Annette Faye Neitzer, and Richard J. Arnoldussen, Intervenor v. Commissioner ( 2018 )

T.C. Memo. 2018-156UNITED STATES TAX COURT
ANNETTE FAYE NEITZER, Petitioner, AND RICHARD J. ARNOLDUSSEN,
Intervenor v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5366-16. Filed September 19, 2018.
Patricia A. Hintz, for petitioner.
Richard J. Arnoldussen, pro se.
Richard C. Grosenick and Karla Nettleton (student), for respondent.
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[*2] MEMORANDUM FINDINGS OF FACT AND OPINION
PARIS, Judge: Pursuant to section 6015(e)(1),1 petitioner seeks review of
respondent’s determination that she is not entitled to relief from joint and several
liability under section 6015(f) for 2012 with respect to the Federal income tax
return (2012 return) that she filed jointly with intervenor, her former spouse. If the
Court determines that petitioner is entitled to relief under section 6015(f), then
petitioner seeks a refund of money levied to satisfy the joint income tax liability.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulation of
facts, the first supplemental stipulation of facts, and the attached exhibits are
incorporated herein by this reference. Petitioner resided in Wisconsin when she
timely filed her petition. Intervenor also resided in Wisconsin when he filed his
notice of intervention.
I. Background
Petitioner holds a bachelor’s degree in nursing and previously worked in the
fields of surgical intensive care, emergency room nursing, and triage nursing. In
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.
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[*3] 2006 she became totally disabled. Petitioner has undergone numerous spine
and hip surgeries. She expects her condition to deteriorate over time and expects
to require further medical treatment in the future.2 Her condition has limited her
ability to work.
Petitioner and intervenor married in 2007. They separated in August 2010
and filed for divorce in September 2010. The divorce became final on July 14,
2014. Intervenor owned interests in two businesses, which were the primary
sources of his income. During the pendency of the divorce petitioner maintained
her own finances and paid her own expenses. Her income consisted of payments
from Social Security disability, veteran’s disability, long-term disability, and
temporary spousal maintenance payments from intervenor. Petitioner did not have
access to the couple’s joint checking account at Johnson Bank (Johnson Bank
account) during the pendency of the divorce. Instead, she maintained her own
account at Associated Bank (Associated Bank account) from which she paid her
expenses.3
2
Petitioner was 55 years old at the time of trial.
3
Immediately before the separation the funds in the Associated Bank
account consisted of $100,000 from a personal injury settlement paid to petitioner
on April 5, 2010, and $38,000 petitioner transferred on May 3, 2010, from the
Johnson Bank account. The Johnson Bank account held the proceeds from the
(continued...)
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[*4] For 2010, 2011, 2012, and 2013 petitioner and intervenor filed joint Federal
income tax returns. During those years intervenor employed his business
accountant to prepare the joint returns. Petitioner agreed to file joint returns with
intervenor during the divorce proceeding because she believed she was required to
do so under the terms of the temporary divorce order in place before the issuance
of the final divorce decree. Petitioner and intervenor owed a liability on their
2011 tax and were assessed an addition to tax under section 6651(a) for failure to
pay timely. On December 27, 2012, they both signed Form 843, Claim for Refund
and Request for Abatement, asking for abatement of the addition to tax. On that
date intervenor also sent a check from the Johnson Bank account to the Internal
Revenue Service (IRS) for the 2011 tax liability, which was later returned for
insufficient funds.4
II. 2012 Return
Intervenor’s business accountant prepared the 2012 return on the basis of
information from intervenor and information petitioner provided to him through
3
(...continued)
sales of petitioner’s home that she owned before her marriage to intervenor and a
home petitioner and intervenor purchased together before their marriage.
4
At that time petitioner did not have access to the Johnson Bank account.
See supra p. 3.
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[*5] her divorce attorney. The 2012 return reported income of $276,192.
Petitioner’s income totaled $16,620 and included wages, Social Security disability,
interest income, and gambling winnings. The remainder of the income came from
intervenor’s wages and shares of two businesses. The 2012 return showed tax due
of $53,382. Intervenor timely paid $29,208 through withholding from his wages
and $5,000 through a check from the Johnson Bank account. The remaining
$19,174 tax liability for 2012 (2012 tax liability) was attributable solely to
intervenor.
