Renald Eichler v. Commissioner , 143 T.C. No. 2 ( 2014 )


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    143 T.C. No. 2
    UNITED STATES TAX COURT
    RENALD EICHLER, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent
    Docket No. 725-12L.                         Filed July 23, 2014.
    After R assessed trust fund recovery penalties against him, P
    requested a partial pay installment agreement. Before P’s request had
    been input into the IRS computer system or acted upon, R sent P
    Letters CP 90, Final Notice--Notice of Intent to Levy and Notice of
    Your Right to a Hearing. P timely requested a collection due process
    (CDP) hearing, renewing his request for an installment agreement and
    asserting that the Letters CP 90 should be withdrawn as invalid
    pursuant to I.R.C. sec. 6331(k)(2), which prohibits the IRS from
    making a levy while an offer for an installment agreement is pending.
    During the CDP hearing R’s settlement officer conditioned
    acceptance of an installment agreement on P’s making an $8,520
    downpayment. P declined this proposal as resulting in economic
    hardship. R’s final determination sustained the proposed levy on the
    ground that P had declined R’s proposed installment agreement; it
    rejected P’s request that the Letters CP 90 be withdrawn as invalid.
    Held: I.R.C. sec. 6331(k)(2) did not preclude R from issuing the
    Letters CP 90 after P submitted his offer for an installment agreement.
    -2-
    Held, further, R’s determination not to rescind the Letters CP
    90 was not an abuse of discretion under relevant provisions of the
    Internal Revenue Manual.
    Held, further, because the record does not allow for meaningful
    review of R’s determination regarding the appropriateness of the
    $8,520 downpayment as a condition of an installment agreement, this
    case will be remanded for further proceedings.
    Mark Harrington Westlake, for petitioner.
    John R. Bampfield, for respondent.
    OPINION
    THORNTON, Chief Judge: Petitioner seeks review pursuant to section
    6330(d) of respondent’s determination sustaining a proposed levy.1 This case is
    before us on the parties’ cross-motions for summary judgment.
    1
    Unless otherwise indicated, all section references are to the Internal
    Revenue Code in effect at all relevant times, and all Rule references are to the Tax
    Court Rules of Practice and Procedure. All monetary amounts are rounded to the
    nearest dollar.
    -3-
    Background
    The record reveals or the parties do not dispute the following.
    When he filed his petition, petitioner lived in Tennessee. On December 20,
    2010, respondent assessed against him these section 6672 trust fund recovery
    penalties: $89,760 for the fourth quarter of 2008, $82,725 for the first quarter of
    2009, and $16,889 for the second quarter of 2009.
    By letter dated April 11, 2011, petitioner’s representative, Mark Harrington
    Westlake, sent to the Internal Revenue Service’s (IRS) Service Center in Atlanta,
    Georgia, a letter requesting, among other things, a “partial payment installment
    agreement” of $350 per month for the three quarters previously mentioned as well
    as the fourth quarter of 2007. This letter was accompanied by a completed and
    signed Form 433-A, Collection Information Statement for Wage Earners and Self-
    Employed Individuals, and supporting financial documentation.
    On April 28, 2011, respondent received petitioner’s request.2 Pursuant to
    Internal Revenue Manual (IRM) pt. 5.14.1.3 (Mar. 4, 2011), the IRS Collection
    Division is required to input certain codes--“TC 971 AC 043” for installment
    agreement requests not immediately approved and “TC 971 AC 063” for requests
    2
    The record does not show why it took respondent 17 days to receive
    petitioner’s April 11, 2011, letter.
    -4-
    immediately approved--into the IRS computer system within 24 hours of receiving
    an installment agreement request if it meets certain requirements. Although
    petitioner’s request met these requirements, the IRS Collection Division failed to
    input any code until June 6, 2011, when the “TC 971 AC 043” code was input.
    In the meantime, on May 9, 2011, respondent had sent to petitioner three
    Letters CP 90, Final Notice--Notice of Intent to Levy and Notice of Your Right to
    a Hearing (notices of intent to levy), with respect to petitioner’s unpaid trust fund
    recovery penalties for the last quarter of 2008 and first two quarters of 2009.3
    On May 13, 2011, the IRS Service Center in Atlanta, Georgia, sent
    petitioner a letter in response to the installment agreement request, stating:
    We have not resolved this matter because we haven’t completed all
    the processing necessary for a complete response. However, we will
    contact you again within 45 days with our reply. You don’t need to
    do anything further now on this matter.
    *           *         *          *          *          *           *
    We’ve delayed sending you further notices while we research this
    matter. If you receive or have received additional notices * * *,
    please contact us.
