Tax Help IRC 6330 appeal of an OIC
The extent of the review by the tax court is to determine whether the Appeals officer's decision to reject the offer in compromise actually submitted by the taxpayer was arbitrary, capricious, or without sound basis in fact or law. Skrizowski v. Commissioner, T.C. Memo. 2004-229; Fowler v. Commissioner, supra; see Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
Michael D. Cornwell and Hilary J. Iker v. Commissioner, Dkt. No. 15013-06L , TC Memo. 2007-294, September 27, 2007.[Code Sec. 6330]
Collection Due Process hearing: Offer-in-compromise: Reasonable collection potential: Abuse of discretion. --
MEMORANDUM OPINION
COHEN, Judge: This proceeding was commenced in response to three Notices of Determination Concerning Collection Action(s). The issue for decision is whether the settlement officer abused his discretion in determining the amount of an acceptable offerin-compromise (OIC) by including prior overtime earnings in the calculation of reasonable collection potential (RCP). Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended.
Background
All of the facts have been stipulated, and the stipulated facts are incorporated as our findings by this reference. Petitioners resided in California at the time that their petition was filed. Petitioner Michael D. Cornwell (petitioner) is and for many years has been employed as a legal assistant at a law firm.
For tax years 1994 through 1996, petitioner filed Forms 1040, U.S. Individual Income Tax Return, but failed to pay the amounts shown as tax due on those returns. For 1997 through 2002, petitioners filed joint Federal income tax returns but did not pay the balances due on those returns.
On October 20, 2003, the Internal Revenue Service (IRS) sent to petitioner a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, advising petitioner that a Notice of Federal Tax Lien had been filed with respect to his unpaid liabilities for 1994, 1995, and 1996. (The parties' stipulation of facts and respondent's brief erroneously set forth the date as October 20, 2004.)
On October 24, 2003, the IRS sent to petitioners a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, advising petitioners that a Notice of Federal Tax Lien had been filed with respect to their joint unpaid liabilities for 1997 through 2002.
On November 24, 2003, the IRS received from petitioners a Form 12153, Request for Collection Due Process Hearing, signed by petitioners and dated November 19, 2003, with respect to the notices sent October 20 and October 24, 2003.
On July 2, 2004, the IRS sent to petitioner a Final Notice of Intent to Levy and Notice of Your Right to a Hearing, advising petitioner that respondent intended to levy to collect unpaid liabilities for 2002. On July 29, 2004, petitioners filed a Form 12153 with respect to the July 2, 2004, notice. The July 29, 2004, request for hearing included the following paragraph:
This hearing request may be moot as IRS advises Final Notice of Levy was mistakenly issued. See attached Letter 3212 dated 7/15/04.
HOWEVER, out of caution, we are submitting the hearing request. The basis of the hearing request is that the Final Notice was incorrectly issued as an Offer In Compromise concerning this tax period is and has been pending. A pending OIC prohibits issuance of a levy.
A July 15, 2004, letter to petitioner from the IRS stated:
We're sorry that we made a mistake in recently sending you a Notice of Intent to Levy and Notice of Your Right to a Hearing, dated July 2, 2004. The letter advised you that we would take collection action if you did not pay the amount of tax you owe or ask for a Collection Due Process (CDP) Hearing within 30 days. Because we do not intend to take levy or seizure action against you at this time, we are rescinding the Notice of Intent to Levy.
By law, you are entitled to only one CDP Hearing under Internal Revenue Code Section 6330 for the unpaid taxes listed in our Notice of Intent to Levy. This letter preserves your right to a future CDP hearing should that become necessary. You don't need to do anything further regarding this request. * * *
*******
The law entitles you to a CDP Hearing, but the hearing would take place after the levy or seizure.
The IRS later advised petitioners that the July 15, 2004, letter rescinding the notice of levy was issued in error.
On May 6, 2005, petitioners and respondent's Settlement Officer, Patrick S. Lin (Lin), had a face-to-face meeting to discuss petitioners' hearing requests. During the meeting, petitioners expressed their intent to submit an OIC to settle their respective tax liabilities for 1994 through 2002.
After the face-to-face meeting, on July 27, 2005, petitioners filed two separate OICs. The first offered to compromise petitioner's individual 1994 through 1996 tax liabilities for $4,000. The second offered to compromise petitioners' joint 1997 through 2002 tax liabilities for $16,000. Subsequently, petitioners filed amended OICs and increased the amounts of the offers to: (1) $6,250 for petitioner's separate tax liabilities for 1989, 1993, 1994, 1995, and 1996 and (2) $18,500 for petitioners' 1997 through 2002 joint tax liabilities (for a total offer of $24,750).
On April 21, 2006, Lin sent to petitioners a letter summarizing his work on petitioners' income and expense table for the purpose of calculating the RCP. At that time, based on the information received from petitioners, the RCP was calculated to be $81,456. Lin further informed petitioners that, unless he received an amended OIC offering at least that amount, the OIC would be rejected.
On May 4, 2006, petitioners sent to Lin a letter stating the grounds for their objection to the inclusion of overtime pay in calculating their future income for the purposes of determining the RCP. The letter stated, in bold print, that "My firm has a written policy that overtime is not permitted unless expressly authorized in advance by a supervisor." Petitioner enclosed a copy of an Office Handbook issued May 2004 that supported petitioner's assertion. Petitioners asserted that, pursuant to an enclosed economics publication, it is incorrect for petitioner's overtime pay to be included in their future income calculations, because overtime may not continue in the future. Further, petitioners provided more information related to petitioner wife's employment status and her student debt loan.
On May 19, 2006, Lin sent to petitioners a letter responding to their objection to the inclusion of overtime pay in future income. The letter stated that Lin appreciated petitioner's arguments in objecting to the inclusion of overtime pay in future income, but he noted that 1 Administration, Internal Revenue Manual (CCH), section 5.5.5.5, at 16,339-7, provides a guideline to compute future income. The cited section provides for adjustments when income is expected to increase or decrease. After considering that overtime pay would result in variable income, Lin decided to average petitioner's most recent 5 years of income to calculate future income. The calculations are set forth below:
Period Adjusted Gross Income
2001 $98,315.00
2002 100,392.00
2003 100,203.00
2004 100,297.00
2005 107,024.00
Total 506,231.00
Average (annual) 101,246.20
Average (monthly) 8,437.18
Lin further explained that, based on this revised figure for future income, the RCP was now $56,976. The letter reminded petitioners that Lin would be rejecting their OICs if they did not amend their offer to at least pay the RCP.
In a letter dated May 30, 2006, petitioner mailed the declaration of Dr. Joyce Pickersgill, a forensic economist, to support petitioners' position that overtime pay should be excluded entirely when calculating future income for the purpose of computing the RCP. Petitioner again referred to "a recent change in the overtime pay policy of my employer."
After reviewing the correspondence, Lin made a determination to permit the collection action to proceed. On June 26, 2006, he sent three separate Appeals Case Memorandums, delineating the facts and reasons underlying his decision, for managerial approval. As of that time, petitioners owed approximately $84,000 for the years in issue.
After managerial approval, the Appeals Case Memorandums were incorporated into three separate notices of determination: (1) Notice of determination for levy for 2002 taxes dated July 7, 2006; (2) notice of determination for lien for 1997 through 2002 taxes dated July 14, 2006; and (3) notice of determination for lien for 1994 through 1996 taxes dated July 14, 2006.
After Lin's June 26, 2006, Appeals Case Memorandums and prior to the issuance of the notices of determination, petitioner sent two faxes to Lin. Each fax attached a copy of an email dated July 5, 2006, referring to overtime at the law firm where petitioner was employed. The email stated:
After assessing the current work load in the firm, it has been determined that no overtime is necessary at this time for support staff.
If something changes in your work load which would require a necessity for overtime, you will need to have approval from your supervisor in advance.
Discussion
Petitioners invoke our jurisdiction under section 6330(d) to review the three notices of determination described above. (The petition erroneously alleged that both petitioners appealed all three notices, but only petitioner husband is the recipient of the October 20, 2003, notice of lien and the July 2, 2004, notice of levy and of the determinations relating to those notices.) Their challenge to the notices is that the settlement officer abused his discretion in requiring an increased OIC of their outstanding liabilities.
Petitioners contend, among other things, that the notices of determination sustaining two liens and a levy were an abuse of discretion because the settlement officer failed to consider evidence of "changed circumstances" presented by petitioners before the notices of determination were issued and "in choosing to not further investigate this change of circumstance caused by a new overtime policy change". Respondent contends that the faxes sent in July 2006 merely reiterated the employer's policy in effect in 2004 and that the settlement officer considered that policy in adjusting the amount of an acceptable OIC based on averaging petitioner's earnings for the prior 5 years of his employment.
The review applicable in cases such as this one was stated in Murphy v. Commissioner, 125 T.C. 301, 320 (2005), affd. 469 F.3d 27 (1st Cir. 2006), as follows:
We do not conduct an independent review of what would be an acceptable offer in compromise. Fowler v. Commissioner, T.C. Memo. 2004-163. The extent of our review is to determine whether the Appeals officer's decision to reject the offer in compromise actually submitted by the taxpayer was arbitrary, capricious, or without sound basis in fact or law. Skrizowski v. Commissioner, T.C. Memo. 2004-229; Fowler v. Commissioner, supra; see Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
The proposals presented to Settlement Officer Lin were for less than $25,000 against total liabilities approximating $84,000 as of June 2006. Petitioners' proposals were rejected by the settlement officer, who calculated an acceptable offer by reference to petitioner's actual earning history, in accordance with the Internal Revenue Manual. Petitioners then suggested that overtime pay that had been consistently earned by petitioner should be excluded from the calculation altogether. That suggestion does not appear to be reasonable, because petitioner continued to receive overtime pay notwithstanding his employer's policy. Petitioners never offered any evidence that petitioner's actual earnings were declining as a result of the 2004 or allegedly "new" in 2006 overtime policy.
Petitioners argue that the settlement officer should have conducted a further investigation before sending the notices of determination. Respondent points out that the negotiations over petitioners' long delinquent tax liabilities had gone on for years and that reasonable deadlines had been set and had passed when the notices of determination were sent. See Murphy v. Commissioner, supra at 322-323.
Respondent declined an opportunity at the time for trial to cross-examine petitioner or representatives of his employer about the effect of the allegedly new policy, apparently because respondent maintains the position that nothing may be considered outside of the administrative record made before the settlement officer. Petitioners did not attempt to introduce any evidence concerning the actual effect of the allegedly new policy, which had purportedly been in effect 10 months as of the time set for trial in May 2007 and presumably would have been reflected in petitioner's 2006 or current compensation. Thus we need not decide whether to reconsider our position as to evidence first presented at trial. See Murphy v. Commissioner, supra at 311-312; Robinette v. Commissioner, 123 T.C. 85, 94-101 (2004), revd. 439 F.3d 455 (8th Cir. 2006).
Because petitioners' proposed OIC was not supported by evidence of petitioner's actual current or future earning potential, we cannot conclude that the settlement officer's rejection of their offer was arbitrary, capricious, or without sound basis in fact or law. The settlement officer's computation of what would be acceptable reflected actual earnings that have not been shown to be unreliable as an indicator of future earnings, because the claim that the employer's policy would reduce petitioner's earnings is merely speculation. Petitioners failed to show that the allegedly new overtime policy had an effect on petitioner's actual earnings and constituted a change of circumstances. Thus they have not shown that the settlement officer's further investigation would have made a difference. We cannot conclude that sustaining the liens and the proposed levy was an abuse of discretion.