On June 3, 2013, intervenor told petitioner to go to his business
accountant’s office to sign the 2012 return for filing later that day. Petitioner had
approximately two hours to travel to the accountant’s office and sign the 2012
return before the close of business. Upon petitioner’s arrival, intervenor was in
the parking lot. They argued in the parking lot before petitioner entered the
accountant’s office. Petitioner signed an authorization permitting the accountant
to file the 2012 return but did not review or ask for additional time to review the
2012 return. Petitioner did not request or receive a copy of the 2012 return at the
time she signed the authorization. Even if petitioner had requested a copy, it is not
certain that she would have been given one because intervenor instructed his
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[*6] business accountant not to disclose to petitioner any information about his
businesses or personal finances.
III. Collection
On or about August 9, 2013, petitioner received a letter from respondent
regarding the 2012 tax liability. She contacted intervenor, who agreed to pay it.
On September 25, 2013, intervenor requested but was denied an installment
agreement for the 2012 tax liability. On October 28, 2013, intervenor tendered a
check to pay the balance of the 2012 tax liability, but the payment was returned for
insufficient funds. Petitioner was unaware of intervenor’s failed attempts to pay
the 2012 tax liability.
On or about January 1, 2014, intervenor changed the mailing address on file
with respondent so that future correspondence would be mailed to his business
address. Intervenor also instructed his office staff to mark “return to sender” on
any notices or other correspondence that was addressed to petitioner at his
business address. On January 23, 2014, respondent issued petitioner Letter 1058,
Final Notice of Intent to Levy and Notice of Your Right to a Hearing. The letter
was addressed to petitioner but mailed to intervenor’s business address. On
February 13, 2014, the letter was returned to respondent as refused or unclaimed.
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[*7] On March 12 and 24, 2014, respondent issued petitioner Form 668-A(ICS),
Notice of Levy, addressed to intervenor’s business address, notifying petitioner of
a levy on her Associated Bank account.5 Sometime in March 2014 intervenor
reached an agreement with respondent to make monthly payments to satisfy the
2012 tax liability, but on April 7, 2014, respondent collected $21,637.93 from
petitioner’s Associated Bank account, which satisfied the 2012 tax liability in full.
On April 10, 2014, petitioner corrected her mailing address with respondent so
that future correspondence would be sent to her residence.
IV. Divorce Settlement
On April 15, 2014, during the divorce proceedings petitioner asked the
Outagamie County, Wisconsin, Circuit Court (circuit court) to order intervenor to
immediately reimburse her for the funds levied from the Associated Bank account.
The circuit court held intervenor in contempt for intentionally failing to disclose
the 2012 tax liability in financial disclosures made to the circuit court but reserved
the issue of “repayment of the income tax amount” for the final divorce hearing.
On July 17, 2014, petitioner and intervenor reached an agreement to settle
their disputes and recited the terms in a hearing before the circuit court. The
5
Petitioner was unaware of the proposed levy until March 22, 2014, when
she discovered her Associated Bank account had been frozen.
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[*8] parties discussed reimbursement of the amount levied from petitioner’s
Associated Bank account during their settlement negotiations. On August 1, 2014,
petitioner and intervenor signed a stipulation memorializing their settlement
agreement as recited to the circuit court on July 17, 2014. A formal document
addressing the disposition of each asset and liability was not prepared. On August
13, 2014, the circuit court entered a judgment of divorce effective July 17, 2014,
incorporating the stipulation.
The stipulation addressed the filing of a joint Federal income tax return for
2013 and required the parties to be responsible for their own debts. It generally
provided that the parties agreed to release each other from any claim that might
exist on that date. However, it did not expressly reference the 2012 tax liability or
the levied funds. Petitioner ultimately received $277,000 in the divorce
settlement. She used part of the funds to pay off outstanding loans and bills,
purchase and fix a home, adapt the home to accommodate her medical condition,
and purchase a vehicle specially adapted to accommodate her medical condition.
As of trial she had a qualified retirement account which held the balance of her
divorce settlement, approximately $100,000.
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[*9] V. Request for Relief
On May 4, 2015, respondent received petitioner’s Form 8857, Request for
Innocent Spouse Relief, seeking relief for 2012. Petitioner explained that at the
time the 2012 return was filed she did not know about the tax liability. She knew
that intervenor’s earnings in prior years had ranged from $250,000 to $300,000.
