Thomas W. Roberts appeals the Tax Court’s grant of partial summary judgment in favor of the Commissioner of Internal Revenue (“Commissioner”) on his petition challenging a tax assessment. He also challenges the assessment of a $10,000.00 penalty for maintaining this action for delay. Because the Tax Court: (1) correctly determined that the appeals officer verified the existence of the assessment, and (2) did not abuse its discretion in imposing sanctions, we AFFIRM.
I. BACKGROUND
Roberts reported a tax liability on his 1996 tax return, but did not pay the amount with his return. The Commissioner assessed the amount reported as due on the Roberts return. Roberts requested and received a Collection Due Process (“CDP”) hearing. At the CDP hearing, the appeals officer determined that the collection action that was being taken was appropriate. Rl-1 at 1, Ex. A at 4. Roberts thereafter filed a petition for lien and/or levy action pursuant to 26 U.S.C. §§ 6320(c) and/or 6330(d), seeking review of the appeals officer’s determination, after a CDP hearing, that a collection of tax by levy was appropriate. Rl-1 at 1. Roberts argued that the appeals officer failed to get proper verification: (1) of the existence of a valid assessment, i.e., Form 23C, Summary Record of Assessment, (2) that all required notices were given, and (3) that the required procedures were followed pri- or to the Commissioner’s issuing the 1058 letter (“Final Notice, Notice of Intent to Levy and Notice of Your Right to a Hearing,” Rl-11, Ex. 1 at 3). Rl-1 at 2-3. Roberts also asserted that the appeals officer: (1) failed to furnish Roberts’s requested documents prior to and during the CDP hearing, (2) improperly relied solely on Form 4340, a computer transcript that details the record of each assessment, Rill at 2, in making a determination in the Commissioner’s favor, and (3) could not inquire of the assessment officer whether
The Commissioner answered, claiming, inter alia, that the appeals officer’s determination was based on more than Form 4340, but that Form 4340 was sufficient verification that a valid assessment existed where there was no evidence to the contrary. Rl-3 at 1-2. The Commissioner also contended that Form 4340, which bore the Form 23C date, was verification that Form 23C was signed. Id. at 2. The Commissioner argued that sanctions were appropriate in this case because Roberts maintained these proceedings to delay paying his taxes. Id. at 2-5. The Commissioner further asserted that Roberts’s claims were frivolous because the Tax Court had previously determined, in a case litigated by Roberts as a representative, that his interpretation of the law was incorrect. Id. at 3. Roberts replied, inter alia, that sanctions were inappropriate because: (1) the facts of his case were different from his Ghent’s ease, (2) an irregularity existed in his case, i.e., no valid assessment existed, and (3) until there was a decision from the appellate court on the issue, the decision in his client’s case was not binding on his case. Rl-6 at 1-2. Roberts attached a copy of a letter from the Commissioner, which stated, inter alia, that “[i]n [Roberts’s] case however, there have been no assessments other than the processing of [his] tax return plus penalty and interest.” Id. at attachment.
Roberts filed a motion for summary judgment and contended that no valid assessment existed. Rl-9. Roberts claimed that: (1) the Commissioner did not provide him a copy of the record of assessment in his case, as required by 26 C.F.R. § 301.6203-1, id. at 2, (2) the Commissioner failed to claim that an assessment existed, id. at 2, (3) collection proceedings were not proper, where the assessment, Form 23C, did not exist, id. at 4, (4) physical proof of Form 23C, including the assessment officer’s signature, was necessary to prove the form’s existence, id. at 5, and (5) the Form 23C date recorded on Form 4340 may be fraudulent, id. at 7. Roberts attached, inter alia, (1) his request for Form 23C, (2) the Commissioner’s response that in this case “there have been no assessments other than the processing of [Roberts’s] tax return plus penalty and interest,” and (3) an opinion in a bankruptcy case noting that Form 23C had been replaced with a computer generated report, and that the computer-generated assessments were recorded on the Certificate of Assessments. Id. at Exs. 1-3.
