The IRS may withdraw an NFTL before the underlying tax is paid if
it is determined that: (1) The NFTL was prematurely filed or otherwise not in
accordance with IRS procedures; (2) the taxpayer has agreed to an installment
agreement; (3) withdrawal of the NFTL will facilitate collection; or (4)
withdrawal of the NFTL is in the best interests of the taxpayer and the United
States.
Sec.
6323(j)(1). Withdrawal does not affect the underlying lien.
Sec.
301.6323(j)-1(a), Proced. & Admin Regs.
The Commissioner must issue a certificate releasing a lien within
30 days after he determines that the entire tax liability (including interest)
has been paid or becomes legally unenforceable, or if the taxpayer posts an
acceptable bond.
Sec.
6325(a). If the Commissioner determines that a certificate of release was
issued improvidently or erroneously and if the period of limitations for
collecting the underlying liability has not expired, the Commissioner may
revoke the certificate of release and reinstate the lien.
Sec.
6325(f)(2). A certificate of release is not conclusive proof that the liability
is See Boyer v. Commissioner,
T.C.
Memo. 2003-322 [TC Memo 2003-322]. extinguished. The underlying tax liability
that is the subject of the NFTL remains until the tax is paid in full or the
period of limitations on collection expires. See id.;
sec.
301.6325- 1(a)(1), Proced. & Admin. Regs.
Generally, the Commissioner has 10 years from the date of
assessment to collect the tax due.
Sec.
6502(a). However, if the taxpayer requests an administrative review of an NFTL,
the period of limitations is suspended during the period of that hearing, and
appeals therein.
Secs.
6320(c),
6330(e).
Martin D. Hoyle v.
Commissioner, 136 T.C. No. 22, Code Sec(s) 6320; 6321; 6323; 6325; 6330.
MARTIN DAVID HOYLE, Petitioner v. COMMISSIONER OF INTERNAL
REVENUE, Respondent This Opinion supplements Hoyle v. Commissioner, 131 T.C.
197 (2008). .
Case Information:
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Code Sec(s):
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Docket:
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Docket No. 7217-04L.
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Date Issued:
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05/23/2011
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Judge:
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Opinion by WELLS
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HEADNOTE
Syllabus
Official Tax Court Syllabus
After this Court's remand of the instant case for R's Appeals
Office to determine, pursuant to
I.R.C. sec. 6330(c)(1), whether R properly sent P a notice of
deficiency, R seeks, by way of a motion in limine, to have the administrative
record from the remand hearing admitted into evidence. P objects on three
grounds:
(1) The
matters in the record on remand were not considered at the original hearing;
(2) R's counsel and the settlement officer engaged in improper ex parte
contact; and (3) documents in the administrative record on remand are
inadmissible hearsay. During the pendency of the instant case, R refiled the
notice of Federal tax lien (NFTL) in issue. P moves to dismiss respondent's
refiled NFTL.
Held: At the hearing on remand, R's settlement officer was not
limited to a consideration of matters considered by the Appeals officer in the
original administrative hearing.
Held, further, R's counsel and the settlement officer did not
engage in prohibited ex parte contact.
Held , further, the administrative record, once it has been
authenticated, is admissible to show information available to the Appeals
Office during the administrative consideration of petitioner's case on remand.
Until documents from that record are offered to prove the truth of the matters
asserted therein, it is unnecessary to rule on P's hearsay objection.
Held , further, R may refile the NFTL.
Counsel
Martin David Hoyle, pro se.
Beth A. Nunnink, for respondent.
Opinion by WELLS
SUPPLEMENTAL OPINION
The instant case is before the Court on respondent's motion in
limine and petitioner's motion to dismiss respondent's lien. 1 We must decide:
(1) Whether the proposed Supplemental Stipulation of Facts and exhibits should
be admitted into evidence; and (2) whether respondent may refile a notice of
Federal tax lien (NFTL) during the pendency of these proceedings.
Background
Many of the relevant facts are set forth in our prior Opinion in
the instant case, Hoyle v. Commissioner,
131 T.C. 197 (2008) (prior Opinion), and are incorporated by
reference. Additionally, some of the facts discussed in this Opinion are taken
from the parties' moving papers for the purpose of ruling on respondent's
motion in limine and petitioner's motions.
At the time he filed the petition, petitioner resided in
Louisiana.
