Eric Schwartz v. Commissioner

T.C. Memo. 2019-162
UNITED STATES TAX COURT
ERIC SCHWARTZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17291-14L. Filed December 12, 2019.
Karen J. Lapekas, for petitioner.1
Derek P. Richman and Daniel C. Munce, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: In this collection due process (CDP) case, petitioner
seeks review pursuant to section 6330(d)(1) of the determinations by the Internal
Revenue Service (IRS or respondent) Appeals Office (Appeals) to sustain
1
Ms. Lapekas represented petitioner before the Tax Court, but she did not
represent him in the prior administrative proceedings.
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[*2] proposed levies with respect to petitioner’s Federal income tax liabilities for
2006, 2007, 2010, 2011, and 2012 (liabilities at issue).2 The issue before us is
whether petitioner made a timely informal refund claim pertaining to a prior year
overpayment sufficient to extinguish the liabilities at issue. For the below reasons,
we will remand this case to Appeals to clarify and supplement the administrative
record.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found. We incorporate
the stipulation of facts and the attached exhibits by this reference. Petitioner was a
resident of Florida when the petition in this case was filed.
Petitioner’s Divorce
In 2006 petitioner was party to a divorce action before the Family Division
of the Circuit Court for Miami-Dade County, Florida (circuit court). The circuit
court directed petitioner and his ex-spouse to make an estimated Federal tax
payment of $150,000 to cover their expected 2005 Federal income tax liability.
Petitioner and his ex-spouse made the payment on or about April 17, 2006.3 They
2
Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect at all relevant times.
3
The credit was later allocated $75,000 to each spouse.
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[*3] also filed a six-month extension request for their 2005 Federal income tax
return, causing it to be due October 16, 2006.4 However, petitioner did not file a
joint or separate return by the extended deadline.
On September 17, 2007, the circuit court issued an order (September 2007
order) restricting petitioner’s use of the $150,000 payment. Petitioner interpreted
the September 2007 order as a bar to filing a Federal tax return until the divorce
was final and/or the order was lifted.5 Therefore, petitioner delayed filing income
tax returns.
4
April 15, 2006, fell on a Saturday; October 15, 2006, fell on a Sunday.
5
The order stated in relevant part:
6.0 Neither party shall draw upon, utilize, or otherwise use the
$150,000.00 currently held by the I.R.S. in the parties’ joint names.
Any tax returns filed by either party for which payment is required to
the I.R.S. shall be filed contemporaneously with payment for all sums
due by the individual filing the return. Any portion of the
$150,000.00 returned to either party shall be placed in the escrow
account at Mellon Bank created pursuant to paragraph 1.0 above.
These funds shall not be removed or distributed to either party absent
a Court Order or written agreement of both parties.
* * * * * * *
8.0 Any other marital funds not specifically delineated above
received by either party shall be placed in the escrow account at
Mellon Bank created pursuant to paragraph 1.0 above. These funds
shall not be removed or distributed to either party absent a Court
Order or written agreement of both parties.
-4-
[*4] On December 14, 2009, the circuit court issued an amended final judgment
of dissolution of marriage (December 2009 final judgment). Several postjudgment
motions followed.
In October 2011, after the postjudgment motions were resolved, petitioner
filed his delinquent returns for 2005, 2006, 2007, 2008, 2009, and 2010. On his
2005 return petitioner reported total tax of $45,282 and an estimated payment of
$75,000. Accordingly, he claimed a refund of $29,718. On line 74 of the return
petitioner specified that he wanted to apply the entire amount of the claimed
refund against his 2006 estimated tax. On his 2006, 2007, and 2010 returns
petitioner reported tax liabilities.6 He did not submit payments with those returns
because his claimed refund for 2005 was sufficient to cover the reported liabilities.
Respondent accepted petitioner’s 2005 return as filed, assessed the reported
liability, and credited the $75,000 payment against that liability. However, on
April 30, 2012, respondent disallowed petitioner’s claim for refund and transferred
the $29,718 overpayment for 2005 to an excess collections account. Respondent
did not issue petitioner a notice of disallowance pursuant to section 6532(a)(1).
6
Petitioner did not have tax liabilities for 2008 and 2009.
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[*5] On May 12, 2012, and July 11, 2013, respectively, petitioner timely filed his
returns for 2011 and 2012.7 Petitioner reported a tax liability for each year.
However, he did not submit payments with his returns.
Respondent assessed the liabilities at issue. Having transferred petitioner’s
2005 overpayment to an excess collections account, respondent did not credit the
2005 overpayment against the liabilities at issue.
Collection Due Process Hearing
Respondent issued a Notice of Intent to Levy and Notice of Your Right to a
Hearing (notice of intent to levy) with respect to petitioner’s 2006, 2007, 2010,
and 2011 tax years. Respondent later issued a separate notice of intent to levy
with respect to petitioner’s 2012 tax year. Petitioner timely requested a CDP
hearing in response to both notices.
