Adam Sowards ( 2023 )

United States Tax Court
T.C. Memo. 2023-99ADAM SOWARDS,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 2133-17L. Filed August 3, 2023.
—————
Christopher L. Bourell, Grace Borell (student), and Ariel Berger
(student), for petitioner.
Emly B. Berndt, John D. Davis, and Nancy P. Klingshirn, for
respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
GALE, Judge: Pursuant to sections 6320(c) 1 and 6330(d)(1),
petitioner seeks review of the determination of the Internal Revenue
Service (IRS) Office of Appeals 2 sustaining a proposed levy and the filing
of a notice of federal tax lien (NFTL) to collect federal income tax due for
the 2008, 2009, and 2010 taxable years (years at issue). The issues for
decision are whether (1) respondent properly disallowed certain credits
that petitioner claimed on his original and amended federal income tax
1 Unless otherwise indicated, statutory references are to the Internal Revenue
Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the
Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and
Rule references are to the Tax Court Rules of Practice and Procedure.
2 On July 1, 2019, the Office of Appeals was renamed the Independent Office
of Appeals. See Taxpayer First Act, Pub. L. No. 116-25, § 1001, 133 Stat. 981, 983
(2019). We will use the name in effect at the times relevant to this case, i.e., the Office
of Appeals or Appeals.
Served 08/03/23
2
[*2] returns for each of the years at issue; (2) respondent should be
equitably estopped from maintaining that petitioner is not entitled to
those credits; (3) respondent’s disallowance of the credits on the basis of
a statutory amendment postdating the filing of petitioner’s original
income tax returns deprives petitioner of his right to due process under
the Fifth Amendment to the Constitution; and (4) petitioner’s
conscientious objection to participation in the Social Security system
excuses him from providing Social Security numbers (SSNs) to
substantiate his claims for credits.
FINDINGS OF FACT 3
Some of the facts are stipulated and are so found. The
Stipulations of Facts and the Exhibits attached thereto are incorporated
herein by this reference. Petitioner resided in Michigan when he timely
filed his Petition.
In October 2011, sometime before the 15th of that month,
petitioner and his spouse jointly filed federal income tax returns for the
years at issue. Petitioner claimed four children as his dependents for
each of those years. In addition, the 2008 return claimed the additional
child tax credit (ACTC) with respect to petitioner’s four children, along
with the earned income tax credit (EITC) and the recovery rebate credit.
The 2009 return claimed the ACTC with respect to petitioner’s four
children, along with the EITC. The 2010 return claimed the child tax
3 Respondent objects to the proposed findings of fact set forth in petitioner’s
Opening Brief on the ground that they do not comply with Rule 151(e)(3). Under Rule
151(e)(3), a party’s opening brief must include proposed findings of fact in the form of
numbered statements referring to the pages of the transcript, exhibits, or other sources
relied upon to support the statements, which may not consist of recitals of testimony,
nor of discussion or argument relating to the evidence or the law. We agree that
petitioner’s proposed findings of fact fail to comply with Rule 151(e)(3), and we have
accordingly not relied on them in making our own findings except to the extent
respondent has expressly declined to object to certain of petitioner’s proposals. See,
e.g., Ashkouri v. Commissioner, T.C. Memo. 2019-95, at *23–24.
In addition, because petitioner’s Answering Brief does not set forth any
objections to respondent’s proposed findings of fact, we conclude that petitioner
concedes the correctness of respondent’s proposals except to the extent that they are
clearly inconsistent with his own. See Jonson v. Commissioner, 118 T.C. 106, 108 n.4
(2002), aff’d, 353 F.3d 1181 (10th Cir. 2003). Our findings of fact are accordingly based
on our examination of the parties’ Stipulations of Facts, the stipulated Exhibits, the
trial transcript, those portions of respondent’s proposed findings of fact that we have
determined to be consistent therewith, and those portions of petitioner’s proposed
findings of fact to which respondent does not expressly object.
3
[*3] credit (CTC) with respect to petitioner’s four children. 4 The returns
did not provide SSNs for petitioner’s children or his spouse, none of
whom had SSNs when the returns were filed.
