DECISION AND ORDERS RE CROSS MOTIONS FOR SUMMARY JUDGMENT

On April 8, 1991 the court heard the parties’ respective Motions for Summary Judgment. Upon due consideration of the written and oral arguments of the parties and the record herein, the court grants summary judgment for the United States and denies summary judgment for Toyota of Visalia, Inc. (hereinafter referred to as Toyota) for the reasons set forth herein.

On March 23, 1990, the United States filed a Complaint to Reduce Assessment to Judgment wherein the United States seeks to reduce to judgment an assessment of $96,084.02 as accrued interest. Toyota filed an answer and counterclaim setting up a number of affirmative defenses, including the bar of the statute of limitations on the ground that the two Form 900 Tax Collection Waivers were executed under duress and therefore void.

Both parties have moved for summary judgment in their favor with respect to a number of issues.

A. Background.

Following an audit of Toyota’s income tax liabilities for the tax years ending June 30, 1979 and December 31, 1979, the IRS and Toyota entered into a Closing Agreement, which agreement provided that Toyota owed additional tax for both tax years. On March 5, 1984, pursuant to the Closing Agreement, the IRS assessed Toyota for its corporate tax liability for the tax year ending 6/30/79 in the amount of $240,-144.00. The Certificate of Assessments and Payments also shows that on March 5, 1984, the IRS made a “restricted interest assessment” of $150,754.28 and assessed a negligence penalty of $15,212.00. Toyota could not immediately pay the 6/30/79 assessment. Toyota and the IRS entered into an installment agreement providing for periodic payments. As of July, 1987, Toyota’s account reflected an outstanding balance of $53,950.25.

On July 27, 1987, the IRS delivered to Toyota a Final Notice and Demand in the amount of $54,230.30 for its 6/30/79 tax liability. This amount breaks down as $53,-950.25 as the balance of prior assessments and $280.05 in interest. The Final Demand and Notice provides in pertinent part: “We have calculated penalty and interest amounts to ten days from the date of this notice. If payment is not received by then, additional interest and penalties will be charged.” On July 19, 1988, the IRS released the tax lien and notified Toyota by letter dated August 18, 1988 that its income tax liability for the year 1979 had been fully satisfied. However, according to a manual review audit, it was discovered that no statutory interest had been posted to Toyota’s 6/30/79 account since the initial assessments were made on March 5, 1984. Therefore, on December 11, 1989, a “restricted interest assessment” in the amount of $94,062.13 was posted to Toyota’s Certificate of Assessments and Payments for the tax year ending 6/30/79.

According to the Declaration of Kevin M. Green, C.P.A., a certified public accountant who represents Toyota, on February 14, 1990, Revenue Officer Dennis Stiffler telephoned Green and informed him that Stiffler had just received an assessment for Toyota for the tax year ending 6/30/79 for approximately $96,000.00 in interest. Green further avers in pertinent part:

On February 23, 1990, the IRS issued a Final Notice (Notice of Intention to Levy) seeking payment of accumulated interest and penalty in the amount of $93,391.25. The Final Notice states in pertinent part:

On February 23, 1990, Mr. Stiffler sent to Toyota a Tax Collection Waiver and a letter. By letter dated February 26, 1990, Michael R. Pinatelli, Jr., counsel for Toyota, responded to Mr. Stiffler’s letter by stating that he had advised his client not to execute the Tax Collection Waiver unless it is served with a Notice of Jeopardy Levy and demand for immediate payment pursuant to 26 U.S.C. § 6331 (a). However, Mr. Pinatelli then opines that it would be unlawful for the I.R.S. to issue such a Jeopardy Levy. Pinatelli concludes:

On February 28, 1990, Stiffler sent a letter to Toyota stating in pertinent part as follows:

By letter dated February 28, 1990, Pinatelli wrote to Stiffler responding that “[i]t is inconceivable that the Final Demand would remain in effect after the amount demanded has been paid.” On March 1, 1990, Pinatelli further responded to Stiffler’s letter to Toyota dated February 28, 1990:

On March 2, 1990, the IRS served a Notice of Levy on Toyota’s business bank account at the Bank of America and on Toyota Motor Credit. It also filed a Notice of Federal Tax Lien with the California Secretary of State and a Revocation of Certificate of Release of Federal Tax Lien with the County Recorder of Tulare County. Also on March 2, 1990, the IRS informed Toyota that it would begin further enforced collection action prior to the expiration of the statute of limitations unless Toyota executed a Tax Collection Waiver. Toyota executed a Tax Collection Waiver extending the statute of limitations from March 4, 1990 to March 16, 1990. Accompanying this Tax Collection Waiver was a letter from Pinatelli to Stiffler stating as follows:

The levies that had been placed upon Toyota’s business bank account at the Bank of America and at Toyota Motor Credit were released on March 2, 1990. On March 13, 1990, the IRS informed Toyota that unless Toyota executed a second Tax Collection Waiver, the IRS would again take enforced collection action. Toyota executed the second Tax Collection Waiver extending the Statute of Limitations to March 23, 1990. According to Pinatelli’s declaration:

Mr. Thomas, who is an experienced businessman accustomed to signing legal documents, consulted with Pinatelli concerning the nature of the Tax Collection Waivers and understands that, if the Tax Collection Waivers are valid, they extend the time period during which the IRS can collect the assessment. Toyota’s contention that the Tax Collection Waivers are invalid by reason of duress is based entirely on its claim that the Commissioner unlawfully levied upon Toyota’s bank accounts and its account with Toyota Motor Credit, unlawfully filed Notices of Tax Liens, and asserted that further enforced collection action would take place prior to the running of the statute of limitations if the waivers were not executed.

B. Outstanding Liability.

The United States submits a Certificate of Assessments and Payments (Form 4340). This Certificate states that a “Restricted interest assessment” in the amount of $94,062.33 was made on December 11, 1989. The Certificate shows an outstanding balance of $87,600.09 plus additional interest from December 11, 1989.

Citing Revenue Procedure 84-58, 1984 CB 501, Toyota argues that it owes no such amount. In so contending, Toyota refers to the fact that on July 27, 1987, the I.R.S. issued to Toyota a Final Notice and Demand in the amount of $54,230.00 for Toyota’s 6/30/79 tax liability. Subsequently, Toyota made payments to the I.R.S. totaling $507,349.65. These payments were credited by the I.R.S. to Toyota’s 12/31/79 tax liability. Rev.Proc. 84-58 provides in pertinent part:

Toyota contends that if the I.R.S. had implemented this Revenue Procedure with respect to payments made after the July 27, 1987 Final Notice and Demand for Toyota’s 6/30/79 tax liability, Toyota would not have any remaining liability for the tax year 6/30/79.

However, as the United States points out, Rev.Proc. 84-58 has nothing to do with the application of payments following assessment. Section 1 of Rev.Proc. 84-58 states:

Moreover, the court disregards Toyota’s contention because Rev.Proc. 84-58 does not have the force and effect of law and thus is not binding on the I.R.S.

In Cleveland Trust Company v. United States, 421 F.2d 475 , 481-482 (6th Cir.), cert. denied, 400 U.S. 819 , 91 S.Ct. 35 , 27 L.Ed.2d 46 (1970), the Sixth Circuit rejected an argument that an estate was entitled to recover a deficiency because the I.R.S. had violated its own Revenue Procedures by failing to identify the “clearly defined error” for which it rejected an informal conference agreement:

Compare Eli Lilly & Co. v. C.I.R., 856 F.2d 855, 865-866 (7th Cir.1988). In Ward v. C.I.R., 784 F.2d 1424, 1430-1431 (9th Cir.1986), the Ninth Circuit, citing Rank v. Nimmo, 677 F.2d 692 (9th Cir.), cert. denied, 459 U.S. 907 , 103 S.Ct. 210 , 74 L.Ed.2d 168 (1982), explains that there is a two part test for determining whether a published rule has the force and effect of law. A published rule has the force and effect of law if it (1) prescribes substantive rules — not interpretive rules, general statements of policy or rules of agency organization, procedure or practice; and (2) the agency promulgated the rules pursuant to a specific statutory grant of authority and in conformance with the procedural requirements imposed by Congress.

Under these tests, it is clear to the court that Rev.Proc. 84-58 is not binding on the I.R.S. Therefore, Toyota’s contention that it does not owe any interest for the tax year 6/30/79 is without merit.

C. Interest Assessment.

As noted, the Certificate of Assessments and Payments states that on December 11, 1989, a “Restricted interest assessment” was made.

The legal and procedural significance and effect of this “restricted interest assessment” set forth on the Certificate of Assessments and Payments is hotly contested by the parties.

