Nor are plaintiff's rights to due process under the Fifth Amendment violated by the imposition of this penalty. Section 6702 is not vague or overbroad. Franklet v. U.S., supra at 1557-58 (citing cases); Hummon v. U.S., supra; Scull v. U.S,. supra. Further, where plaintiff's "actions fall squarely within the statute's unambiguous prohibitions" revealed by the statutory language and legislative history, plaintiff has no grounds to complain. Franklet v. U.S., supra at 1558.
Plaintiff's challenges to the fairness of the adjudicative process under §§ 6702 and 6703 must also fail. First, the notice received by plaintiff adequately showed the assessment of the penalty, the taxable year at issue, and the statutory basis for the assessment.
This satisfies the requirements of due process. Franklet v. U.S., supra at 1559 (citing cases); Hummon v. U.S., supra; Vander Lugt v. U.S., supra. Plaintiff does not allege that the IRS failed to follow the statutory procedures under § 6703 which allow plaintiff to pay fifteen percent of the penalty and file a claim for refund and abatement. The general statement of the IRS position affords fair notice, does not shift the burden of proof to plaintiff and has not prevented plaintiff from raising any legal or factual objection to the assessment. Franklet v. U.S., supra at 1559. The person who reviewed plaintiff's claim for a refund was not the person who had initially assessed the penalty. Stipulation of Facts, paras. 13-14.
Plaintiff next objects that he was not given an evidentiary administrative hearing, and that his rights were violated by the requirement of § 6703(c)(1) that he pay fifteen percent of the $500 penalty before challenging it. Plaintiff was afforded full procedural due process on the facts in this case, where his return was clearly covered by § 6702 and where he had an adequate opportunity for judicial review. As Justice Brandeis stated: "Where only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for the ultimate judicial determination of the liability is adequate." Phillips v. Commissioner, 283 U.S. 589, 596-97, 51 S. Ct. 608, 611-12, 75 L. Ed. 1289 (1931); approved in Fuentes v. Shevin, 407 U.S. 67, 92 n. 24, 92 S. Ct. 1983, 2000 n. 24, 32 L. Ed. 2d 556 (1972). These procedures satisfy due process requirements. Franklet v. U.S., supra at 1560; Bearden v. Commissioner, supra at 1461; Scull v. U.S., supra; Rowe v. U.S., 583 F. Supp. 1516 (D.Del.1984); Ueckert v. U.S., 581 F. Supp. 1262 (D.N.Dak.1984); Milazzo v. U.S., 578 F. Supp. 248 (S.D.Cal.1984); Googe v. Secretary of the Treasury, 577 F. Supp. 758 (E.D.Tenn.1983); Simpson v. U.S., supra; Merritt v. Commissioner, 84-1 U.S.T.C. para. 9258 (E.D.Tenn.1984); Stamp v. Commissioner, 579 F. Supp. 168, 171 (N.D.Ill. 1984); Kloes v. U.S., 578 F. Supp. 270 (W.D.Wis.1984); Ferguson v. U.S., supra; Hummon v. U.S., supra; Vander Lugt v. U.S., supra; Karpowycz v. U.S., 586 F. Supp. 48 (N.D.Ill.1984).
The Court also rejects plaintiff's argument that the IRS violated § 6703(c) by continuing to demand payment of the penalty from plaintiff after he had filed his administrative claim for a refund and had designated an attorney as his legal representative. Section 6703(c)(1) provides that upon payment of 15% of the penalty and filing an administrative claim for a refund, "no levy or proceeding in court for the collection of the remainder of such penalty shall be made, begun or prosecuted" until the final resolution of proceedings brought by the claimant in district court under § 6703(c)(2). The record does not reveal any levy or proceeding in court for the collection of the unpaid 85% of the penalty. The stipulated facts do show that the IRS sent three letters and notices requesting payment of the penalty after plaintiff filed his administrative claim, which should not have been done, but which did not violate § 6703. Stipulation of Facts paras. 3-5.
Since the application of the penalty to this case is clear, plaintiff is not adversely affected by any failure of the Commissioner to publish regulations interpreting § 6702. Franklet v. U.S., supra at 1558; Hummon v. U.S., supra; Karpowycz v. U.S., supra; Scull v. U.S., supra. For the same reason, plaintiff's motion to compel discovery of IRS enforcement procedures and tolerances would be pointless. However, there is merit to plaintiff's position that the Commissioner should promptly publish regulations to define the scope of § 6702. Publication of regulations is needed to provide guidance to the public and avoid wasteful litigation.
Section 6702 applies to plaintiff and its penalty was properly assessed. No genuine issue of material fact is presented. Judgment will therefore be entered in favor of defendant and against plaintiff.