Selgas v. CIR

United States Court of Appeals
Fifth Circuit
F I L E D
January 16, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 06-60311
Summary Calendar
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THOMAS DRENNAN SELGAS,
Petitioner-Appellant,
VERSUS
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
_________________________
Appeal from a Decision of the United States Tax Court
m 23425-04
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Thomas Selgas received a notice of defi-
ciency from the Internal Revenue Service
(“IRS”) and petitioned for redetermination of
his tax liability. The United States Tax Court
entered judgment against Selgas, and he ap-
peals. We affirm.
I.
On July 19, 2004, the Commissioner of In-
ternal Revenue (“the Commissioner”) sent
Selgas a letter stating that the IRS had not
received a tax return from him for 2002. The
Commissioner attached a form providing a
proposed computation of Selgas’s liability
based on third-party payer information reflect-
ing wages of $104,278, interest income of
$50, and dividend income of $11. The form
stated that Selgas was entitled to a standard
deduction of $4,700 and a personal exemption

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of $3,000. The form included a computation
showing that Selgas’s tax deficiency was
$23,303, against which he was entitled to pre-
payment withholding credits of $21,329, leav-
ing a net tax liability of $1,974. The form not-
ed that in addition, Selgas owed $592.20 pur-
suant to 26 U.S.C. § 6651(a)(1) and (2) be-
cause he was late in filing his return and in
paying the full amount due.
The Commissioner’s letter informed Selgas
that he could agree to the IRS’s proposed ex-
amination changes and pay the amount due, re-
spond within thirty days by filing a return, or
explain why he had not filed a return and
would like the IRS to reconsider. Attached to
the letter was yet another form, which
informed Selgas, “Your best course of action
is to file your own tax return now to claim
your credits and deductions as allowed by
law.”
Selgas made no response.1 On September
14, 2004, the Commissioner sent him a “No-
tice of Deficiency” pursuant to 26 U.S.C.
§ 6212 reflecting a 2002 federal income tax
deficiency of $23,303 and a delinquency pen-
alty of $592.20. Attached to the notice were
several forms reflecting the same computation
and explanation as had appeared in the Com-
missioner’s initial letter as well as a certifica-
tion by an IRS Operations Manager that the
documents attached to the notice of deficiency
constituted the return prepared for Selgas by
the Commissioner pursuant to 26 U.S.C.
§ 6020(b). The certification further stated that
the return was to be treated as filed by the
taxpayer for the purpose of determining the
amount of the delinquency penalty. See 26
U.S.C. § 6651(a)(2)-(3), (g)(2).
Selgas timely filed a petition in the Tax
Court attacking the Commissioner’s calcula-
tions of the existence and amount of his defi-
ciency on numerous grounds, all of which
were rejected by the Tax Court. He timely
filed a motion to vacate the judgment, which
the Tax Court likewise rejected. Selgas as-
serts three arguments on appeal: (1) that the
Tax Court lacked jurisdiction because the no-
tice of deficiency was not promulgated pursu-
ant to a valid delegation of authority; (2) that
the decision should be vacated because Selgas
was prejudiced by the clerk’s failure to tran-
scribe certain routine scheduling conferences
involving the parties and the court; and
(3) that the Commissioner’s calculation was
incorrect because Selgas filed documents illus-
trating that he was entitled to a refund.
II.
Whether the Tax Court had jurisdiction
pursuant to a validly issued notice of defi-
ciency is a matter of law that we review de
novo. See Portillo v. Comm’r, 932 F.2d 1128,
1131-32 (5th Cir. 1991). The notice of defi-
ciency sent to Selgas was valid, and the Tax
Court appropriately exercised jurisdiction.
The Tax Court acquires jurisdiction when a
taxpayer files a timely petition contesting a
notice of deficiency issued by the Commis-
sioner. See 26 U.S.C. § 6213; Portillo, 932
F.2d at 1132.
Selgas claims that the court lacked jurisdic-
tion because the notice sent to him was invalid
for two reasons: (1) The employee who
signed the deficiencynotice lacked authorityto
do so; and (2) the IRS improperly failed to
prepare a substitute tax return for Selgas be-
1 Selgas later claimed that he had filed two un-
signed tax returns during this period. The IRS did
not receive them, and the Tax Court did not find
Selgas’s testimony on this matter credible. For
reasons explained below, even if these returns were
filed, they were invalid because they lacked the
taxpayer’s signature.