The essential reason for this legal dispute hinges upon whether this action is barred by the six year statute of limitations, which statute would have expired on March 5, 1990 were it not for execution of the waivers. Because, however, it is not duress for the IRS to use or to notify the taxpayer that it intends to use all lawful means either to assess or collect a tax, Ballard v. Commissioner, 54 T.C.M. (CCH) 580, 582 (1987); Price v. Commissioner, 43 T.C.M. (CCH) 18, 21 (1981), unless the actions of the IRS herein were unlawful, this action is not barred by the statute of limitations.

In any event, Toyota asserts that the United States is confusing “accrued interest” with “assessed interest”. Toyota contends:

The court is persuaded that Toyota’s position is not correct. It must be kept in mind that in 1984 the IRS assessed tax liability and assessed interest and penalty with respect to that assessed tax liability. It is clear that the only reason the IRS made the “restricted interest assessment” on December 11, 1989 is because it was determined as the result of an internal IRS audit that Toyota had not paid the interest in full that had been assessed in 1984 and had accrued on a daily basis thereafter. In other words, while Toyota implies that the “restricted interest assessment” on December 11, 1989 is a new or different matter, it really is not. It is simply a continuation, if that is the right word, of the previously assessed interest. In this regard, it is noted that Toyota does not contest that there is unpaid accrued interest owing because of the tax liability assessments made on March 4, 1984.

26 U.S.C. § 6601 (e)(1) provides in pertinent part:

An assessment is made “by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary.” 26 U.S.C. § 6203 . Assessment, under the Code, is essentially a bookkeeping notation made when the Secretary or his delegate establishes an account against the taxpayer on the tax rolls. Laing v. United States, 423 U.S. 161 , 170 n. 13, 96 S.Ct. 473 , 479 n. 13, 46 L.Ed.2d 416 (1976); United States v. Krasnow, 548 F.Supp. 686 (S.D.N.Y.1982). There is no authority cited by Toyota or of which the court is aware that requires the Internal Revenue Service to make a separate assessment of interest on an assessed tax liability in order to collect that interest. As the United States asserts:

Toyota contends in reply that the United States’ position is not tenable:

However, during his deposition, Mr. Stiffler testified as follows:

Relying on this testimony, the United States argues:

Toyota responds that Stiffler’s deposition testimony is false. Toyota’s argument is extremely opaque:

The court cannot agree with the inference sought to be drawn by Toyota. None of the exhibits referred to by Toyota are the Form 23-C referred to by Stiffler in his deposition and the United States in the above-quoted argument. These exhibits do establish that the code for additional tax assessed is 670 while the code for interest assessed is 340. However, the court does not read anything in Stiffler’s deposition testimony or the United States argument suggesting that the “restricted interest assessment” entered on the Certificate of Assessments and Payments on March 5, 1984 was also entered on Form 23-C. The only possible indication of this is on Exhibit K. On Exhibit K, also called a Transcript of Account, is a column captioned “23 C Date or Memo Entries”. However, the caption of this column does not, to the court’s mind, establish that the interest assessments at issue here were handled the same as the tax assessment. Therefore, the court does not think Stiffler’s testimony or the United States’ argument therefrom have been shown by Toyota to be false.

In the court’s opinion, Toyota’s position hinges upon the use of the word “assessment” in connection with the December 11, 1989 entry on the Certificate of Assessments and Payments. If, in law, the IRS is not required to make an “assessment” in order to collect this interest, it is not really relevant what the IRS called the entry. In this regard, Mertens, 14 Law of Federal Income Taxation § 49D.01 states:

Here, however, Toyota, in response to an argument being made by the United States, asserts that it has never contended that the IRS has violated the deficiency provisions set forth in 26 U.S.C. § 6212 . This concession also persuades the court that the IRS is not required to separately “assess” this interest before its collection.

The United States further argues that Toyota did receive notice of intent to levy and demand when the IRS sent a Final Notice to Toyota on July 27, 1987. Noting that multiple levies may be made to collect an assessment even though only one Final Notice was sent to the taxpayer, 26 U.S.C. § 6331 , the United States argues:

Toyota responds that this argument ignores the fact that the assessment at issue was not made until December 11, 1989 and Section 6303(a) specifically requires that Notice and Demand be given after the assessment.

The validity of this argument hinges upon the resolution of the issues set forth above. Consequently, the court concludes that Toyota’s position is without merit.