In his CDP hearing requests petitioner indicated he was seeking “Other”
relief and did not request any collection alternatives. In letters attached to his
CDP hearing requests, petitioner wrote:
In December 2005 my former wife and I sold our marital residence.
In March of 2006 * * * my wife filed for divorce and the court froze
the marital assets. Per [circuit] court order, the party’s [sic] made an
estimated tax liability payment to the IRS in the amount of
$150,000.00 * * * and the parties were prevented from obtaining any
7
For those years, petitioner timely filed requests for extensions.
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[*6] refund of these funds without [circuit] court order. After the Final
Judgment was rendered in December of 2009, there were several
subsequent motions filed, including one to determine the distribution
of the advanced tax liability payment as well as two appeals. By the
time these proceedings were concluded and the funds were finally
released from the [circuit] court’s jurisdiction, the three year time
limit for the taxpayer to request a refund had expired, therefore
preventing same. Based on the foregoing, but not limited thereto, I
am respectfully asking that the IRS apply the applicable portion of the
estimated tax payment to my 2006 Federal tax [re]turns forward as
well as those in the future until the funds are utilized.
Appeals consolidated petitioner’s CDP hearing requests and assigned
Settlement Officer (SO) Lynette Dallam to petitioner’s case. In a letter to
petitioner dated November 1, 2013, SO Dallam scheduled petitioner’s hearing for
December 10, 2013. Addressing petitioner’s request to apply the overpayment
against the liabilities at issue, the SO wrote:
You indicated in your appeal request that you wish to have a portion
of an estimated tax payment applied to your balance due. Based on
the nature of your request, please submit the following information
for review and analysis.
* * * * * * *
A copy of all court documents pertaining to the payment made, the
responsible parties for payments and the divorce settlement.
SO Dallam also advised petitioner that, should he request a collection alternative,
he would need to provide her a financial statement and supporting documentation.
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[*7] On December 10, 2013, SO Dallam called petitioner for the scheduled
hearing. During the telephone hearing petitioner restated his contention that the
circuit court’s freezing of his assets prevented him from timely requesting a
refund. According to SO Dallam’s notes in respondent’s case activity record print,
petitioner requested “that it be looked into if he would be entitled to the refund.”
SO Dallam’s notes also indicate that she asked petitioner to send her “the court
documentation he stated he had and advised TP [petitioner] that upon receipt, 2
weeks, the information would be considered in the making of a decision.”8
Two days later SO Dallam determined that petitioner was “disputing the
liability based on presumed timely filing because of outlying circumstances.”
With her manager’s approval, SO Dallam transferred petitioner’s case to another
unit within Appeals.
Appeals assigned Appeals Officer (AO) Clayton Mansfield to review
petitioner’s request to credit the overpayment against the liabilities at issue. On
March 4, 2014, AO Mansfield and petitioner had a telephone conversation. AO
Mansfield’s notes of the conversation are as follows: “Discussed issue with TP
8
We infer from this entry that SO Dallam gave petitioner two additional
weeks to provide her the documents she had requested in her November 1, 2013,
letter. Petitioner timely complied with this request.
-8-
[*8] [petitioner]. TP [petitioner] states he sent documents relating to divorce
proceeding to SO [Dallam] per her request.”
AO Mansfield was unable to find the documents in petitioner’s case file.
On March 12, 2014, AO Mansfield followed up with petitioner by letter, writing:
[W]e are requesting a copy of the [circuit court] order concerning the
estimated tax payment for the above referenced tax year referenced in
your letter * * *.
If we don’t hear from you, Appeals must make its decision
based on the information now in your case file. If you have any
questions, please call the contact person at the phone number shown
above.
Please furnish the additional information by March 27, 2014.
On March 21, 2014, petitioner faxed AO Mansfield copies of the September
2007 order and the December 2009 final judgment. After reviewing these
documents, AO Mansfield determined that Appeals could not credit the 2005
overpayment against the liabilities at issue because petitioner’s refund claim was
untimely. On March 27, 2014, AO Mansfield recorded the following notes:
“Called TP [petitioner] to advise him of liability determination”. The AO’s notes
indicate that he provided this information to petitioner by voicemail, and the
administrative record does not reveal any followup communications between AO
Mansfield and petitioner.
