Kiselis v. United States , 119 A.F.T.R.2d (RIA) 1181 ( 2017 )

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Jfn tbt Wntttb ~tatts 26 U.S.C. § 6020(b) (2012).
The following third parties had provided the IRS with information regarding Plaintiffs
income for the 2000 tax year:
• Dean Witter Reynolds (Form 5498, Form 1099-B, Form 1099-DIV, Form
1099-R);
• GMAC Mortgage (Form 1098);
• Fidelity Investments (Form 1099-R);
• Lasalle Bank (Form 1099-INT);
• Merrill Lynch Pierce Fenner & Smith (Forms 1099-DIV);
• Morgan Stanley Dean Witter (Forms 1099-B, Forms 1099-DIV);
• Williams & Montgomery Ltd., Profit Sharing Plan & Trust (Form 1099-R);
3
This background is derived from Plaintiffs complaint, exhibits to Defendant's motion to
dismiss and exhibits to Defendant's supplemental brief.
2
• Zurich Money Market Fund (Form 1099-DIV);
• Anthony Suizzo (Form 1099-MISC); and
• Wexford Clearing Services Corp. (Form 1099-DIV)
Def.'s Mot. Ex. 2.
The SFR indicated the following regarding Plaintiff's income and tax liability:
• gross income of $429,128.00 (comprised of distributions reported by Plaintiff's
employer and by various financial entities and Plaintiff's self-employment
income);
• taxable income of $424,016.50;
• tax liability of$147,003.00;
• interest (calculated through October 9, 2005) of$51,l 70.57; and
• penalties of$77,732.79.
See Def.'s Mot. Ex. 5, at 68.
On September 19, 2005, the IRS sent Letter 2566 - Proposed Individual Tax Assessment -
to Plaintiff's last known address. Id. at 66-72. In the Letter, the IRS informed Plaintiff that it had
no record ofreceiving Plaintiff's Form 1040, U.S. Individual Income Tax Return, for the 2000 tax
year and that, as a result, the IRS had determined Plaintiff's tax liability as of that date to be
$275,906.36. Id. at 66, 68. The Letter further stated that because the IRS computed Plaintiff's tax
liability based solely on income, it would be to Plaintiff's advantage to file his return "so that [he
could] claim all of the exemptions, deductions, and credits that the law allows." Id. at 66. Finally,
the letter informed Plaintiff that within 30 days, the IRS had to receive one of the following:
1. Plaintiff's Form 1040 completed and signed, including all schedules and forms,
with the cover letter;
2. The "Consent to Assessment and Collection" form signed and dated;
3. A statement explaining why Plaintiff believed he was not required to file, or
information Plaintiff wanted the IRS to consider; or
4. Plaintiff's appeal of the IRS's proposed assessment.
3
Plaintiff did not respond to the letter, and on December 12, 2005, the IRS sent Plaintiff a
Notice of Deficiency via certified mail to Plaintiff's last known address. The IRS advised Plaintiff
that it had assessed a $147,003.00 deficiency and had imposed $77,732.79 in penalties based on
the SFR. Def.'s Mot. Ex. 1, at 6. The Notice gave Plaintiff 90 days to contest the deficiency
determination in Tax Court or face a deficiency assessment. Id.On May 8, 2006, the IRS assessed additional tax, interest and penalties for Plaintiff's 2000
tax year to account for additional interest and penalties that had accrued since the IRS issued
Plaintiff the Notice of Deficiency -- a $33,075.67 late filing penalty, $60,343.85 in interest, and a
$36,750.75 failure-to-pay tax penalty. Def.'s Mot. Ex. 4, at 57, 63.
Over three years later, on June 26, 2009, after searching without success for Plaintiff's
address, the IRS sent Plaintiff Letter 1058, "Final Notice Reply Within 30 days" to Plaintiff's last
known address, informing Plaintiff of his unpaid taxes and the IRS' s intent to levy his accounts if
Plaintiff did not pay the tax or request an appeal within 30 days. Def.'s Mot. Ex. 3, at 18-20
(Archive History Transcript), Ex. 4, at 58. 4
On August 13, 2009, over 30 days after Plaintiff was sent the Final Notice, the IRS issued
a levy against Plaintiff's Bank of America account in the amount of$46,700.00. Def.'s Mot. Ex.
