JAMES F. BORER, PETITIONER V. UNITED STATES OF AMERICA No. 90-7293 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 2a) is unreported. The opinion of the district court (Pet. App. 4a) is also unreported. JURISDICTION The judgment of the court of appeals was entered on December 11, 1990. A petition for rehearing was denied on January 9, 1991. (Pet. App. 3a.) The petition for a writ of certiorari was filed on February 21, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the United States duly notified petitioner of the income tax assessment against him, and made demand for payment of the same, before levying on his wages. STATEMENT Petitioner did not file a federal income tax return for the 1985 taxable year. The Commissioner of Internal Revenue issued a notice of deficiency to petitioner, determining a deficiency in his federal income tax in the amount of $1,149, plus statutory interest and penalties. (R. 21, Ex. A.) /1/ On December 19, 1988, the Commissioner made an assessment of that deficiency. (Id., Ex. B.) On that same date, the Commissioner issued a first notice of assessment to petitioner indicating the amount of tax liability and directing petitioner to remit payment by December 29, 1988. (Id., Ex. C.) On January 9, 1989, the Commissioner issued a further written notice, entitled "Final Notice (Notice of Intention to Levy)," which stated that, if full payment was not received within ten days, "we will begin enforcement proceedings." (Id., Ex. D) The final notice specifically admonished petitioner that, "(as) provided by Section 6331 of the Internal Revenue Code, your property or rights to property may be seized," including "salary or wages, bank accounts, commissions, or other income." (Ibid.) On February 7, 1989, the Commissioner placed a levy on petitioner's wages by serving a notice of levy on his employer. (R. 15.) The Commissioner received $1,353.10 from petitioner's employer pursuant to the levy, reducing petitioner's liability for unpaid income tax and penalties to $803.58. (R. 21, Ex. B.) Petitioner initiated this action seeking to enjoin further collection of his taxes on the ground that the IRS had failed to follow the proper statutory procedures for assessing his tax liability and providing him notice of that assessment. The United States filed a motion to dismiss, or in the alternative, for summary judgment. The United States attached copies of the deficiency notice, certificate of assessments and payments, first notice of assessment, and "Final Notice (Notice of Intention to Levy)" to its reply memorandum in support of its motion. (R. 21, Exs. A, B, C, & D.) Also attached to the reply memorandum was the affidavit of an IRS revenue officer, who declared that, as indicated by the documents described above, the deficiency in petitioner's 1985 tax was duly assessed, that notice of the assessment and demand for payment of the same was duly made on petitioner, and that despite such notice and demand, petitioner had failed to pay the tax and penalties assessed against him. (R. 21, attachment.) Petitioner offered no evidence in his response to the government's submissions. The district court granted the motion for summary judgment. The court of appeals affirmed without an opinion. ARGUMENT The decision of the court of appeals is correct and is not in conflict with any decision of any other court of appeals. Further review by this Court is therefore not warranted. 1. The IRS properly levied on taxpayer's wages in an effort to collect his unpaid tax liability for 1985. Contrary to the unsupported allegations in petitioner's amended complaint (R. 11), the IRS duly assessed the deficiency in petitioner's tax, notified him of the assessment, and made demand for payment. When petitioner failed to make payment, the IRS sent petitioner a final notice, specifically advising him that, if payment were not received within 10 days, his property, including his wages, would be subject to seizure pursuant to Section 6331 of the Internal Revenue Code. Petitioner again refused to make payment and only then did the IRS levy on his wages as authorized by Section 6331. The Certificate of Assessments and Payments submitted by the government in support of its motion for summary judgment established that an assessment had been duly made. See United States v. Chila, 871 F.2d 1015, 1017-1018 (11th Cir.). cert. denied, 110 S.Ct. 498 (1989); United States v. Dixon, 672 F. Supp. 563, 505-506 (M.D. Ala. 1987), aff'd per curiam 849 F. 2d 1478 (11th Cir. 1978). The government also submitted copies of the original notice of the assessment and of the final notice before seizure that had been sent to petitioner. (R. 1, Exs. C & D.) Petitioner admitted that he had received the final notice. (R. 15.) In light of these documents and of petitioner's admission, petitioner's unsupported allegation that the IRS failed to make an assessment and failed to give him notice and demand before levying on his wages (R. 11) created no genuin issue of material fact regarding the validity of the levy. The district court thus correctly granted the government's motion for summary judgment. See Ginsberg v. United States, 408 F. 2d 1016, 1017 (9th Cir. 1969) (per curiam). 