Petitioner’s spouse (whom he married in 2003) did not have an
SSN because she was not a citizen of the United States. Petitioner also
had not obtained SSNs for his children because he had intended
(consistent with his religious beliefs, which include conscientious
objection to public insurance and reliance on government benefits) to
allow his children to decide at an appropriate age whether they wished
to participate in the Social Security system. To obtain taxpayer
identification numbers other than SSNs for his children, petitioner
mailed requests for individual taxpayer identification numbers (ITINs) 5
to respondent along with his 2010 return. Respondent never formally
acted on petitioner’s requests for ITINs.
Shortly after petitioner filed his returns, respondent notified him
that his claims for the CTC, the ACTC, and the EITC for the years at
issue would be disallowed as mathematical or clerical errors. See
§ 6213(b)(1), (g)(2). Respondent thereafter assessed the adjusted tax
due, statutory interest, and additions to tax for failure to timely pay the
tax due for each year at issue. Respondent also assessed additions to
4 The parties’ stipulations concerning the credits claimed for each of the years
at issue on petitioner’s original returns do not accurately reflect the claims made on
those returns. Although petitioner’s returns for 2008 and 2009 included claims for
only the ACTC, the parties’ stipulations state that petitioner claimed the CTC for 2008
and both the CTC and the ACTC for 2009. Also, for 2009, the parties have stipulated
that petitioner claimed credits on his original return in amounts that do not match
those shown on the return.
These discrepancies are immaterial. As discussed infra Part II.A, under the
circumstances of this case petitioner’s eligibility for either the CTC or the ACTC (which
is the refundable portion of the CTC) is determined by the same statutory provisions
relating to taxpayer identification numbers. Because we conclude herein that all of
petitioner’s claims for the CTC, the ACTC, and the EITC are disallowed, the precise
amounts of those credits claimed on his returns (as originally filed or as later amended)
do not affect the outcome of this case. To the extent that petitioner’s returns and the
parties’ stipulations refer to the credits at issue by different names, we will use the
names reflected on petitioner’s returns.
5 An ITIN is a taxpayer identification number issued by the IRS to an
individual who is not a citizen or national of the United States. Treas. Reg.
§ 301.6109-1(d)(3)(i). The IRS will not issue an ITIN to an individual who has, or is
entitled to have, an SSN. Id. subpara. (4)(i).
4
[*4] tax for failure to timely file returns for 2008 and 2009, 6 as well as
an addition to tax for failure to pay estimated tax due for 2010.
During the years following the disallowance of petitioner’s claims
for credits, petitioner and respondent continued to communicate about
his returns and his requests for ITINs. In 2013 respondent sent
petitioner a letter in connection with an inquiry he had made in 2012
concerning the status of his ITIN requests, which stated that respondent
had made a correction relating to an SSN on petitioner’s 2008 return.
Respondent subsequently stopped collection activity and placed
petitioner’s accounts for the years at issue in currently not collectible
status (although petitioner had not requested that respondent do so).
Eventually, in 2016, respondent resumed collection activity by sending
petitioner and his spouse a notice of intent to levy (levy notice) and a
notice of NFTL filing (lien notice) to collect petitioner’s outstanding tax
liabilities for the years at issue. After receiving the levy notice and the
lien notice, petitioner timely requested a collection due process (CDP)
hearing pursuant to sections 6320 and 6330. 7
An Appeals settlement officer conducted the CDP hearing.
During the hearing the settlement officer informed petitioner that his
claims for the disallowed credits were required by statute to include
SSNs. Petitioner accordingly applied for and obtained SSNs for each of
his children. Before petitioner provided the SSNs to respondent,
however, Appeals issued him a notice of determination. The notice of
determination sustained the proposed levy and the filing of the NFTL,
noting that petitioner had not submitted the SSNs or the necessary
information for consideration of a collection alternative.
Petitioner timely petitioned for review of Appeals’
determination. 8 Petitioner thereafter in 2017 submitted amended
returns to respondent for each of the years at issue, which listed his
6 Petitioner’s account transcript for 2010 does not include an assessment of a
late-filing addition to tax for that year but instead indicates that petitioner had
obtained an extension of time until October 15, 2011, to file that return.
