Wayne Frederick v. Commissioner of Inte , 327 F. App'x 332 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-18-2009
Wayne Frederick v. Commissioner of Inte
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1376
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CLD-166 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1376
___________
WAYNE G. FREDERICK,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
____________________________________
On Appeal from the United States Tax Court
(Tax Ct. No. 12437-06L)
Tax Court Judge: Honorable James S. Halpern
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
April 23, 2009
Before: RENDELL, HARDIMAN and ALDISERT, Circuit Judges
(Opinion filed: May 18, 2009)
_________
OPINION
_________
PER CURIAM
Wayne G. Frederick appeals an order of the United States Tax Court sustaining the
decision of the Internal Revenue Service (“IRS”) to proceed with a collection against him
pursuant to the Internal Revenue Code, 26 U.S.C. §§ 6320 and 6330. We will affirm.
Frederick’s 2004 tax return indicated that he had a tax liability of $5,394, but
withholdings of only $3,414.1 He did not pay the tax owed. The IRS assessed
Frederick’s tax liability and the appropriate additions to tax for failure to timely pay,
failure to pay estimated tax, and interest. See 26 U.S.C. §§ 6651(a)(2); 6654; and 6601.
On September 17, 2005, the IRS issued a Final Notice of Intent to Levy. In response,
Frederick filed a timely request for a Collection Due Process Hearing, asserting that his
“[e]mployer is not withholding the proper amount,” and that he was not liable for any
resulting tax underpayment. Following a telephone conference with an IRS Appeals
Officer, the Appeals Office rejected Frederick’s contention and issued a final Notice of
Determination, concluding that the Notice of Intent to Levy was appropriate.
On June 28, 2006, Frederick filed a petition in Tax Court, challenging the Notice
of Determination. He maintained that he was not responsible for any tax liability beyond
the amount that had already been withheld from his wages. The parties filed a
“Stipulation of Facts,” which set forth the procedural history of the case and included a
number of exhibits. The Tax Court sustained the Appeals Office’s determination, noting
that a taxpayer is required to report and pay tax on his income, even where his employer
failed to withhold the correct amount of tax.
Frederick filed a timely notice of appeal. On appeal, he submitted a “Motion for
1
The latter amount consisted of $2,631 withheld by Frederick’s employer from his
earned wages, and $783 withheld by the Defense Finance and Accounting Service from a
retirement distribution.
2
Reconsideration,” which we construe as a motion for summary reversal of the Tax
Court’s decision. The Commissioner opposes this motion and seeks summary affirmance.
We have jurisdiction pursuant to 26 U.S.C. § 7482(a). We exercise plenary review
over the Tax Court’s conclusions of law, and review any factual findings for clear error.
See PNC Bancorp, Inc. v. Comm’r of Internal Revenue, 212 F.3d 822, 827 (3d Cir.
2000). We will affirm for substantially the same reasons set forth in the Tax Court’s
opinion.
Frederick claims that the full amount of the assessed liability is “beyond his
responsibility” because his employer “miscalculat[ed]” his withholdings. Importantly,
however, Frederick’s underlying tax obligation is not determined by the amount of tax
withheld by his employer. See Church v. Comm’r of Internal Revenue, 810 F.2d 19, 20
(2d Cir. 1987) (“It is clear that the failure of an employer to meet its obligation to
withhold income tax does not in any way lessen the obligation of an employee to pay
income tax.”). In addition, Frederick’s assertion that “his withholdings are in accordance
with Publication 15, Circular E, Employer’s Tax Guide” is of no consequence. See CWT
Farms, Inc. v. Comm’r of Internal Revenue, 755 F.2d 790, 803 (11th Cir. 1985) (“It is
settled law that Treasury publications . . . which purport to provide a general explanation
of the revenue laws . . . are simply guidelines for taxpayers and do not bind the
Commissioner in subsequent litigation.”). Finally, Frederick complains that he did not
have an opportunity to review and respond to the “Stipulation of Facts” because it was
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not filed until the day of the Tax Court hearing. But Frederick specifically agreed at that
hearing to have the Tax Court receive the Stipulation into evidence. Consequently, we
will not consider his present challenge. See Visco v. Comm’r of Internal Revenue, 281
F.3d 101, 104 (3d Cir. 2002).
For the foregoing reasons, we grant the Commissioner’s motion for summary
affirmance and will affirm the decision of the United States Tax Court.2
2
Frederick’s “Motion for Reconsideration,” which we construe as a motion for
summary reversal of the Tax Court decision is denied.
4