The Commissioner filed a cross motion for summary judgment and asserted that Roberts’s summary judgment motion should be denied. Rl-11. The Commissioner conceded that it did not provide Roberts with, nor did the appeals officer consider, Form 23C, but argued, however, that the appeals officer’s reliance on Form 4340 was proper in the absence of any showing of irregularity in the assessment.
Id.
at 3-4. The Commissioner contended that Form 4340, as well as the letter to Roberts in response to his request for a copy of Form 23C, verified that an assessment had been made.
Id.
at 1-5. The Commissioner maintained that the court should impose sanctions against Roberts for instituting frivolous proceedings.
Id.
at 5-6. The Commissioner attached,
inter alia,
the appeals officer’s determination letter in Roberts’s case, which indicated that: (1) the Commissioner had complied with all applicable laws, policies, regulations, and procedures in collecting the taxes owed, (2) Roberts offered no proof that
Roberts responded to the Commissioner’s motion and maintained that no assessment existed in his case and that this irregularity was sufficient to rebut the presumption that Form 4340 was valid. Rl-14 at 3. Roberts reiterated the claims raised in his petition and motion for summary judgment and argued that he was denied due process. Id. at 1-11. The Commissioner responded to Roberts’s motion and asserted that the relevant issue in the case was whether the appeals officer abused her discretion in denying Roberts’s requested relief. Rl-15 at 1-2. The Commissioner maintained that Form 4340 verified that an assessment existed. Rl-15 at 2-3. The Commissioner filed a memorandum of authorities that summary judgment in its favor was appropriate because no genuine issue of material fact existed. Rl-16.
The Tax Court denied Roberts’s summary judgment motion and granted the Commissioner’s. Rl-19. The Tax Court determined, inter alia, that: (1) use of the computer-generated Revenue Accounting Control System Report 006 (“RACS 006”) in making an assessment, instead of the manually prepared Form 23C, did not constitute an irregularity in the assessment procedure, (2) the Commissioner made a valid assessment, (3) it was not an abuse of discretion for the appeals officer to rely on Form 4340 to verify the assessment, and (4) Roberts’s inability to examine Forms 23C and 4340, and to cross-examine witnesses, did not constitute an abuse of discretion. Id. at 11-13. The Tax Court imposed a penalty of $10,000 on Roberts pursuant to 26 U.S.C. § 6673(a)(1) and found that he had maintained the action primarily for delay because he had raised identical arguments as a representative for taxpayers in two prior petitions. Id. at 14.
II. DISCUSSION
We review
de novo
the Tax Court’s grant of summary judgment and review the facts and apply the same legal standards as the Tax Court.
Baptiste v. C.I.R.,
Section 6321 of Title 26 of the United States Code provides that, “[i]f any person liable to pay any tax neglects or refuses to pay the same after demand, the amount ... shall be a lien in favor of the United States.” Similarly, if a person neglects or refuses to pay such tax within ten days after notice and demand for payment, the Secretary may collect such tax by levy upon property belonging to the taxpayer. 26 U.S.C. § 6331(a). The Commissioner cannot collect taxes by way of a levy on a taxpayer’s property, however, until the taxpayer is given notice of, and an opportunity for, an administrative review of the matter, such as in the form of a CDP hearing, and, if dissatisfied, provided judicial review of the administrative determination. 26 U.S.C. § 6330(a)-(d);
see also Goza v. C.I.R.,
The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment.... If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.
Form 4340 presented by the Commissioner in support of its assessment here meets the requirements of § 6330 and § 301.6203-1. Courts have concluded “that Form 4340 provides at least presumptive evidence that a tax has been validly assessed.”
See Davis v. C.I.R.,
We review the Tax Court’s imposition of sanctions for an abuse of discretion.
Webb v. C.I.R.,
The Tax Court did not abuse its discretion in imposing a $10,000 sanction. The record supports the Tax Court’s conclusion that Roberts had instituted proceedings primarily for delay. First, the law was settled prior to these proceedings that: (1) the appeals officer could properly rely on Form 4340 as evidence of the assessment, and (2) a petitioner does not have a right to examine documents and cross-examine witnesses at a CDP hearing.
Nestor,