-
MARIA G. LESLIE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, RespondentLeslie v. Comm'rDocket Nos. 9894-12L, 27014-12.
United States Tax Court T.C. Memo 2016-171; 2016 Tax Ct. Memo LEXIS 170; 112 T.C.M. 313;September 14, 2016, FiledIn re Marriage of Georgiou & Leslie, 218 Cal. App. 4th 561">218 Cal. App. 4th 561 , 160 Cal. Rptr. 3d 254">160 Cal. Rptr. 3d 254, 2013 Cal. App. LEXIS 610 (Cal. App. 4th Dist., 2013)Decision in docket No. 27014-12 will be entered under
Rule 155 , and an appropriate order will be issued in docket No. 9894-12L.2016 Tax Ct. Memo LEXIS 170">*170Kevan P. McLaughlin and Tyson P. Cross, for petitioner.Anna A. Long, for respondent.HOLMES, Judge.HOLMESMEMORANDUM FINDINGS OF FACT AND OPINION HOLMES,
Judge : These cases arise from the unhappy end to a marriage. Maria Leslie got $5.5 million from her former husband under an agreement that said it would be taxable to her and deductible to him. She sent part of it--about $400,000--to an internet scamster who claimed he would invest it for her in an *172 African diamond scheme but who made off with the money. She says the $5.5 million was a nontaxable property settlement and the $400,000 was a theft loss. She also says the IRS should have considered her request for an alternative to forced collection of her tax debt.FINDINGS OF FACT A. The Beginning Maria Leslie earned a master's degree in public health administration from Berkeley sometime during the ``80s. She looked for a job with the state government, and got an interview with the Agricultural Labor Relations Board in San Francisco. There she met Byron Georgiou. The interview went well and the two began working in the same office--Georgiou as a director and Leslie as an entry-level investigator. An office romance bloomed, and the two married.2016 Tax Ct. Memo LEXIS 170">*171
During the early years of their marriage Georgiou became head of operations on one of Jerry Brown's presidential campaigns. When that ended, he resumed his occupation as an attorney and investor. Leslie described him as a "brilliant man" who had investments all over the world. He held interests in gold mines, a casino ship in Texas, and real estate around the country. He knew, she said, "important people with deep pockets." He was often asked to give lectures because of his "financial and intellectual acumen."
*173 During this time Georgiou remained closely associated with the Democratic Party and nurtured his relationships with candidates and officeholders alike. Georgiou himself even ran for his party's nomination for the Senate from Nevada. After that effort failed, he began working as "of counsel" to Milberg Weiss and, more specifically to a man named Bill Lerach. His position there was more rainmaker than litigator, and he negotiated a deal with the firm that entitled him to receive a 10% referral fee in any class-action litigation he secured.
Georgiou was adept at cultivating relationships, and he and Leslie climbed into ever higher political and social circles. One in particular is2016 Tax Ct. Memo LEXIS 170">*172 important here--a friendship with the general counsel to the Regents of the University of California. In 2002 this friendship helped him land the suit of a lifetime--representing the UC Regents as lead plaintiffs in a class action against Enron.
It would eventually yield him over $50 million in attorney's fees.
B. The End of a Marriage Then--and from her perspective all at once--Leslie's marriage came to an end. And so began what would become a lengthy battle with a myriad of psychological and mental-health problems. She began suffering--and currently suffers--from severe major depression, and from schizoaffective disorder, and *174 dependent-personality disorder. Her condition darkened once the marital-separation negotiations began in 2003, and she began to plan her own death.
She chose life but was admitted to a hospital for an involuntary psychiatric hold during which she was diagnosed with severe major depressive disorder. As a result of her stay, Leslie was prescribed a series of psychotropic drugs, which included Effexor XR, Abilify, Cymbalta, and Prozac. She continued to require psychological evaluations throughout the years and found herself less than fully able to manage her own financial2016 Tax Ct. Memo LEXIS 170">*173 affairs. It wasn't until a year before trial that she finally stopped taking these medications.
But before this recovery she had to tend to negotiations over the division of marital assets. Georgiou provided and paid for Leslie's attorneys during the negotiations, and over the next three or four years the two were able to thrash out the details. With her health so precarious, these negotiations were difficult for her to endure. She credibly described them as "disjointed" and pointed out that she couldn't endure the marathon sessions that the negotiations required. A major reason for their length was the division of fees that Georgiou hoped would come from the Enron litigation. Georgiou called any payout "pie in the sky," and he had Leslie convinced that the chances of a settlement were bleak and that even with success the referral fee might be as low as $9 million.