3, at 20. 5 Form 668A - Notice of Levy provides banks must hold money for 21 calendar days
before sending the funds to the IRS. On August 19, 2009, the Revenue Officer again conducted a
search for Plaintiff's contact information, but was unsuccessful. Id.On August 28, 2009, Plaintiff contacted the Revenue Officer by telephone inquiring about
the levy on his Bank of America account. Id. at 21. At that time, Bank of America had not yet
sent the monies levied from Plaintiff's account to the IRS. During the conversation, Plaintiff
provided the Revenue Officer with his updated contact information. Id. The Revenue Officer
informed Plaintiff that the levy on his bank account would only be released if Plaintiff submitted
income tax returns for tax years 2000 through 2007 - - which Plaintiff had not done. Plaintiff
objected and requested his case be transferred to New York. Id. at 21. Plaintiff also informed the
Revenue Officer that "when in Chicago, Illinois, back a few years, he [had been] beaten up by a
4
The IRS must give a taxpayer notice at least 30 days prior to executing a levy, "in person,
... left at the [person's] dwelling or usual place of business ... [,] or sent by certified or registered
mail to the person's last known address." 26 U.S.C. § 633 l(d)(2). The statute does not require that
Plaintiff receive or accept the notifications - - the IRS need only mail the notice by certified or
registered mail to the plaintiff's last known address. Smith v. Rossotte, 250 F. Supp. 2d 1266,
1270 (D. Or. 2003) (citing Williams v. Comm'n Internal Revenue Serv., 935 F.2d 1066, 1067 (9th
Cir. 1991)).
The Advisory Revenue Officer, LuAnn J. Bondanza, testified that a copy of Letter 1058,
could not be located, but the Archive Transcript of Plaintiff's tax history indicates that the IRS
sent the notice. Bondanza Suppl. Deel. ii 5(a) (Oct. 12, 2006); Def.'s Mot. Ex. 3, at 18.
5
Although Ms. Bondanza testified that the IRS has not been able to locate a copy of the
Notice of Levy that was sent to Plaintiff, the Archive Transcript of Plaintiff's tax history indicates
that the IRS sent the notice. Bondanza Suppl. Deel. ii 5(b); Def.'s Mot. Ex. 3, at 20.
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drug guy and is now involved in litigation and [would] have to stay in a homeless shelter in
September ifthe IRS steals his money." Id. (Revenue Officer notes in archived transcript).
On September 8, 2009, Plaintiffs Power of Attorney "POA'' representative, Tax Masters,
contacted the IRS and asked if the levy on Plaintiffs account could be released. Def.' s Mot. Ex.
3, at 22. The IRS informed Tax Masters, as it had informed Plaintiff, that the levy would not be
released until Plaintiff provided tax returns for tax years 2000 through 2007, to the assigned
Revenue Officer. Id. According to Tax Masters, Plaintiffs income from 2000 consisted of an
IRA rollover that was not taxable and proceeds from the sale of stock sold at a loss. Id. The IRS
directed Tax Masters to discuss Plaintiffs case with the assigned Revenue Officer. Id.A week later, on September 15, 2009, pursuant to the levy, the IRS secured $46,697.17
from Plaintiffs Bank of America account. Id. at 24. The IRS allocated the funds to Plaintiffs
outstanding tax liabilities for 2000, 2001and2002, -- in particular $23,679.17, in satisfaction of
Plaintiffs liability for tax year 2000. Neither Plaintiff nor Tax Masters requested Forms 1040 or
supplied the IRS with information about Plaintiffs income or expenses for tax year 2000. Id.