7 Petitioner’s spouse was not named on, and did not sign, the request for a CDP
hearing.
8 Both petitioner and his spouse signed the Petition; but because petitioner’s
spouse had not requested a CDP hearing and consequently had not received a notice
of determination, we dismissed this case for lack of jurisdiction to the extent that the
Petition purported to seek review of a determination concerning petitioner’s spouse.
5
[*5] children’s SSNs. 9 After a partial trial, respondent moved the Court
to remand the case to Appeals for a supplemental CDP hearing to give
further consideration to petitioner’s underlying tax liabilities. The
Motion was granted. 10
In connection with the supplemental hearing, petitioner’s
underlying liabilities for the years at issue were considered by Appeals,
in consultation with the Examination Division. An Appeals officer
concluded that petitioner was entitled to dependency exemptions with
respect to his children but not to the EITC or recovery rebate credit
because no valid taxpayer identification number for his spouse had been
provided, as required by sections 32(m) and 6428, respectively. The
Appeals officer further concluded that petitioner was not eligible for the
CTC and the ACTC because section 24(e), as amended and in effect when
petitioner filed his amended returns, disallowed any claim for such
credits with respect to a child whose taxpayer identification number had
not been issued before the due date for filing the relevant return.
Finally, the Appeals officer concluded that petitioner had not
demonstrated that he was entitled to abatement of the assessed
statutory interest or additions to tax for any of the years at issue.
Another Appeals officer considered the collection issues besides
the underlying liabilities and concluded that (1) all requirements of
applicable law and administrative procedure had been satisfied;
(2) petitioner had not provided any information necessary for
consideration of a collection alternative, and his counsel had expressly
declined during the supplemental hearing to request a collection
alternative or provide financial information; and (3) in the absence of a
collection alternative, the collection actions at issue appropriately
balanced the need for efficient tax collection against the intrusiveness of
the collection actions. Also adopting the conclusions of the other Appeals
officers concerning petitioner’s underlying liabilities, the Appeals officer
9 Petitioner’s amended returns for 2008 and 2009, like his original returns for
those years, claimed the ACTC and the EITC (although the amended return for 2009
slightly increased the amount of his claim for the EITC compared to the original
return). Petitioner’s amended return for 2010 reduced the amount reported as his
adjusted gross income for that year, reduced the amount of his claim for the CTC, and
added a claim for the ACTC. The amended return for 2010 also adjusted petitioner’s
claims for dependency exemptions.
10 Respondent conceded at the partial trial that petitioner was entitled to
contest the underlying liabilities. Respondent’s position is correct. See Triola v.
Commissioner, T.C. Memo. 2014-166; Internal Revenue Manual 21.5.4.2(9) (Sept. 6,
2017); see also Perkins v. Commissioner, 129 T.C. 58, 65 n.8 (2007).
6
[*6] issued a supplemental notice of determination reflecting the
foregoing and sustaining the proposed levy and the filing of the NFTL. 11
OPINION
I. Administrative Hearing and Judicial Review
Section 6321 imposes a lien in favor of the United States on all
property and rights to property of a taxpayer after a demand for
payment of tax has been made and the taxpayer has failed to pay. The
lien arises when the tax is assessed. § 6322. The Secretary generally
must file an NFTL with certain state or local authorities where a
taxpayer’s property is situated for the lien to be valid against certain
categories of third parties. § 6323(a), (f); Behling v. Commissioner, 118
T.C. 572, 575 (2002). The Secretary is required to notify the taxpayer in
writing of the filing of an NFTL and of the taxpayer’s right to a hearing
concerning the NFTL filing. § 6320(a)(1), (3).
Section 6331(a) authorizes the Secretary to levy upon property
and property rights of a taxpayer who fails to pay the tax within 10 days
after notice and demand for payment is made. Before doing so, however,
the Secretary must give the taxpayer written notice of his or her right
to a prelevy hearing. § 6330(a)(1), (b)(1).
