsibility” because his employer “miscalculat[ed]” his withholdings. Importantly,

however, Frederick’s underlying tax obligation is not determined by the amount of tax

withheld by his employer. See Church v. Comm’r of Internal Revenue, 810 F.2d 19, 20

(2d Cir. 1987) (“It is clear that the failure of an employer to meet its obligation to

withhold income tax does not in any way lessen the obligation of an employee to pay

income tax.”). In addition, Frederick’s assertion that “his withholdings are in accordance

with Publication 15, Circular E, Employer’s Tax Guide” is of no consequence. See CWT

Farms, Inc. v. Comm’r of Internal Revenue, 755 F.2d 790, 803 (11th Cir. 1985) (“It is

settled law that Treasury publications . . . which purport to provide a general explanation

of the revenue laws . . . are simply guidelines for taxpayers and do not bind the

Commissioner in subsequent litigation.”). Finally, Frederick complains that he did not

have an opportunity to review and respond to the “Stipulation of Facts” because it was



                                               3
not filed until the day of the Tax Court hearing. But Frederick specifically agreed at that

hearing to have the Tax Court receive the Stipulation into evidence. Consequently, we

will not consider his present challenge. See Visco v. Comm’r of Internal Revenue, 281

F.3d 101, 104 (3d Cir. 2002).

       For the foregoing reasons, we grant the Commissioner’s motion for summary

affirmance and will affirm the decision of the United States Tax Court.2




   2
   Frederick’s “Motion for Reconsideration,” which we construe as a motion for
summary reversal of the Tax Court decision is denied.

                                             4