We have considered the other arguments of the parties. They are moot, irrelevant, or lacking in merit.
Decision will be entered for respondent.
Alvin S. Brown, Esq
Tax Attorney
703 425-1400
http://www.irstaxattorney.com/
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1 comment:
Notice of Levy and Right to Hearing: Hearing procedures
A taxpayer's claim that he was denied a CDP hearing because the hearing was scheduled "almost an hour away" was denied. The hearing was scheduled to be held at the IRS Appeals Ofice located nearest to the taxpayer's residence. The taxpayer failed to demonstrate why commuting one hour would be unduly burdensome to either himself or his witnesses. Moreover, telephone conversations between the taxpayer and an IRS appeals officer qualified as a collection due process hearing. The taxpayer and the appeals officer discussed the facts and history of the taxpayer's case, and the appeals officer heard and considered the taxpayer's arguments
S.W. Katz, 115 TC 329, Dec. 54,081.
Similarly, face-to-face hearing not required:
P.R. Burnett, CA-5 (unpublished opinion), 2007-1 USTC ¶50,433, aff'g, per curiam, an unreported District Court decision.
B.E. Maynard, CA-9 (unpublished opinion), 2007-2 USTC ¶50,541, aff'g an unreported Tax Court decision.
F.G. Martin, DC N.J., 2007-1 USTC ¶50,215. Aff'd, per curiam, CA-3 (unpublished opinion), 2007-1 USTC ¶50,216, 205 FedAppx 94.
R.E. Gerhart, DC Pa., 2006-2 USTC ¶50,451.
D. Frese, DC N.J., 2006-1 USTC ¶50,169, 186 FSupp2d 1123.
E.C. Holmes, DC La., 2005-1 USTC ¶50,172.
D. Gardner, DC N.J., 2005-2 USTC ¶50,649.
T.E. Tilley, DC N.C., 2003-2 USTC ¶50,594, 270 FSupp2d 731.
T.S. Loofbourrow, DC Tex., 2002-1 USTC ¶50,465.
B.J. Konkel, DC Fla., 2001-2 USTC ¶50,520.
E.W. Clough, 93 TCM 1170, Dec. 56,918(M), TC Memo. 2007-106.
T. Skeriotis, 93 TCM 972, Dec. 56,856(M), TC Memo. 2007-52.
L.P. Mitchell, 92 TCM 402, Dec. 56,669(M), TC Memo. 2006-238.
D.J. Faris, 92 TCM 451, Dec. 56,686(M), TC Memo. 2006-254.
B.W. Bean, 91 TCM 1083, Dec. 56,499(M), TC Memo. 2006-88.
A.T. Ball,, 92 TCM 7, Dec. 56,560(M), TC Memo. 2006-141.
H.D. Summers,, 92 TCM 345, Dec. 56,647(M), TC Memo. 2006-219.
G.W. Kozack, 90 TCM 425, Dec. 56,175(M), TC Memo. 2005-246.
S.A. Brandenburg,, 90 TCM 433, Dec. 56,178(M), TC Memo. 2005-249.
G. Wright, 90 TCM 615, Dec. 56,224(M), TC Memo. 2005-291.
J.H. Leineweber, 87 TCM 824, Dec. 55,518(M), TC Memo. 2004-17.
A. Thomas, 86 TCM 216, Dec. 55,253(M), TC Memo. 2003-231.
G. Gougler, 84 TCM 118, Dec. 54,824(M), TC Memo. 2002-185.
T. Armstrong, 84 TCM 287, Dec. 54,865(M), TC Memo. 2002-224.
An IRS Appeals officer did not abuse his discretion in issuing a Collection Due Process (CDP) determination permitting the collection of the trust fund recovery penalty and interest from a corporate treasurer/responsible person. The record did not show any specific acts attributable to the IRS that would constitute ministerial or managerial acts entitling him to an interest abatement.
J.A.P. Leiter, DC Kan., 2004-1 USTC ¶50,162.
A taxpayer's contention that he was not given a set of procedures governing the CDP hearing and thus, could not present a defense, was rejected. He had received Publication 1660 as an attachment to the notice regarding his right to hearing which described his appeal rights and invited him to raise issues as to the relevant statutes. Additionally, the Appeals Officer encouraged him to raise any issues he wished to appeal making it unnecessary to give him a set of procedures governing the informal hearing.
T.L. Lindsay, 82 TCM 816, Dec. 54,529(M), TC Memo. 2001-285. Aff'd, CA-9 (unpublished opinion), 2003-1 USTC ¶50,307, 56 FedAppx 800.
There was no evidence of abuse of discretion by the IRS Appeals officer who arranged a taxpayer's CDP hearing. The taxpayer was deemed to have conceded any argument that his CDP hearing, which was conducted by a revenue agent instead of an Appeals officer, was improper, because he failed to make any such allegation in his petition.
H.L. Strickland, 82 TCM 961, Dec. 54,564(M), TC Memo. 2001-312.
An IRS appeals officer did not abuse his discretion in a Collection Due Process hearing when he determined that the IRS could levy upon an individual taxpayer's two individual retirement accounts (IRAs) to satisfy the taxpayer's outstanding liability for the trust fund recovery penalty. The taxpayer unsuccessfully contended that the IRS had to either enter an installment agreement for payment of the penalty or wait until the sale of his residence and apply the proceeds to the liability, rather than levy upon his IRAs. Thus, the taxpayer was not entitled to a stay pending the sale of the residence and the government was entitled to summary judgment.
B.W. Sillavan, DC Ala., 2002-1 USTC ¶50,236.
An IRS appeals officer did not commit error in rendering a decision regarding an individual's tax liabilities. The notice of determination received by the individual indicated that the IRS complied with all applicable laws and procedures. In particular the notice reflected that the requirements regarding notice to the taxpayer, the taxpayer's opportunity to raise relevant objections at a hearing, and the absence of any prior involvement by the appeals officer were all considered and found in compliance with Code Sec. 6330.
J.R. Bonfante, DC Ohio, 2002-1 USTC ¶50,266.
An appeals officer did not abuse his discretion in issuing a notice of determination in connection with an IRS levy to collect a corporation's unpaid Form 941 employment tax liabilities. The administrative record was adequate to show that the appeals officer balanced the need for efficient collection of taxes with the taxpayer's legitimate concern that the collection action be no more intrusive than necessary.
Compucel Service Corp., DC Md., 2002-1 USTC ¶50,284.
The IRS's erroneous notice of determination that found an individual liable for the frivolous return penalty following an unscheduled telephone hearing with a revenue agent, which served as his Collection Due Process Hearing, was deemed invalid and was vacated. While acknowledging the erroneous statement in the notice, the government sought a remand at which the administrative hearing would be continued. However, it cited no authority under which the court could remand the matter. Moreover, a remand would constitute a judicial sanctification of the procedure used.
D. Montijo, DC Nev., 2002-1 USTC ¶50,321.
An individual who was granted additional time prior to collection of his tax liabilities to seek a private letter ruling as to his employment status, but who instead requested the IRS examination division to review his status, was given a full and fair opportunity to seek an alternative resolution of his tax liabilities. Since collection was delayed at least six months while the taxpayer sought the administrative resolution of his liabilities and the IRS did not impede his efforts to seek an alternative to collection, the IRS did not abuse its discretion in refusing to allow him an additional stay to obtain a private letter ruling.
K.P. Vossbrinck, 83 TCM 1474, Dec. 54,713(M), TC Memo. 2002-96.
An IRS Appeals officer improperly refused to address a taxpayer's challenge to the imposition of frivolous return penalties at his Collection Due Process (CDP) hearing; thus, the issue was remanded to IRS Appeals. Moreover, the Appeals officer declined to consider the taxpayer's conditional alternative to collection.
B.D. Erickson, DC Calif. (unpublished opinion), 2002-1 USTC ¶50,444.
An IRS settlement officer did not abuse her discretion in failing to accept married taxpayers' proposed installment agreement to satisfy their unpaid tax liabilities. The record established that the officer's consideration of the taxpayers' collection alternative was a reasonable determination based on a financial analysis of the couple's monthly income and expenses and their ability to pay.
A.M. Schulman, 83 TCM 1738, Dec. 54,757(M), TC Memo. 2002-129.
Similarly, no abuse of discretion in refusing to accept proposed installment agreement:
Owens Motor Coach, Inc., DC Pa., 2003-2 USTC ¶50,720.
W.B. Miller, DC Pa., 2004-1 USTC ¶50,194.
STA Painting Co., DC Pa., 2004-1 USTC ¶50,174.
T.C. Johnson, 69 TCM 2380, Dec. 55,584(M), TC Memo. 2004-73.
Reid & Reid, Inc., DC Md., 2005-1 USTC ¶50,266.
An IRS Appeals officer's determination to proceed with the collection of a pro se taxpayer's unpaid tax liability via lien was not an abuse of discretion. The taxpayer's unwillingness to provide the required financial data left the IRS without any way to properly evaluate the taxpayer's qualification for collection alternatives or other relief.
J.M. Wilcox, 90 TCM 475, Dec. 56,186(M), TC Memo. 2005-257.
The taxpayer's challenge to the failure to consider an offer-in-compromise as a collection alternative was rejected where the taxpayer failed to provide the required information for consideration of an offer-in-compromise and to file delinquent returns.
G.L. Bailey, 90 TCM 392, Dec. 56,170(M), TC Memo. 2005-241.
Similarly:
D. Etkin, 90 TCM 417, Dec. 56,174(M), TC Memo. 2005-245.
The IRS could proceed with a levy against the assets of a taxpayer who failed to file the tax return required by the terms of an installment agreement reached in a Collection Due Process (CDP) hearing. It was not an abuse of discretion for the IRS to refuse to continue the installment agreement because he failed to file the required return.
C.M. Frazier, 90 TCM 345, Dec. 56,157(M), TC Memo. 2005-229.
An Appeals officer abused his discretion by failing to consider the possibility of an installment agreement for the taxpayer and to review financial statements with the taxpayer to determine if there was a way to reduce expenses in order to make payment on the taxes and avoid enforced collection action. The original appeals officer was disqualified from re-hearing the matter on remand
J.W. Cox, DC Okla., 2004-2 USTC ¶50,404, 345 FSupp2d 1218.
An IRS Appeals officer did not abuse his discretion in determining to proceed with the collection of a married couple's tax liability. The record indicated that the Appeals officer afforded the couple every opportunity to air their concerns, provided them with a transcript of their tax account and guided them through the document, and read the materials attached to the couple's return, which contained their explanations as to why the amounts received by them were not income.
D.J. Tapio, 83 TCM 1786, Dec. 54,772(M), TC Memo. 2002-141.
A corporation was denied relief from an IRS Appeals officer's Collection Due Process determination regarding its liability for FUTA and employment taxes absent credible proof that the determination was legally incorrect or that the Appeals officer abused his discretion. The Appeals officer abated a portion of the unemployment tax assessment against the taxpayer, but found that the assessed employment tax liability was accurate based on certified transcripts of accounts produced by the government.
The Inner Office, Inc., DC Tex., 2003-1 USTC ¶50,185.
A Collection Due Process (CDP) determination upholding a tax lien imposed against a delinquent taxpayer's property was not an abuse of discretion. The evidence established that she received copies of her transcripts of account for the tax years at issue; thus, the IRS did not abuse its discretion in failing to provide that information to her at the CDP hearing. Also, the IRS properly relied on the transcripts of account to satisfy the Code Sec. 6330(c)(1) verification requirements. Finally, because the taxpayer failed to raise a spousal defense, challenge the appropriateness of the IRS's collection action, or offer alternative means of collection, those issues were deemed conceded.