Toyota further argues that the United States’ contention ignores the fact that the IRS’s records had shown that the amounts demanded to be paid by the July 27, 1987 Final Notice had been paid. However, it is not disputed by Toyota that the sending of the letter of full satisfaction of the 6/30/79 liability was a mistake because the interest assessed on March 5, 1984 and accrued thereafter had not in fact been paid.

The United States further argues that the 3/2/90 levies were not illegal because the financial institutions involved did not react to the levies or turn any property over to the United States. In so arguing, the United States refers the court to Callahan v. Haxton, 84-2 U.S.T.C. (CCH) 9734 (M.D.Fla.1984), aff'd, 763 F.2d 417 (11th Cir.1985). In Callahan, the district court ruled in pertinent part as follows:

Relying on Callahan, the United States argues:

Toyota refers the court to American Acceptance Corp. v. Glendora Better Builders, 550 F.2d 1220 , 1222-1223 (9th Cir.1977). There, the Ninth Circuit held that when the Internal Revenue Service notices of levy were served upon the corporate employer of the husband taxpayer, they had the effect of seizing the taxpayer’s property held by that company, and a custodial relation was established, with the company holding the property of and for the Internal Revenue Service. No subsequent party could gain any rights in this property from the company because the property no longer belonged to the company, but rather all rights were held by the Internal Revenue Service. American Acceptance Corp. thus controls over the district court case from Florida.

Therefore, the court concludes that this argument by the United States is not persuasive.

However, the court rules that the IRS’s actions were lawful under the circumstances of this action.

D. Duress.

Even if the court were to have concluded that the actions of the I.R.S. were not lawful, the court is persuaded that the United States is entitled to summary judgment that there was no duress as that term has been defined in the execution of the Tax Collection Waivers.

It is not disputed by Toyota that only two cases have ruled in favor of the taxpayer and invalidated a waiver extending a limitations period because of duress. The two cases are Robertson v. Commissioner, 32 T.C.M. (CCH) 955 (1973) and Diescher v. Commissioner, 18 B.T.A. 353 (1929). To Diescher and Robertson must be compared cases not finding duress in the execution of the extension. Jarvis v. Commissioner, 40 T.C.M. (CCH) 1225 (1980); Price v. Commissioner, 43 T.C.M. (CCH) 18 (1981); Ravin v. Commissioner, 41 T.C.M. (CCH) 1064 (1981); see also J.H. Rutter Rex Mfg. Co., Inc. v. C.I.R., 853 F.2d 1275, 1282 (5th Cir.1988) and eases cited therein.

The court has reviewed all of these cases and the undisputed facts of this action. The court is persuaded that the United States is entitled to summary judgment with respect to the issue of duress. Mr. Thomas is an experienced businessman who is obviously very familiar with the IRS and who was aggressively advised by counsel concerning this matter prior to signing the consents. The degree of coercion involved here must be considered de mini-mus given that Mr. Pinatelli was well aware of available legal remedies. Moreover, the court cannot accept an inference of duress because the IRS could have simply told Toyota and Mr. Pinatelli that they were going to file this lawsuit and that, consequently, their arguments concerning the lack of notice and demand and the absence of assessment were irrelevant.

E. Counterclaim.

Toyota’s counterclaim is brought pursuant to 26 U.S.C. § 7433 and is alleged to be a compulsory counterclaim within the meaning of Rule 13(a), Federal Rules of Civil Procedure.

Even if the court were to find that the IRS’s actions complained of by Toyota were unlawful, the United States asserts that it is entitled to summary judgment because the actions at most constitute negligence, there being no evidence that any employee of the IRS acted recklessly or intentionally disregarded any code provision or regulation as required by Section 7433(a) for recovery of damages against the IRS.

Toyota argues to the contrary. However, the court is not impressed with its argument.

