Tax Help: Notice of Levy Appeal and Right to Hearing Under IRC 6330

The government was entitled to summary judgment with respect to married taxpayers' claim that their civil rights were violated in a Collection Due Process (CDP) hearing in which they attempted to challenge assessment of frivolous return penalties. The CDP hearing allows taxpayers to request judicial review of process, rather than to appeal the underlying merits of the case.R. Kintzler, DC Nev., 2001-2 USTC ¶50,703.

The district court remanded to the IRS Office of Appeals a married taxpayers' suit seeking a judicial determination that civil penalties assessed against them for filing frivolous tax returns were improper. The taxpayers were entitled to a CDP hearing on the merits of the issue.R.D. Joling, DC Ore., Dec. 53,803.

Similarly.T.H. Pierson, 115 TC 576, Dec. 53,938.R.D. Van Fossen, 79 TCM 2049, Dec. 53,932(M), TC Memo. 2000-198.R. Baxter, 82 TCM 897, Dec. 54,702(M), TC Memo. 2002-86. Aff'd, CA-9, Dec. 54,704(M), TC Memo. 2002-88. Aff'd, CA-9 (unpublished opinion), Dec. 54,718(M), TC Memo. 2002-100.S.D. Coleman III, 83 TCM 1748, Dec. 54,771(M), TC Memo. 2002-140.M. Crow, 83 TCM 1853, 2003-1 USTC ¶50,123.J.J. Green, 86 TCM 355, Dec. 54,821(M), TC Memo. 2002-182.G. Bentley, DC Ohio, Dec. 54,861(M), TC Memo. 2002-221.D. Schmith, 84 TCM 413, Dec. 54,829(M), TC Memo. 2002-190.J. Tornichio, 84 TCM 578, Dec. 54,877(M), TC Memo. 2002-235.R. Wagner, 84 TCM 96, Dec. 54,909(M), TC Memo. 2002-263.W. Davidson, 84 TCM 156, Dec. 54,828(M), TC Memo. 2002-189.C.P. Bartolomeo, DC Pa., 2003-2 USTC ¶50,696.A. Sciola, 86 TCM 681, Dec. 55,545(M), TC Memo. 2004-38.J.L. Jensen, 87 TCM 1340, Dec. 55,584(M), TC Memo. 2004-73.E.P. Heaphy, 87 TCM 1022, Dec. 55,991(M), TC Memo. 2005-81. Aff'd, on another issue, CA-9 (unpublished opinion), Dec. 55,992(M), TC Memo. 2005-82. Aff'd, on another issue, CA-9 (unpublished opinion), Dec. 56,022(M), TC Memo. 2005-109.K P. Krueger, 89 TCM 1241, Dec. 55,981(M), TC Memo. 2005-71.B.J. Casey, 88 TCM 332, Dec. 55,775(M), TC Memo. 2004-233.O. Scibilia, 89 TCM 1043, Dec. 55,908(M), TC Memo. 2005-7.R. Hamzik, 88 TCM 316, Dec. 56,116(M), T.C. Memo. 2005-193.J. Kaplowitz, 89 TCM 948, Dec. 56,091(M), TC Memo. 2005-170.R.L. Moore, 89 TCM 1112, 2005-2 USTC ¶50,481, aff'g unreported Tax Court decision.A.L. Poe, 89 TCM 1248, 2005-1 USTC ¶50,288, aff'g unreported Tax Court decision.R.S. Quigley, 89 TCM 1486, Dec. 55,970(M), TC Memo. 2005-61. Aff'd, per curiam, CA-5 (unpublished opinion),2005-1 USTC ¶50,287, aff'g an unreported Tax Court decision.D. Holguin, CA-9 (unpublished opinion), Dec. 56,135(M), TC Memo. 2005-211.G.L. Bailey, 90 TCM 392, Dec. 56,515(M), TC Memo. 2006-100.G.K.J. Yuen, 92 TCM 1, Dec. 56,562(M), TC Memo. 2006-143.N.I. Goodman, 92 TCM 349, Dec. 56,842(M), TC Memo. 2007-40.N.E. Dehring, 93 TCM 1135, Dec. 56,959(M), TC Memo. 2007-143.An individual was precluded from challenging her underlying tax liability during her Collection Due Process (CDP) hearing because she received a notice of deficiency and had an opportunity at that time to dispute her tax liability. An earlier Tax Court Summary Opinion involving the same tax liability and in which a decision was entered was final and determinative as to that liability. J.H. Ginalski, 87 TCM 1249, Dec. 55,351(M), TC Memo. 2003-319.J.R. Forrest, 90 TCM 343, Dec. 56,621(M), TC Memo. 2006-196.An individual contention at his CDP hearing that the period of limitations for assessment and collection of his tax liabilities for eight years had expired was an impermissible challenge to the existence of his underlying tax liability because he failed to establish that he did not receive notices of deficiencies for the taxes in question.B.L. Moore, 82 TCM 930, Code Sec. 6330 hearing from contesting his underlying tax liability for six tax years because he received notices of deficiency for those years. The Secretary's authority to issue Notices of Deficiency was properly delegated to the District Director and also to the Director of the Service Center.M.E. Nestor, 118 TC 162, 2002-1 USTC ¶50,319.The IRS Appeals Office did not abuse its discretion in failing to consider an argument that a taxpayer had failed to bring to its attention in connection with his Collection Due Process hearing. The taxpayer's case did not involve an allegation of recent, unusual illness, hardship, or special circumstance that justified an exception to the general rule.R.B. Magana, 118 TC 488, Reg. §301.6320-1(e)(3), Q&A-E11, was reasonable and was consistent with the plain language of Dec. 54,787.The IRS's determination to proceed with a levy action on an individual's property for his tax deficiency did not constitute an abuse of discretion. The validity of the taxpayer's underlying tax liability was not at issue as he had received a notice of deficiency and had the opportunity to dispute his liability in his Collection Due Process (CDP) hearing. The taxpayer failed to assert any spousal defenses, any challenges to the appropriateness of the collection actions or any offers of collection alternatives at the CDP hearing. Moreover, his various claims alleging that the Appeals officer failed to follow proper procedure were rejected.W.A. Carroll, DC Tenn., CCA Letter Ruling 200152043, November 15, 2001.A corporate taxpayer's allegation that an Appeals Officer