Petitioner reported that at the time the 2012 return was filed she had a credit card
balance that was not being paid and a medical bill she was struggling to pay. She
also referenced a notice she received from the State of Arkansas regarding a
pending sale of two pieces of property she owned to pay unpaid taxes that
intervenor assured her had been paid.6 Petitioner reported monthly income of
$1,253 and monthly expenses of $1,150 as well as $50,000 in outstanding legal
fees and $11,000 in outstanding medical bills.7
On July 13, 2015, respondent made a preliminary determination to deny
petitioner’s request for relief. Respondent determined petitioner was not eligible
for relief because she did not have a reasonable expectation that the 2012 tax
6
Petitioner did not specify when she received notice of the unpaid taxes.
The record contains a notice dated November 6, 2013, from the Commissioner of
State Lands for the State of Arkansas notifying petitioner of a pending sale of her
property to pay delinquent real estate taxes.
7
Petitioner’s financial situation at the time of trial on March 27, 2017, did
not significantly differ from the financial position she reported on Form 8857.
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[*10] liability would be or could be paid. On August 10, 2015, petitioner appealed
the preliminary determination.
On or about August 17, 2015, the case was sent to respondent’s Appeals
Office (Appeals) for review. In October 2015 intervenor submitted documents to
Appeals to contest petitioner’s appeal. Appeals determined that petitioner met the
threshold conditions to be considered for innocent spouse relief under section
6015(f) but ultimately determined that petitioner had not had a reasonable
expectation that the 2012 tax liability would be paid. Appeals specified that
petitioner had made no inquiry about the 2012 return before signing it, that
intervenor had been having financial difficulties when the 2012 return was filed,
and that petitioner had known intervenor was delinquent with mortgage payments
and other household expenses during the year. Appeals also found that petitioner
would not suffer economic hardship absent relief because the tax liability had been
paid in full at the time of her request for relief and because she received over
$270,000 in the divorce settlement. On November 24, 2015, Appeals made its
final determination concluding that it was equitable to hold petitioner liable for the
2012 tax liability.
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[*11] OPINION
I. Section 6015(f)
Section 6013 allows married taxpayers to file a joint Federal income tax
return. If a joint return is filed, each spouse becomes jointly and severally liable
for the entire tax liability for that year. Sec. 6013(d)(3). In certain circumstances
a spouse may be relieved from joint and several liability under section 6015(b),
(c), or (f). When the liability arises from an underpayment of tax reported as due
on a joint return, relief is available only under section 6015(f). See sec.
6015(b)(1)(B), (c)(1), (f)(1); Hopkins v. Commissioner, 121 T.C. 73, 88 (2003).
Because petitioner seeks a refund of amounts levied to satisfy an underpayment of
tax reported on a joint return, petitioner may obtain relief only under section
6015(f).
Section 6015(f)(1) authorizes the Commissioner to grant relief from joint
and several liability if, “taking into account all the facts and circumstances, it is
inequitable to hold the individual liable for any unpaid tax”. The individual
requesting relief under section 6015(f) bears the burden of proving that he or she
is entitled to relief. Rule 142(a); Alt v. Commissioner, 119 T.C. 306, 311 (2002),
aff’d, 101 F. App’x 34 (6th Cir. 2004). When the Court reviews a determination
by the Commissioner denying relief under section 6015(f), both the standard and
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[*12] scope of review are de novo. Porter v. Commissioner, 132 T.C. 203, 210
(2009).
The Commissioner has prescribed procedures to determine whether a
requesting spouse is entitled to equitable relief from joint and several liability.
These procedures are set forth in Rev. Proc. 2013-34, sec. 4, 2013-43 I.R.B. 397,
399-403. Although the Court considers those procedures when reviewing the
Commissioner’s determination, the Court is not bound by them. Pullins v.
Commissioner, 136 T.C. 432, 438-439 (2011); Sriram v. Commissioner, T.C.
Memo. 2012-91, 103 T.C.M. (CCH) 1482, 1484-1485 (2012). The Court’s
determination ultimately rests on an evaluation of all the facts and circumstances.
Porter v. Commissioner, 132 T.C. at 210.