    3
    The notices of intent to levy referenced Publication 594, The IRS
    Collection Process. Publication 594 explains, among other things, that the IRS is
    prohibited from levying against a taxpayer’s property while an installment
    agreement request “is being considered”.
    -5-
    This May 13, 2011, letter erroneously stated that it was in reference to petitioner’s
    2008 Federal income tax rather than the trust fund recovery penalties at issue in
    this case.
    On June 1, 2011, the Office of Appeals (Appeals) received a timely Form
    12153, Request for a Collection Due Process or Equivalent Hearing, from
    petitioner indicating the following reason for his request:
    I previously submitted Form 433-A with supporting documentation
    and a request for an installment agreement. (Copy attached) The Final
    Notice (CP 90) was issued prematurely. I request that the Final
    Notice be withdrawn and that the installment payment agreement I
    requested be implemented. In the alternative I REQUEST AN IN
    PERSON HEARING IN NASHVILLE, TN.
    By cover letter accompanying the Form 12153 petitioner asserted that the notices
    of intent to levy should be withdrawn pursuant to section 6331(k) and IRM pt.
    5.11.1.2.2.8 (Jan. 1, 2006).
    On September 1, 2011, an IRS settlement officer, Suzanne Magee (SO
    Magee), notified petitioner that she was in receipt of his request for an Appeals
    hearing and that she had scheduled an in-person conference for October 4, 2011.
    On September 26, 2011, Mr. Westlake sent SO Magee a letter asserting that
    petitioner’s installment agreement request had been submitted and was pending
    -6-
    when the notices of intent to levy had been issued. Mr. Westlake requested that
    the notices be rescinded. He also stated:
    Please note that since the prior Form 433-A was submitted the
    taxpayers have become obligated for two additional court ordered
    payments on judgments. Moreover, they continue to receive dunning
    notices from many of the unsecured creditors shown on the exhibit to
    the Form 433-A. I am hopeful that my correspondence to those
    creditors will persuade them that filing further lawsuits will be futile.
    Dr. Renald Eichler is 76 years of age and Dr. Priscilla Eichler is 71
    years of age.
    They have lived in their home since 1971. The current indebtedness
    against the home, i.e., $720,000 was incurred in an effort to prop up
    the non-profit educational corporation for which both of them
    worked. Those efforts were unsuccessful. The non-profit corporation
    itself lost its assets in foreclosure. I believe that it may have
    attempted a reorganization before it closed.
    We had originally requested a partial payment installment agreement
    in the amount of $350 per month. However, the taxpayers’ financial
    situation has deteriorated and accordingly, we are now requesting that
    the accounts be designated “Currently Not Collectible.”
    Mr. Westlake also submitted with the letter a completed Form 433-A and
    supporting financial documentation. The Form 433-A reflected total gross
    monthly income of $5,464, of which $3,079 was attributable to petitioner and
    $2,385 was attributable to his wife.4 The Form 433-A reported monthly expenses
    of $5,573, including the following:
    4
    Petitioner’s wife is not a party to this proceeding.
    -7-
    Expense                              Amount
    Food, clothing, & misc.                         $985
    Housing and utilities                          3,500
    Vehicle operating costs                          488
    Health insurance--Humana                         112
    Out-of-pocket healthcare costs                   288
    Court-ordered payments                           200
    Taxes (income and FICA)                          212
    The Form 433-A also reported debts of approximately $260,000 “on credit cards
    and store accounts and judgments.”
    On October 4, 2011, SO Magee conducted an in-person conference with
    petitioner, petitioner’s wife, and Mr. Westlake. At the hearing Mr. Westlake once
    again argued that the notices of intent to levy had been issued prematurely because
    petitioner had submitted an installment agreement offer that was pending when the
    notices were issued. SO Magee determined that the issuance of the notices of
    intent to levy was not premature and that these notices should not be rescinded.
    After discussing potential collection alternatives, SO Magee requested additional
    supporting documentation.
    On October 17, 2011, petitioner provided the requested supporting
    documentation to SO Magee. By cover letter Mr. Westlake renewed his objection
    that the notices of intent to levy had been issued prematurely and that they should
    -8-
    be rescinded. He also requested a $25-per-month installment agreement as a
    collection alternative to the proposed levy.
    On October 19, 2011, after reviewing petitioner’s documentation, SO
    Magee phoned Mr. Westlake and left him a voicemail message, requesting certain
    bank statements to substantiate some of petitioner’s expenses and indicating that
    the notices of intent to levy would not be rescinded.