failed to collect and credit funds owed to the taxpayer by another government agency to its outstanding tax liabilities was dismissed. Because the taxpayer essentially objected to its underlying tax liability, such arguments were properly disregarded during the CDP hearing.Triad Microsystems, Inc., DC Calif., Code Sec. 6330 satisfies the "opportunity to dispute" requirement of Code Sec. 6330 ensure that a taxpayer is afforded an opportunity to dispute the underlying tax liability, regardless of whether that opportunity is given before or after the effective date of 2003-1 USTC ¶50,157.The Tax Court's finding that an individual taxpayer had been sent a refund was clear error and, therefore, the finding was vacated and remanded for further factual determinations. The IRS had failed to credit the taxpayer for amounts withheld, was unable to account for the taxpayer's refund, and had discrepancies in its records. Instead, the IRS relied on a 21-R internal computer report that showed a "freeze code" to show that the taxpayer had been mailed a refund. Moreover, the IRS's records on the appropriate amount of statutory interest the taxpayer owed were contradictory, and the testimony of the Appeals officer was not conclusive. Records presented by the IRS did not indicate the amount of interest that had accrued, how it was calculated, or whether the taxpayer's payment stopped the running of interest on that amount.R. Wright, CA-2, Code Sec. 6330(c), the IRS's motion to dismiss the case for failure to state a justiciable claim was granted. J.G. Beery, 85 TCM 842, Dec. 55,068(M), TC Memo. 2003-61.A frivolous return penalty was properly imposed against an individual who, despite the receipt of earned income, filed a zero-income return and questioned the IRS's authority to collect taxes. The taxpayer failed to establish that the Appeals officer at his Collection Due Process hearing abused her discretion in disregarding issues that he attempted to raise that did not relate to spousal defenses, the appropriateness of the collection actions, and offers of collection alternatives. The taxpayer had previously been given an opportunity to challenge the penalty when the IRS notified him by letter that his tax form should be corrected; however, he took no action at that time. M.B. Loze, DC La., Dec. 55,091(M), TC Memo. 2003-83.Similarly:R.H. Frank, 85 TCM 1066, Code Sec. 6213(a), he was barred from challenging the liability at trial. Moreover, the IRS was not required to conduct an audit before determining a deficiency, and it possessed statutory authority under 2003-1 USTC ¶50,337, 59 FedAppx 808.The Collection Due Process (CDP) determination denying innocent spouse relief to a wife who, with her family, engaged in a systematic plan to place assets beyond the reach of the IRS was upheld. She knew of the understatements generated by the improper tax shelter deductions, significantly benefited from the unpaid liabilities, and attempted to conceal family assets. Thus, it was not inequitable to deny her relief from joint tax liability. N.B. Doyle, 85 TCM 1108, Dec. 55,110(M), TC Memo. 2003-102.The Collection Due Process (CDP) determination permitting the IRS to proceed with collection of an individual's deficiency and a delay penalty was upheld. Because the taxpayer had received statutory notice of deficiency, he was precluded from challenging his underlying tax liability at the CDP hearing. The imposition of sanctions against him was not an abuse of discretion based on the finding that he had instituted the action primarily for purposes of delay. H.E. Call, CA-9, Dec. 55,122(M), TC Memo. 2003-113.Married taxpayers who were not present to accept delivery of a notice of deficiency sent to them by the IRS were allowed to challenge the validity of the deficiency and penalty assessed against them at their Collection Due Process (CDP) hearing. Both taxpayers credibly testified that they did not receive a notice of attempted delivery from the United States Postal Service (USPS) and that they did not know that the USPS was attempting to deliver a certified letter to them. Accordingly, the avoidance exception to actual receipt was not applicable and they were afforded the opportunity to dispute their tax liability for the year in issue.C.B. Tatum, Jr., 85 TCM 1200, Dec. 55,552(M), TC Memo. 2004-44.On reconsideration, an order granting partial summary judgment against the secretary/treasurer of a corporation on the issue of his liability for unpaid trust fund recovery penalties and interest was reversed. It was not clear whether the taxpayer had the opportunity to dispute his underlying tax liability before the IRS made its assessment. There was a question of fact as to whether the deficiency notice went unclaimed because it was not mailed to the proper address.B.S. Pollack, DC Tenn., 2003-2 USTC ¶50,721.The IRS's Collection Due Process (CDP) determination spanning four tax years was upheld where, in properly contesting his underlying tax liability, an individual failed to establish that he was entitled to claimed loss deductions. The taxpayer unsuccessfully advanced tax-protestor type arguments to support his contention that he was not responsible for the underlying tax liability. Moreover, no abuse of discretion was established, and the collection alternatives were deemed