*175 The negotiations ended with a marital separation agreement (MSA). A section in the MSA titled "Spousal Support" gave Leslie $7,000 per month in spousal support which would end with either party's death. Under a separate section titled "Division of Community and Co-owned Property" Leslie was awarded nine of the rental properties--which2016 Tax Ct. Memo LEXIS 170">*174 currently serve as her main source of income--and their related loans. Under that
same section, Leslie was awarded 10% of whatever fee Georgiou received as a result of the Enron litigation. The MSA did not say whether this payment would terminate in the event of either party's death. Despite the provision's location in a section reserved for divisions of property, the MSA distinguished the Enron fee:With respect to any and all fees distributed to Mr. Georgiou as a result of his involvement in the Enron securities litigation through the firms, Mr. Georgiou shall receive ninety percent (90%) as his sole and separate property and Ms. Leslie shall receive ten percent (10%) of all net fees distributed to Mr. Georgiou by the Lerach Coughlin firm or Milberg Weiss firm "the firms". [
sic ] Ms. Leslie's ten percent (10%) interest in the Enron fee is a spousal support award from a contingent liability, the amount of which could not be definitely set at the time of this agreement, since Mr. Georgiou cannot be certain of the amount of fees that he will receive from the Enron litigation. This ten percent (10%) distribution to Ms. Leslie is taxable to Ms. Leslie and deductible to Mr. Georgiou as spousal2016 Tax Ct. Memo LEXIS 170">*175 support.would expressly terminate upon Leslie's death.Not too long after the order dissolving Leslie's marriage in January 2008, the Enron class action ended with a settlement very favorable to the plaintiffs' lawyers. They submitted their fee application to the Federal district court as part of a motion to approve the settlement. In their application the lawyers requested that the court approve attorney's fees of 9.52% of the Regents' ultimate recovery of $7 billion. The court granted that request and awarded $688 million in fees. Georgiou himself received a referral fee of $55 million spread out from 2008 to 2010.
Leslie started to see some money from the deal. First came the $355,000, which was paid out to her in 16 separate payments from July 2006 to April 2007. Then came her share of the referral fee:
Date Amount 11/13/2008 $4,000,000 12/22/2009 1,560,000 6/28/2010 8,200 Total 5,568,200 *177 The 2009 payment had some twists. Georgiou definitely segregated this2016 Tax Ct. Memo LEXIS 170">*176 money from his distribution, and directly deposited it into an account at California Bank & Trust. That account had both his name and Leslie's on it, but she credibly testified that she had no control over it. She was not given any checks to sign from the account, and her impression of the payment was that it wasn't yet legally hers. In January 2010 she tried to gain control by filing a declaration in support of the "Release of Enron Payments from Trust Account" with the San Diego Superior Court. Georgiou opposed her petition, and the state court at first refused to grant it. It's not clear from the record when or if Leslie ever gained control over the account containing the 2009 payment.
C. The Africa Diamond Scam While this was happening and shortly before the divorce became final, Leslie had met Eugene McCullough at a local swap meet. McCullough sold golf clubs and accessories, which didn't interest Leslie. Still, as time went by, she and McCullough began a friendship--mostly commiserating about what they were unable to sell that day. She began to trust him. One day McCullough began talking about an old friend of his from his days in the Navy. He explained that the friend had a troubled2016 Tax Ct. Memo LEXIS 170">*177 past, but had since gotten into the diamond business and seemed to be doing very well for himself. Deciding she would like a small pair of *178 earrings, Leslie had McCullough reach out to the man. That man's name was Lawyer Stanley.
Leslie estimates that it was about two weeks later when McCullough got back to her and explained that Stanley only did wholesale. Leslie at first didn't think twice about it, but then McCullough came back a few weeks later. He said Stanley had an offer she might be interested in.2016 Tax Ct. Memo LEXIS 170">*178 Trade, LLC, at the beginning of December. A few days later, Stanley began emailing McCullough exclaiming that Leslie "could make millions" and that if she would keep providing capital "she [could] own her own bank." Giving into the sense of urgency projected by Stanley's emails, Leslie wired him an additional $60,000. Stanley's excuses for delay began. First, it was *179 some bank's standing in the way of Stanley's payment to Leslie, then it was delays because of the Christmas holidays, and finally Stanley wrote McCullough another email explaining that "the inland revenue taxes is the last obstacle . . . they raised it 1.0025%," and that he needed additional funds. So, Leslie wired another $25,000 to Stanley.
