Davis & Assocs. LLC v. Comm'r , 96 T.C.M. 485 ( 2008 )

T.C. Memo. 2008-292
UNITED STATES TAX COURT
DAVIS AND ASSOCIATES LLC, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 29211-07L. Filed December 23, 2008.
P received a final notice of intent to levy to
collect unpaid employer’s withholding, FICA, and FUTA
tax liabilities. P requested a hearing under sec.
6330, I.R.C. During the administrative hearing P did
not contest the amounts of the underlying unpaid tax
liabilities. D, P’s tax matters partner, submitted on
behalf of P an offer-in-compromise (OIC). D made a
payment of $10,000 with the OIC. The Appeals officer
informed P that she intended to reject the OIC and
suggested that P withdraw the OIC and submit a revised
OIC or request an installment payment agreement. P
withdrew the OIC but did not timely submit a new one or
request an installment payment agreement. P asserts
that D asked the Appeals officer to apply the $10,000
payment that accompanied the OIC to the tax rather than
to penalties or interest.
Held: This Court lacks jurisdiction in this case
over the allocation among tax, interest, and penalties
of the payment accompanying the OIC submitted in the
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sec. 6330, I.R.C., administrative proceeding because
the allocation among tax, interest, and penalty does
not affect the amount of the underlying tax liability.
Held, further, the Court will not consider whether
P’s payment of tax should have been applied to “trust
fund penalty amounts” because P did not raise the issue
in the collection hearing and did not receive with
respect to that issue a determination from R that we
have jurisdiction to review.
Held, further, R’s determination to proceed with
the levy to collect P’s tax liabilities for the years
and periods in issue was not an abuse of discretion.
Held, further, R’s motion for summary judgment
will be granted.
C. Paul Davis, for petitioner.
Veena Luthra, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This matter is before the Court on
respondent’s motion for summary judgment pursuant to Rule 121.1
Background
The record establishes and/or the parties do not dispute the
following.
1
All Rule references are to the Tax Court Rules of Practice
and Procedure, and all section references are to the Internal
Revenue Code.
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Petitioner’s principal office and business was located in
South Boston, Virginia, at the time the petition was filed in
this case.
This is an appeal from respondent’s determination to proceed
by levy to collect petitioner’s unpaid withholding and FICA tax
liabilities with respect to Forms 941, Employer’s Quarterly
Federal Tax Return, for the taxable quarters ending September 30,
2000; March 31, June 30, September 30, and December 31, 2001;
March 31 and June 30, 2002; March 31, June 30, and December 31,
2003; March 31, June 30, September 30, and December 31, 2004;
March 31, June 30, and September 30, 2005; and March 31 and June
30, 2006; and to collect by levy petitioner’s unpaid FUTA tax
liabilities with respect to Forms 940, Employer’s Annual Federal
Unemployment (FUTA) Tax Return, for the taxable years 2000, 2001,
2004, and 2005.2
Petitioner filed all the Forms 941 late except for the one
due for the first quarter of 2001. Petitioner also failed to
timely file its annual unemployment tax returns, Forms 940, until
contacted in 2006 by Revenue Officer Grainer of the Internal
Revenue Service (IRS).
2
The term “employment tax” is used to refer to taxes under
the Federal Insurance Contributions Act (FICA), secs. 3101-3128,
the Federal Unemployment Tax Act (FUTA), secs. 3301-3311, and
income tax withholding, secs. 3401-3406 and 3509.