On September 23, 2009, at Plaintiffs request, the IRS reassigned his case from its Chicago
office to its Albany, New York office. Def.'s Mot. Ex. 3, at 26, 30, 47. As of January 29, 2010,
Plaintiff was current with filing his tax returns for years 2003 through 2008, but his only returns
for years 2000 through 2002 were SFRs. Id. at 29. Upon reconsideration of the 2001 and 2002
SFRs, the IRS determined that Plaintiff had a zero balance for those years, but still owed a "large"
balance for the 2000 tax year. Id. at 29, 30.
Offer in Compromise and Dealings with the IRS
Plaintiff filed a proposed offer in compromise of $5,000 on Form 656 "Doubt as to
Collectibility," and, on February 9, 2010, Plaintiff submitted a partial payment to the IRS of
$1,150. Def.'s Mot. Ex. 4, at 59; Def.'s Suppl. Br. Ex. 10, at 85. On October 19, 2010, the IRS
rejected Plaintiffs offer in compromise, because it calculated that the "reasonable collection
potential" from Plaintiff was $87,680.77, "based solely on equity in assets that included $50 in
bank account[,] $46,409.77 value of retirement account with Morgan Stanley, and a dissipated
asset (a house) valued at $41,221." Def.'s Suppl. Br. Ex. 10, at 85-86. On November 15, 2010,
Plaintiff timely filed an appeal of this rejection and requested a conference with an Appeals
Officer. Id. at 85.
On May 10, 2011, an IRS Appeals Officer held a conference with Plaintiff, and Plaintiff
asserted that he did not have an ownership interest in the house. Id. at 87. On May 23, 2011,
Plaintiff faxed the Appeals Officer an affidavit from his mother representing that she, not Plaintiff,
owned the house. Id. The Appeals Officer determined that this was insufficient to "reverse[]
Compliance determination of dissipated asset." Id. On May 23, 2011, the Appeals Officer
sustained the rejection of Plaintiffs offer in compromise based on the equity value of Plaintiffs
assets and terminated Plaintiffs offer in compromise. Id. at 87-88.
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On November 16, 2011, the IRS's Office of the Taxpayer Advocate in Albany, New York
received an application for a taxpayer assistance order from Plaintiff. Def.'s Mot. Ex. 3, at 40. 6
By March 8, 2012, the IRS had the authority to levy Plaintiffs Morgan Stanley account because
Plaintiffs outstanding tax liability for the year 2000 had not been satisfied by the funds levied
from Plaintiffs Bank of America account. Id. at 43-44. However, the IRS suspended such activity
after consulting the Albany Taxpayer Advocate's Office. Id. at 44. Because Plaintiff represented
that he had no income, the Albany Taxpayer Advocate's Office requested that Plaintiff file a zero
tax return for tax year 2000 by September 10, 2012. Id. at 45. When Plaintiff still had not filed a
tax return for 2000 as of September 10, 2012, the Albany Taxpayer Advocate's office closed
Plaintiffs case. Id.
On October 16, 2012, Plaintiff sent a letter regarding his case to National Taxpayer
Advocate, Nina Olson. Id. at 47. On December 3, 2012, following consultation between the
National and the Albany Taxpayer Advocate's Offices, the Albany Taxpayer Advocate sent a letter
to Plaintiff that his file with the Albany office would not be reopened because he failed to submit
an original year 2000 tax return. Id. at 49. In this letter to Plaintiff, the Albany Taxpayer Advocate
told Plaintiff that it had informed the Revenue Officer that the collection action against Plaintiff
could resume. Id. As a result, on January 8, 2013, the IRS issued a levy notice to Morgan Stanley,
and on March 18, 2013, secured a levy on Plaintiffs Morgan Stanley account totaling $92,955.90
to satisfy Plaintiffs outstanding liability for the 2000 tax year. Id. at 51-52.
Two days after the levy on Plaintiffs Morgan Stanley account was secured, on March 20,
2013, Plaintiff met with the Revenue Officer in Albany, New York and informed her that he had
filed a Form 1040 for the 2000 tax year with the IRS office in New York, New York. Id. at 53.