This was, of course, all a scam of the same kind anyone with an email address has encountered since the opening of the internet. And it played out just as one would expect: More delays followed by more excuses followed by more delays. Leslie finally became leery of her newfound business partner 74 days after her initial "investment." She emailed McCullough and Stanley to complain about Stanley's "over the top" delays but received one last excuse: Stanley needed to get a probate document2016 Tax Ct. Memo LEXIS 170">*179 for some reason or another before he could make the deal go through. The scales cascaded from her eyes, and Leslie threatened to call the police. No progress. More stalling. Stanley did up his game from deceit to outright forgery by creating and sending to her documents from something called the "Foreign Credit Commission" (FCC), but the number shown on the documents was false. Stanley then blamed Leslie for causing more delay by contacting this "FCC." By mid-2009 Leslie realized she had been duped.
*180 It was too late. Stanley wasn't answering emails or telephone calls. McCullough spoke with several authorities on Leslie's behalf. He contacted the FBI and the district attorney and even reached out to Congress, all to no avail. Leslie personally called the local police in Florida near an address Stanley had given, and asked them to do a welfare visit to Stanley's home, but he'd already skipped town. She spoke with two lawyers but they "laugh[ed] her out of the room" and advised that she shouldn't spend any more good money chasing bad. All that was left was a collection of emails between Stanley and her detailing the course of the transactions from the past year. She never filed suit or made any2016 Tax Ct. Memo LEXIS 170">*180 other claim against Stanley because she simply couldn't even find him. Seeing no other way to benefit from this debacle, she deducted the $405,000 on her 2009 tax return.
D. The Tax Filings Before her divorce, Leslie had never before been responsible for managing her day-to-day financial affairs. Her problems during and after her divorce did nothing to sharpen her skills. She credibly testified that during the years after the divorce "the real world just kind of like passed me by completely in terms of my *181 obligations, in terms of time--time frames and time lines and duties." She failed to timely file her 2006-08 tax returns.2016 Tax Ct. Memo LEXIS 170">*181 the Commissioner filed a notice of lien followed by a final notice of his intent to levy. In that same month Leslie timely filed her 2009 tax return reporting the $405,000 theft loss and excluding the 2009 Enron payment from Georgiou as taxable income.
The Commissioner issued a notice of determination for Leslie's 2007 and 2008 tax years in which he didn't even analyze any collection alternatives. Leslie timely filed a petition with this court. Shortly after that, the Commissioner issued a notice of deficiency for Leslie's 2007, 2008, and 2009 tax years. Leslie timely filed a separate petition to challenge that determination too. We consolidated the *183 cases and tried them together in San Diego. Leslie was at the time and remains a California resident.
OPINION The big issue is the taxability of Leslie's share of the Enron referral-fee windfall. The Commissioner asserts that it's all alimony; taxable to Leslie and deductible to Georgiou because that's2016 Tax Ct. Memo LEXIS 170">*183 what the marital-settlement agreement said it was, and because it met the requirements of
section 71 .section 6651 failure-to-timely-file penalties for Leslie's 2007 and 2008 tax years as well assection 6662 accuracy-related penalties for all three years at issue. And, finally, they fight about whether the Commissioner's settlement officer abused her discretion as part of a collection due process hearing because she failed to *184 consider collection alternatives despite Leslie's having provided her financial information.I. The Enron Fees The parties' dispute about the Enron fees starts with a dispute about what test we should2016 Tax Ct. Memo LEXIS 170">*184 use, both for the amount that was contingent and the $355,000 that was defined.