During a CDP hearing a taxpayer may raise “any relevant issue,”
such as a challenge to the appropriateness of the collection action and
the possibility of collection alternatives. §§ 6320(c), 6330(c)(2)(A). A
taxpayer may also challenge the existence of the underlying tax liability,
but only if the taxpayer did not receive a notice of deficiency with respect
to the liability or otherwise have an opportunity to dispute it. §§ 6320(c),
6330(c)(2)(B). The Appeals officer who conducts the hearing must then
determine whether to uphold the collection action, taking into
consideration (1) whether the requirements of applicable law and
administrative procedure have been met, (2) any relevant issues raised
by the taxpayer, and (3) whether the proposed collection action
appropriately balances the need for efficient collection of taxes with the
taxpayer’s legitimate concerns that the collection action be no more
intrusive than necessary. § 6330(c)(3).
11 The supplemental notice of determination indicates that because petitioner’s
claims for dependency exemptions had been allowed, respondent had partially abated
petitioner’s assessed liabilities for 2008 and 2009, and that his assessed liability for
2010 would also be partially abated.
7
[*7] Pursuant to sections 6320(c) and 6330(d)(1), this Court has
jurisdiction to review the Appeals officer’s determination. When this
Court remands a case to the Appeals Office and there is a supplemental
determination, we review the supplemental determination. Hoyle
v. Commissioner, 136 T.C. 463, 468 (2011), supplementing 131 T.C. 197(2008). If the validity of the underlying tax liability is properly at issue,
we review the liability determination de novo. Goza v. Commissioner,
114 T.C. 176, 181–82 (2000). We review the administrative
determination concerning a proposed collection action for abuse of
discretion. Id. at 182. An abuse of discretion occurs if an Appeals officer
issues a determination “arbitrarily, capriciously, or without sound basis
in fact or law.” Woodral v. Commissioner, 112 T.C. 19, 23 (1999).
II. Underlying Tax Liabilities
On brief petitioner disputes Appeals’ determination only to the
extent that he contends Appeals erroneously disallowed his claims for
the CTC, the ACTC, and the EITC. He has abandoned all other issues,
including any challenge to the underlying liabilities relating to his claim
for the recovery rebate credit or his liability for statutory interest and
additions to tax (to the extent that Appeals determined that the
assessments of those items should not be abated), and any claim that
Appeals’ resolution of nonliability issues constitutes an abuse of
discretion. See Rule 151(e)(4) and (5).
Credits are a matter of legislative grace, and a taxpayer must
prove entitlement to the credits claimed. 12 INDOPCO, Inc.
v. Commissioner, 503 U.S. 79, 84 (1992); see also Rule 142(a).
A. CTC and ACTC
A taxpayer may claim the CTC for an individual who is a
“qualifying child” as defined in section 152(c) and who has not attained
age 17 during the taxable year. § 24(a), (c). A portion of that credit
(commonly referred to as the ACTC) is refundable. § 24(d). Petitioner
claimed the ACTC for 2008 and 2009, as well as the CTC (and later, also
the ACTC) for 2010.
In 2011 when petitioner filed his original returns for the years at
issue, section 24(e) provided: “No credit shall be allowed under this
section to a taxpayer with respect to any qualifying child unless the
12 Petitioner does not contend that the burden of proof with respect to factual
issues should shift to respondent under section 7491(a).
8
[*8] taxpayer includes the name and taxpayer identification number of
such qualifying child on the return of tax for the taxable year.” Because
petitioner’s original returns did not include taxpayer identification
numbers for his children, he did not initially make an allowable claim
for the CTC or the ACTC for any of the years at issue.
Petitioner attempted to rectify the omission of the taxpayer
identification numbers by obtaining SSNs for his children and then
submitting amended returns including the SSNs. By the time he
submitted the amended returns to respondent in 2017, Congress had
amended section 24(e) to impose additional identification requirements.
See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, div. Q,
§ 205(a) and (b), 129 Stat. 2242, 3081 (2015). As amended, section 24(e)
provided as follows:
Sec. 24(e). Identification requirements.—
(1) Qualifying child identification requirement.—No
credit shall be allowed under this section to a taxpayer with
respect to any qualifying child unless the taxpayer includes
the name and taxpayer identification number of such
qualifying child on the return of tax for the taxable year
and such taxpayer identification number was issued on or
before the due date for filing such return.