The record contains a notice of deficiency dated March 28, 1996,
for petitioner's 1993 tax year. On August 26, 1996, respondent assessed the
amounts stated in the notice of deficiency.
On September 12, 2002, respondent sent petitioner a Notice of
Federal Tax Lien Filing and Your Right to a Hearing Under
IRC 6320 with respect to petitioner's unpaid tax liability for
1993. On or around September 17, 2002, respondent filed an NFTL in Jefferson Parish,
Louisiana (original NFTL). The original NFTL indicated, on its face, that
unless refiled by September 25, 2006, the original NFTL would operate as a
certificate of release of lien as defined in
section 6325(a). 2 Petitioner
timely requested a review of the original NFTL with respondent's Appeals
Office.
On March 31, 2004, respondent's Appeals Office sent to petitioner
a notice of determination upholding the original NFTL. Petitioner timely filed
a petition with this Court.
On December 3, 2008, we issued our prior Opinion. In our prior
Opinion we stated: we are unable to ascertain the basis for the Appeals
officer's verification that all requirements of applicable law were met.
Consequently, we will remand this case to the Appeals Office for it to clarify
the record as to what the Appeals officer relied upon in determining that the
notice of deficiency was properly sent to petitioner. [Fn. ref. omitted.] Hoyle
v. Commissioner, supra at 205. In a footnote, we noted: “We are remanding this
case in order for the Appeals Office to `examine underlying documents' and make
a record of what was relied upon in making the determination that the notice of
deficiency was `properly sent'.” Id. n.7 (quoting Chief Counsel Notice
CC-2006-19 (Aug. 18, 2006)). On December 19, 2008, we issued an order stating
that “this case is remanded to respondent's Office of Appeals for the purpose
of clarifying the record regarding the issue of what the Appeals officer relied
upon in determining that the notice of deficiency was properly sent to
petitioner.”
On December 22, 2008, respondent's counsel Beth Nunnink (Ms.
Nunnink) sent a letter to Supervisory Revenue Officer Clifford Whitely (Mr.
Whitely) regarding the instant case. In that letter, Ms. Nunnink stated that
she was forwarding the administrative file to which she had added a copy of the
U.S. Postal Service certified mail list dated March 28, 1996, which lists
notices of deficiency sent to petitioner and Wayne Leland, to whom petitioner
had delegated his power of attorney (certified mail list). Petitioner was sent
a copy of the December 22, 2008, letter. On January 20, 2009, Settlement
Officer Magee (Ms. Magee) was assigned to the case.
Ms. Nunnink and Ms. Magee had several conversations after the
remand of this case to respondent's Appeals Office. On January 20, 2009, Ms.
Magee and Ms. Nunnink conferred by telephone and email regarding the case. In
those communications Ms. Nunnink advised Ms. Magee to give petitioner a
face-to-face conference and to decide four issues: (1) Whether the notice of
deficiency was sent to petitioner's last known address; (2) whether the
assessment was valid; (3) whether petitioner could raise the underlying
liability on the ground that he had not received the notice of deficiency; and
(4) the items relied on to make the foregoing determinations.
On January 23, 2009, Ms. Magee advised Ms. Nunnink that she would
have a face-to-face conference with petitioner on February 19, 2009. Ms.
Nunnink advised Ms. Magee that petitioner's amended return for his 1993 tax
year had been admitted into evidence at trial. Ms. Magee and Ms. Nunnink
conferred regarding status reports to the Court. Ms. Nunnink reviewed Ms.
Magee's draft supplemental notice of determination to ascertain whether all
issues the Court had required to be addressed were included in Ms. Magee's
determination and that all explanations were complete.
On February 23, 2009, Ms. Magee asked Ms. Nunnink a legal
question: If petitioner had previously received a notice of deficiency, could
he still raise his underlying tax liability as an issue now? After some
research on the subject, Ms. Nunnink advised Ms. Magee that if petitioner had
received a notice, he could no longer contest his underlying liability.
On February 19, 2009, Ms. Magee discovered that the refiling date
stated on the original NFTL had passed. Throughout several conversations Ms.
Nunnink kept Ms. Magee informed about the refiling of the NFTL, and they
discussed who should speak with petitioner regarding the refiling. On March 3,
2009, respondent filed Form 12474-A, Revocation of Certificate of Release of
Federal Tax Lien, with the Clerk of Court of Jefferson Parish, Louisiana.