conceded because they were not raised during the CDP hearing. As a result, the IRS was permitted to proceed with collection. E.C. Aston, 85 TCM 1260, 2003-1 USTC ¶50,458.The IRS's determination to proceed with a collection action against an individual for income tax liabilities was not an abuse of discretion. The merits of the taxpayer's claim of entitlement to itemized deductions had previously been determined in court; thus, in the taxpayer was not entitled to contest the underlying tax liability in the Collection Due Process (CDP) hearing. Since the taxpayer did not raise any other issues about the conduct of the hearing or verification that administrative procedures had been followed, he did not show any abuse of discretion by the IRS.S.G. Orr, 85 TCM 1319, 2003-1 USTC ¶50,529.R. Rodriguez, DC Ariz., Dec. 54,787 (2002), followed. F. Pahamotang, 85 TCM 1506, 2003-2 USTC ¶50,536.The IRS did not abuse its discretion in determining to proceed with a collection action against an individual with respect to two tax years. Although the taxpayer did not receive a notice of deficiency with respect to his unpaid liability for either tax year, the contentions and arguments he raised in his Appeals office hearing, petition, and trial memorandum, and which challenged the existence or the amount of each such unpaid liability, were frivolous and/or groundless. The court determined, sua sponte, to impose the delay penalty because the court previously had warned the taxpayer about such arguments. I. Israel, 86 TCM 23, Dec. 55,225(M), TC Memo. 2003-205.An individual who failed to file a Tax Court petition after receiving a notice of deficiency was barred from raising any issues regarding his underlying tax liability at his Collection Due Process (CDP) hearing.J.R. Peacock, 86 TCM 64, 2004-2 USTC ¶50,310, 105 FedAppx 127.Married taxpayers who had an opportunity to challenge a notice of deficiency were barred from raising any issues regarding their underlying tax liability at their Collection Due Process (CDP) hearing. Because the taxpayers entered into an agreement as to the amount of their tax liability in one tax year, they were precluded from arguing the amount of their tax liability at their CDP hearing or in their petition. A. Thomas, 86 TCM 216, 2003-2 USTC ¶50,620.Similarly:W.F. Currie, DC Ga., 2006-2 USTC ¶50,474.The Tax Court properly dismissed an individual's challenge to an adverse Collection Due Process (CDP) determination where the taxpayer attempted to dispute his underlying tax liability during his CDP hearing. The taxpayer received a notice of deficiency and failed to object to the tax liability at that time. E.P. Tolotti, Jr., CA-9 (unpublished opinion), 2001-2 USTC ¶50,735), a federal district court held that the return assessments were validly entered, adequately noticed, and not dependent upon the prior issuance of notices of deficiency. The district court also concluded that the taxpayer's execution of a Form 900 was a valid extension of the period of limitations on collection. The taxpayer was not collaterally estopped from litigating issues regarding examination assessments.J. Perez, 84 TCM 501, Dec. 54,866(M), TC Memo. 2002-225.The IRS was permitted to proceed with collection against an individual who gave no bona fide basis for his objection to the Service's collection actions. The Tax Court had given the taxpayer an opportunity to contest his underlying tax liabilities for two years at a Collection Due Process (CDP) hearing because he had received no deficiency notices for those years. However, he did not attend the CDP hearing, attempted to delay the hearing, did not challenge the existence or amount of his underlying deficiencies, and raised previously rejected frivolous arguments in response to an order to show cause. Because he instituted and maintained the proceeding solely for delay, the court concluded that the IRS's collection determination was not an abuse of discretion.M. Nestor, 84 TCM 410, Dec. 54,816(M), TC Memo. 2002-226.The validity of married taxpayers' underlying liability was properly at issue in the Code Sec. 6330(d) appeal from a Collection Due Process (CDP) determination, and the review was to be conducted under the de novo standard. By raising the issue of whether the limitations period had expired at the CDP hearing, the taxpayers challenged their underlying tax liability. The IRS's assessment was the result of the taxpayers' voluntarily filed amended return. No deficiency notice had been issued to them, and they did not otherwise have an opportunity to dispute their tax liability.P. Hoffman, 119 TC 140, 2002-2 USTC ¶50,802.Married taxpayers failed to set forth a valid argument to support their claim that a notice of determination issued to them should be vacated. They raised the same issues in the district court that they had raised in their Collection Due Process (CDP) hearing. Their tax protest arguments were rejected, as was their challenge to the frivolous return penalty imposed in connection with their return that contained zeros while an attached Form W-2 showed income. Moreover, their conclusory allegation that their CDP hearing was improperly conducted was unsupported, as were their contentions that the Treasury Secretary was required to send the notice of determination, and that computer generated