Beard v. Commissioner , 77 T.C. 1275">77 T.C. 1275 (1981)Beard requires the Court to examine the facts of these cases under a set of seven subjective factors--largely the intent of the parties--to determine if a payment is more in the nature of alimony or in the nature of a property settlement.Id. But in 1984 Congress amendedsection 71 of the Code --the purpose of which was to "eliminate the subjective inquiries into intent and the nature of payments that ha[s] plagued the courts."Hoover v. Commissioner , 102 F.3d 842">102 F.3d 842aff'g T.C. Memo. 1995-183 . The Commissioner wins this one--we'll follow the Code and not prior caselaw--and we will analyze the treatment of the Enron payments undersection 71(b) :*185 Alimony means any cash payment if:
(A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under2016 Tax Ct. Memo LEXIS 170">*185
section 215 ,(C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and
(D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.
If a payment satisfies all of these factors then it's alimony.
Baker v. Commissioner , T.C. Memo. 2000-164section 71(b)(1)(D) 's requirement that Georgiou's obligation to make these payment end with her death. We begin with the language of the divorce or separation instrument. And it shows that nowhere in the MSA is there a condition that terminates Georgiou's obligation to pay over a part of the contingent referral fee upon Leslie's death.*186 though, because state law can supply the missing termination-on-death-of-payee condition thatsection 71 requires.See Hoover , 102 F.3d 842">102 F.3d at 847LaPoint v. Commissioner , T.C. Memo. 2012-107Cal. Fam. Code sec. 4337 (West 2013). "A written agreement to waivesection 4337 'must be specific and express.'"Johanson v. Commissioner , 541 F.3d 973">541 F.3d 973, 541 F.3d 973">977 (9th Cir. 2008)In re Marriage of Thornton , 95 Cal. App. 4th 251">95 Cal. App. 4th 251aff'g T.C. Memo. 2006-105 . The parties here have not produced any such agreement. The mere failure to include language terminating support upon death is not enough to constitute a waiver.Id. By operation of California law, then, payments from the Enron settlement would have terminated upon Leslie's death.The requirement that any liability to make payments terminates upon2016 Tax Ct. Memo LEXIS 170">*187 the death of the payee spouse is central in distinguishing between alimony and *187 property settlements.
See H.R. Rept. No. 98-432 (Part 2), at 1496 (1984), 1984 U.S.C.C.A.N. 697, 1138;Hoover , 102 F.3d 842">102 F.3d at 845-46We find for the Commissioner on this issue.
II. Constructive Receipt of the 2009 Payment Leslie's fallback position is that even if the Enron payments are generally taxable, she didn't receive the 2009 payment in 2009. Giorgiou deposited the payment into an account Leslie herself did not open. She claims that she did not have control over this account; she did not have access to it; and did not even know it existed. Leslie credibly testified that she still didn't have this money until--at the earliest--the 2010 tax year. She argues that the funds were not taxable until then. The Commissioner argues, however, that even if Leslie didn't have knowledge or control over the trust, Georgiou should be considered Leslie's agent, thus giving her constructive receipt over the funds.
Income is generally taxable for the year in which it is received.
Sec. 451 ;sec. 1.451-1(a), Income Tax Regs. But a taxpayer can "constructively receive" income. The2016 Tax Ct. Memo LEXIS 170">*188 doctrine of constructive receipt is summarized bysection 1.451-2(a) of the regulations :*188 General rule. Income although not actually reduced to a taxpayer's possession is constructively received by him in the taxable year during which it is credited to his account, set apart for him, or otherwise made available so that he may draw upon it at any time, or so that he could have drawn upon it during the taxable year if notice of intention to withdraw had been given. However, income is not constructively received if the taxpayer's control of its receipt is subject to substantial limitations or restrictions.
Ross v. Commissioner , 169 F.2d 483">169 F.2d 483rev'g and remanding on other grounds 6 T.C.M. 124">6 T.C.M. 124 , 1947 Tax Ct. Memo LEXIS 316">1947 Tax Ct. Memo LEXIS 316 (1947);Martin v. Commissioner , 96 T.C. 814">96 T.C. 814Palmer v. Commissioner , T.C. Memo 2000-228, 2000 WL 1036368">2000 WL 1036368Martin , 96 T.C. 814">96 T.C. 822This Court has held that knowledge of the funds' receipt--something Leslie didn't have--is necessary for constructive receipt.
Furstenberg v. Commissioner , 83 T.C. 755">83 T.C. 755Davis v. Commissioner , T.C. Memo. 1978-12Gale v. Commissioner , T.C. Memo 2002-54We find for Leslie on the issue of constructive receipt and hold that she did not receive the 2009 Enron payment in the 2009 tax year.