Immediately thereafter, respondent refiled the NFTL for petitioner's 1993 tax
year with the Clerk of Court of Jefferson Parish, Louisiana.
On June 26, 2009, Ms. Magee issued a Supplemental Notice of
Determination Concerning Collection Action(s) Under
Section 6320 and/or 6330.
On March 19, 2010, respondent sent to petitioner a supplemental
stipulation of facts to which was attached the record from the hearing on
remand with Ms. Magee, including the certified mail list. Petitioner raised
objections to the stipulation, and on May 3, 2010, respondent filed the instant
motion in limine.
Discussion
Respondent contends that we should rule in limine that the
following documents will be admitted into the record: (1) The original
administrative record as submitted into evidence at trial, before the issuance
of our prior Opinion remanding the case to respondent's Appeals Office; (2)
several previous filings made with the Court; 3 and (3) several documents that Ms. Magee created or
considered on remand (administrative record on remand). Evidence previously
admitted at trial, like the trial transcript itself, is already in the record,
and we therefore need not address its admissibility. The pleadings, motions,
briefs, etc., previously filed with the Court also are part of the record in
this case, and unless and until they are offered into evidence for a particular
purpose, we need not address their admissibility as evidence. As to the
administrative record on remand, respondent contends that it is admissible
under the business records exception to the hearsay rule. See Fed. R. Evid.
803(6). 4
Petitioner contends that
the administrative record on remand is not admissible into evidence because the
matters therein were not considered at the original administrative hearing
before remand, that Ms. Nunnink and Ms. Magee had improper ex parte contact
regarding the hearing on remand, and that the documents in the administrative
record on remand, specifically a certified mail list showing the mailing of the
notice of deficiency in issue to petitioner and to his representative, are
inadmissible hearsay on account of a lack of trustworthiness. See id.
A taxpayer is entitled to a
single hearing under
section 6320 with respect to the year to which the unpaid
liability relates.
Sec. 6320(b)(2); Freije v. Commissioner,
131 T.C. 1, 5 (2008), affd.
325 Fed. Appx. 448 [103 AFTR 2d 2009-2077] (7th Cir. 2009); see
also Kelby v. Commissioner,
130 T.C. 79, 86 (2008) (similar holding for
section 6330 cases). When this Court remands a case to the Appeals
Office, the hearing on remand is a supplement to the taxpayer's original
section 6320 hearing. Kelby v. Commissioner, supra at 86; see also
Olsen v. United States,
414 F.3d 144, 155 [96 AFTR 2d 2005-5081] (1st Cir. 2005) (”In the
event the administrative record is found inadequate for judicial review, `the
proper course, except in rare circumstances, is to remand to the agency for
additional investigation or explanation'.” (quoting Fla. Power & Light Co.
v. Lorion, 470 U.S. 729, 744 (1985))). The hearing on remand provides the
parties with the opportunity to complete the initial
section 6320 hearing while preserving the taxpayer's right to
receive judicial review of the ultimate administrative determination. Kelby v.
Commissioner, supra at 86; see also Wadleigh v. Commissioner,
134 T.C. 280, 299 (2010) (similar result in a
section 6330 case). A corollary to the fact that the taxpayer may
receive only one hearing is that the Commissioner's Appeals Office makes a
single determination. Kelby v. Commissioner, supra at 86. When this Court
remands a case to the Appeals Office and it comes back to us after a
supplemental determination is issued, we review the supplemental determination.
Id.
We remanded the instant
case for the Appeals Office to determine, as a part of its verification “that
the requirements of any applicable law *** have been met”,
sec. 6330(c)(1), whether a notice of deficiency was properly
mailed to petitioner. If the notice of deficiency was not properly mailed, the
assessment of tax would be invalid. See
sec. 6213(a); Hoyle v. Commissioner, 131 T.C. at 205. The act of
mailing may be proven by documentary evidence of mailing. Coleman v.
Commissioner,
94 T.C. 82, 91 (1990). We have held that exact compliance with
Postal Service Form 3877 mailing procedures raises a presumption of official
regularity in favor of the Commissioner and is sufficient, absent evidence to
the contrary, to establish that a notice of deficiency was properly mailed. Id.;
see also United States v. Zolla,
724 F.2d 808, 810 [53 AFTR 2d 84-652] (9th Cir. 1984). Ms. Magee
was not limited to what the original Appeals officer considered. She was
required to consider, pursuant to this Court's order of remand, whether a
notice of deficiency had been properly sent to petitioner. Hoyle v.