(2) Taxpayer identification requirement.—No credit
shall be allowed under this section if the identifying[13]
number of the taxpayer was issued after the due date for
filing the return for the taxable year.
Division Q, the Protecting Americans from Tax Hikes Act of 2015
(PATH Act), made the additional identification requirements applicable
to “any return of tax, and any amendment or supplement to any return
of tax, which is filed after the date of the enactment of this Act,” which
was December 18, 2015. PATH Act § 205(c)(1), 129 Stat. at 3081. 14 We
13 Congress later replaced the word “identifying” with the words “taxpayer
identification.” See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141,div. U, § 101(i)(1), 132 Stat. 348, 1162. The version of section 24(e) as amended by the
PATH Act otherwise remains in effect (although a special SSN requirement applies for
taxable years 2018 through 2025). See § 24(h)(7).
14 Congress later amended section 205(c) of the PATH Act to eliminate an
exception for timely filed returns for the 2015 taxable year. See Consolidated
Appropriations Act, 2018, § 101(i)(2), 132 Stat. at 1162. That amendment has no
impact on returns (or amendments or supplements thereto) for the taxable years at
issue in this case.
9
[*9] have previously noted that “[a]fter the due date of the original
return, an amended return constitutes a supplement or amendment to
the original [return].” Clayton v. Commissioner, T.C. Memo. 1997-327,
74 T.C.M. (CCH) 146, 150 (citing Zellerbach Paper Co. v. Helvering, 293
U.S. 172 (1934)), aff’d, 181 F.3d 79 (1st Cir. 1998).
Petitioner did not submit the amended returns listing SSNs for
his children until 2017, well after the date of the PATH Act’s 2015
enactment. 15 The amended returns are consequently subject to the
additional identification requirements imposed by the PATH Act.
Because petitioner’s children did not yet have taxpayer
identification numbers in 2011—when he filed his original returns for
2008, 2009, and 2010—and petitioner did not obtain SSNs for them until
after respondent began collection activity in 2016, it follows that the
children’s SSNs were not issued until after the due dates for filing
income tax returns for the years at issue. See § 6072(a) (providing that
a calendar year taxpayer’s income tax return is generally due on April
15 of the following year); § 6081(a) (providing that the time for filing a
return generally may not be extended by more than six months). The
15 To the extent that petitioner can be understood to contend that the
additional identification requirements should not apply to his claims for credits
because he filed his original returns before the effective date of the PATH Act, we
interpret that contention not as an argument that the amended returns are something
other than amendments or supplements to the original returns, but rather as an
argument that the amendments should relate back to the filing of the original returns.
That argument is not persuasive. Although the general rule is that an amendment or
supplement to a return relates back to the filing of the original return, see Zellerbach
Paper Co. v. Helvering, 293 U.S. at 180, that rule does not apply for all purposes. For
example, an amendment to a return is not effective to avoid the application of a longer
assessment limitations period resulting from fraud or a substantial understatement
on the original return, or to prevent the accrual of interest on an underpayment. See
Badaracco v. Commissioner, 464 U.S. 386, 393–94 (1984). The PATH Act’s
amendments to section 24(e) can thus be understood as effectively limiting the general
rule that an amendment relates back to the filing of an original return in cases where
the amendment corrects the omission of a taxpayer identification number.
We are also unmoved by petitioner’s claim that he did not “change or amend
any material information such as income earned, number of dependents, or the amount
of credits claimed.” The materiality of a particular item is not dispositive of whether
an amended return or other document constitutes an amendment or supplement to an
original return. See, e.g., Friedman v. Commissioner, 97 T.C. 606, 610 (1991) (focusing
analysis of a document’s relationship to the original return on whether it was “intended
to modify” the return). In any event the taxpayer identification numbers involved here
are material to petitioner’s claims for credits in that they are required by statute for
allowance of the credits.
10
[*10] SSNs provided by petitioner’s amended returns do not satisfy the
section 24(e)(1) identification number requirements in effect when he
submitted them, and therefore his claims for the CTC and the ACTC are
disallowed.