III. Theft Loss Section 165(a) allows a deduction against a taxpayer's2016 Tax Ct. Memo LEXIS 170">*190 ordinary income for "any loss sustained during the taxable year and not compensated for by insurance *190 or otherwise." Loss deductions are very limited for individuals, but they do include losses that arise from a theft.Sec. 165(c) .We look to the law of the state in which the loss occurred to determine whether a loss was a theft loss.
Bellis v. Commissioner , 540 F.2d 448">540 F.2d 448aff'g 61 T.C. 354">61 T.C. 354 (1973). While a theft loss doesn't require proof of a conviction,Paine v. Commissioner , 63 T.C. 736">63 T.C. 736, 63 T.C. 736">740 (1975)aff'd without published opinion ,523 F.2d 1053">523 F.2d 1053 (5th Cir. 1975), the burden is on Leslie to prove by a preponderance of the evidence that a theft occurred under California law,see Halata v. Commissioner , T.C. Memo 2012-351Was There a Theft ?Section 484 of the California Penal Code defines theft:(a) Every person who shall feloniously steal, take,2016 Tax Ct. Memo LEXIS 170">*191 carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other *191 person of money labor or real or personal property, * * * is guilty of theft.
• the making of false pretense or representation by the defendant;
• the intent to defraud the owner of his property; and
• actual reliance by the owner upon the false pretense in parting with his property.
People v. Williams , 57 Cal. 4th 776">57 Cal. 4th 776People v. Fujita , 43 Cal. App. 3d 454">43 Cal. App. 3d 454But first a taxpayer must establish that failure to keep the promise was not merely a result of a commercial default.
Barry v. Commissioner , T.C. Memo. 1991-382People v. Poyet , 6 Cal. 3d 530">6 Cal. 3d 530See Bellis v. Commissioner , 61 T.C. 354">61 T.C. 354see also Barry , T.C. Memo. 1991-382Lawyer Stanley's business was not legitimate. And that makes this case situation much more like
Halata , T.C. Memo. 2012-351Halata , the taxpayer *192 entered into2016 Tax Ct. Memo LEXIS 170">*192 a deal in which she was to receive a $2.5 million return on an initial investment of less than $200,000.Id. In executing the deal, the scammer gave her a collection of supporting documents--which we later found "phony."Id. at *23Id. at *15• the documents appeared to be fake,
• the purported return on investment was "too good to be true"--an obvious indicator of a fraudulent scheme, and
• the lack of a contract was far more consistent with a scam than with an investment.
Id. at *23Leslie received even less documentation than the taxpayer in
Halata : only a suspicious "FCC" document that we also find was phony. Very much like the taxpayer inHalata , Leslie expected a return--double her investment in only 10-30 days--that was too good to possibly be true. Even more compelling here is that Leslie never received a written contract before wiring her money to "Africa World Trade, LLC." We find Stanley's representations to be fraudulent and the whole deal a scam.Another element of the offense is that a promise to the taxpayer must be made with the intent not to perform.
People v. Kiperman , 69 Cal. App. Supp. 3d 25">69 Cal. App. Supp. 3d 25Halata , T.C. Memo. 2012-351, at *23We also find that Leslie actually relied on Stanley's promise of a high return. California courts have held that even reliance by a foolish victim of an absurd fraud is nonetheless reliance.
Barry , T.C. Memo. 1991-382People v. Gilliam , 141 Cal. App. 2d 749">141 Cal. App. 2d 749See People v. Marghzar , 192 Cal. App. 3d 1129">192 Cal. App. 3d 1129Accordingly we find that Leslie's $405,000 loss was the result of a theft.
When Was the Theft ?A taxpayer is generally permitted to deduct a theft loss in the year she discovers it unless there is a claim for recovery, in which case we treat the loss as sustained when it can be determined with reasonable certainty that she won't obtain reimbursement.