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[*9] Appeals transferred petitioner’s case back to SO Dallam. On April 23,
2014, SO Dallam and petitioner spoke by telephone. SO Dallam’s summary of the
telephone call is as follows:
SO [Dallam] contacted TP [petitioner] to discuss next steps regarding
CDP since AO [Mansfield] issued a determination. TP [petitioner]
stated he did not feel he had the chance to present all evidence to the
AO. SO [Dallam] attempted to explain the issue to * * * [petitioner]
and why the decision was made. SO [Dallam] explained how a
portion of the refund was allowed but the remainder was not
transferred to other periods even though the returns were sent in at the
same time. TP [petitioner] requested to speak to * * * [an Appeals]
manager regarding case and to submit additional information. SO
[Dallam] advised the outcome has been decided. TP [petitioner]
stated it would make him feel better because as he interpreted the
directions of the [circuit court] judge, he could not file his return
unless he had a $45,000 check for the IRS. SO [Dallam] advised civil
court has no jurisdiction over IRS requirements and that his
interpretation may be wrong. SO requested * * * [petitioner’s]
anticipated next step if the decision remains unfavorable so collection
alternatives could be considered.
According to SO Dallam’s notes, she spoke with an Appeals team manager
either during or soon after her phone call with petitioner. SO Dallam summarized
her conversation with the Appeals team manager as follows:
ATM [Appeals team manager] reviewed, stated issue was timeliness
and the IRC [Internal Revenue Code] is the final jurisdiction. TP
[petitioner] may submit additional information but discussion as to
the details of the case is not necessary. Information will be reviewed
for timeliness.
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[*10] It is unclear from SO Dallam’s notes (and the administrative record in
general) whether she or anyone else at Appeals conveyed this invitation for
additional information to petitioner.
On April 23, 2014, the same day as her telephone call with petitioner and
her discussion with an Appeals team manager, SO Dallam sent petitioner a letter,
writing:
This letter is to inform you of the information required to resolve your
balance due via installment agreement. You will need to provide the
following:
Form 433A
3 months of your most recent bank statements
3 months of your most recent pay statements
1 month of expenses claimed on page 4 of the Form 433A
This information must be received by May 12, 2014 in order for it to
be considered.
The decision letter from the Appeals Officer will be forwarded to you
upon closure of your Collection Due Process case.
The letter did not request documentation pertaining to the additional
information petitioner had asked Appeals to consider during the April 23, 2014,
telephone call. Nor did the letter warn petitioner of any negative consequences if
he failed to submit additional information before a certain date.
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[*11] On June 9, 2014, respondent issued notices of determination sustaining the
proposed levies. Attachments to the notices of determination state in relevant part:
On 3/21/2014 the Appeals Officer reviewed the facts of your case and
determined your [refund] request was not timely and therefore you are
not entitled to the refund. The Settlement Officer advised you of this
information. You stated you were not satisfied with the actions of the
Appeals Officer and requested to speak to the manager. The
Settlement Officer contacted the Appeals Officer’s manager. After
review of the case, it was stated that your issue was timeliness and
there was no additional issue to address. You were advised on
4/23/2014 to submit additional information for consideration
regarding the specifics you claim would sway the decision of the
Appeals Officer. As of May 19, 2014, this information has not been
received.
Trial
After the issuance of the notices of determination, petitioner retained
counsel and timely petitioned this Court. Trial was held in Miami, Florida.
At trial petitioner proffered a letter he wrote to the IRS dated March 28,
2008. According to petitioner, this letter and other communications with the IRS
constitute a timely informal claim for refund. Petitioner also proffered two letters
from the IRS dated May 7 and August 7, 2008, both of which acknowledge
correspondence “received” April 10, 2008. The May 7, 2008, letter advises
petitioner: “[W]e [the IRS] haven’t resolved this matter because we haven’t
completed all the research necessary for a complete response” and “[y]ou
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[*12] [petitioner] don’t need to do anything further now on this matter.” The
August 7, 2008, letter is substantially similar, advising petitioner: “[W]e have not
yet completed our research to resolve your inquiry.”
Petitioner did not provide the March 28, May 7, and August 7, 2008, letters
to Appeals during his CDP hearing. Respondent objected to the admission of
these letters.9
OPINION
I. Collection Principles
Section 6331(a) authorizes the Secretary to levy upon property and property
rights of a taxpayer liable for tax if the taxpayer fails to pay the tax within 10 days
after notice and demand for payment is made. Section 6330(a) provides that no
levy may be made on any property or right to property of any person unless the
Secretary has notified such person in writing of the right to a hearing before the
levy is made.
9
At trial the Court reserved ruling on respondent’s objections to the
admission of Exhibits 37-P through 42-P, which include these documents.
Respondent contends that the exhibits were not provided to the SO or otherwise
made a part of the administrative record. We will continue to reserve ruling on the
admissibility of Exhibits 37-P through 42-P pending clarification of the
administrative record.