M. Eiselstein, 85 TCM 794, Dec. 55,025(M), TC Memo. 2003-22.
An individual failed to present evidence establishing the IRS's noncompliance with the administrative collection procedures under Code Sec. 6330(c)(1). The taxpayer's argument that the Collection Due Process hearing was improper because he was not allowed to conduct discovery or to compel the appearance of witnesses was rejected. The IRS was not obligated to provide the documents sought by the taxpayer, who did not have the right to subpoena witnesses.
K.A. Schrems, 85 TCM 801, Dec. 55,029(M), TC Memo. 2003-25.
The refusal of the IRS to afford formal discovery to an individual at his Collection Due Process hearing was not an abuse of its discretion. Moreover, it was not an abuse of discretion for the Appeals officer to refuse to allow the taxpayer's spouse to participate in the hearing. Although the likely reason for the taxpayer's argument was that his spouse held a community property interest in any property of his that might be subject to levy, the taxpayer and his spouse did not file joint returns during the years at issue. Consequently, she was not liable for the unpaid taxes that were the subject of the collection action, and she had no hearing rights.
J. Perez, 84 TCM 501, Dec. 54,924(M), TC Memo. 2002-274.
The IRS did not abuse its discretion in rejecting an individual's installment agreement request during a Collection Due Process (CDP) hearing on the matter. The Service properly determined that the taxpayer was not eligible for an installment agreement plan because she failed to file her most current tax return, or pay any amounts due and owing in connection with that return.
D.L. McCorkle, 85 TCM 830, Dec. 55,039(M), TC Memo. 2003-34.
The IRS did not abuse its discretion when it rejected married taxpayers' proposed installment agreement and offer in compromise. The couple failed to respond to an IRS request for additional financial information, they had defaulted on a prior installment agreement, and it appeared that their assets and income were sufficient to pay their liabilities.
K. Orum, CA-7, 2005-2 USTC ¶50,444, 412 F3d 819.
An individual was permitted to challenge his underlying tax liability relating to seven tax years where the IRS conceded that a notice of deficiency was not issued to him, and that he had not been given the appropriate opportunity to request a collection due process (CDP) hearing. However, the taxpayer was prohibited from challenging his underlying tax liability relating to six other tax years where he signed a consent to assessment.
J.R. Rivera, 85 TCM 832, Dec. 55,040(M), TC Memo. 2003-35.
The government was entitled to dismissal or, in the alternative, summary judgment, with respect to an individual's action challenging frivolous return penalties assessed against her for two tax years. Her arguments under Code Sec. 6330 that the IRS Appeals officer at her Collection Due Process hearing improperly failed to produce various documents or consider her arguments, lacked merit. The court noted that an Appeals officer must verify that applicable laws and administrative procedures have been met; however, such verification need not be sent to the taxpayer.
C. Gregory, DC Ga., 2003-1 USTC ¶50,256.
The IRS did not prematurely close a taxpayer's Collection Due Process (CDP) hearing. There is no statutory or regulatory deadline for closing a hearing and issuing a notice of determination. Moreover, the IRS issued the notice almost three weeks after the hearing and, during that time period, the taxpayer failed to respond to the IRS charge that he had not complied with his current tax obligations.
A. Manjourides, 90 TCM 396, Dec. 56,171(M), TC Memo. 2005-242.
The IRS was entitled to summary judgment with respect to its determination to proceed with the collection of an individual's unpaid taxes, penalties and interest following a Collection Due Process hearing. The taxpayer unsuccessfully contended that the Appeals officer failed to obtain verification from the IRS that legal and administrative requirements under Code Sec. 6330(c)(1) had been satisfied. The Appeals officer had obtained, reviewed and provided the taxpayer with a copy of a transcript of account (Form 4340). Moreover, the notice of balance due that was issued to the taxpayer constituted a notice and demand for payment.
T.R. Smith, 85 TCM 889, Dec. 55,051(M), TC Memo. 2003-45.
Similarly:
G.J. Copeland, 85 TCM 894, Dec. 55,052(M), TC Memo. 2003-46.
M.D. Keown, 85 TCM 1003, Dec. 55,077(M), TC Memo. 2003-69.
D.E. Duncan, 85 TCM 1068, Dec. 55,097(M), TC Memo. 2003-89.
W.A. Swann, 85 TCM 1006, Dec. 55,078(M), TC Memo. 2003-70.
L.A. Cortes, 85 TCM 1036, Dec. 55,088(M), TC Memo. 2003-80.
R. Stoewer, 85 TCM 1009, Dec. 55,079(M), TC Memo. 2003-71.
G.R. Lyman, 85 TCM 1011, Dec. 55,080(M), TC Memo. 2003-72.
R.S. Quigley, DC Pa., 2005-1 USTC ¶50,305, 358 FSupp2d 427.
M.G. Blankenship, DC Tex., 2005-1 USTC ¶50,128.
T.W. Holliday, 90 TCM 390, Dec. 56,169(M), T.C. Memo. 2005-240.
Forms 4340, Certificates of Assessment, were presumptive proof that notice and demand was mailed to the taxpayer absent some showing that the forms were irregular.
T.W. Holliday, 88 TCM 41, Dec. 55,704(M), TC Memo. 2004-172.
J.G. Gilligan, 88 TCM 170, Dec. 55,731(M), TC Memo. 2004-194.
W.C. Bonkavich, CA-9 (unpublished opinion), 2005-1 USTC ¶50,316, 127 FedAppx 363, aff'g an unreported Tax Court decision.
IRS Appeals officer provided the taxpayer with a transcript of his account, which is presumptive proof that the tax was validly assessed.
K. Thompson, 88 TCM 219,Dec. 55,741(M), TC Memo. 2004-204.
A taxpayer's challenge to the validity of a Collection Due Process (CDP) determination holding him liable for frivolous return penalties was rejected, and his claim for compensatory and punitive damages against the government was dismissed. The IRS officer's failure to present verification that the applicable statutory and administrative procedures were satisfied did not invalidate the determination; although the officer was required to obtain the appropriate verification, he was not required to send or provide that verification to the taxpayer. Further, the IRS was not required to provide documents regarding imposition of the frivolous return penalty before imposing a levy or in connection with a CDP hearing, nor did it have to publish internal delegations of administrative authority in order to enforce the tax laws.
J. Tornichio, DC Ohio, 2003-1 USTC ¶50,285, 263 FSupp2d 1090.
An individual's challenge to two adverse Collection Due Process (CDP) determinations upholding the imposition of the frivolous return penalty for one year and the validity of a federal tax lien for a second year was dismissed for failure to state a justiciable claim because the IRS had properly complied with the applicable procedural requirements. With respect to the tax lien, despite the fact that the taxpayer failed to timely request a CDP hearing, the IRS reviewed the collection action and issued a determination that all procedural requirements had been met and that the assessment was proper. Thus, the taxpayer's challenge to the collection action was invalid.
D.L. Blackstone, DC Ga., 2003-1 USTC ¶50,347.
An IRS Appeals officer did not abuse her discretion in denying a taxpayer's offer in compromise relating to his underlying tax liability for several tax years. The taxpayer's history of noncompliance, the late filing of his income tax return for one tax year, and the delinquency on his estimated tax payments for a subsequent tax year established his failure to be in current compliance with his federal income tax liabilities and supported the Appeals officer's determination to disapprove of the offer in compromise.
C. Londono, 85 TCM 1121, Dec. 55,107(M), TC Memo. 2003-99.
An adverse Collection Due Process (CDP) determination against an individual was upheld where the taxpayer failed to establish that the IRS abused its discretion in sustaining a notice of lien against the taxpayer, and determining to proceed with its collection action. The Appeals officer properly verified the tax liability at issue. Moreover, the taxpayer failed to assert or establish that the Appeals officer's determination was made in error.
E.L. Wooten, 85 TCM 1193, Dec. 55,122(M), TC Memo. 2003-113.
The issue of a taxpayer's underlying tax liability was not properly at issue in his appeal from an adverse Collection Due Process (CDP) determination; thus, the Tax Court reviewed that determination for an abuse of discretion on the part of the IRS Appeals officer and concluded that no such abuse had occurred. The taxpayer was properly provided with copies of his transcripts of account at, and subsequent to, the CDP hearing. Because he alleged no irregularity in the assessment procedure that would raise a question about the validity of the assessments or the information contained in the transcripts, the verification requirement was satisfied. Also, he was not entitled to summon or cross-examine witnesses, conduct discovery, examine documents, or obtain evidence from the IRS in connection with the informal hearing.
R. Bourbeau, 85 TCM 1205, Dec. 55,127(M), TC Memo. 2003-117.
The IRS issued a valid notice of determination to an individual with respect to his tax liability for one tax year. The signature of the IRS Appeals officer who conducted the taxpayer's Collection Due Process hearing was not required on the notice, which was reviewed, approved, and signed by IRS Appeals team managers in accordance with internal IRS policy. The Tax Court noted that Code Sec. 6330 does not require that a notice of determination be signed.
R.D. Elmore, 85 TCM 1234, Dec. 55,133(M), TC Memo. 2003-123.
An individual was not entitled to subpoena witnesses or documents to rebut evidence presented by the IRS prior to a Collection Due Process (CDP) hearing. As a result, the CDP determination imposing a frivolous return penalty was valid.
W.B. Britton, DC Nev., 2003-1 USTC ¶50,434.
A nonfiling individual's arguments that the IRS failed to properly conduct his Collection Due Process (CDP) hearing and that it unjustifiably imposed the delay penalty were rejected as frivolous. The Tax Court properly found that the IRS could proceed with collection activities for the two tax years at issue. The taxpayer's contention that his CDP hearing was inadequate due to the hearing officer's reliance on an automated Summary Record of Assessments form (RACS report), instead of a signed IRS Form 23C record of assessments, was meritless because the RACS report had replaced Form 23C. Since the taxpayer had requested a telephonic CDP hearing and had copies of pertinent documents, his contention that the hearing officer prevented him from examining documents was also meritless. Finally, the imposition of the delay penalty was not an abuse of discretion because it was justified by the record.
J.W. Hauck, Jr., CA-6 (unpublished opinion), 2003-1 USTC ¶50,445, 64 FedAppx 492.
An IRS Appeals officer did not abuse her discretion in issuing a Collection Due Process (CDP) determination permitting the IRS to proceed to levy against a corporate provider of services for mentally and physically challenged individuals in order to collect delinquent taxes. The Appeals officer verified that all applicable laws and administrative procedures incident to the issuance of a notice of intent to levy had been satisfied.
Community Residential Services, Inc., DC N.C., 2003-1 USTC ¶50,458 .
A Collection Due Process determination approving collection actions against a dentist for his delinquent employment tax liability was upheld. The IRS was entitled to collect the unpaid taxes by levy, and it timely assessed those taxes within three years from the date the applicable tax return was filed. Moreover, Code Sec. 6204(a) authorizes the IRS to make a supplemental assessment upon discovering that any assessment is imperfect or incomplete. Additionally, the dentist failed to raise a genuine issue of material fact as to whether the Form 4340 Certificate of Assessments and Payments was inaccurate.
M. Myers, D.D.S., CA-9 (unpublished opinion), 2003-1 USTC ¶50,467, 61 FedAppx 469.
An Appeals officer's Collection Due Process (CDP) determination permitting the IRS to proceed to levy in order to collect an individual's delinquent taxes was not an abuse of discretion. The taxpayer's underlying tax liabilities were properly at issue because he had not received a notice of deficiency; however, because he persisted in advancing frivolous arguments, those liabilities were sustained. He was provided with a fair opportunity to address all relevant issues at the CDP hearing, but failed to do so.
