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Click here for the full text of this decision FACTS:Taxpayers challenge the Tax Court’s order granting summary judgment to the Commissioner of Internal Revenue and allowing collection activity to proceed. HOLDINGAffirmed. Income tax laws apply to income earned by individuals. United States v. Burton, 737 F.2d 439 (5th Cir. 1984). The IRS has discretion to accept or reject an amended return. Evans Cooperage Co. v. United States, 712 F.2d 199 (5th Cir. 1983). A “notice of deficiency” is only required in situations where there is a deficiency (e.g. the amount of tax imposed by the IRS exceeds the amount of tax shown by the taxpayer on his return) and not in situations where, as here, a taxpayer fails to pay the amount of tax shown on the returns. Perez v. United States, 312 F.3d 191 (5th Cir. 2002). Nothing in the transcript or record indicates the Tax Court judge’s behavior was egregious. The court holds that the notice and demand required under 26 U.S.C. �6331(a)(1) can be given by forms other than Form 17, such as a notice of balance due. Taxpayers assert the collection due process hearing they received was defective. Section 6330(c)(1), governing CDP hearings, requires that “[t]he appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met.” Taxpayers argue the appeals officer was required to obtain 1. verification from the 2. Secretary of the Treasury 3. during the hearing. In this case, the appeals officer inspected a Form 4340 and determined the IRS had followed legal and administrative procedures. The Commissioner, pointing to Tax Court decisions, maintains these procedures satisfy the statute. The court agrees. The appeals officer referred to the Form 4340 “at the hearing” and “verified” whether legal and administrative procedures had been followed. The appeals officer acted as a delegate of the Secretary. 26 U.S.C. �7701 (11)-(12). At the summary judgment hearing, the tax judge made numerous statements evaluating the credibility of Taxpayers’ representation that they had not received notices of balance due. When issues that require the weighing of credibility are material, summary judgment is not appropriate. The Commissioner argues that whether Taxpayers received balance-due notices is not material to whether the IRS sent the notices. Hansen v. United States, 7 F.3d 137 (9th Cir. 1993). The court agrees, given the facts of this case. Taxpayers have consistently maintained that Form 17 is the only form by which the IRS can fulfill its requirement to give notice and demand under �6331(a). Taxpayers’ core argument is that they never received notice from the IRS because they never received a Form 17. This contention is not material to whether the IRS sent a notice other than Form 17. Thus, taxpayers fail to come forward with specific facts to counter the motion for summary judgment. OPINION:Per curiam; Higginbotham, Smith and Clement, JJ.

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