transcripts were invalid to show notice and amounts owed.R. Harrison, DC Nev., Code Sec. 6330 and he was afforded every opportunity to address issues of his choosing. Moreover, the taxpayer did not have a right to discovery in connection with his CDP hearing, and the IRS did not fail to produce documentation that he was entitled to receive. The mere fact that the notice of a right to a CDP hearing was sent by an IRS official, rather than by the Treasury Secretary, did not invalidate the notice.B.R. Kelly, DC Mo., Code Sec. 6703, the statutory deficiency procedures did not apply and the taxpayers had no prior opportunity to dispute the penalties.P. Lemieux, DC Nev., Code Sec. 6703 prior to the CDP hearing, the taxpayer was barred from contesting the existence or amount of the assessed liability. Moreover, he failed to establish that documents sent to him by the IRS were invalid or that IRS personnel lacked authority to proceed against him. Thus, no showing was made to justify further delay in the government's collection efforts.P. Tkac, DC Md., 2002-2 USTC ¶50,740.Taxpayers who spuriously claimed no income or expenses on their tax return were precluded from contesting their underlying tax liability at a Collection Due Process (CDP) hearing because they had been provided with sufficient notice and demand for payment of taxes but had not timely dispute their tax liability. The Appeals officer did not abuse his discretion in concluding that the taxpayers were afforded the applicable administrative procedures but failed to raise spousal defenses, challenge the appropriateness of the collection action, and propose alternative means of collection. The purported collection alternative proposed by the taxpayers concerning payment of the penalty did not qualify as an alternative to collection by levy. Instead, it was a proposed condition to payment of the underlying liability, and the Appeals officer did not err in rejecting the plan.D. Bentley, DC Ohio, Code Sec. 6330(c)(2). He did not challenge the appropriateness of the intended method of collection, offer alternative means of collection, or raise a spousal defense. Moreover, the taxpayer's frivolous claims that the IRS employees who imposed the penalties had to be named, and that the Appeals officer failed to identify the regulations that required payment of the penalty, were rejected.L. Gillett, DC Mich., ¶38,184.35.The IRS was entitled to levy on an individual's pension in order to collect a tax liability for five tax years. The taxpayer was not entitled to a determination as to the amount of his pension subject to the liens and, implicitly, a determination that no other assets of the taxpayer were subject to the IRS liens. The taxpayer failed to make such argument before the IRS Appeals officer at his collection due process hearing because he raised no alternatives to collection. The Tax Court noted that it would be inappropriate to anticipate, determine and limit the scope of the liens on the record in the case. The amount of liability was not disputed; the taxpayer's arguments only addressed collectibility. L. Fusaro, 86 TCM 731, 2004-1 USTC ¶50,145, 86 FedAppx 409, aff'g unreported Tax Court decision.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 treasurer's claim that the government improperly failed to credit a third party's payments to his account was moot because the amounts had either been credited to his account or the government's erroneous deletion of a credit was being corrected. J.A.P. Leiter, DC Kan., 2004-1 USTC ¶50,239.Similarly:C. Jackling, DC N.H., Dec. 55,747(M), T.C. Memo. 2004-208). The IRS Appeals Officer issued a supplemental notice of determination upholding the levy after the taxpayer put off his opportunity for an administrative hearing and then, more than four months after the hearing was to take place, failed to submit proof of his entitlement to business expense deductions. The determination to proceed with the levy was not an abuse of discretion. The taxpayer failed to provide information about his financial situation on Form 433-A, Collection Information Statement, which was a prerequisite for consideration of an alternative collection arrangement.R. Newstat,, 90 TCM 486 , 2005-1 USTC ¶50,154.A Collection Due Process hearing correctly concluded that an individual could not offset his unpaid tax liability for one year with purported Schedule C losses sustained in three subsequent years. No evidence was offered during the taxpayer's Collection Due Process hearing or at trial concerning the manner in which the losses were incurred or why they were incurred. The taxpayer did not produce returns on which the losses were reported. The taxpayer's return for the year in dispute was untimely and the limitations period for filing an amended return had expired.J.W. Winters, Jr., 89 TCM 693, Dec. 55,950.An IRS Appeals Officer did not abuse his discretion in concluding that a Notice of Intent to Levy regarding tax liabilities arising from a notice of final partnership administrative adjustments had been rendered moot by virtue of an installment agreement voluntarily entered into by the taxpayer with the IRS.D. Hudspath, 89 TCM 1051, Code Sec. 6330 hearing.I. Molina, 88 TCM 441, Code Sec. 6330(c)(2)(B) from contesting his underlying tax liability at his CDP hearing.R.W. Howard, 89 TCM 1135, Code Sec. 6330(c)(2)(B) generally entitles taxpayers to raise the issue of an underlying liability if they did not receive a notice of deficiency or otherwise have an opportunity to dispute the liability, the individual here, who did not receive notices of deficiency, was not entitled to proactively prevent delivery of the notices by giving an old address and subsequently failing to inform the IRS of new addresses. Furthermore, 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. 