This is аn appeal from a summary judgment granted in favor of the United States in an action brought against a “responsible person” for a 100 percent penalty provided under Section 6672 of the Internal Revenue Code. 1
I. STATEMENT OF THE CASE
On August 11, 1980, the Internal Revenue Service undertook to assess John A. Chila, as a responsible person of Professional Concrete Services, Inc., for the total amount of $39,702.76 pursuant to Section 6672 of the IRC for the third and fourth quarters of 1979. On August 6, 1986, the United States brought suit pursuant to Section 7401 of the Internal Revenue Code seeking to reduce the outstanding federal tax liabilities against him to judgment. Following the filing of respective motions for summary judgment by the United States and taxpayer, the parties stipulated as to the undisputed issues. In such stipulation, Chila made the following concession: “John A. Chila was a person required to collect, truthfully account for, and pay over the federal withholding and Sоcial Security taxes of Professional Concrete Services, Inc. for the third and fourth quarters of 1979."
Moreover, Chila did not contest the amount of such taxes. The stipulation identified three documents as having been furnished by the United States to Chila:
(1) Certificate of Assessments and Payments dated October 29, 1987 relating to John A. Chila.
(2) Form 23 C, Assessment Certificate, Summary Record of Assessments dated 8/11/80.
(3) Form TY 53, account card.
The taxpayer contended that Chila’s liability would depend upon a рroper assessment by the IRS and that the alleged assessment was faulty in this ease because of the failure of the IRS to comply with the requirements of Section 6203 and the regulations pursuant thereto. 2
The defendant contends that the government’s assessment of the 100 percent penalty in this case is invalid because the government failed to supply the “pertinent parts of the assessment” as required by this regulation.
Chila also attacked the validity of the lawsuit on the ground that he had not received the “notice and demand” provided for under Section 6303(a) of the Code.
The trial court granted the government’s motion for summary judgment, holding that the assessment was validly made аnd that the Section 6303(a) notice requirement does not apply to a situation in which the United States files a civil action, but applies only where the United States proceeds to make the collection through administrative means.
II. DISCUSSION
1. Validity of Assessment
There can be no question but that the documents presented by the United States in support of its assessment clearly met the requirement of the statute that “the summary record (Form 23 C) through [the] supporting records,” a Certificate of Assessments and Payments and the Account Card, provided all the information called for in the statute,
i.e.,
identification of the taxpayer, the character of the liability assessed, the taxable period, and the date and amount of the assessment. These documents equally satisfied the requirements of the regulation 26 C.F.R. § 301.6203-1, which precisely track the language of the statute as to what is to be provided to the taxpayer by wаy of information. The requirement by the regulation that the government provide “the pertinent parts of the assessment” is satisfied by providing any part of the records of the government that supplies the “pertinent information” thаt both regulation and statute require. This Court has already decided in a ease involving the validity of an assessment that the documents here provided by the government met the requirements of the statute and regulation. In
United States v. Dixon,
Accordingly, this Court accepts the document “Certificate of Assessments and Payments” submitted by the government as presumptive proof of a valid assessment. Given that the defendant has produced no evidence to counter this presumption, the Court is satisfied that the government has established that the claimed tax liability was propеrly assessed against the defendant.
This Court affirmed the judgment in
Dixon
by an unpublished order which stated: “We affirm the summary judgment for the government for the reasons set forth in the district court’s memorandum opinion.
United States v. Dixon,
The appellant concedes in his brief that the district сourt judgment in Dixon “does stand for the proposition that a Certificate of Assessments and Payments is presumptive proof of a valid assessment.” However, appellant suggests that we are not bound by Dixon because it was wrongly decided. As noted above, however, this Court affirmed Dixon expressly “for the reasons set forth in the district court’s memorandum opinion.” We, of course, are bound by this precedent.
2. The Notice and Demand
The appellant also attacked the govеrnment’s position in this action by claiming that he had not received the notice and demand required by Section 6303(a) of the Internal Revenue Code, which provides that: “The secretary or his delegate shall ... within 60 days after the making of an assessment of a tax pursuant to Section 6203, give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof....” In his answer, Chila denied having received such notice. Hе did not deny its having been sent. The trial court, without considering whether the notice had actually been given by the IRS, concluded that it was unnecessary for it to decide because the court concluded that the requirement of notice was for the protection of a taxpayer only in case the IRS used the summary administrative remedies to collect the tax that are available to it. The Court held that such notice is not required as a prerequisite to filing a civil action, because the filing of the action allows sufficient time for the taxpayer to consider and pay any tax that is due before any judgment or lien can be made against his property. Thе Court noted that nothing in the Internal Revenue Code suggests that notice of an assessment and demand for payment is a prerequisite to a collection suit. On the other hand, the provisions of the Code authorizing administrative collections expressly indicate that the giving of notice and demand for payment of an assessment is a prerequisite to such collection methods. For instance, Section 6321 of the Code provides that a lien shаll arise if a “person liable to pay a tax neglects or refuses to pay the same after demand.” (Emphasis supplied.) Also, Section 6331 of the Code authorizes the Internal Revenue Service to collect by levy only where а taxpayer fails to pay a tax “within 10 days after notice and demand.” (Emphasis supplied.)
There is much authority for the position taken by the IRS with respect to this notice and demand.
See Security Indus. Ins. Co. v. United States,
We refer particularly to the language of the court’s opinion in Security Indus. Ins. Co. v. United States, supra:
Thus, absent any legislative history to the contrary, we find that section 6303(a), like its predecessor statute under the 1939 Code, only requires notice to those individuals against whom the government can proceed administratively. As a result, the government’s failure to provide [defendant] Jersey Shore [Bank] with a copy of the notice of assessment and demand for payment sent to Pennmount [the taxpayer] does not bar its suit to collect the bank’s liability under § 3505. [U.S. v] Jersey Shore State Bank, 781 F.2d [974] at 981 [3rd Cir.1986]. (emphasis in originаl).
We conclude that the trial court correctly interpreted the requirements of Section 6303 as applying only in the case of a summary enforcement procedure.
Moreover, the judgment of the trial court is due to be affirmed оn the alternative basis that the proper notice was sent even though such notice may not have been required under Section 6303. The Certificate of Assessment and Payments certified that the first notice and the final notiсe had been sent on August 11, 1980. Appellant did not deny on the record that the notice was sent. He denied only that he had received it. We hold that since the appellant failed to establish affirmatively that the notice wаs not sent, it is clear that the government has shown that it was sent, see Dixon, supra, at 506, whether required by the statute and regulations or not.
The judgment is AFFIRMED.
Notes
. Section 6672 states in pertinent part:
(a) General Rule — Any person required to collect, truthfully account for, and pay over any tax imposed by this Titlе who willfully fails to collect such tax, or truthfully account for and pay over such tax ... shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or nоt collected, or not accounted for and paid over....
. Section 6203 of the Internal Revenue Code, 26 U.S.C. § 6203, states in relevant part that an assessment
shall be made by recording the liability of the taxpayer in the office of the secretary in accordance with the rules or regulations prescribed by the secretary. Upon request of the taxpayer, the secretary shall furnish the taxpayer a copy of the record оf the assessment.
Pursuant to this statute, the Secretary of the Treasury promulgated the following regulation, which is found at 26 C.F.R. § 301.6203-1.
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 assessments.... 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 liability assessed, the taxable period, if applicable, and the amount assessed. (Emphasis added.)