T.V.F. Struhar, 85 TCM 1350, Dec. 55,162(M), TC Memo. 2003-147.
Upon a finding that there was no abuse of discretion by the Appeals officer, the IRS could proceed with collection actions against an individual who had received wages and unemployment compensation but failed to file an income tax return. The individual had raised a series of "patently spurious" arguments in his petition challenging the IRS collection notice under Code Sec. 6330(d). Also, because the individual failed to assign error to any of the additions to tax that the IRS determined, he was deemed to have conceded them.
J.W. McBride, 88 TCM 78, Dec. 55,710(M), TC Memo. 2004-178.
In consolidated cases, the IRS was entitled to summary judgment with respect to collection of the transferee tax liabilities of individuals who challenged their underlying tax liabilities as transferees of a corporation for its tax liability. The provisions of Code Sec. 6330(c)(2)(B) prevented them from challenging in a collection proceeding the existence and amount of their transferee tax liabilities. The taxpayers unsuccessfully contended that they received no statutory notices of deficiency but only statutory notices of transferee liability; the notices of transferee liability were the equivalent of notices of deficiency. Moreover, the statute did not set forth two alternative criteria authorizing challenges to underlying tax liability in collection proceedings. The taxpayers could only have challenged their underlying tax liabilities if they had lacked another opportunity to raise the challenge by virtue of not having received a notice of deficiency or otherwise.
D.L. Oyer, 85 TCM 1510, Dec. 55,193(M), TC Memo. 2003-178.
An IRS Appeals officer's Collection Due Process (CDP) determination was upheld absent a showing that the taxpayer was not afforded a legitimate CDP hearing. He was not entitled to be provided with verification that the legal and procedural requirements were satisfied, and the IRS was authorized to impose levies against taxpayers.
R.B. Henning, DC Ohio, 2003-2 USTC ¶50,538.
An IRS Appeals officer did not abuse her discretion in denying a taxpayer's offer in compromise relating to her underlying tax liability for several tax years. The offer in compromise was considered in detail and it was appropriately concluded that it did not fairly represent the taxpayer's ability to pay her tax debt. Moreover, contrary to the taxpayer's assertion, the IRS's failure to send her a written rejection of her in compromise for one tax year did not deprive her of any administrative appeal rights.
D. Moorhous, 85 TCM 1538, Dec. 55,198(M), TC Memo. 2003-183.
A taxpayer was entitled, pursuant to Code Sec. 7521(a)(1), to make an audio recording of his Collection Due Process hearing with the IRS Appeals Office. The Tax Court concluded that the exchange of information between a taxpayer and an Appeals officer during an administrative hearing conducted under Code Sec. 6330 constituted an "in-person interview" within the meaning of that term as used in Code Sec. 7521(a)(1). Further, the court noted that there was nothing in Code Sec. 6330 or in the legislative history of that section to suggest that Congress did not intend to afford taxpayers the right, consistent with Code Sec. 7521(a)(1), to audio record administrative hearings in collections.
C.B. Keene, 121 TC 8, Dec. 55,213.
A taxpayer was not entitled to a second hearing because she was denied the opportunity to record the first hearing. Because she failed to make the recording request prior to the hearing, her argument was rejected.
S. Taylor, 87 TCM 848, Dec. 55,528(M), TC Memo. 2004-25.
The Tax Court rejected married taxpayers' challenge of an adverse Collection Due Process (CDP) determination on the grounds that they were denied the opportunity to make an audio recording of their CDP hearing. Despite the court's ruling in C.B Keene, 121 TC 8, CCH Dec. 55,213, that Code Sec. 7521(a) requires an appeals officer to allow a taxpayer to make an audio recording of the CDP hearing, the court was unwilling to remand the case for another hearing in light of the frivolous arguments raised by the taxpayers, who filed zero-income returns.
V. Brashear, 86 TCM 16, Dec. 55,215(M), TC Memo. 2003-196.
A. Horton, 86 TCM 19, Dec. 55,216(M), TC Memo. 2003-197.
G.R. Kemper, 86 TCM 12, Dec. 55,214(M), TC Memo. 2003-195.
G.L. Frey, 87 TCM 1170, Dec. 55,601(M), TC Memo. 2004-87.
G.E. Boyd, DC N.M., 2004-2 USTC ¶50,297, aff'd CA-10 (unpublished opinion), 2005-1 USTC ¶50,195.
C.C. Carrillo,, 92 TCM 177, Dec. 56,223(M), TC Memo. 2005-290.
G.K.J. Yuen, 92 TCM 1, Dec. 56,557(M), TC Memo. 2006-138.
The IRS's determination to proceed with a levy action against an individual was sustained. The taxpayer's procedural stance regarding the recording of collection hearings was correct because her request to record her hearing was made after the Tax Court's decision in Keene v Commr., 121 T.C. 8, Dec. 55,213 (2003). However, the individual raised only frivolous, tax-protestor type arguments at her trial. Therefore, the Tax Court refused to remand the case to appeals for a new hearing because the propriety of the collection determination could be decided on the record.
T. Taylor, 89 TCM 1017, Dec. 55,984(M), TC Memo. 2005-74.
Failure to provide opportunity to make an audio recording of CDP hearing was harmless error.
T.W. Holliday, 88 TCM 41, Dec. 55,704(M), TC Memo. 2004-172.
Similarly:
W.B. Meyer, 89 TCM 1046, Dec. 55,991(M), TC Memo. 2005-81. Aff'd, on another issue, CA-9 (unpublished opinion), 2006-2 USTC ¶50,539, 200 FedAppx 676.
W.B. Meyer, 89 TCM 1049, Dec. 55,992(M), TC Memo. 2005-82. Aff'd, on another issue, CA-9 (unpublished opinion), 2006-2 USTC ¶50,539, 200 FedAppx 676.
D.B. Malis, CA-9 (unpublished opinion), 2005-1 USTC ¶50,190, aff'g an unreported Tax Court decision.
M.G. Pomeranz, DC Fla., 2004-2 USTC ¶50,353.
J.G. Gilligan, 88 TCM 170, Dec. 55,731(M), TC Memo. 2004-194.
K. Thompson, 88 TCM 219, Dec. 55,741(M), TC Memo. 2004-204.
M.K. Dues, 89 TCM 1253, Dec. 56,022(M), TC Memo. 2005-109.
R. Lee, Jr., 88 TCM 469, Dec. 55,807(M), TC Memo. 2004-264.
N. Cozzens, 89 TCM 1129, Dec. 56,010(M), TC Memo. 2005-98.
R. Holliday, 89 TCM 1408, Dec. 56,049(M), TC Memo. 2005-132. Aff'd, CA-9 (unpublished opinion), 2006-2 USTC ¶50,430, 186 FedAppx 779.
D. Schwersensky, 92 TCM 177, Dec. 56,599(M), TC Memo. 2006-178.
An individual was not entitled to audio record a Code Sec. 6330 telephone hearing with the IRS Appeals Office. The telephone hearing did not constitute an in-person interview that is allowed to be audio recorded under Code Sec. 7521(a). C.B. Keene, 121 TC 8, Dec. 55,213, which treated a face-to-face hearing as an in-person interview, did not apply to a telephone hearing because the taxpayer and the IRS Appeals officer would not be within each other's physical presence. However, since the taxpayer's decision to reject the IRS's offer of a face-to-face hearing in favor of a telephone hearing was made before the Keene decision was released and before the IRS issued guidance on its post-Keene position, the Tax Court exercised its discretion and remanded the case for further proceedings so that the taxpayer could be given the opportunity to have a face-to-face hearing that could be audio recorded.
D. Calafati, 127 TC 219, Dec. 56,705.
Although the Appeals officer had refused to allow a stenographer to record the collection due process hearing, whereupon the individual refused to proceed, the Tax Court declined to remand the case. No purpose would be served by a remand or additional hearings.
D.A. Lehmann, 89 TCM 1084, Dec. 56,001(M), TC Memo. 2005-90.
The IRS abused its discretion in determining to proceed with a collection action against an individual with respect to one tax year. The IRS did not accept and process as filed the return that the taxpayer mailed, nor did it process and accept as filed the taxpayer's amended return. Moreover, the IRS failed to issue a notice of deficiency for the tax year in which it had determined that the taxpayer had a deficiency based on the substitute for return that the IRS prepared and the 30-day letter that it mailed to the taxpayer. Based on the record, the IRS improperly assessed the tax shown in the substitute for return and proposed in the 30-day letter.
I. Israel, 86 TCM 23, Dec. 55,217(M), TC Memo. 2003-198.
An IRS Appeals officer's Collection Due Process (CDP) determination upholding the assessment of taxes was sustained, absent proof that the IRS failed to follow proper procedures during the CDP hearing.
P. Christian, DC Pa., 2003-2 USTC ¶50,562.
An individual who raised frivolous and groundless arguments at his Collection Due Process (CDP) hearing failed to establish that the IRS Appeals Office abused its discretion in determining to proceed with the collection action regarding his unpaid liability.
R.H. Deputy, 86 TCM 87, Dec. 55,230(M), TC Memo. 2003-210.
Similarly:
M.L. Widner, 85 TCM 1197, Dec. 55,123(M), TC Memo. 2003-114.
J.R. Johnston, 88 TCM 318, Dec. 55,766(M), TC Memo. 2004-224.
M.E. Kilgore, 89 TCM 762, Dec. 55,928(M), TC Memo. 2005-24. Aff'd, on another issue, CA-1 (unpublished opinion), 2006-2 USTC ¶50,391, 183 FedAppx 11.
M. Balice, 90 TCM 1, Dec. 56,081(M), TC Memo. 2005-161.
T.L. Wetzel, 90 TCM 266, Dec. 56,135(M), T.C. Memo. 2005-211.
T.L. Clouse, 93 TCM 1215, Dec. 56,931(M), TC Memo. 2007-118.
K.M. Moore, 94 TCM 78, Dec. 57,017(M), TC Memo. 2007-200.
An IRS Appeals officer's Collection Due Process (CDP) determination upholding the imposition of a frivolous return penalty was sustained, absent proof that the IRS failed to follow proper procedures during the CDP hearing.
M.A. Mayben, Jr., DC Nev., 2003-2 USTC ¶50,567.
Similarly:
D. Jones, CA-5, 2003-2 USTC ¶50,584, 338 F3d 463.
G. Newman, DC Nev., 2003-1 USTC ¶50,474.
R.T. Broderick, CA-9, 2004-1 USTC ¶50,147, 83 FedAppx 929.
C.M. Van Gaasbeck, DC Nev., 2004-1 USTC ¶50,185.
L.H. McDonald, DC Tex., 2004-1 USTC ¶50,117.
T.E. Johnson, DC Calif., 2003-2 USTC ¶50,689, 291 FSupp2d 1163.
R.E. Hardy, DC Ala.2003-2 USTC ¶50,542.
H.D. Goltz, CA-52003-2 USTC ¶50,587, 70 FedAppx 212.
M.A. Farenga, DC N.Y., 2004-1 USTC ¶50,240.
J.W. Bunch, DC Nev., 2004-1 USTC ¶50,282.
M.G. Pomeranz, DC Fla., 2004-2 USTC ¶50,353.