Commissioner, supra at 205; see also Kelby v. Commissioner, supra at 86. The
administrative record on remand contains such evidence in the form of a
certified mail list. The certified mail list appears to include the same
information found on Postal Service Form 3877. The administrative record on
remand and the certified mail list are necessary for our consideration of the
supplemental determination by respondent's Appeals Office on remand and will at
least be admitted into evidence for the limited purpose (as allowed by rule 105
of the Federal Rules of Evidence) of showing the proceedings on remand—a
purpose for which they are not, strictly speaking, offered to prove the truth
of the matter asserted therein. Consequently, the administrative record on
remand shall be admitted as long as it is authenticated pursuant to rule 901 of
the Federal Rules of Evidence. If documents from the administrative record on
remand are offered at trial for the additional purpose of proving the truth of
the matters asserted therein, 5 hearsay
and reliability objections can be addressed at that time.
Petitioner cites the
American Bar Association (ABA) Model Code of Judicial Conduct and the Tennessee
Code of Judicial Conduct, Tennessee Supreme Court Rule 10, for the proposition
that communications between Ms. Nunnink and Ms. Magee were impermissible.
Petitioner's reliance on the ABA Model Code and the Tennessee code is
misplaced. They do not govern the matters before us and are not applicable to
the instant case.
The Internal Revenue
Service Restructuring and Reform Act of 1998 (RRA), Pub. L. 105-206,
sec. 1001(a)(4), 112 Stat. 689, (2000) (relying on a
copy of the notice and postal Form 3877 to conclude, "[o]n the
preponderance of the evidence, *** that the statutory notice of deficiency was
sent”). directed the Commissioner to develop a plan to prohibit ex parte
communications between Appeals Office employees and other Internal Revenue Service
(IRS) employees that appear to compromise the independence of the Appeals
officers:
The Commissioner of
Internal Revenue shall develop and implement a plan to reorganize the Internal
Revenue Service. The plan shall— ***
(4) ensure an independent appeals function within the Internal
Revenue Service, including the prohibition in the plan of ex parte
communications between appeals officers and
other Internal Revenue
Service employees to the extent that such communications appear to compromise
the independence of the appeals officers. To fulfill that congressional mandate
to ensure an independent Appeals Office, the Commissioner issued
Rev. Proc. 2000-43, 2000-2 C.B. 404, which is effective for
communications between employees of the Appeals Office and other IRS employees
taking place after October 23, 2000. See Drake v. Commissioner,
125 T.C. 201, 208 (2005); Harrell v. Commissioner,
T.C. Memo. 2003-271 [TC Memo 2003-271]. According to
Rev. Proc. 2000-43, supra, ex parte communications are
communications that take place between the Appeals Office and another IRS
office without the participation of the taxpayer or the taxpayer's
representative. Drake v. Commissioner, supra at 209. An Appeals officer may not
engage in ex parte discussions of the strength and weakness of the issues of a
case that would appear to compromise the Appeals officer's independence. Id.
The Appeals officer must give the taxpayer an opportunity to participate in any
discussions concerning matters that are not ministerial, administrative, or
procedural. Id.;
Rev. Proc. 2000-43,
sec. 3, Q&A-6, 2000-2 C.B. at 406. However,
Rev. Proc. 2000-43, supra, by its terms applies to communications
between an attorney in the Office of Chief Counsel and an Appeals officer only
in nondocketed cases; i.e., those cases where the taxpayer has not yet filed a
petition with the Tax Court. Id.
sec. 2,
sec. 3, Q&A-11, 2000-2 C.B. at 404, 406-407. As the instant
case is a docketed case,
Rev. Proc. 2000-43, supra, does not apply directly to
communications of Ms. Nunnink with Ms. Magee.