The Revenue Officer confirmed that Plaintiffs 2000 tax return had been received by the IRS office
in New York on January 9, 2013. See Def.'s Mot. Ex. 6, at 73; Comp!. Ex. A, at 1. In his Form
1040, Plaintiff reported an adjusted gross income of $800, sought a refund of $46,617.17, and
represented that he owed no payments to the IRS. Id. at 74. However, the Revenue Officer
informed Plaintiff that, regardless of whether his tax return was accepted, he could not be refunded
the $46,670.17, as that refund claim was barred under the "3 year statute for refunds." Def. 's Mot.
Ex. 3, at 53.
On April 24, 2013, the IRS denied Plaintiffs claim for refund, contained in his January 8,
2013 tax return. Comp!. Ex. A, at 1. On July 18, 2013, the IRS Office of Appeals upheld that
determination. Id. The IRS treated Plaintiffs tax return for tax year 2000 that it received on
January 9, 2013, as a refund claim for $46,679.17, but determined on appeal that there was "no
basis to allow any part of [that] claim." Id.
The IRS ultimately made no determination on the validity of Plaintiffs 2000 tax return.
However, the IRS abated the entirety of the tax, interest and penalties assessed under the SFR, and
6
The Office of the Taxpayer Advocate has the authority to issue a taxpayer assistance order
if the assigned advocate determines that "the taxpayer is suffering or is about to suffer a significant
hardship as a result of the manner in which the internal revenue laws are being administered by
the Secretary [of the Treasury]." 26 U.S.C. § 781 l(a).
6
issued Plaintiff a refund of $98,229.79 which included the $92,955.90 that had been levied from
Morgan Stanley to satisfy Plaintiffs outstanding liability for the 2000 tax year. The IRS also
refunded Plaintiff the $1, 150 received as part of the terminated offer in compromise, and $4, 123.89
in interest on the returned funds levied from Plaintiffs Morgan Stanley account. Comp!. Exs. A,
B. The IRS did not refund the $46,697.17 that was levied from Plaintiffs Bank of America
account on September 9, 2009.
Discussion
Jurisdiction
Concurrent with the district courts of the United States, the United States Court of Federal
Claims has jurisdiction over actions against the United States "for the recovery of any internal-
revenue tax alleged to have been erroneously or illegally assessed or collected, or any penalty
claimed to have been collected without authority or any sum alleged to have been excessive or in
any manner wrongfully collected under the internal-revenue laws." 28 U.S.C. § 1346(a) (2013);
!shier v. United States, 115 Fed. Cl. 530, 534 (2014). "In the context of tax refund suits, the United
States sovereign immunity is construed narrowly and jurisdiction of the Court of Federal Claims
is limited by the Internal Revenue Code .... " Waltner v. United States, 679 F.3d 1329, 1332
(Fed. Cir. 2012). "Despite its spacious terms,§ 1346(a)(l) must be read in conformity with other
statutory provisions which qualify a taxpayer's right to bring a refund suit upon compliance with
certain conditions. The first is§ 7422(a) .... " United States v. Dalm, 494 U.S. 596, 601 (1990).
If a taxpayer fails to file a claim for refund with the IRS, sovereign immunity has not been waived,
and the Court of Federal Claims does not have jurisdiction. See Waltner, 679 F.3d at 1333.
Plaintiff has the burden of establishing subject-matter jurisdiction in this Court. Revnolds
v. Army & Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988). The Court must dismiss
the action if it finds subject-matter jurisdiction to be lacking. Adair v. United States, 497 F.3d
1244, 1251 (Fed. Cir. 2007).
The Court Lacks Jurisdiction Over Plaintiff's Action
To establish jurisdiction, Plaintiff must establish that he filed an administrative refund
claim with the IRS prior to filing suit in this Court. 26 U.S.C. § 7422. The statute provides:
No suit or proceeding shall be maintained in any court for the recovery of any
internal revenue tax alleged to have been erroneously or illegally assed or collected
... until a claim for refund or credit has been duly filed with the Secretary [of the
Treasury], according to the provisions of the law ... and the regulations of the
Secretary established in pursuance thereof.