A federal district court properly dismissed an individual's challenge of a collection due process (CDP) determination imposing a frivolous return penalty against the taxpayer for filing a zero-income return. The taxpayer failed to file a meaningful return, and his challenge of the penalty was deemed frivolous.
G.D. Henry, CA-5, 2003-2 USTC ¶50,587, 70 FedAppx 212.
A couple who raised frivolous and groundless arguments at their Collection Due Process (CDP) hearing failed to establish that the IRS Appeals Office abused its discretion in determining to proceed with the collection action regarding their unpaid liability.
C. Brodman, 86 TCM 212, Dec. 55,252(M), TC Memo. 2003-230.
An IRS Appeals officer did not abuse his discretion in issuing a Collection Due Process (CDP) determination against an individual to proceed with a proposed levy. The taxpayer was given a reasonable amount of time to submit his financial information or an offer-in-compromise. Despite his stroke and resulting hearing loss, the taxpayer was not precluded from assisting his attorney in preparing such information and, as a result, additional time was not warranted.
W.G. Wells, 86 TCM 227, Dec. 55,257(M), TC Memo. 2003-234.
The district court dismissed an individual's challenge to an adverse CDP determination where evidence established that the IRS followed proper hearing procedures. The Appeals officer was not required to provide the taxpayer with a copy of the verification that the requirements of applicable law and administrative procedure had been met. The taxpayer was appropriately prohibited from disputing her underlying tax liability because she received a notice of deficiency and did not contest the liability at that time. Moreover, the Appeals officer was not required to produce documentation of a delegation of authority to impose or collect the frivolous return penalty. Finally, the taxpayer unsuccessfully argued that the IRS improperly denied her a collection alternative after she challenged the Appeals officer to produce a statute or code regulation authorizing the imposition of the frivolous return penalty.
D.J. Barnett, DC Fla., 2003-2 USTC ¶50,612.
The government was granted summary judgment dismissing an individual's challenge to an adverse Collection Due Process (CDP) determination where no genuine issues of material fact remained. The taxpayer failed to establish that the Appeals officer abused his discretion in deciding to proceed with collection without holding a CDP hearing. The taxpayer failed to provide the Appeals officer with a power of attorney form authorizing a law firm to participate in the hearing on his behalf, and failed to return the Appeals officer's telephone calls.
L.A. McLee, 86 TCM 317, Dec. 55,275(M), TC Memo. 2003-252.
There was no evidence of abuse of discretion by the IRS Appeals officer who arranged the taxpayers' Collection Due Process (CDP) hearing.
B.H. Robinson, 84 TCM 694, Dec. 54,975(M), TC Memo. 2002-316. Aff'd, per curiam, CA-4 (unpublished opinion), 73 FedAppx 624, 2003-2 USTC ¶50,645, 73 FedAppx 624.
Similarly:
B.B. Haines, 85 TCM 771, Dec. 55,019(M), TC Memo. 2003-16. Aff'd, CA-9, 2003-2 USTC ¶50,655, 72 FedAppx 730.
W.N. Ramos, DC N.Y., 2005-1 USTC ¶50,160.
The IRS was entitled to summary judgment with respect to an individual's challenge to its Collection Due Process hearing determination to maintain a notice of federal tax lien. The taxpayer raised no legitimate issues regarding his underlying tax liabilities in his request for hearing, during the course of proceedings, or in his Tax Court petition. The requirements of applicable law and administrative procedure were met with respect to his assessment. Moreover, the taxpayer received notice and demand for payment and copies of certified transcripts showing that the assessments were valid. There was no evidence that the Appeals officer abused his discretion during the hearing.
J.M. Young, 85 TCM 739, 55,007(M), TC Memo. 2003-6.
An Appeals officer's Collection Due Process determination permitting the IRS to proceed with collection against an individual who failed to appear for the scheduled conference was not an abuse of discretion.
S. Taylor, 87 TCM 848, Dec. 55,528(M), TC Memo. 2004-25.
The government's motion to dismiss an individual's challenge of an adverse Collection Due Process determination, which imposed a frivolous return penalty, was denied. The administrative record was inadequate in that it did not establish the IRS's compliance with statutory procedure, and did not provide a basis for the imposition of the frivolous return penalty.
D. Muhammad, DC S.C., 2003-2 USTC ¶50,647.
A delinquent taxpayer who made frivolous and groundless arguments at his Collection Due Process (CDP) hearing failed to establish that the IRS Appeals Office abused its discretion in determining to proceed to collection against him. He raised no bona fide issues, proposed no alternatives to collection, and presented boiler-plate tax-protest arguments.
G.R. Brown, 86 TCM 347, Dec. 55,287(M), TC Memo. 2003-261.
Similarly:
J.B. Dunham, 86 TCM 344, Dec. 55,285(M), TC Memo. 2003-260.
J.J. Green, 86 TCM 355, Dec. 55,290(M), TC Memo. 2003-264.
M.W. Bethea, 86 TCM 403, Dec. 55,305(M), TC Memo. 2003-278.
R. Rewerts, 88 TCM 401, Dec. 55,791(M), TC Memo. 2004-248.
R.L. Snyder, 89 TCM 1079, Dec. 56,000(M), TC Memo. 2005-89.
D.W. Schultz, DC Mich., 2005-1 USTC ¶50,325.
J.V. Williams, 89 TCM 1114, Dec. 56,006(M), TC Memo. 2005-94.
J.D. Meyer, DC Wis., 2005-1 USTC ¶50,373.
An IRS Appeals officer's Collection Due Process (CDP) determination upholding the imposition of a frivolous return penalty was properly sustained, absent proof that the IRS failed to follow proper procedures during the CDP hearing.
B.E. Carrillo, CA-9 (unpublished opinion), 2003-2 USTC ¶50,651, 72 FedAppx 732.
M. Cipolla, DC N.Y., 2003-2 USTC ¶50,722.
Similarly:
L.C. Standifird, CA-9 (unpublished opinion), 2003-2 USTC ¶50,652, 72 FedAppx 729, aff'g 84 TCM 371, Dec. 54,889(M) TC Memo. 2002-245.
W.J. Kubon, 89 TCM 1001, Dec. 55,981(M), TC Memo. 2005-71.
R. Broderick, CA-9 (unpublished), 2005-1 USTC ¶50,200, aff'g unreported Tax Court order.
L.A. Sergio, DC Ga., 2005-1 USTC ¶50,232.
An IRS Appeals officer's Collection Due Process (CDP) determination upholding the imposition of a frivolous return penalty was sustained, absent proof that the IRS failed to follow proper procedures during the CDP hearing.
L. Ray, DC Nev., 2003-2 USTC ¶50,657291 FSupp2d 1179.
The district court declined to invalidate a Collection Due Process determination made against an individual because no genuine issue of material fact existed regarding the legality of the hearing. The taxpayer submitted Forms 1040 for the tax years at issue with zeros in the income section and, as a result, was subject to frivolous return penalties, the underlying tax liability in the case. The hearing officer verified that all legal and administrative requirements were met and properly considered collection alternatives.
G. K. J. Yuen, DC Nev., 2003-2 USTC ¶50,661, 290 FSupp2d 1220.
The court rejected the taxpayer's argument that the hearing officer erred in failing to consider reasonable collection alternatives.
J.D. Criner, 86 TCM 655, Dec. 55,362(M), TC Memo. 2003-328.
A Collection Due Process determination against married taxpayers was remanded to the Appeals office in order to provide the taxpayers an additional opportunity to consider the Appeals officer's proposed collection alternative. At the time the taxpayers rejected the Appeals officer's installment agreement, there was sufficient reason to believe that their tax liability may have been dischargeable in bankruptcy. Not until a Supreme Court decision (Young v. United States, 2002-1 USTC ¶50,257, 535 US 43 (2002)), which was decided after the events in this instance transpired, would the important equitable tolling issue raised here be resolved.
E.H. Harrell, 86 TCM 378, Dec. 55,298(M), TC Memo. 2003-271.
The Tax Court denied the IRS's motion for reconsideration of its previous decision determining that an Appeals officer presiding over married taxpayers' Collection Due Process hearing abused his discretion. The IRS failed to establish that new issues were raised or that a substantial error was made in the previous decision. The court rejected the IRS's argument that its previous decision was ambiguous, and confirmed that the Appeals officer abused his discretion in issuing a notice of deficiency to the taxpayers without awaiting the Supreme Court's decision in a case with similar facts.
E.H. Harrell, 86 TCM 585, Dec. 55,344(M), TC Memo. 2003-312.
An individual taxpayer waived his rights to his Collection Due Process (CDP) hearing by failing to comply with procedural rules prohibiting the tape recording of the CDP hearing. Thus, he could not assert that his rights to due process were denied.
C.N. Henry, DC Md., 2002-2 USTC ¶50,781.
Married taxpayers who received notices of deficiency, failed to file a petition for redetermination in the Tax Court, and advanced meritless tax protest arguments at their collection review proceeding, failed to demonstrate that tax assessments against them were invalid. Under Code Sec. 6330, they were barred from challenging the existence or the amount of their underlying tax liabilities in the Tax Court. Moreover, the Appeals officer at the taxpayers' Collection Due Process hearing verified that all applicable laws and administrative procedures were met by obtaining and reviewing Forms 4340 transcripts of the taxpayers' accounts.
G. Newman, 83 TCM 1757, Dec. 54,764(M), TC Memo. 2002-135.
The IRS's determination to proceed with collection of a nonfiler's outstanding tax liabilities was sustained. Even if the taxpayer could challenge the merits of his underlying tax liability, the IRS provided him with information upon which the liability was based, and the taxpayer failed to show any error in its determination. His contention that the IRS's tax determination was based on a government conspiracy against him was rejected. His Appeals officer provided him with an explanation of the source of the income adjustments determined in his notice and explained that the income items were based on Forms W-2 and 1099 from the taxpayer's companies.
T. Hochschild, 84 TCM 161, Dec. 54,834(M), TC Memo. 2002-135.
The district court properly ruled in favor of the government in a taxpayer's action seeking to vacate an IRS notice of determination that approved assessments of frivolous return penalties for three tax years. The IRS presented uncontroverted evidence establishing that it provided the taxpayer with adequate notice, and the taxpayer failed to raise a genuine issue of material fact as to whether the Appeals officer abused his discretion in determining, pursuant to Code Sec. Code Sec. 6330(c)(1), that the IRS had met the requirements of applicable law or administrative procedures.
L. Standifird, CA-9 (unpublished opinion), 2002-2 USTC ¶50,584, aff'g unreported district court decision.
An individual's suit against the IRS was dismissed because the taxpayer failed to establish that the notice and hearing procedures followed by IRS agents were improper. The notice of levy signed by the chief of the IRS Automated Collection Branch fulfilled the requirements of Code Sec. 6330, and the underlying tax liability raised by the taxpayer at the Collection Due Process (CDP) hearing was appropriately disregarded. Moreover, the taxpayer's request for IRS documentation, which essentially constituted a request for legal research, exceeded the bounds of the Freedom of Information Act. Also, there was no legal foundation for the taxpayer's claim that IRS Appeals officers failed to provide documentary support for a frivolous return penalty; the IRS had issued the taxpayer two notices indicating an outstanding tax lien and the possibility of a penalty. Finally, the taxpayer's claim that the requirements of Code Sec. 6331had not been met lacked merit because no collection occurred and the CDP hearing was not about the taxpayer's failure to pay taxes.
R.. Cole, DC Mich., 2002-2 USTC ¶50,804, aff'g unreported district court decision.
