I need a real theater buff to correct me if I’m wrong, but my title for this blogpost comes from George Kelly’s 1924 play The Show-Off, which I remember vaguely from a Roundabout Theatre Company production many years ago. The lead character keeps using the phrase “sign on the dotted line,” with a rhetorical flourish of voice and a wave of a walking-stick.

Well, Daniel Lee Berglund wanted IRS to produce a signed Form 23C, Summary of Assessment. But in his FOIA request he asked for “…’Form 23C, if it has been entered into the IRS record keeping system as a Substitute for Return’. Berglund did not specifically ask for a signed copy of the Form 23C.” That’s Judge Morrison speaking, in Daniel Lee Berglund, 2015 T. C. Memo. 239, filed 12/14/15 at p. 3.

And thereby hangs the tale.

IRS responded to Dan’l Lee’s FOIA with 29 pages and a cover letter. “The letter stated that the IRS had found 29 pages of documents that were responsive to the request and that all 29 pages were enclosed with the letter. It further stated that both Form 23C and RACS 006 are valid summary records of assessment but that the RACS 006 is the computer-generated replacement for the Form 23C.” 2015 T. C. Memo. 239, at p. 5.

If you’re unfamiliar with RACS, with or without its James-Bond-like numerals, Judge Morrison explains: “The full name of RACS 006 appears to be Revenue Accounting Control System (RACS) Report 006”. Rev. Rul. 2007-21, 2007-1 C.B. 865.” 2015 T. C. 239, at p. 5, footnote 2.

Dan’l Lee claims if no signed summary record of assessment, then no assessment, no liability for tax, and no lien or levy, all of which he’s fighting.

Well, Dan’l Lee may have a point. “Section 301.6203-1, Proced. & Admin. Regs., specifies that an assessment is made ‘by an assessment officer signing the summary record of assessment’, which, ‘through supporting records’, must include the ‘identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment.’ The date of the assessment is the date the summary record of assessment is signed. Id. Without a signed summary record of assessment, there is no valid assessment. See Brafman v. United States, 384 F.2d 863, 866-867 (5th Cir. 1967).” 2015 T. C. Memo. 239, at pp. 9-10.

Of course, in the CDP the AO used the Form 4340 computer printout, which is OK if the petitioner doesn’t raise irregularity. But Dan’l Lee claims he did, because the Form 23C wasn’t signed.

But Dan’l Lee didn’t ask for the signed Form 23C.

“We disagree that Berglund demonstrated an irregularity in the assessment process. In his FOIA request, Berglund had requested a Form 23C, which is a type of summary record of assessment. But he did not specify that he wanted the signed version of the Form 23C. Furthermore, section 6203, which governs the IRS’s responses to taxpayer requests for copies of records of assessments, did not require the IRS to provide a signed copy of a document in response to Berglund’s request. That he received an unsigned summary record of assessment does not mean that no signed summary record of assessment exists.” 2015 T. C. 239, at pp. 17-18. (Citations and footnotes omitted, but read them).

Maybe Section 6203 doesn’t require IRS to provide a copy of the signed Form 23C, even if Dan’l Lee had asked for it specifically; but if Dan’l Lee had specified the signed Form 23C, and IRS interposed that it wasn’t necessary to produce same, what is the significance of requiring the assessment officer to “sign on the dotted line,” if IRS is not required to produce the document? And was Fifth Circuit wrong in Brafman, supra?