26 U.S.C. § 7422. Thus, "Section 7422(a) ... imposes, as a jurisdictional prerequisite to a refund
suit, filing a refund claim with the IRS that complies with IRS regulations." Chi. Milwaukee Com.
v. United States, 40 F.3d 373, 374 (Fed. Cir. 1994) (citing Burlington N., Inc. v. United States,
684 F.2d 866, 868 (Ct. Cl. 1982)).
7
On January 9, 2013, Plaintiff filed a tax return for the 2000 tax year, which contained a
claim for a refund. 7 To constitute an administrative claim for refund, the tax return must satisfy
26 C.F.R. § 301.6402-3(a)(5). Waltner, 679 F.3d at 1333. Section 301.6402-3(a) provides that "a
properly executed individual ... original income tax return or amended return shall constitute a
claim for refund or credit ... if it contains a statement setting forth the amount determined as an
overpayment and advising whether such amount shall be refunded to the taxpayer." Id. (quoting
26 C.F.R. § 301.6402-3(a)(5)) (emphasis added). Additionally, for a return to constitute a refund
claim it "must set forth in detail each ground upon which a credit or refund is claimed and facts
sufficient to apprise the Commissioner of the exact basis thereof ... " Waltner, 679 F.3d at 1333(quoting 26 C.F.R. § 301.6402-3(b)(l)). In short, "to be a valid return for purposes of a refund
claim, the return must contain sufficient data to allow calculation of tax." Waltner, 679 F .3d at
1333.
Plaintiffs tax return, filed January 9, 2013, failed to comport with the Treasury Regulation
and cannot be considered valid. In his 2000 tax return and claim for refund, Plaintiff reported
$800 of gross income from interest and ordinary dividends and nearly $50,000 in business
expenses, and requested a refund of $46,679 .17. Although nine financial institutions provided the
IRS with information relating to Plaintiffs investment income for 2000, Plaintiff failed to attach
a Schedule D. Plaintiff provided no information regarding distributions from third-party financial
institutions. By filing such an incomplete return and failing to attach a Schedule D, Plaintiff failed
to include sufficient data for the IRS to calculate his tax liability as required by the Treasury
Regulation. See Waltner, 679 F.3d at 1333 (stating that "forms that lack essential information ..
. are not tax returns within the meaning of the Internal Revenue Code and thus cannot serve as a
basis for a tax refund suit"); see also Kehmeier v. United States, 95 Fed. Cl. 442, 445-46 (2010).
"[I]t is not enough for a form to contain some income information required by the tax code."
United States v. Moore, 627 F.2d 830, 835 (7th Cir. 1980); see also Diamond, 107 Fed. Cl. 702,
705-06 (2012), affd per curiam, 530 F. App'x 943 (Fed. Cir. 2013) ("A properly executed return
must contain a recital of income; without such essential information, the IRS cannot calculate the
tax or refund owed upon the return."). 8
7
The SFR the IRS prepared for Plaintiff for the 2000 tax year did not qualify as a tax return
because Plaintiff did not sign the SFR as required under § 6020, and an unsigned SFR does not
constitute a return for purposes of§ 651 l(a). As such, Plaintiff was still required to file a return.
See Healer v. Comm'r of Internal Revenue, 115 T.C. 316, 322-23 (2000); see also Tieman v.
United States, 113 Fed. Cl. 528, 530 n.2 (2013) (noting that where the IRS prepared SFRs that
were not later signed by plaintiff in accordance with § 6020(a), no return had been filed for
purposes of§ 6511).
8
Plaintiff appears to contend that the IRS' acceptance of his return rendered it valid.