See sec. 165(e) ;secs. 1.165-1(d)(2)(i) ,(3) ,1.165-8(a)(2) , *194 Income Tax Regs.;Jeppsen v. Commissioner , 128 F.3d 1410">128 F.3d 1410aff'g T.C. Memo. 1995-342 . Leslie's theft occurred in 2008 when she2016 Tax Ct. Memo LEXIS 170">*194 wired $405,000 to Stanley. She didn't realize that she'd been scammed, however, until 2009, and she has no pending claim for recovery against Stanley. It was also in 2009 that Leslie abandoned any legal avenues in obtaining reimbursement from Stanley after McCullough's contacts with police enforcement and her own contacts with her attorneys proved unfruitful. McCullough's and Leslie's failed attempts to get reimbursement in that year are enough for us to find that Leslie had no reasonable prospect of recovery.See Halata , T.C. Memo. 2012-351, at *28sustained in the 2009 tax year. We find for Leslie on this issue.PenaltiesA. Late Filing Section 6651(a)(1) imposes an addition to tax for failure to timely file a return unless the taxpayer can establish reasonable cause. The Commissioner has met his burden of production on this one because Leslie concedes that she filed *195 her 2007 and 2008 returns late. She asserts as a defense, however, that she had reasonable cause because2016 Tax Ct. Memo LEXIS 170">*195 of her ongoing psychological problems.Incapacity on the part of a taxpayer because of mental illness can be a reasonable cause for failing to file timely returns.
Williams v. Commissioner , 16 T.C. 893">16 T.C. 893Wilkinson v. Commissioner , T.C. Memo 1997-410, 1997 WL 570863">1997 WL 570863Wilkinson , T.C. Memo 1997-410, 1997 WL 570863, at *7See id. This is not enough to excuse a late filing.We find for the Commissioner on this issue.
*196 B. Accuracy-Related Penalties Section 6662 imposes an "accuracy-related penalty" of 20% of the portion of the2016 Tax Ct. Memo LEXIS 170">*196 underpayment of tax attributable to a substantial understatement of income tax. Leslie concedes accuracy-related penalties imposed by the Commissioner to the extent that we found deficiencies for the 2007 and 2008 tax years. And we found for her on the merits of her 2009 tax year.This is a split decision.
V. CDP Once the Commissioner assesses a tax, but before he can collect any unpaid portion of it, he must give a taxpayer the opportunity for a collection due process (CDP) hearing.
See secs. 6321 ,6331(a) . A taxpayer can raise any relevant issue during the hearing, including an alternative to forced collection.Sec. 6330(c)(2)(A) . One such alternative is an installment agreement.Secs. 6159(a) ,6330(c)(2)(A)(iii) .Although Leslie's arguments during the CDP hearing focused on her underlying liability, she distinctly asked for a collection alternative (despite the Commissioner's assertion to the contrary). She now requests a remand on the grounds that the SO failed to consider a collection alternative, and we review this part of the determination for abuse of discretion.
See Sego v. Commissioner , 114 T.C. 604">114 T.C. 604Goza v. Commissioner , 114 T.C. 176">114 T.C. 176United States v. Sherburne , 249 F.3d 1121">249 F.3d 1121Friedkin v. Sternberg , 85 F.3d 1400">85 F.3d 1400See Lance v. Commissioner , T.C. Memo 2009-129Schwersensky v. Commissioner , T.C. Memo. 2006-178The Commissioner does argue on brief here that the SO was within her discretion to deny collection alternatives because Leslie didn't supply information about her health-and life-insurance premiums. This was, however, just about the only financial information that Leslie didn't supply. Even more important, this specific failure--a failure to supply complete information about health-and life-insurance premiums--is not cited in the notice of determination as a reason for refusing to consider an alternative to enforced collection. In reviewing notices of *198 determination, we follow the
Chenery doctrine.SeeJones v. Commissioner , T.C. Memo 2012-274Salahuddin v. Commissioner , T.C. Memo. 2012-141, 2012 WL 1758628">2012 WL 1758628Chenery in a CDP case means that we can't uphold a notice of determination on grounds other than those actually2016 Tax Ct. Memo LEXIS 170">*198 relied upon by the IRS officer who made the determination.See Chenery I , 318 U.S. 80">318 U.S. at 87-88Spiva v. Astrue , 628 F.3d 346">628 F.3d 346Salahuddin , T.C. Memo. 2012-141, 2012 WL 1758628, at *7section 6330(d) is to review actions that the IRS took, not the actions that it could have taken"). Those grounds must be clearly set forth so that we do not have to guess about why an officer decided what he did.See Chenery II , 332 U.S. 194">332 U.S. at 195Unlike many taxpayers, Leslie submitted a complete Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, along with a current set of her financial records. This enabled the SO--even without the additional health-and life-insurance statements--to generate an allowable-expense worksheet. In her notes the SO acknowledged that Leslie had proposed a *199 collection alternative but instead of, for instance, disallowing that part of Leslie's claimed expenses and computing a higher installment payment she simply rejected any alternative at all. This makes the determination2016 Tax Ct. Memo LEXIS 170">*199 not rational, in contrast to the run-of-the-rejection-mill case where a taxpayer submits no information or leaves out assets.