During 2007 the IRS Office
of Chief Counsel issued guidelines covering communications between IRS Chief
Counsel attorneys and Appeals officers when a case is remanded by the Tax
Court. Chief Counsel Notice CC-2007-006 (Feb. 23, 2007). That notice provided
three guidelines to Chief Counsel attorneys: (1) Chief Counsel attorneys are to
prepare a written memorandum explaining why the case was remanded and noting
any special instructions in the order of remand and should provide a copy of
the memorandum to the taxpayer; the memorandum is not to discuss the
credibility of the taxpayer or the accuracy of the facts presented by the
taxpayer; (2) a Chief Counsel attorney may provide legal advice to an Appeals
officer as long as that attorney did not give legal advice to an originating
function (e.g., collection) on the same issue in the same case; the legal
advice should not opine on the ultimate legal issues; and (3) the Chief Counsel
attorney who is handling the docketed case should review the supplemental
notice of determination to ensure that it complies with the Tax Court's order.
Chief Counsel Notice CC- 2007-006 (Feb. 23, 2007) was superseded and
incorporated into Chief Counsel Notice CC-2009-010 (Feb. 13, 2009), which
expired on May 15, 2009. However, the procedural aspects of these Chief Counsel
notices have been incorporated into the Internal Revenue Manual (IRM) as of
March 11, 2009. 6 See IRM
pt. 8.22.2. 3 (Mar.
(Mar. 11, 2009) states:
6. In Chief Counsel Notice (CC-2007-006), the IRS provided
guidance on the application of the ex parte rules to communications between
Chief Counsel attorneys and the hearing office when a CDP case is remanded by
the Tax Court.
7. The
following guidelines apply when a CDP case is remanded. The Counsel attorney
working the docketed case should prepare a written memorandum addressed to the
Office of Appeals explaining:
A. the
reasons why the court remanded the case to Appeals,
B. any special requirements in the order (e.g., whether and to
what extent to hold a new conference and whether the case must be reassigned to
a new hearing officer), C. what issues the court has ordered Appeals to address
on remand. (continued...) 11, 2009). One or more of these versions of the
guidelines were in force throughout the period during which Ms. Magee
considered petitioner's case on remand.
We conclude that the conversations between Ms. Nunnink and Ms.
Magee were solely procedural, ministerial, or administrative. Ms. Nunnink did
not opine on the ultimate issues or discuss petitioner's credibility.
Additionally, Ms. Nunnink did not question petitioner's motives, suggest terms
under which an offer-in-compromise would be accepted, or recommend that
respondent secure all of petitioner's assets. See Drake v. The memorandum
should not discuss the credibility of the taxpayer or the accuracy of the facts
presented by the taxpayer.
8. A request by a hearing officer for legal advice in connection
with the remanded CDP case may be handled by the Counsel attorney who is
handling the docketed Tax Court case, so long as that attorney did not give
legal advice to an originating function (e.g., Collection) concerning the same
issue in the same case. If the Counsel attorney provided such advice, Counsel
should assign the request to another Counsel attorney who has not previously
provided advice to a Service office concerning the same issue in the same case.
Counsel should carefully tailor any legal advice to only answer the legal
questions posed by Appeals, and the advice should not opine on how you should
ultimately decide the issues in the Supplemental NOD. Consistent with Q&A11
of
Rev. Proc. 2000-43, the advice does not have to be shared with the
taxpayer or his representative at the time it is rendered. Also, neither the
taxpayer nor his representative have a right to participate in any discussions
between Appeals and Counsel with respect to the advice. Commissioner, 125 T.C.
at 209 (improper ex parte communication where memorandum to Appeals officer
questioned motives of taxpayer's counsel); Indus. Investors v. Commissioner,
T.C. Memo. 2007-93 [TC Memo 2007-93] (cover letter to Appeals
officer was improper ex parte communication because letter told Appeals officer
not to consider CDP hearing for previously filed lien, recommended that
Government secure all assets owned by taxpayer, and suggested terms under which
offer-in-compromise would be accepted). Rather, Ms. Nunnink provided legal
advice on specific issues, such as whether petitioner could challenge the
underlying liability if he had received a notice of deficiency. We do not
believe that such legal advice constitutes prohibited ex parte communications
that should have been shared with petitioner.
Ms. Nunnink's review of Ms. Magee's draft supplemental notice of
determination was not an impermissible ex parte communication. Ms. Nunnink's
comments were meant to ensure that the supplemental notice of determination on
remand complied with our order of December 19, 2008. For example, Ms. Nunnink
asked Ms. Magee to clarify her position in the supplemental notice of
determination and asked her to attach additional documents.