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On February 23, 2007, a Final Notice of Intent to Levy and
Notice of Your Right to a Hearing was sent to petitioner. The
amounts due on all the returns for which the liabilities were
calculated with respect to the notice of intent to levy totaled
$89,834.18, as follows:
Form Tax Unpaid Additional Additional Amount
No. Period Amounts Penalty Interest Due
941 9/30/2000 $2,228.65 - 0 - $105.65 $2,334.30
940 12/31/2000 474.04 $9.31 12.75 496.10
941 3/31/2001 1,085.06 - 0 - 135.01 1,220.07
941 6/30/2001 5,403.28 - 0 - 255.94 5,659.22
941 9/30/2001 2,948.44 - 0 - 140.21 3,088.65
940 12/31/2001 465.67 9.85 12.51 488.03
941 12/31/2001 5,180.51 - 0 - 245.34 5,425.85
941 3/31/2002 4,031.01 - 0 - 1,132.27 5,163.28
941 6/30/2002 8,181.71 - 0 - 387.42 8,569.13
941 3/31/2003 8,519.28 184.17 335.13 9,038.58
941 6/30/2003 9,228.77 254.00 363.00 9,845.77
941 12/31/2003 9,276.95 264.32 364.82 9.906.09
941 3/31/2004 960.74 33.60 39.53 1,033.87
941 6/30/2004 3,893.03 136.98 177.97 4,207.98
941 9/30/2004 1,685.40 67.54 80.17 1,833.11
940 12/31/2004 505.16 12.44 13.57 531.17
941 12/31/2004 4,883.38 180.48 231.03 5,294.89
941 3/31/2005 1,551.21 64.98 73.77 1,689.96
941 6/30/2005 2,429.64 104.35 115.55 2,649.54
941 9/30/2005 5,003.39 197.37 236.62 5,437.38
940 12/31/2005 516.52 13.53 13.88 543.93
941 3/31/2006 2,831.92 138.71 132.35 3,102.98
941 6/30/2006 2,078.15 97.96 98.19 2,274.30
On March 14, 2007, the IRS received petitioner’s Form 12153,
Request for a Collection Due Process Hearing, in response to the
Final Notice of Intent to Levy and Notice of Your Right to a
Hearing, with respect to the proposed levy. The request was
submitted on petitioner’s behalf by C. Paul Davis (Mr. Davis), a
50-percent owner of petitioner, its tax matters partner, and the
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person responsible for depositing its employment taxes. In the
request, Mr. Davis did not express a reason for disagreeing with
the proposed levy.
By letter dated May 15, 2007, Settlement Officer Anh T.
Munson (Appeals officer) requested that petitioner send to her
(1) proof of Federal tax deposits for the first two quarters of
2007, (2) a Form 433-B, Collection Information Statement for
Businesses, (3) petitioner’s signed Form 1065, U.S. Return of
Partnership Income, for 2006, and (4) the Form 940 for the
taxable year 2006. By the time of the telephone Appeals hearing
on May 31, 2007, petitioner had not sent the requested
information. However, the requested documents were received
after the hearing.
At petitioner’s telephone Appeals hearing, Mr. Davis stated
that petitioner was in the process of obtaining a loan against
business real property and that petitioner would use the proceeds
for submitting an offer-in-compromise.
On June 4, 2007, petitioner submitted an offer-in-compromise
of $50,000 ($10,000 paid with the offer and $40,000 to be paid
within 5 months after acceptance of the offer) for all of the
outstanding tax liabilities. Petitioner had applied for a bank
loan of $50,000 against the real estate to make the offer-in-
compromise. Included with the offer were a $10,000 check and a
$150 check for the application fee. Section V, Part (b) of Form
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656, Offer in Compromise, states that the amount sent with the
offer will be applied to the tax liability unless it is specified
as a deposit. Petitioner did not specify the payment as a
deposit, and the $10,000 was applied to the Form 941 tax
liabilities for the third quarter of 2000 and the first three
quarters of 2001.
On June 7, 2007, the Appeals officer advised petitioner that
the Federal tax deposits for the first two quarters of 2007 had
been made late and that the offer-in-compromise might not be
processed if petitioner was not current on the Federal tax
deposits. Petitioner agreed to make timely deposits in the
future and to forward to the Appeals officer its Form 941 for the
first quarter of 2007. That return was received on June 13,
2007, with petitioner’s check and payment voucher. The balance
of the Form 941 liability was not paid in full by that date, and
the partial payment made with the filing of the return was made
late.
By a faxed letter dated September 24, 2007, and by telephone
the same day, the Appeals officer informed petitioner through Mr.
Davis that the offer-in-compromise would not be accepted. The
Appeals officer determined the petitioner had an asset equity of
$39,879 and future income potential of $17,904, and therefore the
minimum acceptable offer would be $57,783. Petitioner was
advised that another collection alternative could be submitted by
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October 5, 2007. In response, Mr. Davis, in a letter dated
October 15, 2007, withdrew the offer-in-compromise on behalf of
petitioner and indicated that another proposal would be
submitted. Mr. Davis also indicated that he had applied for a
loan and hoped to have an answer for the Appeals officer by
October 22, 2007.
