the plaintiff since she did receive adequate notice before seizure and had ample time to prepare an appeal.
The fact that the amount due on the notice was different than the actual assessment does not invalidate the assessment. Notices containing technical defects are invalid only if the taxpayer has been prejudiced or misled by the error. Planned Invest., Inc. v. United States, 881 F.2d 340, 344 (6th Cir. 1989); Sanderling, Inc. v. Commissioner, 571 F.2d 174, 176 (3rd Cir. 1978). To the extent that any discrepancy in the amount owed is misleading, the plaintiff has failed to show that she suffered any prejudice because of this discrepancy.
As to the time periods being assessed, there is no statutory requirement for the listing of tax periods in the notice sent to the taxpayer. Such a statutory requirement applies, if at all, only to the Form 23-C. However, it is unclear, as previously stated, that this requirement even applies to the Form 23-C statement.
Even if due process required such a listing, the IRS's failure to delineate the periods on the April 14, 1986 notice was subsequently cured by the second notice sent to plaintiff dated May 5, 1986. Therefore, Mrs. Curley was aware of the tax periods for which she was being assessed prior to her appeal.
In sum, the technical defects in the notice of assessment, if any, were inconsequential. Thus they did not rise to the level of a due process violation, and as a result they fail to invalidate the assessment.
D. INADEQUACY OF THE APPEAL PROCESS
The plaintiff was not accorded an administrative appeal prior to the seizure. Plaintiff alleges that under the IRM, a pre-seizure appeal is required. Although the IRS placed a lien on her property before the 30 day appeal period had run, the IRS did not proceed with a sale before Mrs. Curley's appeal was heard. It appears that the IRM guidelines were not followed. However, as previously stated, the provisions of the IRM are not law and do not create any substantive rights in plaintiff.
The plaintiff argues that the procedural irregularities in this assessment amount to a denial of her due process rights. However, a post-deprivation hearing satisfies due process when revenue collection is at issue; hence, there is no right to a hearing prior to collection efforts. Phillips v. Commissioner, 283 U.S. 589, 75 L. Ed. 1289, 51 S. Ct. 608 (1931); Todd v. United States, 849 F.2d 365 (9th Cir. 1988). Plaintiff has failed to show how she was prejudiced by a post-deprivation appeal.
E. PRESUMPTION OF CORRECTNESS
Plaintiff requests that if the assessment is not dismissed as invalid per se, the government should bear the burden of proof on its claim at trial. In § 6672 penalty tax cases, the party against whom the penalty is assessed has the burden of proving that he is not a responsible officer or that he did not willfully fail to pay. Schwinger v. United States, 652 F. Supp. 464 (E.D.N.Y. 1987).
As previously stated, the presumption of correctness can be overcome by destroying the foundation of the assessment only in rare cases where it is shown to be without rational foundation or arbitrary and erroneous. United States v. Janis, 428 U.S. 433, 441, 49 L. Ed. 2d 1046, 96 S. Ct. 3021 (1976), reh. den., 429 U.S. 874, 97 S. Ct. 196, 50 L. Ed. 2d 158 (1976). For the reasons set forth in this opinion, plaintiff has not proven that this is one of those rare cases. As such, the burden at trial will remain fixed on the plaintiff to prove she was not a responsible officer of ARCO or did not willfully fail to pay the taxes in issue.
For the foregoing reasons, the Internal Revenue Service's assessment is hereby presumed to be valid. The burden of proof at trial will remain with the plaintiff.
Dated: Brooklyn, New York
March 25, 1992
A. SIMON CHREIN
United States Magistrate Judge