Thursday, December 6, 2012

Abuse of discretion Installment Agreement - no financials

Jean Bridgmon v. Commissioner, TC Memo 2012-322 , Code Sec(s) 6330.

Case Information:

Code Sec(s):       6330
Docket:                Docket No. 24708-10L.
Date Issued:       11/20/2012

Official Tax Court Syllabus


MORRISON, Judge: The IRS notified petitioner, Ms. Jean Bridgmon, that it intended to use its levy power to collect her income-tax liabilities for the tax years 2003, 2004, and 2005. Bridgmon requested a collection-review hearing with the IRS Appeals Office (Appeals Office). She received an adverse determination [*2] from that office. She has appealed that determination to this Court. We do not sustain the Appeals Office's determination. We direct that Bridgmon's case be remanded to the Appeals Office.

The second error Bridgmon alleges is that the Appeals Office failed to consider her proposal to make installment payments of her tax liabilities. The reasons the Appeals Office did not consider the proposal are that Bridgmon allegedly failed to telephone the Appeals Office at the time and date scheduled for her hearing with the Appeals Office and that she did not submit financial information that the Appeals Office had requested. We find that Bridgmon did [*3] call the Appeals Office at the scheduled date and time. We further find that the Appeals Office did not telephone Bridgmon at the scheduled date and time. The scheduled telephone conference was to be Bridgmon's primary opportunity to discuss her installment agreement proposal with the Appeals Office. Under these circumstances, we hold that the Appeals Office erred in failing to make better efforts to contact Bridgmon (such as telephoning her) even though Bridgmon did not submit the requested financial information. Bridgmon should be afforded another opportunity for a hearing with the Appeals Office.



Bridgmon also contends that the Appeals Office erred in failing to consider her proposal to make installment payments of $500 per month. The IRS responds that the Appeals Office could not consider the installment-agreement proposal because Bridgmon had failed to submit a collection-information statement to the Appeals Office. In addition, the IRS contends that Bridgmon failed to call the Appeals Office on June 16, 2010, at the scheduled time.

We believe that Bridgmon did call the Appeals Office at that time. Bridgmon testified that she called the Appeals Office at this time and several other times. Bridgmon was a credible witness. Although the records of the Appeals [*17] Office do not reflect that it received a telephone call from Bridgmon at the scheduled time, and although the Appeals Office wrote a letter on the scheduled day stating that she had not called at the scheduled time, we believe Bridgmon. We find as a matter of fact that Bridgmon called the Appeals Office at the scheduled time and at numerous other times. The IRS asserts that the Appeals Office may have called Bridgmon. As support for this proposition, the IRS points to the following note made by the Appeals Office in its files on May 5, 2010: “ACS history—made several telephone attempts—no response.” We believe this is a reference to a record entitled “Referral Request for CDP Hearing from ACS Support”. This record indicates that on May 20, 2010, “ACS Support” referred Bridgmon's “case file” to the Appeals Office and made the following notes on the record: on February 10, 2010, “LEFT MESSAGE FOR TAXPAYER.”, on February 18, 2010, “NO RESPONSE FROM TAXPAYER, SECOND MESSAGE LEFT.”, and on April 9, 2010, “NO RESPONSE FROM TAXPAYER.” These notes refer to telephone calls made by IRS employees other than those working in the Appeals Office. We find that the Appeals Office did not telephone Bridgmon.

The significance of the telephone call that was scheduled for June 16, 2010, was described in the May 6, 2010 letter of the Appeals Office to Bridgmon. The letter advised her: “This call will be your primary opportunity to discuss with me [*18] [the Appeals Officer] the reasons you disagree with the collection action and/or to discuss alternatives to the collection action.” The telephone call was important. It would have been an opportunity for Bridgmon to ask about the Appeals Office's requests for financial statements, which may have been confusing to Bridgmon. Bridgmon may not have known, for example, whether the Appeals Office wanted her to submit a Form 433-A, a Form 433-B, a Form 433-F, or all three forms. The fact that Bridgmon did not submit any of these forms leads the IRS to argue that it was not an abuse of discretion for the Appeals Office to reject collection alternatives. The courts have recognized that the Appeals Office needs financial information in order to evaluate collection alternatives such as installment agreements and offers-in-compromise. Thus, it has not been held it not to be an abuse of discretion for the Appeals Office to decline to consider collection alternatives when (1) the taxpayer had refused to contact the Appeals Office for the hearing and had failed to submit the financial information requested by the Appeals Office, see Yoel v. Commissioner, T.C. Memo. 2012-222 [TC Memo 2012-222], at *3, *8; Picchiottino v. Commissioner T.C. Memo. 2004-231 [TC Memo 2004-231], slip op. at 13, or (2) the , taxpayer had participated in a hearing with the Appeals Office and had failed to submit the financial information requested by the Appeals Office. See Long v. Commissioner, T.C. Memo. 2010-7 [TC Memo 2010-7], slip op. at 4. Bridgmon, however, falls into [*19] neither of these two categories. She attempted to participate in the telephone hearing, but her attempt was unsuccessful.

We hold that the Appeals Office's failure to do more to contact Bridgmon was an abuse of discretion. We will remand the case to the Appeals Office to hold a hearing. At the hearing on remand, the Appeals Office will not be required to consider any challenges by Bridgmon to the underlying tax liabilities, such as additions to tax.

To reflect the foregoing,

An appropriate order will be issued. (212) 588-1113

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