On October 29, 2007, the Appeals officer contacted Mr. Davis
regarding petitioner’s failure to submit a proposed collection
alternative. Mr. Davis then indicated that petitioner might
request an installment payment agreement and that he would
contact the Appeals officer again in 1 week. The Appeals officer
informed Mr. Davis that if a proposed collection alternative was
not received by November 6, 2007, she would begin action to
sustain the levy. Not having heard from Mr. Davis on or before
November 6, 2007, nor having received a proposed collection
alternative, the Appeals officer proceeded on November 7, 2007,
to prepare her report sustaining the levy.
On November 14, 2007, the Appeals officer’s summary and
recommendation to sustain the proposed levy action was approved
by the Appeals team manager, and the Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
was sent to petitioner sustaining the proposed levy and returning
the case to the Compliance Office for appropriate action.
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An attachment to the notice of determination sustaining the
notice of intent to levy stated in pertinent part:
Brief Background
Our records indicate your business, Davis &
Associates LLC, is a retail store established in 1997
to sell and service SEARS merchandise. You filed the
940 and 941 tax returns timely until mid 2000. When
contacted by the IRS in 2006 for the delinquent 941 and
940 tax returns, you filed all the required tax returns
from 2000 to 2006 with the Compliance Office. Your
current tax liability is about $84,000.
The Compliance Office contacted you for payment
resolution of your taxes but you did not submit an
acceptable payment plan. Therefore, the Compliance
office issued the Notice of Intent to Levy on the above
listed tax periods. You appealed the proposed levy
action with claim the levy would cause you financial
hardship.
The Appeals Office offered a telephone hearing on
May 31, 2007. Prior to the hearing, the Appeals Office
requested you to provide proofs of federal tax
deposits, financial information on Form 433-B and
submit a collection alternative. At the hearing, you
stated you were in the process of obtaining a loan
against business real property and would use the loan
proceeds for an offer-in-compromise. You submitted
Form 656 on 06-04-2007 and offered $50,000 to
compromise all your outstanding tax liabilities.
Based on your financial information, the Appeals
Office determined your reasonable collection potential
was more than the tax liability, therefore, it would
not be accepted. You later withdrew the offer-in-
compromise and stated you would propose an installment
agreement later.
So far, you have not submitted an acceptable
collection alternative.
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1. Discussion and Analysis
Verification of legal and procedural requirements:
Appeals has obtained verification from the IRS
office collecting the tax that the requirements of any
applicable law, regulation or administrative procedure
with respect to the proposed levy or lien filing have
been met. Computer records indicate that the notice
and demand, notice of intent to levy and/or notice of
federal tax lien filing, and notice of a right to a
Collection Due Process (CDP) hearing were issued.
Assessment was properly made per IRC § 6201 for
each tax period listed on the CDP notice.
The notice and demand for payment letter was
mailed to the taxpayer’s last known address, within 60
days of the assessment, as required by IRC §6303.
There was a balance due when the CDP levy notice
was issued and/or when the lien was filed.
Prior involvement:
This Settlement Officer has had no prior
involvement with respect to the specific tax periods
either in Appeals or Compliance.
Collection statute verification:
The collection statute has been suspended; the
collection period allowed by statute to collect these
taxes has been suspended by the appropriate computer
codes for the tax periods at issue.
Collection followed all legal and procedural
requirements and the actions taken or proposed were
appropriate under the circumstances.
2. Issues Raised by the Taxpayer
Collection Alternatives Offered by Taxpayer
You withdrew your offer-in-compromise after being
advised that your offer would not be accepted. So far
you have not submitted another collection alternative.
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Challenges to the Existence of Amount of Liability
Prior to the hearing, the tax transcripts were
provided to you for review. You did not dispute the
tax liability since the assessments were based on your
tax returns.
Other Issues: You claimed no other issue.
3. Balancing of need for efficient collection with taxpayer
concern that the collection action be no more intrusive than
necessary.
Appeals has verified, or received verification,
that applicable laws and administrative procedures have
been met; has considered the issues raised; and has
balanced the proposed collection with the legitimate
concern that such action be no more intrusive than
necessary by IRC Section 6330(c)(3).
Collection alternatives include full payment,
installment agreement, offer-in-compromise, and
currently-not collectible. Since you have not
submitted an acceptable collection alternative, the
Appeals Office determines the proposed levy action is
appropriate and balances the need for the efficient
collection of the taxes with the legitimate concern
that any collection action be no more intrusive than
necessary. The IRS Compliance Office may proceed with
appropriate collection actions.