Pursuant to Rev. Proc. 2013-34, sec. 4, the Commissioner conducts a
multistep analysis when determining whether a requesting spouse is entitled to
equitable relief under section 6015(f). See Rev. Proc. 2013-34, sec. 4.01, 4.02,
and 4.03. The requirements for relief under Rev. Proc. 2013-34, supra, are
categorized as threshold or mandatory requirements, streamlined elements, and
equitable factors. A requesting spouse must satisfy each threshold requirement to
be considered for relief. If the requesting spouse meets the threshold
requirements, the Commissioner will grant equitable relief if the requesting spouse
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[*13] meets each streamlined element. Otherwise, the Commissioner will
determine whether equitable relief is appropriate by evaluating the equitable
factors.
A. Threshold Requirements for Granting Relief
The requesting spouse must meet seven threshold requirements to be
considered for relief under section 6015(f). The parties agree, and the Court finds,
that petitioner meets the threshold requirements.
B. Elements for Streamlined Determination
If the threshold requirements are satisfied, Rev. Proc. 2013-34, sec. 4.02,
2013-43 I.R.B. at 400, sets forth the following requirements that a requesting
spouse must satisfy to qualify for a streamlined determination by the
Commissioner granting relief under section 6015(f): (1) the requesting spouse is
no longer married to, is legally separated from, or has not been a member of the
same household as the nonrequesting spouse at any time during the 12-month
period ending on the date the IRS makes its determination; (2) the requesting
spouse will suffer economic hardship if relief is not granted; and (3) in the case of
an underpayment, the requesting spouse did not know or have reason to know that
the nonrequesting spouse would not or could not pay the tax reported on the joint
return. The requesting spouse must establish that he or she satisfies each of the
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[*14] three requirements to receive a streamlined determination granting relief.
Rev. Proc. 2013-34, sec. 4.02.
Respondent determined that petitioner did not satisfy the second and third
requirements and therefore was not entitled to a streamlined determination
granting relief. As discussed below, petitioner has not demonstrated that she will
suffer economic hardship absent relief. Therefore, she is not eligible for a
streamlined determination.
C. Factors Used To Determine Whether Relief Will Be Granted
Where a requesting spouse meets the threshold conditions but fails to
qualify for a streamlined determination, the requesting spouse may still be eligible
for equitable relief if, taking into account all facts and circumstances, it would be
inequitable to hold the requesting spouse liable for the underpayment. See Rev.
Proc. 2013-34, sec. 4.03(1), 2013-43 I.R.B. at 400. Rev. Proc. 2013-34, sec.
4.03(2), 2013-43 I.R.B. at 400-403, provides a nonexhaustive list of the following
seven factors that are considered when determining whether to grant equitable
relief: (1) marital status; (2) economic hardship if relief is not granted; (3) in the
case of an underpayment, knowledge or reason to know the tax liability would not
be paid; (4) legal obligation to pay the outstanding tax liability; (5) significant
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[*15] benefit derived from the unpaid tax liability; (6) compliance with the income
tax laws; and (7) mental or physical health.
In making a determination under section 6015(f), the Court considers the
enumerated factors as well as any other relevant factors. No single factor is
dispositive, and “[t]he degree of importance of each factor varies depending on the
requesting spouse’s facts and circumstances.” Rev. Proc. 2013-34, sec. 4.03(2);
see Pullins v. Commissioner, 136 T.C. at 448; Hall v. Commissioner, T.C. Memo.
2014-171, at *37-*38.
1. Marital Status
If the requesting spouse is no longer married to the nonrequesting spouse,
this factor will weigh in favor of relief. Id. sec. 4.03(2)(a), 2013-43 I.R.B. at 400.
Respondent concedes that petitioner and intervenor were no longer married when
the determination was made.
2. Economic Hardship
Generally, economic hardship exists when collection of the tax liability will
render the requesting spouse unable to meet basic living expenses. Id. sec.
4.03(2)(b), 2013-43 I.R.B. at 401. This factor will weigh in favor of relief where
the requesting spouse will suffer economic hardship absent relief. Id. This factor
may be neutral where the requesting spouse would not suffer economic hardship if
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[*16] relief were denied. Id. A requesting spouse’s current income, expenses,
assets, age, employment status or history, and ability to earn are considered to
determine whether the requesting spouse will face economic hardship. Id.; see
sec. 301.6343-1(b)(4), Proced. & Admin. Regs.