Plaintiff testified in an affidavit that he was first told that he needed to file a Year 2000 tax return
"in about November, 2012," and that, following this instruction, he "forthwith prepared the Form
in perfect form, signed it, dated it, and filed it; and the IRS accepted it as good; valid; and
efficacious." Kiselis Aff. iJ 11 (Dec. 5, 2016). Contrary to Plaintiffs assumption, the IRS' mere
acceptance of Plaintiffs 2000 tax return neither cures the retum's deficiencies nor establishes its
validity. Plaintiff does not address his failure to attach a Schedule D to his tax return and does not
8
The fact that the IRS may have been able to piece together what Plaintiff should have
reported in a Schedule D using the Forms 1099 submitted by financial institutions does not render
Plaintiffs tax return valid. Plaintiff was obligated to provide that financial information to the IRS
in his return. As the Supreme Court recognized in Angelus Milling Co. v. Commissioner:
[I]t is not enough that somewhere under the Commissioner's roof is the information
which might enable him to pass on a claim for refund. The protection of the revenue
authorizes the Commissioner to demand information in a particular form, and he is
entitled to insist that the form be observed so as to advise him expeditiously and
accurately of the true nature of the claim.
325 U.S. 293, 299 (1945).
In addition, to be a valid tax return for purposes of a refund claim, the return must "evince[]
an honest and genuine endeavor to satisfy the law." Zellerbach Paper Co. v. Helvering, 293 U.S.
172, 180 (1934); Waltner, 679 F.3d at 1334; Moore, 627 F.2d at 835. As the Court has recognized,
it is not enough that a tax return "contain some income information," rather, there must also be an
"honest and reasonable intent to supply the information required by the tax code." Kehmeier, 95
Fed. Cl. at 445 (quoting Moore, 627 F.2d at 835). Here, Plaintiff was aware of the tax liability
the IRS had assessed based on distributions reported by third-party financial institutions, but failed
to report this on his Form 1040. As such, Plaintiff failed to exhibit an honest and reasonable intent
to provide the requisite information. Because the Form 1040 Plaintiff submitted to the IRS does
not constitute a valid return, Plaintiff did not submit a proper refund claim to the IRS, and this
Court lacks jurisdiction. See Waltner, 679 F.3d at 1334. 9
Plaintiff also seeks recovery of the funds levied from his Morgan Stanley account, but the
IRS already refunded Plaintiff the $92,955.90 levied from that account, plus $4,123.89 in interest,
making this claim moot. Comp!. Ex. A; see Haas v. United States, 83 A.F.T.R. 2d 99-408 (Fed.
Cl. 1998) (finding plaintiffs refund claim moot, where "the objective of plaintiffs suit, a refund
of the monies representing her disallowed losses" had been achieved).
provide any evidence challenging the accuracy of the distributions reported by third-party financial
institutions.
9
In any event, even assuming a valid and timely refund claim, the amount of tax that the
IRS would be permitted to refund Plaintiff would be subject to the "categorical limitation" in
Section 651 l(b)(2)(A), referred to as the "look-back" provision. See Diamond, 107 Fed. CL at
707 n.6. As the Court in Diamond explained, "[u]nder Subsection 651 l(b), plaintiffs may obtain
a ... refund not exceeding the portion of the taxes paid within three years of making the claim."
Id. Because Plaintiff paid the $46,697.17 tax liability via levy on September 15, 2009, Plaintiff
could only have recovered that amount by filing a valid refund claim no later than three years from
that date. This "look-back period limitation is a constraint on remedy, not jurisdiction." Id. (citing
(Murdock v. United States, 103 Fed. Cl. 389, 394 (2012)).
9
Plaintiff does not articulate why he is entitled to any additional refund. To the extent that
Plaintiff seeks damages stemming from the IRS' s placement of a levy on his bank accounts as an
unauthorized collection, the district courts of the United States have exclusive jurisdiction over
such claims. See 26 U.S.C. § 7433; Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir.
2002). The "specific grant of jurisdiction to district courts to hear damage claims arising out of
the IRS's collection activities obviates any possible jurisdiction [the Court of Federal Claims]
might otherwise have." Tieman, 113 Fed. CL at 534.
Conclusion
Defendant's motion to dismiss is GRANTED. The Clerk is directed to dismiss this action
for lack of subject-matter jurisdiction.
10