On December 17, 2007, petitioner filed its petition herein,
claiming that petitioner thought an installment payment agreement
was in the process of being arranged, disputed the penalties and
interest charged on the past due tax liabilities, and disputed
the application of a portion of the payment ($10,000)
accompanying the offer-in-compromise to those penalties and
interest.
When respondent filed his motion for summary judgment on
July 9, 2008, the Court ordered petitioner to file a response to
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the motion on or before August 15, 2008. Petitioner did not file
a response. Mr. Davis appeared at the Court’s Richmond trial
session on September 8, 2008, and, on the basis of petitioner’s
motion for continuance filed on September 2, 2008, requested
additional time to file a response to respondent’s motion for
summary judgment. The Court denied the motion for continuance
but extended the time for filing a response to respondent’s
motion for summary judgment to September 25, 2008. On September
23, 2008, the McKee CPA Office, P.C., of Cary, North Carolina,
filed a response on petitioner’s behalf. The response, in part,
contends that (1) petitioner made payments in excess of the trust
fund amounts (employee withholding) and no trust fund recovery
penalty should be assessed on the employee tax withheld; (2)
petitioner calculated its unpaid balance due on the tax returns
at issue as $23,663 rather than the unpaid balance of tax,
penalty, and interest ($89,834.18) assessed by respondent, based
on the delinquent tax returns petitioner filed; and (3)
petitioner should now be permitted to pay its unpaid taxes in
installments of $500 per month until the balance due is paid in
full. In a separate statement, apparently prepared for
petitioner by Mr. Davis and attached to the response, there are
assertions that petitioner no longer has a viable bank line of
credit; the real estate housing the retail store is heavily
mortgaged with “no further credit available”; and, in view of
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present economic conditions, petitioner is in a “survival mode”
with “the lowest level of sales in its history”.
Discussion
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 issue of any material fact and
a decision may be rendered as a matter of law. Rule 121(a) and
(b); see Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994). The moving party
bears the burden of proving that there is no genuine issue of
material fact, and factual inferences will be read in a manner
most favorable to the party opposing summary judgment. Dahlstrom
v. Commissioner, 85 T.C. 812, 821 (1985).
If a taxpayer liable for taxes fails to pay those taxes
within 10 days after notice and demand for payment is made,
section 6331(a) authorizes the Secretary to levy against the
taxpayer’s property and property rights. Section 6331(d)
requires the Secretary to send the taxpayer written notice of the
Secretary’s intent to levy, and section 6330(a) requires the
Secretary to send the taxpayer written notice of his right to a
collection hearing at least 30 days before any levy is begun.
If the taxpayer requests a collection hearing, it will be
held before an impartial officer or employee of the IRS Office of
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Appeals. Sec. 6330(b)(1), (3). The Appeals officer conducting
the hearing must verify that the requirements of any applicable
law or administrative procedure have been met. Sec. 6330(b)(1),
(c)(1). The taxpayer may raise any relevant issue with regard to
the Commissioner’s intended collection activities, including
spousal defenses, challenges to the appropriateness of the
proposed levy, and alternative means of collection. Sec.
6330(c)(2)(A); see Sego v. Commissioner, 114 T.C. 604, 609
(2000); Goza v. Commissioner, 114 T.C. 176, 180 (2000). The
taxpayer may not contest the existence or amount of the
underlying tax liability if the taxpayer received a statutory
notice of deficiency with respect to the underlying tax liability
or otherwise had an opportunity to dispute that liability. Sec.
6330(c)(2)(B). Taxpayers are expected to provide all relevant
information requested by Appeals, including financial statements,
for its consideration of the facts and issues involved in the
hearing. Sec. 301.6330-1(e)(1), Proced. & Admin. Regs.
Following a collection hearing, the Appeals Office must make
a determination whether the proposed levy may proceed. In so
doing, the Appeals officer is required to take into
consideration: (1) The verification presented by the Secretary
that the requirements of applicable law and administrative
procedures have been met, (2) the relevant issues raised by the
taxpayer, and (3) whether the proposed levy action appropriately
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balances the need for efficient collection of taxes with a
taxpayer’s concerns regarding the intrusiveness of the proposed
levy action. Sec. 6330(c)(3). A hearing officer may rely on a
computer transcript or Form 4340, Certificate of Assessments,
Payments, and Other Specified Matters, to verify that a valid
assessment was made and that a notice and demand for payment was
sent to the taxpayer in accordance with section 6303. Nestor v.