    On October 26, 2012, Mr. Westlake provided the requested bank statements
    to SO Magee. A joint bank account petitioner shared with his wife showed a
    balance of $15,214 as of October 20, 2011. Mr. Westlake again renewed his
    request for a $25-per-month installment agreement and rescission of the notices of
    intent to levy.
    SO Magee reviewed petitioner’s Form 433-A and supporting financial
    documentation. She concluded that an appropriate collection alternative would be
    an installment agreement of $25 per month for one year increasing to $734 per
    month in November 2012, provided that petitioner also submitted with his
    installment agreement a downpayment of $8,520.
    On October 28, 2011, SO Magee called Mr. Westlake to confirm receipt of
    the additional financial documentation. She also communicated to Mr. Westlake
    her proposed installment agreement collection alternative to the proposed levy.
    -9-
    By letter dated November 8, 2011, Mr. Westlake agreed to SO Magee’s
    proposal that petitioner pay $25 per month, increasing to $734 per month in
    November 2012. He disagreed, however, that petitioner should be required to
    make an $8,520 downpayment, stating: “Please refer to my prior correspondence
    explaining that $15,000 had originally been borrowed from family members. I
    have since confirmed that the funds were loaned to Mrs. Eichler by her sister.
    Repayment of that loan would fully deplete the savings account.” He also
    indicated that if SO Magee was “unable or unwilling to accept the proposed $25
    per month installment agreement with an automatic twelve month increase, but
    without the initial $8,520 payment and with the rescission of the [notices of intent
    to levy] * * *, please issue your final determination”.
    On December 8, 2011, Appeals issued to petitioner a Notice of
    Determination Concerning Collection Action(s) Under Section 6320 and/or 6330
    (notice). In the notice Appeals sustained the proposed levy. The notice stated that
    “under current procedures” the notice of intent to levy “is deemed valid and will
    not be rescinded even when there is a pending installment agreement.” The notice
    also stated: “Based on the financial information provided during the hearing
    process Appeals determined the appropriate collection resolution to be an
    installment agreement with down payment of $8,520 then $25 per month for 12
    - 10 -
    months to increase to $734 per month thereafter. The down payment is your
    percentage share of a joint savings account with your wife.”
    Discussion
    A. Summary Judgment Standard
    Summary judgment is intended to expedite litigation and avoid unnecessary
    and expensive trials. Fla. Peach Corp. v. Commissioner, 
    90 T.C. 678
    , 681 (1988).
    Summary judgment may be granted where there is no genuine dispute as to any
    material fact and a decision may be rendered as a matter of law. Rule 121(b). The
    moving party bears the burden of showing that there is no genuine dispute as to
    any material fact, and factual inferences will be read in a manner most favorable to
    the party opposing summary judgment. See id.; Sundstrand Corp. v.
    Commissioner, 
    98 T.C. 518
    , 520 (1992), aff’d, 
    17 F.3d 965
    (7th Cir. 1994).
    B. Statutory Framework
    Section 6331(a) provides that if any person liable to pay any tax neglects or
    refuses to pay such tax within 10 days after notice and demand for payment, then
    the Secretary is authorized to collect such tax by levy upon that person’s property.
    Section 6330(a) requires the Secretary to send written notice to the person of that
    person’s right to request an Appeals hearing before a levy is made. If an Appeals
    hearing is requested, the Appeals officer must, at the hearing, verify that the
    - 11 -
    requirements of any applicable law or administrative procedure have been met.
    Sec. 6330(b)(1), (c)(1). Section 6330(c)(2) prescribes the matters that a person
    may raise at the Appeals hearing, including spousal defenses, challenges to the
    appropriateness of the Commissioner’s intended collection action, and possible
    alternative means of collection, including offers-in-compromise (OIC) and
    installment agreements. The existence or amount of the underlying tax liability
    may also be contested, but only if the person did not receive a notice of deficiency
    or did not otherwise have an opportunity to dispute the tax liability. Sec.
    6330(c)(2)(B); see also Sego v. Commissioner, 
    114 T.C. 604
    , 609 (2000).
    C. Standard of Review
    Petitioner has not challenged his underlying tax liabilities. We review
    respondent’s determination for abuse of discretion, asking whether it was
    arbitrary, capricious, or without sound basis in fact or law. See, e.g., Murphy v.
    Commissioner, 
    125 T.C. 301
    , 320 (2005), aff’d, 
    469 F.3d 27
    (1st Cir. 2006); Sego
    v. Commissioner, 
    114 T.C. 610
    .
    D. Whether Respondent’s Determination Not To Rescind the Notices of Intent To
    Levy Was an Abuse of Discretion
    Petitioner argues that respondent abused his discretion in refusing to rescind
    the notices of intent to levy. He argues that section 6331(k)(2) precludes the IRS
    - 12 -
    from issuing a notice of intent to levy while an installment agreement offer is
    pending.