An individual's suit against the government challenging its assessment of frivolous return penalties was dismissed. The taxpayer received the government's notice of intent to levy and a notice of his right to a hearing because he returned a copy of it with his request for the Collection Due Process hearing. Absent a genuine issue of material fact with respect to the verification of all legal and administrative requirements, the government's motion for dismissal and summary judgment was granted.
D. Montijo, DC Nev., 2002-2 USTC ¶50,479.
An individual's suit challenging IRS collection activities was dismissed without leave to amend. The IRS's alleged failure to send the taxpayer verification prior to the issuance of a determination was not in violation of Code Sec. 6330. Furthermore, there was no legal requirement that the IRS produce any of the documents the taxpayer claimed it needed to produce prior to the imposition of a levy or in connection with the Collection Due Process hearing; and there was no requirement of publication of internal delegations of administrative authority to enforce Internal Revenue laws. The taxpayer's remaining allegations failed to state a claim upon which relief could be granted. His allegations did not propose an alternative to collection by levy as described in Code Sec. 6330, but rather proposed a condition to payment of the underlying ability, which was clear as a matter of law and known to the taxpayer.
S. Rennie, DC Calif., 2002-2 USTC ¶50,548, 216 FSupp2d 1078.
Taxpayer failed to establish that the notice and hearing procedures followed by IRS agents were improper. The notice of levy signed by the chief of the IRS Automated Collection Branch fulfilled the requirements of Code Sec. 6330, and the underlying tax liability raised by the taxpayer at the Collection Due Process (CDP) hearing was appropriately disregarded. Moreover, the taxpayer's request for IRS documentation, which essentially constituted a request for legal research, exceeded the bounds of the Freedom of Information Act. Also, there was no legal foundation for the taxpayer's claim that IRS Appeals officers failed to provide documentary support for a frivolous return penalty; the IRS had issued the taxpayer two notices indicating an outstanding tax lien and the possibility of a penalty.
S. Rennie, DC Mich., 2002-2 USTC ¶50,804.
No showing was made that the Appeals officer abused his discretion or reached an erroneous conclusion regarding the propriety of the lien and proposed levy.
N. Abu-Awad, DC Tex., 2003-2 USTC ¶50,716, 294 FSupp2d 879.
Taxpayer's claim that the IRS Appeals officer abused her discretion in upholding the IRS's collection by levy after he requested to resume payment under his bankruptcy reorganization plan was without merit. Evidence indicated that in written correspondence the Appeals officer asked the taxpayer to contact the IRS to discuss collection alternatives, however, the taxpayer failed to respond.
M.D. Johnson, DC Ga., 2003-2 USTC ¶50,721.
The taxpayer's claim that he was entitled to remand his case to the Appeals Office for further proceedings because the Appeals officer failed to complete the hearing process or take into consideration his request for abatement of interest and penalties was dismissed. Regardless of whether the taxpayer was accorded his right to a hearing pursuant to Code Sec. 6330(b), he was not prejudiced, and it was neither necessary nor productive to remand his case.
B.S. Parikh, 86 TCM 720, Dec. 55,377(M), TC Memo. 2003-341.
An IRS Appeals officer's Collection Due Process (CDP) determination upholding the imposition of a delay penalty was sustained, absent proof that the IRS failed to follow proper procedures during the CDP hearing.
M. Cipolla, 87 TCM 801, Dec. 55,507(M), TC Memo. 2004-6.
Married taxpayers who alleged that they had overstated their tax liability on their tax return were entitled to challenge the existence or amount of the reported tax liability at a Collection Due Process (CDP) hearing. The plain language of Code Sec. 6330 extends substantive and procedural protections to taxpayers who are confronted with a lien, or proposed levy, but who did not have a prior opportunity to challenge their tax liability. The IRS's contention that persons who report their tax liability on a duly filed return are barred from disputing that liability at a CDP hearing was rejected. Instead, the taxpayers, who did not receive a deficiency notice and were not given an opportunity to dispute the tax liability, were entitled to Code Sec. 6330 relief.
N. Montgomery, 122 TC 1, Dec. 55,501 (Acq.) (AOD 2005-03, December 16, 2005).
An IRS Appeals officer erred in failing to credit a married couple's tax overpayment for one year against their liabilities. The taxpayers were entitled to challenge the existence or amount of their underlying tax liability at the Collection Due Process proceeding (N. Montgomery, 122 TC 1, Dec. 55,501 (2004)). The case was remanded to the Appeals officer for the appropriate credit. However, with respect to a second tax year, the couple failed to substantiate their overpayment and refund claims.
D.R. Cooley, 87 TCM 1025, Dec. 55,558(M), TC Memo. 2004-49.
A taxpayer who reports an amount of tax on a return is not precluded from challenging the accuracy of that amount in a Code Sec. 6330 hearing. N. Montgomery, 122 TC 1, Dec. 55,501 (2004), followed. In the instant case, the IRS was entitled to summary judgment because the taxpayer averred no facts sufficient to show error in assessments on the basis of his tax returns, or otherwise with respect to a notice of determination, failed to raise a justiciable issue.
R.E. Poindexter, 122 TC 280, Dec. 55,604, aff'd CA-2, 2005-2 USTC ¶50,508, 132 FedAppx 919.
No genuine issue of material fact remained with respect to the taxpayer's claim that he did not have a "hearing" within the meaning of Code Secs. 6320(b) or 6330(b). The IRS Appeals officer heard and considered all of the taxpayer's arguments via telephone conference, which satisfied Reg. §301.6320-1(d)(2).
A.J. Dorra, 87 TCM 822, Dec. 55,517(M), TC Memo. 2004-16.
The IRS did not abuse its discretion in issuing married taxpayers notices of determination without conducting a collection due process hearing that they had requested. The taxpayers failed to take advantage of several opportunities to properly request a hearing and engaged in dilatory conduct to postpone collection.
V.S. Pless, 87 TCM 845, Dec. 55,527(M), TC Memo. 2004-24.
An IRS Appeals officer who denied an individual's request for a further postponement of his Collection Due Process (CDP) hearing did not abuse her discretion in determining that the IRS was entitled to proceed with collection. The taxpayer had been granted two prior postponements and had failed to submit an offer in compromise to the Appeals officer, he was deemed to have been afforded a proper opportunity for a hearing.
S.M. Day, 87 TCM 949, Dec. 55,534(M), TC Memo. 2004-30.
An IRS Appeals officer's decision to continue with the CDP hearing despite the fact that the taxpayer had not received tax records he requested from the IRS did not constitute an abuse of discretion. The taxpayer did not ask for an extension of time in order to obtain the records before the hearing.
C.E. Minion, Sr., CA-6, 2004-1 USTC ¶50,161, 79 FedAppx 172.
The refusal of IRS Appeals officers to accept a nursing home's offers in compromise was not an abuse of discretion for numerous reasons, including the apparent failure to file the proper forms and financial information, its financial difficulties, and a previous default on an installment payment plan. It was also not necessary for the Appeals officers to consider whether the IRS would receive any revenue from the levy and sale of the nursing home's property due to existing liens of superior creditors, or whether the nursing home would have to close down due to the levy and sale. These considerations are properly made after the determination of the Appeals officer in a Collection Due Process hearing when the decision to actually levy upon the property is made.
Living Care Alternatives of Utica, Inc., CA-6, 2005-1 USTC ¶50,395, 411 F3d 621.
The Tax Court dismissed an individual's challenge to an adverse Collection Due Process (CDP) determination. The taxpayer was properly prohibited from addressing her underlying tax liability. She received a notice of deficiency and, as a result, had a prior opportunity to dispute the liability. The court rejected the taxpayer's argument that the balance due under a proposed installment agreement was excessive.
L.M. Hiltz, 87 TCM 973, Dec. 55,545(M), TC Memo. 2004-38.
The government was not entitled to a dismissal of an individual's challenge to an adverse Collection Due Process (CDP) determination. The taxpayer provided significant evidence that he made attempts to negotiate collection alternatives to satisfy his outstanding taxes. The parties contemplated further negotiations, even though certain taxpayer correspondence might not have been received by the IRS.
A.G. Cooper, 87 TCM 1033, Dec. 55,559(M), TC Memo. 2004-50.
The IRS was entitled to proceed with the collection of a married couple's unpaid taxes following a Collection Due Process hearing. The taxpayers' only challenge to the underlying tax liability was that they were entitled to a reasonable cause exception on account of the husband's illness. However, such a challenge was unavailable based on a stipulation entered into by the couple that conceded there was no reasonable cause exception.
P. Aaron, 86 TCM 1087, Dec. 55,576(M), TC Memo. 2004-65.
The IRS was limited to an assessment amount indicated in a settlement agreement it entered into with married taxpayers in connection with one tax year. The settlement agreement was validated by the Tax Court and represented a final and binding resolution.
T.J. Ratke, 87 TCM 1169, Dec. 55,600(M), TC Memo. 2004-86.
The taxpayer did not request redetermination after receiving the deficiency notices; therefore, he could not contest the underlying tax deficiencies.
J.G. Gilligan, 88 TCM 170, Dec. 55,731(M), TC Memo. 2004-194.
An informal hearing between an individual and an IRS Appeals officer to discuss employment taxes owed in connection with the taxpayer's moving company constituted a Collection Due Process (CDP) hearing. The taxpayer was given notice of the relevant tax issue, was informed of the IRS's position, and was given an opportunity to be heard. The Appeals officer already had the necessary documentation at the time of the meeting, and the parties engaged in follow-up telephone conferences. Moreover, there were no factual issues in dispute. The taxpayer conceded that taxes were owed and agreed with the IRS's revised calculations. As such, their review of the taxpayer's file constituted a CDP hearing under the low standard imposed by Reg. §301.6330-1.
S.D. Stewart, DC Pa., 2004-1 USTC ¶50,212.
An Appeals officer did not abuse his discretion by refusing to accept an individual's offer in compromise. After receiving a Notice of Intent to Levy for deficiencies related to two tax years, the taxpayer requested a collection due process hearing. At the hearing, the taxpayer submitted an offer in compromise. After reviewing the taxpayer's financial information, the Appeals officer rejected the taxpayer's offer in compromise and determined to proceed with enforcement. The Appeals officer's decision was based on information provided by the taxpayer that indicated he was able to satisfy his outstanding tax liabilities. Therefore, the Appeals officer did not abuse his discretion by rejecting the taxpayer's offer in compromise
R.L. Voorhees, 87 TCM 1250, Dec. 55,621(M), TC Memo. 2004-105.
Similarly, with respect to rejection of taxpayer's offer in compromise:
C. Neugebauer, 86 TCM 394, Dec. 55,303(M), TC Memo. 2003-276.
D.G. Willis, 86 TCM 506, Dec. 55,334(M), TC Memo. 2003-302.
J.J. Crisan, 86 TCM 601, Dec. 55,350(M), TC Memo. 2003-318.
R.G. Van Vlaenderen, 86 TCM 736, Dec. 55,382(M), TC Memo. 2003-346.
P. Goldman, 87 TCM 790, Dec. 55,504(M), TC Memo. 2004-3.
D.M. Chandler, 87 TCM 806, Dec. 55,508(M), TC Memo. 2004-7.
J.L. Tillman, 87 TCM 806, Dec. 55,509(M), TC Memo. 2004-8.
Action Employment Resources, Inc., DC Ariz., 2004-1 USTC ¶50,136. Aff'd, CA-9 (unpublished opinion), 2006-1 USTC ¶50,130, 158 FedAppx 67.