56,152(M), TC Memo. 2005-224.The IRS did not abuse its discretion when it determined that collection of an individual's tax liability could proceed. The taxpayer was given the opportunity before the Tax Court to identify legitimate issues to warrant further consideration of the merits of his case but he continued to focus on the denial of a recorded hearing and offered no substantive issues of merit.H.E. Call,90 TCM 601 , Dec. 56,229(M), TC Memo. 2005-295.An individual who received a notice of the IRS's intention to assess him with a penalty, but who failed to file an administrative appeal, could not contest his liability for the penalty at a Collection Due Process (CDP) hearing. Because the taxpayer did not file an administrative appeal, he was precluded, under 2006-1 USTC ¶50,152, 438 F3d 739.An individual's failure to submit an income tax return for the year at issue should not have prevented consideration of his claims regarding bases and interest deductions. Even though he did not file a tax return, the evidence the individual presented proving loss on the sale of stock and regarding a mortgage interest deduction was credible and corroborated by documentation. Consequently, the individual did not have an outstanding tax liability for the year at issue, and the IRS's collection action was not sustained.R.L. Sherer, 91 TCM 759 ,Dec. 56,472(M), TC Memo. 2006-66.An individual's challenge to the merits of his underlying trust fund recovery penalty was not properly before the federal district court because the issue could not be raised at a Collection Due Process (CDP) hearing. Correspondence showed that he had the opportunity to contest the merits of his underlying tax liability prior to the CDP hearing. Therefore, he was statutorily precluded from raising the issues at a hearing.R. Plumb, DC Fla., Dec. 56,203(M), TC Memo. 2005-271.Summary judgment was granted against an individual who sought to dispute his underlying tax liability in a Collection Due Process hearing. By signing Form 2848, the taxpayer authorized a representative to conduct tax matters on his behalf. Because the representative signed Forms 4549, Income Tax Examination Changes, on the taxpayer's behalf, the taxpayer waived his right to contest the underlying tax liability. Even if the representative executed the waivers without seeking his consent, the taxpayer was bound by his representative's acts because the IRS had no reason to know that the representative's conduct may have been improper.F. Deutsch, 91 TCM 846, Dec. 56,526.The IRS has recommended acquiescence in N. Montgomery, 122 TC 1, 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.2006-2 USTC ¶50,493.The IRS did not abuse its discretion in rejecting an offer-in-compromise and sustaining a proposed levy action against a taxpayer who was a partner in a cattle breeding partnership through which he claimed deductions for farming losses and carried back related net operating losses that gave rise to refunds. The Tax Court rejected the taxpayer's argument that the longstanding nature of the case required the IRS to accept his offer-in-compromise. Further, the IRS's reliance on an example in the Internal Revenue Manual was not arbitrary or capricious. Also, the mere fact that certain "equitable facts" present in the case did not persuade the IRS did not mean that they were not considered. Finally, the IRS did not fail to balance the need for efficient collection of taxes with the concern that the collection action not be more intrusive than necessary. The IRS did seek to collect the taxpayer's outstanding tax liability through less intrusive means --an installment agreement. But the taxpayer rejected it.M. Keller, 92 TCM 114, 2006-2 USTC ¶50,571.A taxpayer who did not receive a refund for a particular year or notice from the IRS that his refund for that year had not been applied to deficiencies for previous tax years was entitled to an abatement of interest under 2004-2 USTC 50,343, 381 F3d 41. R. Wright, 92 TCM 525, Dec. 56,905(M), TC Memo. 2007-94.The IRS was entitled to enforce a federal tax lien against an individual relating to unreported discharge of indebtedness income. The taxpayer argued that she did not receive the notice of deficiency associated with the underlying tax liability when it was originally mailed. Nonetheless, she participated in an equivalent hearing after a second levy notice was sent. During the hearing, the taxpayer had the opportunity to discuss and dispute with the IRS' Appeals Office her underlying tax liability. Since the notice of federal tax lien related to the same tax liability and same tax year, the taxpayer could not contest that liability when opposing the notice of federal tax lien.D.L. Newsome, 93 TCM 1193, Code Sec. 6330(b). W.F. Middleton, 93 TCM 1222, Dec. 57,057(M), TC Memo. 2007-235.