B. EITC
Section 32(a)(1) allows an eligible individual to claim the EITC to
offset that individual’s tax liability, subject to a phaseout explained in
section 32(a)(2). As we have noted, petitioner claimed the EITC for both
2008 and 2009. At all times relevant to this case, section 32 imposed the
following identification number requirement with respect to individuals
otherwise eligible to claim the EITC:
Sec. 32(c). Definitions and special rules.—For
purposes of this section—
(1) Eligible individual.—
....
(E) Identification number
requirement.—No credit shall be allowed
under this section to an eligible individual
who does not include on the return of tax for
the taxable year—
(i) such individual’s taxpayer
identification number, and
(ii) if the individual is married
(within the meaning of section
7703),[16] the taxpayer identification
number of such individual’s spouse.
The only type of taxpayer identification number that satisfies this
requirement is an SSN. § 32(m). 17 It is undisputed that petitioner was
married throughout 2008 and 2009. It is also undisputed that
16 After petitioner filed his original and amended returns, Congress amended
section 32 by deleting “(within the meaning of section 7703)” from section 32(c)(1)(E)(ii)
and inserting rules for determining marital status in section 32(d). See American
Rescue Plan Act of 2021, Pub. L. No. 117-2, § 9623(a) and (b), 135 Stat. 4, 153–54. The
section 32(c)(1)(E) identification number requirement otherwise remains in effect.
17 The PATH Act amended section 32(m) to require that the SSN must have
been issued on or before the due date for filing the relevant return. See PATH Act
§ 204(a), 129 Stat. at 3081. That amendment does not affect the outcome of this case
because petitioner’s spouse did not have an SSN before or after the due dates of
petitioner’s 2008 and 2009 returns.
11
[*11] petitioner’s spouse did not have an SSN and was not eligible to
obtain one when petitioner filed his original and amended returns for
2008 and 2009. Those returns, as originally filed or as amended, thus
could not have included the required identification number for
petitioner’s spouse. Petitioner’s claims for the EITC therefore must be
disallowed.
C. Petitioner’s Equitable Estoppel, Due Process, and
Conscientious Objection Arguments
Petitioner contends that the additional identification
requirements imposed by the PATH Act should not bar his claims for
the CTC and the ACTC 18 because respondent should be equitably
estopped from applying the PATH Act’s additional identification
requirements. Petitioner also contends retroactively disallowing his
claims for credits on the basis of the PATH Act’s modification of section
24(e) is a deprivation of his right to due process under the Fifth
Amendment. Alternatively, petitioner suggests that the identification
number requirements applicable to the CTC, the ACTC, and the EITC
may burden impermissibly the free exercise of his religious beliefs in
view of his conscientious objection to participation in the Social Security
system. Petitioner’s contentions are unpersuasive.
1. Equitable Estoppel
To avoid disallowance of his claims for the CTC and the ACTC in
accordance with the PATH Act’s amendments to section 24(e), petitioner
argues that respondent should be equitably estopped from applying the
amended version of section 24(e) to his claims for credits. In support of
that argument, petitioner contends that respondent improperly delayed
the resolution of his claims for credits by failing to act on his requests
for ITINs during the four-year period between the submission of those
requests and the enactment of the PATH Act, and by unilaterally
postponing collection activity (and the corresponding opportunity for
judicial review) until after the PATH Act was enacted.
Equitable estoppel is applied against the Commissioner only
“with utmost caution and restraint.” Estate of Emerson
18 Petitioner makes similar arguments with respect to the EITC. As we pointed
out supra note 17, however, the PATH Act’s amendment of section 32(m) does not affect
petitioner’s eligibility for the EITC under the circumstances of this case. We
accordingly do not address petitioner’s arguments concerning the PATH Act in relation
to the EITC.
12
[*12] v. Commissioner, 67 T.C. 612, 617 (1977). For estoppel to apply
against the Commissioner, we have held that a taxpayer must establish
the following elements:
(1) [a] false representation or wrongful, misleading silence
by the party against whom the estoppel is claimed; (2) an
error in a statement of fact and not in an opinion or
statement of law; (3) the taxpayer’s ignorance of the truth;
(4) the taxpayer’s reasonable reliance on the acts or
statements of the one against whom estoppel is claimed;
and (5) adverse effects suffered by the taxpayer from the
acts or statements of the one against whom estoppel is
claimed.