2. Petitioner errs in asserting (Pet. 4) that the notices of assessment that he received are insufficient under Section 6303(a) of the Internal Revenue Code. Section 6303(a) provides that the Secretary shall "give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof." Contrary to petitioner's assertion (Pet. 4), the Third Circuit's decision in United States v. Jersey Shore State Bank, 781 F. 2d 974 (3rd Cir. 1986), aff'd, 479 U.S. 442 (1987), does not hold that a Section 6303(a) notice must specifically contain the word "demand." Rather, the Third Circuit held only that the notice is to consist of two elements: (i) notice of the amount that has been assessed and (ii) a demand that the individual receiving the notice presently satisfy that assessment. 781 F. 2d at 978. The first notice sent by the government in this case apprised the petitioner of the amount owed and instructed him to "pay the amount you owe by December 29, 1988" to avoid additional interest and penalties. (R. 21, Ex. C.) The final notice (which also included the notice of intention to levy) stated that enforcement proceedings would be instituted "if full payment is not received within ten days from the date of this notice." (R. 21, Ex. D). These notices clearly provided petitioner with a demand for payment, which afforded him "one last opportunity to pay the taxes before the government invoke(d) the full panoply of its administrative collection powers." United States v. Jersey Shore State Bank, 781 F. 2d at 978. 3. Petitioner also errs in asserting (Pet. 3-4) that the Sixth Citcuit's decision in United States v. Berman, 825 F. 2d 1053 (1987), and the Fifth Circuit's decision in Macatee v. United States, 214 F. 2d 717 (1954), require the Secretary to prepare and execute a return for a taxpayer who has failed to file his own return before the Secretary may determine and assess a tax deficiency. /2/ The decisions cited by petitioner do not even remotely support that proposition. Berman holds that notice of assessment is required only if the government seeks to employ its administrative enforcement powers and is not required as a precondition to a judicial collection action. 825 F.2d at 1060. Macatee addressed the wholly unrelated question of whether demand must follow, or may precede, assessment. 214 F.2d at 719. It is, however, well established that the creation of a return by the Secretary is not a precondition to the assessment of a deficiency. See Roat v. Commissioner, 847 F.2d 1379, 1381 (9th Cir. 1988): Deficiency procedures set out in the Internal Revenue Code * * * do not require the Commissioner to prepare a return on the taxpayer's behalf before determining and issuing a notice of deficiency. When the taxpayer has failed to make a return, "the Commissioner simply proceeds with his independent calculation." Ibid. The deficiency thus computed is then "'the amount of tax due.'" Ibid. (quoting Laing v. United States, 423 U.S. 161, 174 (1976)). AS the court of appeals concluded in Roat v. Commissioner, 847 F.2d at 1382: A rule requiring the Commissioner to prepare a return first would create an administrative burden for no good reason. The deficiency letter itself gives the taxpayer fair notice of his status, including amounts owed. The Secretary is thus not required to prepare a return for the delinquent taxpayer before computing and assessing the taxes owed. Id. at 1381; see also Tr. Reg. Section 301.6211-1(a). For this reason, petitioner's further claim (Pet. 3) -- that the Secretary improperly omitted to sign the return that was prepared for petitioner in the exercise of the Secretary's authority under Section 6020(b)(1) (see note 2, supra) -- has no relevance to the validity of the assessment and levy that were issued in this case. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General SHIRLEY D. PETERSON Assistant Attorney General RICHARD FARBER ELIZABETH K. WICKSTROM Attorneys MAY 1991 /1/ "R" references are to the docket control numbers assigned to the documents in the original record by the Clerk of the district court. /2/ Section 6020(b)(1) of the Internal Revenue Code provides that "(i)f any person fails to make any return required by an internal revenue law * * * the Secretary shall make such return." Courts have repeatedly held that the "language (of Section 6020(b)(1)) is permissive, not mandatory." Moore v. Commissioner, 722 F. 2d 193, 196 (5th Cir. 1984); United States v. Verkuilen, 690 F. 2d 648, 657 (7th Cir. 1982). A rule requiring the Commissioner to prepare a return on a taxpayer's behalf before determining and assessing a deficiency "is not with the spirit of our self-assessment system of taxes." Roat v. Commissioner, 847 F.2d at 1382.