In the absence of any reason why the taxpayers could not access the equity from their residence immediately, an Appeals officer did not abuse his discretion by determining that the taxes were currently collectible and that the collection should not be delayed to allow the taxpayers more time to sell or refinance the house.K.F. Foley, 94 TCM 210,

Tax Help: IRC 6662 penalty - "reasonable cause" exception to the negligence penalty is not proven if a taxpayer or his accountant had an affirmative duty to investigate a second large W-2. The Tax Court applied the following test in order for a taxpayer to use reliance on a tax professional to avoid liability for a section 6662(a) penalty: (1) The adviser was a competent professional who had sufficient expertise to justify reliance, (2) the taxpayer provided necessary and accurate information to the tax adviser, and (3) the taxpayer actually relied in good faith on the adviser's advice. See Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 99 (2000), affd. 299 F.3d 221 (3d Cir. 2002). However, (3) was not met if the taxpayer did not read his own tax return carefully enough.

It appears that the Court was influenced by the fact that over $73,000 of W-2 income was omitted and that the taxpayer should have known that this income should have been included in his tax return.

[T.C. Summary Opinion 2007-161]
IRC 6662 negligence penalty -


Perry Alan Pedersen v. Commissioner.

Docket No. 3391-05S . Filed September 10, 2007.

[Code Sec. 6662]

Tax Court: Summary opinion: Accuracy-related penalty: Reliance on return preparer. --

An individual who underreported his income failed to demonstrate reasonable cause and good faith for the underpayment; thus, he was liable for the accuracy-related penalty under Code Sec. 6662(a). His contention that he was not liable for the penalty because of his reliance on his accountant was rejected. Although he had established that his accountant was a competent professional who had sufficient expertise to justify reliance and he provided his accountant with the necessary and accurate information, he admitted that he had not examined his tax returns "closely enough." to ensure that all income items were included. His failure to inquire from his employer regarding the two Form W-2s he received, rather than one, supported the conclusion that his reliance on his accountant was not in good faith. Finally, because neither Form W-2 was marked as corrected, it was not reasonable for the individual or his accountant to believe that only one of the forms was correct. -

PURSUANT TO INTERNAL REVENUE CODE SECTION 7463(b),THIS OPINION MAY NOT BE TREATED AS PRECEDENT FOR ANY OTHER CASE.



Perry Alan Pedersen, pro se. Charles M. Berlau, for respondent.

WHERRY, Judge: This case was heard pursuant to section 7463 of the Internal Revenue Code in effect when the petition was filed.1 Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court, and this opinion shall not be treated as precedent for any other case.

Respondent determined a deficiency in petitioner's Federal income tax for the 2002 taxable year in the amount of $23,277. Respondent also determined an accuracy-related penalty pursuant to section 6662(a) in the amount of $1,068. Petitioner does not dispute the deficiency as determined by respondent.2 Thus, the sole issue now before the Court is whether petitioner is liable for the section 6662(a) accuracy-related penalty.



Background


Some of the facts have been stipulated, and the stipulated facts and accompanying exhibits are hereby incorporated by reference. At the time he filed his petition, petitioner resided in Albuquerque, New Mexico.

Petitioner filed, in a timely manner, a Form 1040, U.S. Individual Income Tax Return, for the 2002 taxable year. For the 2002 taxable year, petitioner received from his employer, Altana, Inc., two Forms W-2, Wage and Tax Statement, in the amounts of $103,955.11 and $73.313.30. Petitioner failed to report, on his Form 1040, $73,310.30 in wages, the amount on one of his Forms W-2, and $15 in dividend income. In addition, in Schedule E, Supplemental Income and Loss, petitioner improperly reported a $7,584 passive loss. On January 24, 2005, respondent issued the aforementioned notice of deficiency. Petitioner then filed a timely petition with this Court disputing only his liability for the accuracy-related penalty. A trial was held on November 27, 2006, in Albuquerque, New Mexico.



Discussion




I. Parties' Contentions

Petitioner argues that he is not liable for the accuracy-related section 6662(a) penalty because he relied on his accountant for the preparation of his 2002 tax return. In addition, petitioner contends that he and his accountant were confused by the fact that petitioner's employer, Altana, Inc., had issued two separate Forms W-2 for the 2002 taxable year. Petitioner asserts that he believed that only one of the Forms W-2 was correct and that one Form W-2 superseded the other. In support of this contention, petitioner has provided two letters from his accountant, David M. Beail (Mr. Beail), sent to the Internal Revenue Service (IRS) in August and October 2004 in an attempt to persuade the IRS to abate the section 6662(a) penalty. In the October 2004 letter, Mr. Beail asserts that "It was our thought that only one W-2 was correct, as Mr. Pedersen had never received two W-2[]s from his company."3

Respondent contends that nothing other than petitioner's own testimony indicates whether his accountant was competent. More importantly, respondent asserts that petitioner and his accountant's assumptions regarding the two Forms W-2 were not reasonable in light of the fact that neither Form W-2 was marked revised. Respondent further asserts that the failure of petitioner and his accountant to contact Altana, Inc., in order to verify the correct amount of petitioner's wages reflects a lack of good faith and reasonable cause. Finally, respondent points out that, at trial, petitioner admitted that he had not examined his tax return "closely enough" and that petitioner's failure to do so resulted in his failing to report more than 40 percent of his wages on his 2002 tax return.