    Although section 6331(a) grants the Secretary authority to levy upon a
    taxpayer’s property or rights to property, various subsections of section 6331
    prohibit the Secretary from levying under certain circumstances. See sec. 6331(f),
    (g), (i), (j), (k). Section 6331(k)(2) provides:
    (2) Installment agreements.--No levy may be made under
    subsection (a) on the property or rights to property of any person with
    respect to any unpaid tax--
    (A) during the period that an offer by such person
    for an installment agreement under section 6159 for
    payment of such unpaid tax is pending with the
    Secretary; and
    (B) if such offer is rejected by the Secretary, during the
    30 days thereafter (and, if an appeal of such rejection is filed
    within such 30 days, during the period that such appeal is
    pending)
    By its terms this statute bars the IRS, while a taxpayer’s offer for an
    agreement request is pending, from making a levy; it does not bar the IRS from
    issuing notices of intent to levy.5 Accord United States v. Austin, No. 09-
    5
    The notice of determination does not expressly reflect any determination as
    to whether petitioner’s installment agreement offer was in fact “pending” when the
    IRS issued the notices of intent to levy. Rather, the notice of determination
    proceeds upon the premise that a notice of intent to levy is valid and will not be
    (continued...)
    - 13 -
    10405-RWZ, 
    2010 WL 1711294
    , at *3 n.2 (D. Mass. Apr. 26, 2010), aff’d, 526
    Fed. Appx. 2 (1st Cir. 2013); Politte v. United States, No. 07CV1950 JLS (CAB),
    
    2009 WL 3166924
    , at *5 (S.D. Cal. Aug. 6, 2009); see also Living Care Alts. of
    Utica, Inc. v. United States, 
    411 F.3d 621
    , 629 (6th Cir. 2005) (holding that
    section 6331(f) and (j), which provides, similarly to section 6331(k), that “no levy
    may be made” before the IRS has taken certain actions, do not bar the IRS from
    issuing notices of intent to levy before taking these actions); Medlock v. United
    States, 
    325 F. Supp. 2d 1064
    , 1079 (C.D. Cal. 2003) (same).6 The regulations
    5
    (...continued)
    rescinded “even when there is a pending installment agreement.” In this
    proceeding respondent argues for the first time that the installment agreement was
    not pending when the notices of intent were issued. In support of this argument,
    respondent points to the May 13, 2011, letter from the IRS Service Center in
    Atlanta which stated that “we haven’t completed all the processing necessary for a
    complete response”. It is unclear from the record to what extent this delay in
    processing petitioner’s installment agreement offer was attributable to the IRS’
    failure to input the offer into its computer system until June 6, 2011. In any event,
    because we decide the issue of the effect of sec. 6331(k)(2) in respondent’s favor
    even if we assume, as apparently did Appeals, that petitioner’s offer was pending
    when the IRS issued the notices of intent to levy, it is unnecessary to consider
    respondent’s argument raised for the first time in this proceeding. Cf. Antioco v.
    Commissioner, T.C. Memo. 2013-35 (declining to uphold a notice of
    determination on grounds other than those relied upon in the notice (citing SEC v.
    Chenery Corp., 
    332 U.S. 194
    (1947), and SEC v. Chenery Corp., 
    318 U.S. 80
    (1943))); Jones v. Commissioner, T.C. Memo. 2012-274 (same); Salahuddin v.
    Commissioner, T.C. Memo. 2012-141 (same).
    6
    We are mindful that in Tucker v. Commissioner, T.C. Memo. 2011-67
    (continued...)
    - 14 -
    expressly provide that while levy is prohibited “[t]he IRS may take actions other
    than levy to protect the interests of the Government”. Sec. 301.6331-4(b)(1),
    Proced. & Admin. Regs. A notice of intent to levy is an action other than a levy to
    protect the interests of the Government; unlike a levy, it is merely preliminary to a
    collection action, rather than a collection action barred by section 6331(k)(2). See
    Politte, 
    2009 WL 3166924
    , at *5. Accordingly, under the regulations, consistent
    with the plain language of the statute, the IRS was not prohibited from issuing the
    notices of intent to levy after petitioner submitted his offer for an installment
    agreement.