S. Roman, 87 TCM 835,Dec. 55,522(M), TC Memo. 2004-20.
S. Razo, 87 TCM 1234,Dec. 55,616(M), TC Memo. 2004-101.
A.M. Kun, 88 TCM 262, Dec. 55,749(M), TC Memo. 2004-209. Motion to vacate denied, 88 TCM 547, Dec. 55,816(M), TC Memo. 2004-273.
A.H. O'Brien, 86 TCM 461, Dec. 55,321(M), TC Memo. 2003-290.
C.R. Neugebauer, 86 TCM 467, Dec. 55,323(M), TC Memo. 2003-292.
K. Hawkins,, 89 TCM 1075, Dec. 55,999(M), TC Memo. 2005-88.
Comfort Plus Health Care, Inc., DC Minn., 2005-2 USTC ¶50,494.
D.A. Singer, 90 TCM 67, Dec. 56,098(M), TC Memo. 2005-175.
B.R. Splawn, DC Tenn., 2004-2 USTC ¶50,392.
R. Barnes, 92 TCM 31, Dec. 56,570(M), TC Memo. 2006-150.
R.R. Pennington, DC Tex., 2006-2 USTC ¶50,474.
W.H. Lindley, 92 TCM 363, Dec. 56,659(M), TC Memo. 2006-229.
M. Smith, 93 TCM 1047, Dec. 56,880(M), TC Memo. 2007-73.
An Appeals officer's determination that the IRS could proceed with a levy against an individual taxpayer was not an abuse of discretion. The taxpayer's claim that she had requested, but was not granted, a face-to-face interview was not persuasive. Moreover, the taxpayer had been given 30 days to revise her offer in compromise, and her case was not closed for six weeks after that time period had lapsed, but even with the additional time, the taxpayer did not revise her offer or provide the additional information that had been requested.
M.J. Chandler, 89 TCM 1133, Dec. 56,011(M), TC Memo. 2005-99.
Taxpayers did not raise collection alternatives during the CDP hearing, and, although they submitted an offer in compromise, it was not submitted to the correct office and was not in the proper form. Thus, there was no offer in compromise before the Appeals Office and the IRS did not abuse its discretion in not considering the offer.
J. Kendricks, 124 TC 69, Dec. 55,950.
Although the taxpayer expressed an interest making an offer-in-compromise during his collection due process (CDP) hearing, he was not eligible to make an offer because he had failed to file all of his tax returns.
T.G. Collier, 88 TCM 38, Dec. 55,701(M), TC Memo. 2004-171.
An IRS Appeals officer did not abuse his discretion in rejecting married taxpayers' proposed collection alternative or in sustaining a proposed levy to collect their outstanding tax liabilities. Although the taxpayers claimed that the Appeals officer should have requested updated financial information from them, had he been in receipt of that information, he would not have been persuaded to reach a different decision. Further, the officer was not required to take notes during his meeting with the taxpayers; nor was he required to wait a set amount of time after contacting them before deciding that the levy could proceed.
J.B. Clawson, 87 TCM 1251, Dec. 55,623(M), TC Memo. 2004-106.
It was not an abuse of discretion for an Appeals officer to determine that a taxpayer had breached the terms of his offer-in-compromise. The terms of the offer explicitly required the taxpayer to file certain tax returns by their due dates, which he failed to do. Therefore, the taxpayer was in default. The Tax Court erred when it considered evidence that was not presented during the administrative proceedings. Nothing in the IRS Restructuring and Reform Act of 1998 (P.L. 105-206) permits the Tax Court to perform a de novo review of IRS Appeals officer's decisions under Code Sec. 6330.
J.M. Robinette, CA-8, 2006-1 USTC ¶50,213, rev'g 123 TC 85, Dec. 55,698.
It was an abuse of discretion to reject an individual's offer-in-compromise (OIC) and allow federal tax liens to remain attached to trust property. The rejection of the taxpayer's OIC was not based on a financial analysis of the taxpayer's income, assets, allowable expenses and ability to pay and, therefore, due consideration was not given to collection alternatives as required by Code Sec. 6330.
M.F. Skrizowski, 88 TCM 336, Dec. 55,771(M), TC Memo. 2004-229.
While the taxpayer had submitted an offer-in-compromise prior to the filing of the notice of the lien, it was returned when she did not provide additional financial information in support of the offer as requested by the IRS. Consequently, at no time during the Collection Due Process hearing did the taxpayer have an offer-in-compromise on file or make a request for an installment agreement to pay the uncontested liability.
K.D. Mills, 88 TCM 21, Dec. 55,690(M), TC Memo. 2004-164.
An Appeals officer abused her discretion in rejecting a married couple's offer in compromise where she failed to accurately confirm the couple's delinquent tax before issuing her determination. The payments initially proposed under the plan would not satisfy their tax liability. However, the Appeals officer did not take into account the IRS's misapplication of funds, which was not properly deducted from the amount stated in the notice of determination. Moreover, the Appeals officer failed to consider the taxpayers' ability to make larger payments under the proposed plan. The taxpayers established that they satisfied their previous tax liabilities, which allowed them to make greater monthly payments.
J.B. Borges, DC N.M., 2004-1 USTC ¶50,208, 317 FSupp2d 1276.
An IRS Appeals officer abused his discretion in denying a married couple's offer in compromise on the grounds that the taxpayers had inadequate income to meet their living expenses and pay the proposed monthly payments. The officer appeared to rely exclusively on the IRS's prescribed schedule of national and local average living expenses to determine that the taxpayers' basic living expenses exceeded their monthly income. However, all of the facts and circumstances, including the schedule of actual expenses submitted by the taxpayers, should have been considered in determining whether the taxpayers could pay both their expenses and the installment payments (Code Sec. 7122(c)(2)). The filing of the federal tax liens to secure the IRS's interest in the unpaid tax liability was not an abuse of discretion.
M. Fowler, 88 TCM 17, Dec. 55,689(M), TC Memo. 2004-163.
A taxpayer's request for a collection due process (CDP) hearing under Code Sec. 6330 was met by means of two telephone conversations between the taxpayer's representative and the IRS appeals officer.The taxpayer failed to offer evidence as to the content of the conversations; thus there was, no basis to conclude that the IRS improperly characterized the conversations as CDP hearings.
C. Whiting, 87 TCM 1399, Dec. 55,658(M), TC Memo. 2004-136.
An IRS initiation of collection proceedings was sustained despite numerous allegations by the taxpayer of procedural errors and improper deficiency assessment. The taxpayer claimed (1) IRS notices were invalid because they were not signed under penalties of perjury, (2) the Appeals officer had not met the requirements of Code Sec. 6330, a "procedurally proper" Notice and Demand for Payment was not issued and, (4) they were entitled to an examination interview or administrative appeal. All taxpayer allegations were dismissed.
J.O. Milam Jr., 87 TCM 1214, Dec. 55,609(M), TC Memo. 2004-94.
An IRS Appeals officer did not abuse his discretion when he held that the IRS could proceed with filing a tax lien against married taxpayers who raised only frivolous arguments at their collection due process hearing.
G.M. Dashiell, 88 TCM 264, Dec. 55,750(M), TC Memo. 2004-210.
Taxpayers failed to show they were denied a fair hearing on their appeal of the IRS's determination to levy their property. Although the taxpayers alleged that a CDP hearing was not properly provided, a series of communications, including a telephone conversation, can collectively satisfy the CDP hearing requirement. There is no requirement that a CDP hearing be specifically designated as such by the conducting officer so long as the taxpayers and IRS officers address the issues on the merits during the communications.
Allglass Systems, Inc., DC Pa., 2004-2 USTC ¶50,387, 330 FSupp2d 540.
The IRS's collection action could proceed. The individual never appeared at the scheduled hearing and did not respond to telephone calls from the hearing officer.
T.D. Hiland, 88 TCM 322, Dec. 55,767(M), TC Memo. 2004-225.
The IRS did not abuse its discretion in determining to proceed with collection actions against the taxpayer. In reaching this decision, the Tax Court refused to remand the case to Appeals even if there were an Appeals office closer to where the taxpayer lived than the one where the IRS offered to hold the hearing. While taxpayers must be offered an opportunity for a hearing at the Appeals office closest to their residence, because the taxpayer's arguments were limited to the Code Sec. 6330(c)(1) verification requirements, his presence was not required for the hearing.
M.E. Vierow, 88 TCM 422, Dec. 55,798(M), TC Memo. 2004-255. Aff'd, CA-9 (unpublished opinion), 2006-1 USTC ¶50,133, 158 FedAppx 926.
A levy determination on an individual's property was remanded because the taxpayer and his representative had no prior notice of the date or time of the collection due process (CDP) hearing. The Appeals officer considered two telephone conversations with the taxpayer's representative to be a CDP hearing. However, at no time during the phone calls did the taxpayer's representative have any clear notice that the phone calls constituted the taxpayer's CDP hearing. Since the taxpayer was entitled to at least minimal notice of the hearing, no adequate CDP hearing was provided.
J.W. Cox, DC Okla., 2004-2 USTC ¶50,404, 345 FSupp2d 1218.
A Collection Due Process (CDP) determination upholding a levy imposed against an individual was not an abuse of discretion. The IRS Appeals officer justifiably terminated the CDP hearing because the taxpayer raised frivolous arguments and not because she was biased.
L.D. Kolker, 88 TCM 639, Dec. 55,833(M), TC Memo. 2004-288.
While the IRM instructed the hearing be held at the taxpayer's place of business, in this case, failure to do so did not amount to an abuse of discretion by the settlement officer
Reid & Reid, Inc., DC Md., 2005-1 USTC ¶50,266.
An IRS settlement officer did not abuse his discretion by determining to proceed with a collection by levy of the taxpayer's unpaid taxes. The settlement officer was never made aware of any extenuating circumstances that caused the taxpayer to fail to submit requested information. Furthermore, the taxpayer's assertion that the settlement officer set unreasonable deadlines was not supported by evidence or law.
F.A. Morlino, 90 TCM 168, Dec. 56,126(M), TC Memo. 2005-203.
The IRS's determination to proceed with a levy to collect a married couple's tax liabilities, which were based on substitute returns, was not an abuse of discretion. The Appeals officer properly verified all applicable laws, and administrative procedures governing assessment and collection of the couple's unpaid tax liabilities were followed.
B. Nicklaus, 89 TCM 1499, Dec. 56,076(M), TC Memo. 2005-156.
The trial court properly determined that the IRS did not abuse its discretion when it attempted to collect unpaid employment taxes and penalties owed by an individual through the levy process. Although the taxpayer had requested a Collection Due Process (CDP) hearing and filed a formal offer in compromise to settle his tax liability, he did not supply the financial information that the IRS requested and believed necessary to evaluate the offer in compromise. The IRS was also justified in requesting financial information about the taxpayer's spouse since it appeared that the taxpayer may have transferred some of his assets to his spouse and since the IRS needed to verify each spouse's responsibility for the couple's living expenses. Further, the IRS's failure to negotiate and make a counteroffer during consideration of the compromise offer also did not violate the taxpayer's due process rights since the taxpayer did not provide the requested financial information.
R.E. Olsen, CA-1, 2005-2 USTC ¶50,637, 414 F3d 144.
The Tax Court found that a taxpayer was entitled to make an audio recording of his Collection Due Process hearing and ordered that the case be remanded to IRS Appeals, but only if the taxpayer intended to make non-frivolous arguments at the remanded hearing. Because the taxpayer continued to forward only frivolous arguments, remand was unnecessary. The collection action was, therefore, allowed to proceed because there was no abuse of discretion and the IRS could determine that collection was appropriate from the evidence it had already compiled.