Additionally, Ms. Nunnink's inclusion of the certified mail list
in the administrative record on remand was ministerial, procedural, or
administrative. See
Rev. Proc. 2000-43,
sec. 3, Q&A-6. We remanded this case to the Appeals Office
specifically for the purpose of having it "[clarify] the record regarding
the issue of what the Appeals officer relied upon in determining that the
notice of deficiency was properly sent to petitioner.” Given our mandate on
remand, Ms. Nunnink's actions were not prohibited ex parte communications.
Evidence of a certified mail list is precisely what the Court sought by remand.
Ms. Nunnink's actions in finding the certified mail list and placing it in the
administrative record on remand do not “appear to compromise the independence
of the appeals [officer].” See RRA
sec. 1001(a)(4). Moreover, petitioner was sent a copy
of the letter to Mr. Whitely, which gave him notice of the addition of the
certified mail list to the administrative record on remand and allowed him to
raise that issue with Ms. Magee.
Accordingly, we conclude that Ms. Nunnink and Ms. Magee did not
engage in prohibited ex parte conduct or communications.
Respondent has provided notice to petitioner that he seeks to
introduce the administrative record on remand into evidence. Petitioner objects
to the admission into evidence of the administrative record on remand on the
basis that it is inadmissible hearsay that lacks trustworthiness.
We need not rule on petitioner's hearsay objection at this time
because the initial consideration by this Court of the administrative record on
remand will be for the limited purpose, see Fed. R. Evid. 105, of establishing
what information was available to the Appeals Office when preparing the
supplemental notice of determination; and, for that purpose, admission of the
administrative record on remand for the truth of the matters contained therein
is not necessary. We note that if respondent offers documents from that record
at trial for the truth of the matters contained therein, petitioner may make
any appropriate objections at that time. We also note that, absent stipulation
of the administrative record on remand, respondent must authenticate it at
trial.
Petitioner also contends that respondent may not refile the NFTL.
Respondent contends that he may refile the NFTL pursuant to
section 6325(f).
Pursuant to
section 6321, if a person liable for a tax fails to pay it after a
demand for payment is made, a lien arises in favor of the United States upon
all property and rights to property belonging to such person for the unpaid
amount, including interest. The lien arises when the tax is assessed and
continues until the underlying liability is satisfied or becomes unenforceable
by reason of lapse of time.
Sec. 6322.
Section 6323 authorizes the Commissioner to file notice of that
lien; i.e., an NFTL. The NFTL establishes the lien's priority over subsequent
buyers of the property, holders of security interests in the property,
judgment-lien creditors, and mechanic's lienholders. See
sec. 6323(a).
Generally, an NFTL must be refiled during the 1-year period ending
10 years and 30 days after the date of assessment (the refiling period).
Sec. 6323(g). If the Commissioner fails to refile the NFTL during
the refiling period, the NFTL generally is not effective after the expiration
of that period against any person with an interest in property subject to the
lien.
Sec. 301.6323(g)-1(a)(3), Proced. & Admin. Regs. However,
section 301.6323(g)-1(a)(3)(i), Proced. & Admin. Regs.,
provides an exception to this general rule: the failure to refile the NFTL
during the refiling period will not affect the effectiveness of the NFTL with
respect to property that is the subject matter of a suit filed before the
expiration of the refiling period to which the Government is a party. 7 Even if the
NFTL is not refiled during the refiling period, provided the lien remains in
existence the Commissioner may still file a new NFTL, which will be effective
from the date it is filed.
Sec. 301.6323(g)- 1(a)(4), Proced. & Admin. Regs.
The Commissioner may withdraw an NFTL before the underlying tax is
paid if it is determined that: (1) The NFTL was prematurely filed or otherwise
not in accordance with IRS procedures; (2) the taxpayer has agreed to an
installment agreement; (3) withdrawal of the NFTL will facilitate collection;
or (4) withdrawal of the NFTL is in the best interests of the taxpayer and the
United States.
Sec. 6323(j)(1). Withdrawal does not affect the underlying lien.
Sec. 301.6323(j)-1(a), Proced. & Admin Regs.
The Commissioner must issue a certificate releasing a lien within
30 days after he determines that the entire tax liability (including interest)
has been paid or becomes legally unenforceable, or if the taxpayer posts an
acceptable bond.