Petitioner contends that her age, limited income and other assets, permanent
disability, and substantial current and expected obligations establish economic
hardship. Petitioner’s income consists of various disability payments totaling
$1,400 per month.
Respondent argues that this factor is neutral because petitioner has been
without the use of the levied funds since April 7, 2014. Respondent asserts that
petitioner was compensated for the levied funds in the divorce settlement and that
a refund of the levied funds would not reverse economic hardship but would
instead result in a windfall to petitioner.
Even though reimbursement of the 2012 tax liability was an issue during
petitioner and intervenor’s divorce negotiations, the stipulation makes no
reference to the 2012 tax liability or to the levied funds. The Court declines to
read into the stipulation that the $277,000 given to petitioner included
reimbursement of the levied funds. Petitioner’s monthly income is approximately
equal to her monthly expenses, and she has approximately $100,000 in a qualified
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[*17] retirement account. Petitioner has not shown that she is unable to pay her
basic living expenses. While the Court does not find that a refund of the levied
funds would result in a windfall to petitioner, the Court finds that she has not
established economic hardship. Accordingly, this factor is neutral.
3. Knowledge or Reason To Know
In an underpayment case knowledge exists when the requesting spouse
knew or had reason to know that the nonrequesting spouse would not or could not
pay the tax liability at the time of filing the joint return. Rev. Proc. 2013-34, sec.
4.03(2)(c)(ii). This factor favors relief if the requesting spouse reasonably
expected the nonrequesting spouse to pay the tax liability reported on the return or
knew of the nonrequesting spouse’s intent or ability to pay the tax liability. This
factor weighs against relief if, on the facts and circumstances, it was not
reasonable for the requesting spouse to believe the nonrequesting spouse would or
could pay the reported tax liability. Notwithstanding the requesting spouse’s
knowledge or beliefs, this factor may favor relief if the nonrequesting spouse
abused the requesting spouse or maintained control of the household finances by
restricting the requesting spouse’s access to financial information such that the
nonrequesting spouse’s actions prevented the requesting spouse from questioning
or challenging payment of the liability. Id.
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[*18] Factors considered when determining whether the requesting spouse knew
or should have known the nonrequesting spouse would or could not pay the tax
liability include: (1) the requesting spouse’s level of education, (2) any deceit or
evasiveness of the nonrequesting spouse, (3) the requesting spouse’s degree of
involvement in the activity generating the tax liability or the household or business
finances, (4) the requesting spouse’s business or financial expertise, and (5) the
presence of lavish or unusual expenditures relative to past spending levels.
Generally, a taxpayer who signs a return is charged with constructive
knowledge of its contents. Porter v. Commissioner, 132 T.C. at 211. However,
knowledge is negated where the nonrequesting spouse restricted the requesting
spouse’s access to financial information such that the requesting spouse was not
able to challenge or question the payment of tax reported as due on the return.
Rev. Proc. 2013-34, sec. 4.03(2)(c)(ii). Even though petitioner signed the
authorization to file the 2012 return in haste and did not have or request time to
review it, she is charged with knowledge of the tax liability reported on the return.
However, because intervenor had instructed his business accountant not to
disclose information to petitioner about his finances, she likely would not have
learned about the tax liability even if she had inquired. Additionally, petitioner
was not involved in intervenor’s businesses, nor was she involved in preparing the
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[*19] 2012 return beyond providing her information to intervenor’s business
accountant through her attorney. Petitioner was not aware of the 2012 tax liability
until she received the August 9, 2013, letter from respondent.
Even if petitioner is charged with constructive knowledge of the 2012 tax
liability, she had no reason to know that intervenor would not or could not pay it.
At the time petitioner signed the return she had been living separately from
intervenor and paying her own expenses for almost two years. She did not have
access to the Johnson Bank account at that time, so she had no reason to know
about the $5,000 payment made with the 2012 tax return. Although she reported
on Form 8857 that she had a credit card balance and a medical bill that she was
struggling to pay, that information does not reflect any knowledge of intervenor’s
income or financial situation at the time. She believed at the time the 2012 return
was filed that intervenor’s income ranged from $250,000 to $300,000.