Commissioner, 118 T.C. 162, 166 (2002); Schaper v. Commissioner,
T.C. Memo. 2002-203; Schroeder v. Commissioner, T.C. Memo. 2002-
190. Absent a showing of irregularity, a transcript that shows
such information is sufficient to establish that the procedural
requirements of section 6330 have been met. Nestor v.
Commissioner, supra at 166-167; see sec. 6330(c)(3).
Where the underlying tax liability is properly at issue, we
review the determination de novo. E.g., Goza v. Commissioner,
supra at 181-182. Where the underlying tax liability is not at
issue, we review the determination for abuse of discretion. Id.
at 182. The Appeals officer abuses his or her discretion if the
determination was made “arbitrarily, capriciously, or without
sound basis in fact.” Mailman v. Commissioner, 91 T.C. 1079,
1084 (1988). In reviewing for abuse of discretion under section
6330(d)(1), generally we consider only arguments, issues, and
other matters that were raised at the collection hearing or
otherwise brought to the attention of Appeals. Magana v.
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Commissioner, 118 T.C. 488, 493 (2002); see also sec. 301.6330-
1(f)(2), Q&A-F3, Proced. & Admin. Regs. Whether an abuse of
discretion has occurred depends upon whether the exercise of
discretion is without sound basis in fact or law. Freije v.
Commissioner, 125 T.C. 14, 23 (2005).
Petitioner filed delinquent Forms 940 and 941 tax returns
for years and/or quarters from 2000 through June 30, 2006.
Before the telephone Appeals hearing with the Appeals officer,
tax transcripts were provided to petitioner for review. The
amounts assessed were based on the tax returns petitioner had
filed, and Mr. Davis did not dispute the amount of the underlying
liabilities during the collection hearing process.
In its petition, petitioner requested an abatement of
penalties and interest. The penalties and interest are based on
petitioner’s self-reported employment taxes due for various
periods from 2000 to 2006. However, petitioner is barred from
challenging the penalties and interest because Mr. Davis did not
raise them in the collection hearing.
Petitioner asserts that, when Mr. Davis discussed
withdrawing the offer-in-compromise with the Appeals officer, he
requested that the $10,000 submitted with the offer be applied to
its tax liabilities and not to penalties and interest and that he
thought the Appeals Officer agreed to do so. The Tax Court is a
court of limited jurisdiction and may exercise only the power
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conferred by statute. Raymond v. Commissioner, 119 T.C. 191, 193
(2002). The existence of jurisdiction in a particular case is
fundamental and may be raised at any point in the proceeding,
either by a party or by the Court sua sponte. Smith v.
Commissioner, 124 T.C. 36, 40 (2005). The Court sua sponte
questioned whether we have jurisdiction in these proceedings over
the application of the payment submitted with the offer-in-
compromise.
In Landry v. Commissioner, 116 T.C. 60 (2001), we held that
this Court has jurisdiction in a levy action under section 6330
over the application of credits for overpayments of tax reported
on the taxpayer’s income tax returns for years preceding the
years giving rise to the tax liabilities subject to the proposed
levy. We held: “Because the validity of the underlying tax
liability, i.e., the amount unpaid after application of credits
to which petitioner is entitled, is properly at issue, we review
respondent’s determination de novo.” Id. at 62. Similarly, in
Freije v. Commissioner, supra, we held that we have jurisdiction
in a levy action under section 6330 to decide whether a payment
made during one of the years at issue was improperly credited to
an earlier year not before the Court.
In this case the amount remaining unpaid after application
of the $10,000 payment made with the offer-in-compromise is
$79,834.18 ($89,834.18 - $10,000). That amount is the same
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regardless of whether the payment is applied to tax, penalty, or
interest, and respondent may levy against petitioner’s property
to recover $79,834.18 regardless of whether it represents tax,
penalty, or interest. Landry and Freije are therefore
distinguishable and do not apply. Thus, we conclude that this
Court does not have jurisdiction in this case under section
6330(d)(1) to decide how the payment made with the offer-in-
compromise submitted to the Appeals officer during the collection
hearing is to be allocated among tax, penalty, and interest.