Citing Bothke v. Fluor Engineers and Constructors, Inc., 713 F.2d 1405, 1414 (9th Cir.1983), for the proposition that “[t]he Service ... with its expertise, is obliged to know its own governing statutes and to apply them realistically”, asserts that Officer Stiffler was put on notice as to the pertinent code provisions governing the circumstances of the collection of the assessment of Toyota’s taxes and that he either chose not to read those statutes or he chose to disregard their requirements. First of all, as Toyota acknowledges, Bothke does not involve Section 7433, but, rather, involves issues pertaining to qualified immunity. Toyota does not point out the subsequent history of Bothke . The full citation to Bothke is Bothke v. Fluor Engineers and Constructors, Inc., 713 F.2d 1405 (9th Cir.1983), vacated and remanded sub nom. Terry v. Bothke, 468 U.S. 1201 , 104 S.Ct. 3566 , 82 L.Ed.2d 867 (1984), on remand, 739 F.2d 484 (9th Cir.), on later appeal, 834 F.2d 804 (9th Cir.1987). It is noted that in the 1987 opinion the Ninth Circuit affirmed the decision of the district court that the IRS officer enjoyed qualified immunity. Finally, the fact that Officer Stiffler was told by Toyota’s counsel what Toyota’s counsel thought was the appropriate way to proceed does not in and of itself prove that Stiffler acted recklessly or with intentional disregard of any code provision. This is true even if the court agrees with Toyota’s legal position. Otherwise, any time an officer of the IRS makes a mistake or simply does not agree with a particular interpretation of the law, the United States is liable for damages under Section 7433. This clearly is not the intent of the statute.

Section 7433(d) sets forth limitations to actions under Section 7433(a). Thus, Section 7433(d)(1) provides in pertinent part:

The United States moves for summary judgment on the ground that Toyota has failed to exhaust its administrative remedies because it has not paid the assessment and then filed a claim for refund as would be the usual proceeding pursuant to the Internal Revenue Code.

Toyota responds that this contention is without merit because its counterclaim is a compulsory counterclaim within the meaning of Rule 13(a), Federal Rules of Civil Procedure.

The court does not think that Toyota’s contention has any merit. The scope of this counterclaim is governed by the concept of sovereign immunity. For example, the Federal Tort Claims Act, 28 U.S.C. § 2675 (a) specifically excuses the exhaustion requirement with respect to “such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim.” Section 7433 contains no such proviso and very specifically requires the exhaustion of administrative remedies in order to obtain a judgment. Moreover, as explained in Wright, Miller & Kane, 6 Federal Practice and Procedure, § 1427, pp. 194-195 (1990):

Consequently, the United States is entitled to summary judgment on Toyota’s counterclaim on this ground.

ACCORDINGLY, IT IS ORDERED that the United States’ Motion for Summary Judgment is granted and that Toyota of Visalia, Inc.’s Motion for Summary Judgment is denied.

JUDGMENT TO BE ENTERED FOR THE UNITED STATES.

. As one of these issues, the United States moves for summary judgment with respect to Toyota’s affirmative defense of estoppel. No response to this portion of the motion being made, the court assumes and so rules that Toyota concedes summary judgment for the United States on this issue. . Toyota also was assessed additional taxes for the 12/31/79 period. . No explanation for the difference in amount is given. . Even if they were unlawful, it does not necessarily follow that this action is barred by the statute of limitations. See discussion infra. Furthermore, as the United States argues, the IRS did not need to provide Toyota with the notice and demand required by statute because these provisions only apply to prevent the IRS from administrative collection procedures. The failure to give notice and demand does not in and of itself prevent the collection of taxes, interest or penalties by judicial action. United States v. Chila, 871 F.2d 1015, 1018-1019 (11th Cir.), cert. denied, — U.S.-, 110 S.Ct. 498 , 107 L.Ed.2d 501 (1989); see also Security Indus. Ins. Co. v. United States, 830 F.2d 581, 586-587 (5th Cir.1987); United States v. Berman, 825 F.2d 1053, 1057-1060 (6th Cir.1987). Thus, the only relevance to this action of Toyota’s arguments concerning the need to and/or failure to give notice and demand as required by statute pertains to Toyota’s assertion that the two Form 900 Tax Collection Waivers extending the statute of limitations to file this action are void because they were executed under duress, thereby barring this action because of the expiration of the statute of limitations. . The court is aware that the IRS had mistakenly closed the 6/30/79 account as fully satisfied. However, the court looks on that as simply being a mistake. It did not make less due the interest that was due and continued to accrue because of the Closing Agreement in 1984. . Toyota also argues that Callahan is wrong and is not persuasive authority because it relied upon cases interpreting § 3690 of the 1939 Internal Revenue Code and both the language of the statute and the procedures followed by the IRS at that time are significantly different from those which exist today. Toyota, however, does not set forth the significant differences or explain why they make Callahan inappropriate authority. In addition, Toyota makes reference to Bothke v. Fluor Engineers and Contractors, Inc., 713 F.2d 1405, 1414 (9th Cir.1983). However, as will be discussed more fully later in this memo, this citation is without value. Consequently, the court finds these contentions to be of no assistance in resolving this issue.