Additionally, although petitioner’s Form 8857 referenced a State tax bill that
intervenor failed to pay, petitioner received notice of the unpaid State taxes in
November 2013, after signing the 2012 return. The Court does note that several
months before signing the 2012 return petitioner cosigned Form 843 requesting
abatement of a failure to timely pay addition to tax assessed against petitioner and
intervenor on their 2011 Federal income tax return. However, even if that request
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[*20] put petitioner on notice that intervenor had previously failed to pay a tax
liability, petitioner’s separation from intervenor and lack of involvement in
intervenor’s business outweigh that notice. The Court finds that this factor favors
relief.
4. Legal Obligation
For purposes of this factor, a legal obligation is an obligation arising from a
divorce decree or other legally binding agreement. Rev. Proc. 2013-34, sec.
4.03(2)(d), 2013-43 I.R.B. at 402. Generally, this factor favors relief where the
nonrequesting spouse has the sole legal obligation for the liability and weighs
against relief where the requesting spouse has the sole legal obligation. Id. This
factor is neutral, however, where both spouses have a legal obligation to pay the
liability or the divorce decree or agreement is silent as to any obligation to pay the
liability. Id. Petitioner and respondent agree, and the Court finds, that the divorce
decree is silent as to the tax liability. Accordingly, this factor is neutral.
5. Significant Benefit
A significant benefit is any benefit in excess of normal support. This factor
favors relief where only the nonrequesting spouse benefited from the
underpayment or the nonrequesting spouse benefited to the detriment of the
requesting spouse. This factor is neutral where the amount of unpaid tax is so
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[*21] small that neither spouse benefited from the underpayment. This factor may
also be neutral where the requesting spouse received a significant benefit from the
underpayment but abuse or financial control by the nonrequesting spouse resulted
in only the nonrequesting spouse’s making decisions regarding spending. Id. sec.
4.03(e).
The Court finds petitioner did not obtain a significant benefit from the
underpayment. At the time the 2012 return was filed petitioner and intervenor
were living separately and maintaining separate finances. Accordingly, this factor
favors petitioner.8
6. Compliance With Tax Laws
This factor considers whether the requesting spouse has made a good faith
effort to comply with the income tax laws in the taxable years following the year
for which relief is sought. Id. sec. 4.03(f). Petitioner and respondent agree that
petitioner has been in compliance with the tax laws since the divorce. Because of
her limited income, petitioner currently has no filing obligation. Therefore, the
Court finds that this factor weighs in favor of relief.
8
This factor is neutral under the terms of Rev. Proc. 2013-34, sec.
4.03(2)(e), 2013-43 I.R.B. 397, 402, but this Court treats the lack of a significant
benefit as a factor favoring relief. See, e.g., Boyle v. Commissioner, T.C. Memo.
2016-87, at *16.
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[*22] 7. Mental or Physical Health
This factor considers the requesting spouse’s mental and physical health.
Id. sec. 4.03(g), 2013-43 I.R.B. at 403. This factor favors relief where the
requesting spouse was in poor mental or physical health at the time the return was
filed or at the time relief was requested, or at the time of trial. Id.; see Pullins v.
Commissioner, 136 T.C. at 454. Consideration is given to the nature, extent, and
duration of any existing condition, including its economic impact.
Petitioner has been disabled since 2006 and will remain so indefinitely. She
expects her condition to deteriorate. Her medical condition has created numerous
outstanding medical bills and limits her future earning potential. The Court finds
that this factor favors petitioner.
All of the enumerated factors are favorable to petitioner or neutral. After
consideration of all the facts and circumstances the Court determines that it is
inequitable to hold petitioner jointly and severally liable for the underpayment and
that petitioner is entitled to relief under section 6015(f).
II. Refund
Petitioner has demonstrated that the levied funds were taken from her
Associated Bank account. Respondent concedes that if petitioner is entitled to
relief, her request for a refund is timely under section 6511. Accordingly,
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[*23] petitioner is entitled to a refund of the $21,637.93 levied from her
Associated Bank account.
III. Conclusion
For the reasons stated above the Court finds that petitioner is entitled to
equitable relief under section 6015(f) and a refund of the money levied from her
bank account. The Court has considered the remaining arguments made by the
parties and, to the extent not discussed above, finds those arguments to be
irrelevant, moot, or without merit.
To reflect the foregoing,
An appropriate decision
will be entered.