Wilkins v. Commissioner, 120 T.C. 109, 112 (2003); see also Estate of
Emerson, 67 T.C. at 617–18.
The U.S. Court of Appeals for the Sixth Circuit, to which any
appeal in this case presumptively lies, see § 7482(b)(1)(G)(i), requires a
party invoking estoppel against the government to establish similar
elements, and additionally requires that the party “must demonstrate
some ‘affirmative misconduct’ by the government in addition to the other
estoppel elements,” Mich. Express, Inc. v. United States, 374 F.3d 424,
427 (6th Cir. 2004) (quoting Fisher v. Peters, 249 F.3d 433, 444 (6th Cir.
2001)); see also United States v. Guy, 978 F.2d 934, 937 (6th Cir. 1992).
The Sixth Circuit has explained that affirmative misconduct in
this context means “more than mere negligence,” in that the party
asserting estoppel must show “an act by the government that either
intentionally or recklessly misleads the claimant.” Mich. Express, 374
F.3d at 427. Consequently, “[t]he party asserting estoppel against the
government bears the burden of proving an intentional act by an agent
of the government and the agent’s requisite intent.” Id.There is no dispute that when petitioner filed his original returns
in 2011, he also requested that the IRS issue ITINs for his children. 19
19 Although petitioner testified that he requested an ITIN (rendered as “I-10”
in the transcript) for his spouse, in addition to requesting ITINs for his children, we
need not address any request relating to petitioner’s spouse. As we have discussed,
petitioner’s claims for the CTC and the ACTC must be disallowed because his
children’s SSNs were issued after the due dates of the returns for the years at issue,
and his claims for the EITC must be disallowed because his spouse did not have an
13
[*13] Petitioner credibly testified that although he did not communicate
with the IRS in writing about his ITIN requests, he confirmed with the
IRS by telephone that those requests had been received. 20 He further
testified that he understood from his conversations with IRS personnel
that ITINs would be issued for his dependents once his requests had
been properly investigated. But petitioner was unable to identify any
specific IRS employee with whom he discussed his ITIN requests before
discussing them with the settlement officer at the original CDP hearing,
and the record is otherwise devoid of evidence concerning petitioner’s
prehearing communications with the IRS and the IRS’s handling of his
ITIN requests.
This evidence does not establish the traditional elements of
estoppel, nor does it establish that respondent or his employees have
engaged in affirmative misconduct. At most, the evidence suggests the
possibility that an IRS employee could have indicated to petitioner that
ITINs might be issued for his children if warranted by the results of the
IRS’s investigation. But the parties have since stipulated, consistent
with Treasury Regulation § 301.6109-1(d)(4)(i), that petitioner’s
children were not eligible to receive ITINs because, as citizens of the
United States, they were eligible to obtain SSNs. Any suggestion by an
IRS employee to the effect that respondent might (or even affirmatively
would) issue ITINs for petitioner’s children would thus amount to
nothing more than a misstatement of the law, which cannot give rise to
an estoppel. See, e.g., Trugman v. Commissioner, 138 T.C. 390, 394
(2012) (“We have recognized . . . that incorrect legal advice from an IRS
employee does not have the force of law and cannot bind the
Commissioner or this Court.”).
Nor can an estoppel result from respondent’s failure to act on
petitioner’s ITIN requests before the enactment of the PATH Act.
Petitioner has not identified any specific government agent who
communicated with him concerning the ITIN requests or who was
otherwise responsible for reviewing them. The record is consequently
devoid of evidence concerning any such agent’s intent in providing
advice to petitioner or in failing to act upon his ITIN requests. Absent
SSN, which is the only type of taxpayer identification number permitted under section
32(m). Accordingly, none of the credits at issue could have been allowed even if
respondent had issued an ITIN to petitioner’s spouse.
20 This testimony is corroborated by the IRS’s 2013 letter to petitioner, which
the parties have stipulated was issued in connection with an inquiry that petitioner
made about the status of his ITIN requests.
14
[*14] such evidence, we cannot conclude that the delay in acting on
those requests amounted to anything more than mere negligence (at
worst), which does not rise to the level of affirmative misconduct
necessary to establish an estoppel.