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fore issuing the notice of deficiency. Selgas’s
arguments in this vein are irrelevant to the out-
come. Citing a delegation order issued as part
of the IRS’s internal operating procedures,
Selgas contends that the Supervisory Program
Analyst who signed his deficiency notice
lacked authority to act on behalf of the Secre-
tary of the Treasury by issuing the deficiency.
The Commissioner states that “Supervisory
Program Analyst” is equivalent to Campus De-
partment Manager, an official who plainly en-
joys delegated authority to issue deficiency
notices.
As a general matter, IRS internal operating
procedures confer no rights on individual tax-
payers,2 but we need not consider this dispute
at great length because, in any event, no signa-
ture is required to render a deficiency notice
valid.3 A taxpayer is entitled to notice of a de-
ficiency, but the relevant statute does not man-
date any particular form of notice or specify
any content it must include. See 26 U.S.C.
§ 6212. Like our sister circuits, we conclude
that a notice of deficiency is valid as long as it
informs a taxpayer that the IRS has determined
that a deficiency exists and specifies the
amount of the deficiency.4 The existence of a
signature or the identity of any IRS official
who provides one, is superfluous.
Likewise, Selgas’s argument that the notice
of deficiency was invalid because the IRS
failed to prepare a proper substitute tax return
is meritless. We need not consider whether
the substitute return was properly calculated
and presented on the appropriate forms be-
cause, for the purpose of determining a defi-
ciency, there is no need for the Commissioner
to prepare a substitute tax return.5 “Where
there has been no tax return filed the deficien-
cy is the amount of tax due.”6 Nothing about
the notice of deficiency sent to Selgas operat-
ed to defeat the Tax Court’s jurisdiction.
III.
Selgas was not prejudiced by the clerk’s
failure to record two off-the-record status con-
ferences. Selgas was afforded a fair trial on
the merits of the issues he claims were dis-
cussed at the status conferences. He was not
prejudiced by the clerk’s failure to record the
Tax Court’s “admission,” during a status con-
ference, that the IRS possessed two unsigned
tax returns entitling Selgas to relief, even as-
suming that the Tax Court ever made such a
statement. In any event, for reasons explained
below, the fact that the tax returns were un-
signed strips them of any legal effect and ren-
ders irrelevant the question whether the IRS
ever had them.
IV.
Selgas’s claim that the notice of deficiency
is inaccurate because he filed two unsigned tax
returns illustrating that he was entitled to a re-
2 See Smith v. United States, 478 F.2d 398, 400
(5th Cir. 1973); see also Tavano v. Comm’r, 986
F.2d 1389, 1390 (11th Cir. 1993).
3 See Brafman v. United States, 384 F.2d 863,
865 n.4 (5th Cir. 1967). See also Tavano, 986
F.2d at 1390; Urban v. Comm’r, 964 F.2d 888,
889 (1992).
4 See Bokum v. Comm’r, 992 F.2d 1136, 1139
(11th Cir. 1993); Estate of Yaeger v. Comm’r, 889
F.2d 29, 35 (2d Cir. 1990).
5 See 26 U.S.C. §§ 6020(b), 6211(a); United
States v. Stafford, 983 F.2d 25, 27 (5th Cir. 1993)
(“[A]lthough [§ 6020(b)] authorizes the Secretary
to file for a taxpayer, the statute does not require
such a filing.”).
6 Laing v. United States, 423 U.S. 161, 174
(1976). See also 26 C.F.R. § 301.6211-1(a).

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fund in 2002 is neither credible nor relevant.
Selgas first produced these returns at the cal-
endar call for trial of his case in the Tax Court,
claiming that he had filed them before the IRS
sent him the deficiency notice. The IRS had
no record of ever receiving these returns. The
trial judge specifically found Selgas’s testi-
mony to be incredible on this point and deter-
mined that the returns had never been filed.
Selgas provides no reason for us to upset that
plausible factual determination. Likewise, the
Tax Court properly ignored the “corrected
amended” return that Selgas filed just before
trial, because he supplied no evidence substan-
tiating the deductions and other items on the
return that purported to show that he was en-
titled to a substantial refund.
Even if the returns were filed, the fact that
they were unsigned deprives them of legal ef-
fect.7 Selgas claims that he provided power of
attorney to the IRS employee who received
the return, but, again assuming that this is true,
there is no reason to believe that the employee
was required to, or even should have, exer-
cised such power and signed the return. That
duty lay upon Selgas and, at best, he failed to
fulfill it.
V.
Selgas’s arguments are utterly lacking in
merit and, as an aside, his conduct in this liti-
gation appears to have been inconsistent with
that of a litigant endeavoring to aid in the
truthful and efficient resolution of contested
issues of fact and law. We have no sympathy
for Selgas’s behavior or his arguments in de-
fense of what appears to have been a brazen
attempt to avoid a few thousand dollars in
legitimate tax liability. The judgment of the
Tax Court is AFFIRMED.
7 See 26 U.S.C. §§ 6012, 6061(a), 6065; 26
C.F.R. § 1.6061-1(a); Brafman, 384 F.2d at 868;
Reaves v. Comm’r, 295 F.2d 336, 338 (5th Cir.
1961).

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