R.E. Crandall,, 90 TCM 573, Dec. 56,219(M), TC Memo. 2005-286.
The IRS has issued a fact sheet explaining its collection process, suggesting actions for taxpayers who are unable to pay what they owe or who question the accuracy of their tax bills. The IRS also suggests that taxpayers who cannot pay what they owe liquidate assets and/or arrange for a loan, since the cost of a loan may be lower than the combination of interest and penalties imposed by the IRS. The many forms of payment that taxpayers may use to pay outstanding amounts are listed, as are methods of contacting the IRS to discuss possible inaccuracies in bills as well as alternatives for taxpayers who truly are unable to pay. Liens are discussed, as are account delinquencies, seizure of assets and appeal rights. Amongst resources that a taxpayer may turn to are many IRS publications and other information found on the IRS website.
IRS Fact Sheet FS-2006-11, January 3, 2006.
The IRS did not abuse its discretion in deciding to proceed with a levy to collect an individual's deficiency. The IRS did not prematurely conclude his Collection Due Process (CDP) hearing, especially considering the taxpayer's failure to provide timely information. There was no evidence that the IRS Appeals officer who conducted the hearing acted in bad faith or had any predisposition against the taxpayer, her conclusions were reviewed and accepted by an independent Appeals officer, and judicial review provided the taxpayer with an adequate remedy to any abuse.
E.F. Murphy, 125 TC 301, Dec. 56,232.
The IRS was entitled to proceed with the collection of unpaid taxes, penalties and interest against an individual who reported zero income on his tax return and attached a statement containing frivolous and groundless tax protestor arguments. The Appeals officer did not abuse his discretion when he determined that a levy was appropriate even though there was no face-to-face hearing. The individual failed to indicate any legitimate issues to be addressed in the hearing, such as spousal defenses, the appropriateness of the intended collection action or possible alternative means of collection or interest abatement. Furthermore, the IRS properly verified that the requirements of applicable law and administrative procedures were met and that it balanced the need for efficient collection of taxes with the legitimate concern that the collection action be no more intrusive than necessary.
R. Ho,, 91 TCM 876, Dec. 56,447(M), TC Memo. 2006-41.
The IRS did not abuse its discretion in refusing to grant an in-person collection due process hearing and not allowing an audio recording. Nor did IRS fail to verify that it had complied with all legal and procedural requirements. In addition, the married taxpayers' request to bar summary judgment was premature and their request to dismiss the Justice Department for failure to produce authorization from the Secretary of Treasury and the Attorney General's office was without foundation in the Code, since there is no Code requirement to produce such internal documents.
R. Dibble, DC Mich., 2006-1 USTC ¶50,254.
An individual taxpayer's complaint of an improperly conducted Collection Due Process (CDP) hearing was unfounded. The individual had no rights to the names, titles and job descriptions of IRS employees because their identities had no relevance as to whether the levy to collect penalties was valid. The IRS was also not required to present oral testimony if authenticated documentation was available.
M. S. Eash, DC Neb., 2006-1 USTC ¶50,186.
The IRS's determination to proceed with a levy against an individual for unpaid liability arising from several years was not an abuse of discretion. The IRS Appeals Office prepared a supplemental notice of determination in response to the individual's Tax Court filing, which was an improper act while the Tax Court retained jurisdiction. Upon remand for a second CDP hearing, a second supplemental notice of determination was prepared. The individual's argument that the impropriety of the initial notice of determination was to an abuse of discretion was dismissed as moot. The Tax Court's remand of the case to Appeals was an appropriate act and the individual had been accorded all pre-levy rights under Code Sec. 6330.
K.A. Sapp, 91 TCM 1177, Dec. 56,519(M), TC Memo. 2006-104.
An IRS settlement officer's decision to proceed with collection of a married couple's tax liabilities was an abuse of discretion. The settlement officer did not conduct an independent administrative review of the IRS's rejection of an offer-in-compromise and failed to consider supporting documents provided by the couple. The settlement officer instead relied on undocumented and unsupported figures from a revenue officer's determination of reasonable collection potential.
R. Harris, Sr., 92 TCM 217, Dec. 56,610(M), TC Memo. 2006-186.
An individual's claim that he did not receive a proper collection hearing because it was conducted by a settlement officer, rather than an Appeals officer, was without merit. There is no requirement that a collection hearing be conducted by an Appeals officer; the hearing need only be conducted by an officer or employee of the Appeals office, which includes a settlement officer. Further, the settlement officer was under no obligation to provide specific evidence to the individual that statutory and administrative requirements had been met. The settlement officer's reliance on a Form 4340 was sufficient to meet the verification requirements of Code Sec. 6330(c)(1). The individual did not present any evidence that the settlement officer abused his discretion but instead raised frivolous tax protestor arguments. Therefore, the IRS's determination was not an abuse of discretion and the proposed collection could proceed.
W. Reynolds, 92 TCM 260, Dec. 56,617(M), TC Memo. 2006-192.
Taxpayers who had received a timely notice of deficiency could not contest their tax liability under Code Sec. 6330(c)(2)(B) during a collection due process hearing. Although the IRS did not also mail a copy of a deficiency notice to the taxpayers' named representative, such failure did not invalidate the notice of deficiency.
C.H. Bond, 94 TCM 207, Dec. 57,062(M), TC Memo. 2007-240.
An IRS Appeals officer did not err or abuse of his discretion in sustaining the IRS's notice of Federal tax lien or proposed levy action without conducting a telephone interview with the taxpayer. The taxpayer failed to identify any materials that were not duly considered or that would otherwise would have affected the officer's decision.
J.E. Hunter, II, 93 TCM 852, Dec. 56,824(M), TC Memo. 2007-23.
There was no abuse of discretion by an IRS Appeals officer in determining that collection by levy should proceed of an individual's unpaid tax liabilities for three tax years. The individual did not show that disallowance of partnership losses claimed on his individual returns for the years at issue was erroneous, and he offered no credible evidence showing that the IRS's determination was arbitrary, capricious, or without sound basis in law. The partnerships were properly subjected to the unified audit and litigation procedures and a tax attorney who introduced the individual to the partnerships was eligible to serve as tax matters partner of the partnerships. The IRS's criminal investigation of the individual did not convert the partnership items on his tax returns to nonpartnership items. Failure of the Appeals officer to specifically address the merits the individual's argument as to the conversion of partnership items did not warrant a remand of the case for another hearing. Finally, he was not denied due process by being unable to access records allegedly held by the IRS. The documents taken were personal in nature and had nothing to do with the partnerships.
R. Tashjian, 93 TCM 998, Dec. 56,864(M), TC Memo. 2007-59.
A corporation had no basis to assert deprivation of due process rights because it had received every administrative level of review. The corporation failed to provide the documentation before its Collection Due Process (CDP) hearing to support its allegations. It also failed to show that the decisions of the IRS hearing officer were not based on relevant factors or that there was a clear error of judgment. It could not contest its base liability, which was self-assessed and reported through its Form 941. The corporation's consistent noncompliance and prior inability to satisfy its tax obligations, along with its outstanding tax liabilities at the time of the hearing, supported the IRS Appeals officer's decision to refuse to allow it additional time to submit the information previously requested, or to allow it alternative methods of payment in lieu of the instituted lien.
Two Brothers Construction Corp., DC N.J., 2007-1 USTC ¶50,362.
A corporate taxpayer was entitled to a new Collection Due Process (CDP) hearing because the IRS Appeals officer originally assigned to the matter participated in an ex parte communication with the revenue agent who issued the levy. Along with the taxpayer's case files, the revenue agent forwarded to the Appeals officer a cover letter describing in detail why the levy should be sustained. The cover letter was precisely the sort of ex parte contact prohibited by Notice 2000-43, 2000-2 CB 404. Moreover, the court rejected the Appeals officer's testimony that he was not influenced by the cover letter because of the hostile manner in which he conducted the CDP hearing process. Finally, the taxpayer's request that the Appeals officer review a settlement agreement was not a prohibited attempt to contest the taxpayer's previously litigated tax liability. The taxpayer merely wanted to confirm that the IRS had made the required adjustments to its account.
Industrial Investors, 93 TCM 1126, Dec. 56,904(M), TC Memo. 2007-93.
An IRS settlement officer did not abuse his discretion in terminating a telephone hearing with an individual who owed taxes, and deciding that a federal tax lien was appropriately imposed on the taxpayer's property. At some point in the telephone hearing, the taxpayer and his representative confirmed that they were making an audio recording of the hearing without having made an advance request as required by Code Sec. 7521(a)(1). There was no prejudice in not permitting the recording because the taxpayer did not assert that he raised any collection alternatives that were not considered by the settlement officer. Further, remand was not warranted because the taxpayer advanced frivolous arguments, did not raise any relevant issues of merit and, at trial, declined to testify, call witnesses, or introduce other evidence.
T.O. Maxton, Jr., 93 TCM 1132, Dec. 56,906(M), TC Memo. 2007-95.
An individual failed to establish that the IRS Appeals Office abused its discretion in determining to proceed with a collection action regarding his unpaid tax liability. The individual did not show any irregularity in the assessment procedure that raised a question about the validity of the IRS's assessments of his tax liabilities, and otherwise raised only frivolous and groundless arguments.
H.W.N. Chang, 93 TCM 1143, Dec. 56,911(M), TC Memo. 2007-100.
The IRS did not abuse its discretion in issuing a tax lien against a corporation for nonpayment of corporate income and payroll taxes. The taxpayer's claims that the tax lien was excessive and that it did not receive a fair and impartial Collection Due Process hearing (CDP) were rejected. Further, the taxpayer failed to support its contention that the IRS misapplied its monthly payroll tax deposits. Although many spreadsheets and tax forms were submitted, the taxpayer failed to specify which part of these documents supported its claims. Finally, the IRS officer's written comment in her notes was insufficient to support a finding that the officer was not impartial or that the taxpayer was denied a fair hearing.
C & W Mechanical Contractors, Inc., DC Ga., 2007-1 USTC ¶50,504.
An IRS Appeals Officer did not abuse his discretion in declining to await the outcome of an individual's "eleventh-hour" request for audit reconsideration before issuing his determination to sustain a proposed collection action. Pursuant to Reg. §301.6330-1(e)(3), Q&A-E9, the Appeals Officer was to conduct the hearing and issue a determination as expeditiously as possible. In addition, the individual failed to make a valid challenge to the appropriateness of the intended collection action or to offer an alternative means of collection.
O.K. Jones, 93 TCM 1312, Dec. 56,958(M), TC Memo. 2007-142.
IRS Appeals did not abuse its discretion in sustaining a levy rather, than granting the taxpayer an installment agreement, when the underlying deficiency arose out of five years of unfiled tax returns and the taxpayer still had an outstanding unfiled return on the date of the Appeals Office hearing. In balancing the need for efficient collection of tax against the taxpayer's concern that collection action not be more intrusive than necessary, the IRS was entitled to consider the taxpayer's history of noncompliance .
R. Pavlica, 93 TCM 1406, Dec. 56,980(M), TC Memo. 2007-163.
The IRS did not abuse its discretion by sustaining a levy and rejecting an individual's installment agreement request. The individual failed to submit the financial information needed to consider his installment agreement application. There was no indication that the individual asked for additional time to submit the requested financial information. Further, the individual's allegations that he now had the requested information and that the Tax Court should remand his case to the Appeals Office for consideration of his proposed installment agreement were rejected.
B.J. Prater, 94 TCM 209 Dec. 57,063(M), TC Memo. 2007-241.
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