Cf. Gillum v. Commissioner , T.C. Memo. 2010-280aff'd ,676 F.3d 633">676 F.3d 633 (8th Cir. 2012) (excluding information about assets is failure to provide information necessary for evaluation).We therefore hold that the SO's failure to consider a collection alternative in this case was an abuse of discretion. We will remand the case to the Appeals Office to hold a supplemental hearing after the parties complete their
Rule 155 computation.Decision in docket No. 27014-12 will be entered under .Rule 155 , and an appropriate order will be issued in docket No. 9894-12LFootnotes
1. Leslie spoke with Stanley only once herself. She explained during trial that she let McCullough handle all contact because he was the one with the relationship with Stanley and that she trusted him absolutely.↩
2. Leslie received an extension on her 2009 tax return and so it was timely filed.↩
3. When the IRS assesses a liability based on a taxpayer's unaudited return, the taxpayer hasn't had an opportunity to "dispute" her tax liability and so is entitled to a CDP hearing.
See Montgomery v. Commissioner , 122 T.C. 1">122 T.C. 1Id.↩ 4. All section references are to the Internal Revenue Code in effect for the years at issue, unless we say otherwise. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
5. As we already noted, $30,000 of the contingent $355,000 was paid to Leslie not in 2007, but in 2006--a year not covered by the notice of deficiency and thus beyond the Commissioner's reach.↩
6. As we've already found, the MSA provided for a $355,000 lump-sum payment to Leslie once Georgiou started to receive the fees. The MSA made
that↩ payment--but not the $5.5 million that became Leslie's additional share of the Enron fees--expressly contingent on Leslie's not dying.7. Extrinsic evidence is admissible to determine whether
section 4337 was waived only if there is some "language in the written agreement reasonably susceptible to interpretation as a declaration of an intent that support continue beyond [death]."Johanson v. Commissioner , 541 F.3d 973">541 F.3d 973In re Marriage of Cesnalis , 106 Cal. App. 4th 1267">106 Cal. App. 4th 1267aff'g T.C. Memo. 2006-105↩ . Even if we found that the MSA contained such language, neither party produced extrinsic evidence for examination here.8. The reason was that Leslie at that time had sued to overturn or modify the MSA on the ground that she lacked capacity to agree to it because of her medical problems. The state court didn't want to release the funds to her under the MSA if she later were successful in overturning the MSA altogether. The MSA was later upheld by the trial court and again on appeal in 2013.
See In re Marriage of Georgiou , 218 Cal. App. 4th 561">218 Cal. App. 4th 5619. The Commissioner noted during trial that Leslie made no headway with police enforcement on this matter, nor did she sue or file an administrative claim against Stanley. Leslie asserts that despite McCullough's several efforts on her behalf she was unable to even locate Stanley. But neither a criminal case nor a civil suit is required to prove a theft loss--we've even held that taxpayer doesn't even need to know who the thief is.
Halata v. Commissioner , T.C. Memo 2012-351Jensen v. Commissioner , T.C. Memo. 1993-393aff'd without published opinion ,72 F.3d 135">72 F.3d 135↩ (9th Cir. 1995).10. The excess of deductions over gross income is a net-operating loss.
See sec. 172(c) . To the extent that Leslie's loss exceeds her income she may carry back her loss first to 2007--two years before the loss.See sec. 172(b)(1)(A)(i) . We leave these calculations forRule 155↩ .11. The
Chenery doctrine is an administrative-law principle that says a court, in reviewing a determination which an "administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency."See SEC v. Chenery Corp. , 332 U.S. 194">332 U.S. 194SEC v. Chenery Corp. , 318 U.S. 80">318 U.S. 80
Document Info
Docket Number： Docket Nos. 9894-12L, 27014-12.
Judges： HOLMES
Filed Date： 9/14/2016
Precedential Status： Non-Precedential
Modified Date： 4/17/2021