II. Section 6662 Penalty

Under section 7491(c), respondent bears the burden of production with respect to petitioner's liability for the section 6662(a) penalty. This means that respondent "must come forward with sufficient evidence indicating that it is appropriate to impose the relevant penalty." Higbee v. Commissioner, 116 T.C. 438, 446 (2001).

We conclude that respondent has met the section 7491(c) burden of production with respect to the substantial understatement penalty. As explained below, in this close case, we ultimately find unavailing petitioner's argument that he is not liable for the accuracy-related penalty because he acted with reasonable cause and in good faith by relying on his accountant in failing to report $73,313.30 in wages for the 2002 taxable year.

Subsection (a) of section 6662 imposes an accuracy-related penalty on an underpayment of tax that is equal to 20 percent of any underpayment that is attributable to a list of causes contained in subsection (b). Among the causes justifying the imposition of the penalty are (1) negligence or disregard of rules or regulations and (2) any substantial understatement of income tax. Section 6662(c) defines negligence as "any failure to make a reasonable attempt to comply with the provisions of this title." "[D]isregard" is defined to include "any careless, reckless, or intentional disregard." Id. Under caselaw, "'Negligence is a lack of due care or the failure to do what a reasonable and ordinarily prudent person would do under the circumstances.'" Freytag v. Commissioner, 89 T.C. 849, 887 (1987) (quoting Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir. 1967), affg. on this issue 43 T.C. 168 (1964) and T.C. Memo. 1964-2990), affd. 904 F.2d 1011 (5th Cir. 1990), affd. 501 U.S. 868 (1991).

There is a "substantial understatement" of income tax for any taxable year where the amount of the understatement exceeds the greater of (1) 10 percent of the tax required to be shown on the return for the taxable year or (2) $5,000. Sec. 6662(d)(1)(A)(i) and (ii). However, the amount of the understatement is reduced to the extent attributable to an item (1) for which there is or was substantial authority for the taxpayer's treatment thereof, or (2) with respect to which the relevant facts were adequately disclosed on the taxpayer's return or an attached statement and there is a reasonable basis for the taxpayer's treatment of the item. See sec. 6662(d)(2)(B).

There is an exception to the section 6662(a) penalty when a taxpayer can demonstrate (1) reasonable cause for the underpayment and (2) that the taxpayer acted in good faith with respect to the underpayment. Sec. 6664(c)(1). Regulations promulgated under section 6664(c) further provide that the determination of reasonable cause and good faith "is made on a case-by-case basis, taking into account all pertinent facts and circumstances." Sec. 1.6664-4(b)(1), Income Tax Regs.

Reliance upon the advice of a tax professional may, but does not necessarily, establish reasonable cause and good faith for the purpose of avoiding a section 6662(a) penalty. See United States v. Boyle, 469 U.S. 241, 251 (1985) ("Reliance by a lay person on a lawyer is of course common; but that reliance cannot function as a substitute for compliance with an unambiguous statute."). Such reliance does not serve as an "absolute defense"; it is merely a "factor to be considered." Freytag v. Commissioner, supra at 888. The caselaw sets forth the following three requirements in order for a taxpayer to use reliance on a tax professional to avoid liability for a section 6662(a) penalty: (1) The adviser was a competent professional who had sufficient expertise to justify reliance, (2) the taxpayer provided necessary and accurate information to the tax adviser, and (3) the taxpayer actually relied in good faith on the adviser's advice. See Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 99 (2000), affd. 299 F.3d 221 (3d Cir. 2002).

In this case, the notice of deficiency included the imposition of a $1,068.00 section 6662(a) penalty on the basis that there was a substantial understatement of petitioner's income tax for the 2002 taxable year. Petitioner does not contest that he substantially understated his 2002 income tax. The vast majority of that understatement was attributable to petitioner's failure to report $73,313.30 in wages on his income tax return for that year. Although petitioner also failed to report $15 in dividend income and improperly claimed a $7,584 Schedule E passive activity loss, all of petitioner's and respondent's arguments, at trial and in their briefs, focus on petitioner's failure to report the $73,313.30 in wages.

With respect to the first prong of the Neonatology, test, we conclude that petitioner has established that his accountant was a competent professional who had sufficient expertise to justify reliance.4 See Neonatology Associates, P.A. v. Commissioner, supra at 99. With respect to the second prong of the Neonatology test, Mr. Beail's letters make clear that petitioner did provide Mr. Beail with both Forms W-2. Because petitioner's failure to report all of his wages is the sole basis argued by respondent to support the imposition of a penalty in this case, petitioner has satisfied the second prong of the Neonatology test.