    Petitioner also argues that respondent should have rescinded the notices of
    intent to levy pursuant to IRM pt. 5.11.1.2.2.8 and IRM pt. 5.14.1.3. In the first
    instance we observe that provisions of the IRM do not carry the force and effect of
    6
    (...continued)
    (upholding Appeals’ rejection of an OIC), aff’d, 
    676 F.3d 1129
    (D.C. Cir. 2012),
    in the “Background” section of the opinion, a footnote indicated that the IRS had
    withdrawn a notice of intent to levy that it had issued after the taxpayer had
    submitted an OIC. By way of explanation, the footnote stated: “Section
    6331(k)(1) provides for a restraint on levy while an OIC is pending, and the
    issuance of the notice of levy violated that restriction.” 
    Id., slip op.
    at 8 n.6. This
    dictum, however, did not represent a holding or a predicate to any holding in
    Tucker, as made explicit in the same footnote: “The issuance of that first levy
    notice (and its subsequent withdrawal) was not part of the CDP hearing or
    determination and is not part of the CDP appeal at issue here.” 
    Id. Accordingly, the
    dictum in Tucker concerning sec. 6331(k)(1) does not control this case.
    - 15 -
    law or confer rights on taxpayers. See, e.g, Fargo v. Commissioner, 
    447 F.3d 706
    ,
    713 (9th Cir. 2006), aff’g T.C. Memo. 2004-13. In any event, we conclude that
    respondent did not abuse his discretion in applying these provisions.
    IRM pt. 5.11.1.2.2.8 appears in the part of the IRM that provides
    information and guidance to revenue officers in the collection process. It directs
    the IRS Collection Division to rescind notices of intent to levy in certain
    circumstances, one of which is when a notice of intent to levy is issued while levy
    action is prohibited and the taxpayer timely requests an Appeals hearing. By
    contrast, IRM pt. 8.22.2.2.2.2(5) (Dec. 14, 2010) states that Appeals should not
    rescind a notice of intent to levy that was issued during the pendency of an
    installment agreement, even where levy is prohibited. Petitioner argues that these
    two provisions are inconsistent and that we should treat IRM pt. 5.11.1.2.2.8 as
    controlling. We disagree. The IRM is not necessarily inconsistent in directing the
    Collection Division and Appeals to take different actions. SO Magee did not
    abuse her discretion in following the IRM provisions directed to and applicable to
    Appeals, of which she was a part.
    In sum, we hold that respondent did not abuse his discretion in declining to
    rescind the notices of intent to levy.
    - 16 -
    E. Respondent’s Determination Requiring Petitioner To Make an $8,520
    Downpayment as a Condition of His Installment Agreement
    Petitioner also argues that respondent abused his discretion in determining
    that petitioner should make an $8,520 downpayment as a condition of his
    installment agreement.7 Petitioner argues that having to make the $8,520 down
    payment would cause economic hardship for him and his wife.
    Section 6159 authorizes the Secretary to enter into an installment agreement
    upon determining that the proposed installment agreement would facilitate full or
    partial collection of the tax liability. Recognizing that the Secretary has the
    discretion to accept or reject any proposed installment agreement, see sec.
    301.6159-1(c)(1)(i), Proced. & Admin. Regs., the Court gives due deference to the
    Secretary’s determination, see Marascalco v. Commissioner, T.C. Memo. 2010-
    130, aff’d, 420 Fed. Appx. 423 (5th Cir. 2011).
    The IRM describes procedures the IRS uses in determining whether a
    proposed installment agreement facilitates the collection of an unpaid tax liability.
    These procedures require taxpayers to liquidate assets in order to qualify for an
    7
    Petitioner does not take issue with SO Magee’s determination requiring
    installment payments of $25-per-month for one year followed by payments of
    $734 per month thereafter.
    - 17 -
    installment agreement in the absence of special circumstances such as old age, ill
    health, or economic hardship. See IRM pt. 5.14.1.4(5)-(6) (June 1, 2010).
    During petitioner’s Appeals hearing Mr. Westlake asserted repeatedly that
    petitioner and his wife were elderly and had limited financial resources and that
    making the $8,520 downpayment would pose an undue economic hardship for
    them. Additionally, Mr. Westlake asserted that the funds in the joint bank account
    did not actually belong to petitioner. We find no indication in the record that SO
    Magee expressly considered these issues.
    Because the record does not allow for meaningful review in this regard, and
    there is a genuine dispute of material fact, we will deny the parties’ cross-motions
    for summary judgment and remand this case for Appeals to clarify the basis for SO
    Magee’s determination with regard to the appropriateness of requiring the
    disputed downpayment in the light of the concerns petitioner raised. See Hoyle v.
    Commissioner, 
    131 T.C. 197
    , 204-205 (2008). Upon remand Appeals shall
    consider any new collection alternative that petitioner may wish to propose, taking
    into account any changed circumstances and other relevant factors.
    To reflect the foregoing,
    An appropriate order will be issued.