In its response to respondent’s motion for summary judgment,
petitioner contends that petitioner made payments in excess of
the trust fund amounts (employee withholding) and no “trust fund
recovery penalty” should be assessed on the employee tax
withheld. We surmise that petitioner is concerned that the IRS
may impose the 100-percent penalty under section 6672 against Mr.
Davis, as petitioner’s responsible officer and that he would be
liable for the “trust fund amounts” withheld from employees’
wages and not paid over to the IRS. That penalty is not the
subject of the proposed levy on petitioner’s property and thus
not an issue properly before us. Moreover, we generally may
consider only those issues that the taxpayer raised during the
collection hearing or otherwise brought to the attention of the
Appeals Office. Sec. 6330(c) and (d)(1); Giamelli v.
Commissioner, 129 T.C. 107, 115 (2007); sec. 301.6320-1(e),
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Proced. & Admin. Regs. Consequently, we may not consider whether
petitioner’s payments of tax should have been applied to the
“trust fund amount” because petitioner did not raise the issue in
the collection hearing and did not receive with respect to that
issue a determination that we have jurisdiction to review.
Similarly, we will not consider whether the amount of the unpaid
tax liability is less than the $89,834.18 respondent assessed (as
reduced by the $10,000 payment) because petitioner did not raise
the issue during the collection hearing.
The amount of the unpaid tax is not at issue. Consequently,
we will review the administrative determination of the Appeals
Office for abuse of discretion. Sego v. Commissioner, 114 T.C.
604, 610 (2001); Goza v. Commissioner, 114 T.C. 176, 182 (2000).
As summarized in the Appeals officer’s attachment to
respondent’s notice of determination, the Appeals officer
verified that all requirements of applicable law and
administrative procedures were met. She had no prior involvement
with respect to the unpaid tax. She considered whether the
proposed collection action is more intrusive than necessary. The
alternative to collection that was submitted to her was an offer-
in-compromise. After petitioner was informed that the offer-in-
compromise would not be accepted, petitioner withdrew the offer
and did not submit another offer or collection proposal in the
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form of an installment payment agreement within the reasonable
time limitation set by the Appeals officer.
We point out that consideration of collection alternatives
is a nonliability issue that is reviewed for an abuse of
discretion. See Olsen v. United States, 414 F.3d 144, 153 (1st
Cir. 2005). If an Appeals officer follows the prescribed
guidelines in determining whether a collection alternative is
acceptable, his or her conclusion generally will be considered
reasonable and not an abuse of discretion. See Moorhous v.
Commissioner, T.C. Memo. 2003-183; Rodriguez v. Commissioner,
T.C. Memo. 2003-153; Schenkel v. Commissioner, T.C. Memo. 2003-
37. Petitioner does not assert that prescribed guidelines were
not followed in evaluating the offer. Furthermore, petitioner
withdrew the offer-in-compromise that was filed, leaving no other
collection alternative for the Appeals officer to consider.
Petitioner disputes that the Appeals officer acted correctly
with regard to an installment payment agreement. However, the
Appeals officer could not consider that collection alternative
when petitioner proposed no specific plan. Petitioner claims
that an installment payment agreement was in the process of being
arranged. However, the Appeals officer informed petitioner on
October 29, 2007, that if a proposed collection alternative was
not received within 1 week, the proposed levy action would be
sustained. Because petitioner had not contacted the Appeals
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officer or submitted a collection alternative by November 6,
2007, the proposed levy action was sustained. The levy action
was sustained a month from the deadline to submit another
collection alternative given by the Appeals officer, after
petitioner was notified the offer-in-compromise would not be
accepted, and over 3 weeks from the date petitioner withdrew the
offer-in-compromise. In these circumstances the Appeals officer
did not abuse her discretion by refusing to allow petitioner any
additional time. See Kindred v. Commissioner, 454 F.3d 688, 697-
698 (7th Cir. 2006) (sustaining the levy after giving taxpayers
an additional 2 weeks was not an abuse of discretion).
Accordingly, we hold that there is no issue as to any
material fact; that the Appeals officer committed no abuse of
discretion in rejecting the offer-in-compromise of $50,000 as
insufficient in relation to the collection potential of $57,783;
that the determination to proceed with the levy was not an abuse
of discretion; and that respondent is entitled to judgment as a
matter of law. Respondent’s motion for summary judgment will be
granted.
To reflect the foregoing,
An appropriate order and
decision will be entered.