For similar reasons, no estoppel can result from petitioner’s claim
that respondent improperly delayed the commencement of collection
activity. Although the evidence does indicate that respondent deferred
the commencement of collection activity, even though petitioner did not
request that he do so, there is no evidence (and petitioner does not
contend) that any IRS employee misled him with respect to the
commencement of collection activity in any way that could establish the
basic elements of estoppel. Moreover, there is no evidence that such
deferral resulted from affirmative misconduct on the part of any specific
IRS employee. Petitioner has accordingly failed to demonstrate that
estoppel should apply against respondent in this case.
2. Due Process
Petitioner also argues that the PATH Act retroactively disallows
his claims for the CTC and the ACTC, without notice, in violation of the
Due Process Clause of the Fifth Amendment to the Constitution.
We reject petitioner’s view that the PATH Act’s amendments to
section 24(e) have retroactive effect as applied here. “[T]o operate
retroactively, a statute must actually ‘attach[] new legal consequences’
to completed, past conduct.” Polone v. Commissioner, 505 F.3d 966, 972
(9th Cir. 2007) (second alteration in original) (quoting Landgraf v. USI
Film Prods., 511 U.S. 244, 270 (1994)), aff’g T.C. Memo. 2003-339. A
statute does not have retroactive effect, however, if it merely “‘is applied
in a case arising from conduct antedating the statute’s enactment,’ or
. . . ‘upsets expectations based in prior law.’” Id. (quoting Landgraf, 511
U.S. at 269–70); see also Patel v. Gonzales, 432 F.3d 685, 690 (6th Cir.
2005).
As we have already discussed, the PATH Act’s amendments to the
section 24(e) identification number requirements expressly apply to
returns, and amendments and supplements to returns, filed after the
date of its enactment. See PATH Act § 205(c)(1), 129 Stat. at 3081.
Thus, by its terms, the amended version of section 24(e) applies only
prospectively, to documents (like petitioner’s amended returns) filed
after enactment of the PATH Act. “Although it is possible for a statute
with a seemingly prospective application to apply retroactively in some
15
[*15] circumstances,” see Polone v. Commissioner, 505 F.3d at 972, the
amended version of section 24(e) does not do so because it does not
change the legal consequences of petitioner’s original returns, which
were filed before the PATH Act’s enactment.
As filed, those returns did not include sufficient information to
make allowable claims for the CTC or the ACTC under section 24. And
because petitioner cannot satisfy the post-PATH Act section 24(e)
identification number requirements, he in effect cannot now correct his
legally insufficient prior claims. 21 The result, under the circumstances
of this case, is that the amended version of section 24(e) merely locks in
the preexisting (and expected) legal consequences of the original
returns. Petitioner’s contention that the PATH Act operates
retroactively is consequently without merit.
We accordingly conclude that the application of section 24(e), as
amended by the PATH Act, to petitioner’s amended returns does not
deprive him of his right to due process under the Fifth Amendment.
3. Conscientious Objection
Finally, petitioner notes on brief his conscientious objection to
participation in the Social Security system, which we understand as a
suggestion that the taxpayer identification number requirements at
issue in this case may impermissibly burden the free exercise of his
religious beliefs. A taxpayer’s religious or moral beliefs do not excuse a
failure to comply with identification number requirements established
by statute and regulation. See Miller v. Commissioner, 114 T.C. 511,
516–18 (2000).
Accordingly, because petitioner’s claims for credits fail to satisfy
the applicable statutory provisions concerning taxpayer identification
numbers, they must be disallowed notwithstanding his conscientious
objection to participation in the Social Security system.
III. Conclusion
We reject petitioner’s challenges to his underlying tax liabilities
for the years at issue. Since he has otherwise abandoned any challenge
21 As we observed supra note 15, the PATH Act can be understood to modify
the general rule that an amendment or supplement relates back to the filing of the
original return in cases where the amendment consists of a taxpayer identification
number.
16
[*16] to Appeals’ determination to sustain the collection actions, we will
sustain that determination, as supplemented.
To reflect the foregoing,
Decision will be entered for respondent.