Nash v. Comm'r , 96 T.C.M. 317 ( 2008 )

T.C. Memo. 2008-250
UNITED STATES TAX COURT
JOHN G. NASH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20728-07L. Filed November 4, 2008.
John G. Nash, pro se.
Matthew A. Houtsma, for respondent.
MEMORANDUM OPINION
SWIFT, Judge: This matter is before us under Rule 121 on
respondent’s motion for summary judgment. Unless otherwise
indicated, all section references are to the Internal Revenue
Code, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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Background
In this collection case under section 6330, petitioner
challenges respondent’s proposed levy relating to petitioner’s
outstanding Federal income taxes and accrued interest for 1984,
1985, and 19861 in the approximate total amount of $74,500, all
of which relates to petitioner’s investment in a so-called Hoyt
tax shelter partnership from the early 1980s.2
On June 1, 1998, respondent timely assessed against
petitioner the above taxes for 1984, 1985, and 1986, and on
February 21, 2005, respondent timely mailed to petitioner a
notice of intent to levy and a notice of a right to a hearing
with respondent’s Appeals Office.
On March 14, 2005, petitioner mailed to respondent a timely
request for a collection Appeals Office hearing relating to
respondent’s proposed levy.
In connection with the Appeals Office hearing that was held
on July 17, 2007, and an informal offer-in-compromise (OIC) that
petitioner submitted to respondent on November 16, 2005,
1
In his petition, petitioner also challenged respondent’s
proposed levy relating to petitioner’s 1981 Federal income
taxes. Respondent now concedes that petitioner has fully paid
his 1981 Federal income tax liability and that no levy will be
made against petitioner with regard thereto.
2
For a description of Hoyt tax shelter partnerships see
Phillips v. Commissioner, 272 F.3d 1172 (9th Cir. 2001), affg.
114 T.C. 115 (2000), and Durham Farms #1 v. Commissioner, T.C.
Memo. 2000-159, affd. 59 Fed. Appx. 952 (9th Cir. 2003).
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respondent’s Appeals officer requested petitioner to provide
financial information and a Form 433-A, Collection Information
Statement for Wage Earners and Self-Employed Individuals. After
repeated unsuccessful requests, respondent’s Appeals officer set
a deadline of August 3, 2007, for petitioner to submit the
requested financial information. Petitioner never provided the
requested information.
On August 21, 2007, respondent’s Appeals Office mailed
petitioner a notice of determination sustaining respondent’s
proposed levy for petitioner’s outstanding tax liabilities for
1984, 1985, and 1986. Respondent’s determination was based on
petitioner’s failure to produce the requested financial
information needed to consider and to act on petitioner’s
proposed OIC.
On September 12, 2007, petitioner filed the petition giving
rise to this action. In his petition, petitioner objects to the
proposed levy on the grounds (1) that the $74,500 in outstanding
Federal income taxes for 1984, 1985, and 1986 are barred from
further collection activity by the running of the 10-year
collection period of limitations under section 6502(a)(1), and
(2) that petitioner’s old age and ill health should justify a
writeoff by respondent of the outstanding $74,500 as
uncollectible.
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Discussion
Period of Limitations
As stated, on June 1, 1998, respondent timely assessed
petitioner’s taxes for 1984, 1985, and 1986, and as of the time
of filing of this action on September 12, 2007, the 10-year
collection period of limitations under section 6502 (running
from the date of assessment) had not expired. Further, under
section 6330(e)(1), when petitioner requested his collection
Appeals Office hearing pursuant to section 6330 to challenge the
proposed levy, the collection period of limitations under
section 6502 was suspended for the period during which the
hearing and petitioner’s appeal therefrom to this Court are
pending. Accordingly, the 10-year collection period of
limitations does not bar respondent’s proposed levy relating to
petitioner’s outstanding 1984, 1985, and 1986 Federal income
taxes.
Petitioner’s Old Age and Ill Health
Old age and ill health may involve economic hardship and
under the regulations are factors relevant to one of several
grounds for compromising a Federal income tax liability (e.g.,
promoting effective tax administration). See sec. 301.7122-
1(b)(3)(i), Proced. & Admin. Regs. However, “An offer to
compromise a tax liability pursuant to section 7122 must be
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submitted according to the procedures, and in the form and
manner, prescribed by [respondent].” Sec. 301.7122-1(d)(1),
Proced. & Admin. Regs. By not submitting a Form 433-A,
petitioner failed to provide respondent with the requested
financial information necessary for respondent to evaluate any
economic hardship to petitioner.
Summary Judgment
Summary judgment is proper where there remains no genuine
issue of material fact and where the moving party is entitled to
judgment as a matter of law. Beery v. Commissioner, 122 T.C.
184, 187 (2004). In responding to a motion for summary
judgment, the opposing party has a duty to “set forth specific
facts showing that there is a genuine issue for trial.” Rule
121(d); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
In a collection action where petitioner’s tax liability is
not at issue, we review the appropriateness of respondent’s
determination for abuse of discretion. Sego v. Commissioner,
114 T.C. 604, 609-610 (2000); Goza v. Commissioner, 114 T.C.
176, 182 (2000).
Petitioner’s failure to provide respondent’s Appeals Office
with requested financial information in connection with
petitioner’s proposed OIC fully supports respondent’s
determination to sustain respondent’s proposed levy action.
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For the reasons stated, we shall grant respondent’s motion
for summary judgment.
An appropriate order and
decision will be entered.