Turning to the third prong of the Neonatology test, we note that petitioner admitted at trial that he had not examined his 2002 tax return "closely enough." Petitioner had a duty to read his return to ensure that all income items were included. Magill v. Commissioner, 70 T.C. 465, 479-480 (1978), affd. 651 F.2d 1233 (6th Cir. 1981). Petitioner was not permitted to bury his head in the sand and ignore his obligation to ensure that his tax return accurately reflected his income for the 2002 taxable year. In the end, reliance on his accountant does not excuse petitioner's failure to closely examine his 2002 tax return.

To the extent that petitioner and/or his accountant might have been confused by the fact that petitioner's employer, Altana Inc., issued two Forms W-2 for the 2002 taxable year rather than one, they were free to contact petitioner's employer to inquire as to that issue. As was conceded by petitioner at trial, neither petitioner nor his accountant contacted Altana, Inc., before filing petitioner's 2002 tax return, in order to determine why petitioner had been issued two Forms W-2 for the 2002 taxable year. Given (1) the materiality of the large amount of unreported Form W-2 income, (2) the fact that petitioner and his accountant were both confused as to why petitioner had received two Forms W-2, and (3) the fact that neither one of them made a reasonable effort to resolve that issue, the Court cannot find that petitioner relied in good faith on Mr. Beail's advice. Finally, as respondent correctly points out, because neither Form W-2 was marked as having been corrected, it was not reasonable for petitioner and his accountant to believe, without questioning petitioner's employer, that only one of the Forms W-2 was correct.

Although this close case might have been more equitably resolved by the parties, this Court is constrained to apply the full penalty or no penalty at all. Because petitioner has not demonstrated reasonable cause and good faith for the underpayment, the Court sustains respondent's imposition of the section 6662(a) penalty.

The Court has considered all of petitioner's contentions, arguments, requests, and statements. To the extent not discussed herein, we conclude that they are meritless, moot, or irrelevant.

To reflect the foregoing,

Decision will be entered for respondent.

1 All subsequent section references are to the Internal Revenue Code in effect for the taxable year at issue. The Rule reference is to the Tax Court Rules of Practice and Procedure.

2 Although the amount of tax owed is not in dispute, it is noteworthy that the actual amount of tax owed by petitioner was $5,337.10, significantly less than the $23,277 deficiency listed in the notice of deficiency. The difference is attributable to the fact that withholding from one of petitioner's Forms W-2, Wage and Tax Statement, was not initially accounted for by respondent because petitioner had failed to report the income from that Form W-2. Respondent accounted for that difference before determining the accuracy-related penalty in this case. In any event, the deficiency in this case constitutes a substantial understatement of income tax.

3 At trial, respondent conceded that the October 2004 letter is contained in respondent's administrative file. Petitioner had already raised that letter in his pretrial memorandum. Nevertheless, when petitioner referred to that letter at trial, respondent objected to its introduction into evidence on the basis of hearsay. Noting that this is a small tax case, the Court observed that section 7463 generally allows disputes in small tax cases to be decided in proceedings in which the normally applicable procedural and evidentiary rules are relaxed. In addition, the Court referenced Rule 174(b), which provides: "Trials of small tax cases will be conducted as informally as possible consistent with orderly procedure, and any evidence deemed by the Court to have probative value shall be admissible." The Court then overruled respondent's objection.

4 Mr. Beail's letters indicate that he is a certified public accountant, and records of the Washington State Board of Accountancy, which this Court will take judicial notice of, indicate that Mr. Beail is currently licensed to practice public accounting. In addition, the Supreme Court has held that accountants, like attorneys, are professionals upon whom taxpayers can rely for advice "on a matter of tax law, such as whether a liability exists." United States v. Boyle, 469 U.S. 241, 251 (1985).There is an exception to the section 6662(a) penalty when a taxpayer can demonstrate (1) reasonable cause for the underpayment and (2) that the taxpayer acted in good faith with respect to the underpayment. Sec. 6664(c)(1). Regulations promulgated under section 6664(c) further provide that the determination of reasonable cause and good faith "is made on a case-by-case basis, taking into account all pertinent facts and circumstances." Sec. 1.6664-4(b)(1), Income Tax Regs.

Reliance upon the advice of a tax professional may, but does not necessarily, establish reasonable cause and good faith for the purpose of avoiding a section 6662(a) penalty. See United States v. Boyle, 469 U.S. 241, 251 (1985) ("Reliance by a lay person on a lawyer is of course common; but that reliance cannot function as a substitute for compliance with an unambiguous statute."). Such reliance does not serve as an "absolute defense"; it is merely a "factor to be considered." Freytag v. Commissioner, supra at 888. The caselaw sets forth the following three requirements in order for a taxpayer to use reliance on a tax professional to avoid liability for a section 6662(a) penalty: (1) The adviser was a competent professional who had sufficient expertise to justify reliance, (2) the taxpayer provided necessary and accurate information to the tax adviser, and (3) the taxpayer actually relied in good faith on the adviser's advice. See Neonatology Associates, P.A. v. Commissioner, 115 T.C. 43, 99 (2000), affd. 299 F.3d 221 (3d Cir. 2002).


Alvin S. Brown, Esq.
Tax attorney
703.425.1400
www.irstaxattorney.com

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