Sec. 6325(a). If the Commissioner determines that a certificate of
release was issued improvidently or erroneously and if the period of
limitations for collecting the underlying liability has not expired, the
Commissioner may revoke the certificate of release and reinstate the lien.
Sec. 6325(f)(2). A certificate of release is not conclusive proof
that the liability is See Boyer v. Commissioner,
T.C. Memo. 2003-322 [TC Memo 2003-322]. extinguished. The
underlying tax liability that is the subject of the NFTL remains until the tax
is paid in full or the period of limitations on collection expires. See id.;
sec. 301.6325- 1(a)(1), Proced. & Admin. Regs.
Generally, the Commissioner has 10 years from the date of
assessment to collect the tax due.
Sec. 6502(a). However, if the taxpayer requests an administrative
review of an NFTL, the period of limitations is suspended during the period of
that hearing, and appeals therein.
Secs. 6320(c),
6330(e).
On August 26, 1996, respondent assessed the tax in issue.
Petitioner timely requested an administrative review of the original NFTL, and
subsequently, in the instant case, requested judicial review of that
proceeding. As a decision in the instant case has not yet become final, the
period of limitations on collection remains suspended. See
secs. 6320(c),
6330(e). The original NFTL indicated that unless refiled by
September 25, 2006, it would constitute a certificate of release of lien. The
NFTL was not refiled by that date. On March 3, 2009, respondent filed a
revocation of certificate of release of Federal tax lien and immediately
thereafter refiled the NFTL. Consequently, respondent refiled the NFTL within
the limitations period for collection.
Respondent's lien for the underlying tax reflected in the NFTL
remains in existence because the period of limitations on collections has been
suspended by the instant proceedings. See
secs. 6322,
6330(e). The NFTL was refiled with the Clerk of Court of Jefferson
Parish, Louisiana, in accordance with
section 6323(f). 8 See La. Rev.
Stat. Ann.
sec. 52:52 (2004). Consequently, we conclude that respondent's
refiling of the NFTL is not grounds for dismissal of the instant case in
petitioner's favor. Accordingly, we will deny petitioner's motion to dismiss
respondent's lien.
To reflect the foregoing,
An appropriate order will be issued.
Petitioner has filed numerous other motions, including a motion to
dismiss, to bar evidence or to set a time limit for response filed on Dec. 15,
2008; motion to dismiss and to bar evidence filed on Mar. 19, 2009; motion for
summary judgment filed on Oct. 5, 2009; and motion to dismiss and to bar
evidence filed on Oct. 5, 2009. These motions contain many of the same
arguments petitioner made in his objection to respondent's motion in limine. On
the basis of our holding in the instant Opinion, we will deny petitioner's
motions.
Unless otherwise indicated, section references are to the Internal
Revenue Code of 1986, as amended, and Rule references are to the Tax Court
Rules of Practice and Procedure.
These filings include the
petition filed on Apr. 30, 2004, the answer filed on June 29, 2004,
respondent's motion for summary judgment filed on Sept. 26, 2006, petitioner's
response to respondent's motion for summary judgment filed on Oct. 25, 2006,
petitioner's pretrial memorandum filed on May 21, 2007, respondent's opening
brief filed on Aug. 6, 2007, petitioner's answering brief filed on Sept. 20,
2007, respondent's reply brief filed on Nov. 14, 2007, and our prior Opinion in
the instant case, Hoyle v. Commissioner,
131 T.C. 197 (2008).
Proceedings in the Tax
Court are generally governed by the Federal Rules of Evidence. Rule 143(a).
In relevant part, Internal
Revenue Manual pt. 8.22.2.3
On Apr. 4, 2011, the IRS released final regulations amending
portions of
sec. 301.6323(g)-1(a), Proced. & Admin. Regs. T.D. 9520,
2011-18 I.R.B. 730. Those amendments apply to any NFTL filed on or after Apr.
4, 2011. Under the amended regulations, the release of a Federal tax lien on
property that is the subject of litigation to which the Government is a party
will not affect the Government's priority in such property as long as the suit
was commenced before the date the lien was released.
Sec. 301.6323(g)-1(a)(3)(i), Proced. & Admin. Regs.
Petitioner does not contend that respondent
failed to follow proper procedures in refiling the NFTL.
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