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[*13] If a taxpayer requests a hearing in response to a notice of levy pursuant to
section 6330, a hearing shall be held before an impartial officer or employee of
Appeals. Sec. 6330(b)(1), (3). At the hearing the taxpayer may raise any relevant
issue relating to the unpaid tax or the proposed levy, including appropriate spousal
defenses, challenges to the appropriateness of the collection action, and collection
alternatives. Sec. 6330(c)(2)(A). A taxpayer is precluded from contesting the
existence or amount of the underlying liability unless the taxpayer did not receive
a notice of deficiency for the liability in question or did not otherwise have an
opportunity to dispute the liability. Sec. 6330(c)(2)(B); see also Sego v.
Commissioner, 114 T.C. 604, 609 (2000).
Following a hearing Appeals must determine whether proceeding with the
proposed levy action is appropriate. In making that determination Appeals is
required to take into consideration: (1) verification presented by the Secretary
during the hearing process that the requirements of applicable law and
administrative procedure have been met, (2) relevant issues raised by the taxpayer,
and (3) whether the proposed levy action appropriately balances the need for the
efficient collection of taxes with the taxpayer’s concerns regarding the
intrusiveness of the proposed collection action. Sec. 6330(c)(3).
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[*14] II. Standard of Review
Section 6330(d)(1) grants this Court jurisdiction to review Appeals’
determination in connection with a collection hearing. Where the validity of the
underlying tax liability is properly at issue, we review the taxpayer’s liability
de novo. See Sego v. Commissioner, 114 T.C. 610; Goza v. Commissioner, 114
T.C. 176, 181-182 (2000). Where the underlying tax liability is not properly at
issue, we review the determination for abuse of discretion. Sego v. Commissioner,
114 T.C. 610; Goza v. Commissioner, 114 T.C. 182.
The parties disagree as to whether petitioner’s underlying tax liabilities are
at issue and, consequently, the appropriate standard of review. Respondent argues
that petitioner’s prior year overpayment claim is an “issue relating to the unpaid
tax” under section 6330(c)(2)(A), for which the standard of review is abuse of
discretion. Petitioner contends that he is contesting “the existence or amount of
the underlying tax liability” under section 6330(c)(2)(B), for which the standard of
review is de novo.
There is some uncertainty in our precedents as to whether a de novo or an
abuse-of-discretion standard of review applies in a situation such as this.10
10
In Landry v. Commissioner, 116 T.C. 60 (2001), we applied a de novo
standard of review where the taxpayer challenged the IRS’ failure to apply an
(continued...)
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[*15] Because we find it necessary to remand this case to Appeals, we need not
resolve this uncertainty today.
III. Analysis
Before we can consider the merits of the informal refund claim issue under
either standard of review, we must determine whether petitioner raised the issue
during his CDP hearing.
Generally, a taxpayer must raise an issue at a CDP hearing to preserve it for
review by this Court. Giamelli v. Commissioner, 129 T.C. 107, 115 (2007);
Perkins v. Commissioner, 129 T.C. 58, 63 (2007); Magana v. Commissioner, 118
T.C. 488, 493-494 (2002); Gentile v. Commissioner, T.C. Memo. 2013-175, at *6,
aff’d, 592 F. App’x 824 (11th Cir. 2014). Section 301.6330-1(f)(2), Q&A-F3,
Proced. & Admin. Regs., provides that a taxpayer who is seeking Tax Court
review of a determination of Appeals in a CDP case can “only ask the court to
10
(...continued)
overpayment credit from another year. We concluded that this was a challenge to
the taxpayer’s underlying tax liability, i.e., “the amount unpaid after application of
credits to which * * * [the taxpayer was] entitled”. Id. at 62. On the other hand,
we have applied abuse-of-discretion review when considering challenges to the
IRS’ application of a check or other tax payment. See Melasky v. Commissioner,
151 T.C. 89, 92 (2018) (holding that a dispute as to whether a payment was
properly credited to the taxpayer’s account for a particular tax year is not a
challenge to his underlying tax liability); see also Orian v. Commissioner, T.C.
Memo. 2010-234; Kovacevich v. Commissioner, T.C. Memo. 2009-160.
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[*16] consider an issue, including a challenge to the underlying tax liability, that
was properly raised in the taxpayer’s CDP hearing.” The regulation further states
that an “issue is not properly raised if the taxpayer fails to request consideration of
the issue * * * or if consideration is requested but the taxpayer fails to present to
Appeals any evidence with respect to that issue after being given a reasonable
opportunity to present such evidence.” Id.
The parties agree that Appeals did not consider whether petitioner had made
a timely informal claim for refund. They disagree, however, as to whether
petitioner properly raised the issue during his CDP hearing.
According to respondent, petitioner during his CDP hearing only argued
that: (1) the circuit court prevented him from timely seeking a refund and (2) in
accordance with his formal refund claim filed in 2011, respondent should apply
the overpayment against the liabilities at issue. Respondent contends that
petitioner never asked Appeals to consider his informal refund claim argument.
Respondent also contends that petitioner never provided Appeals with any facts or
information that would indicate that the issue existed. Objecting to these factual
premises, petitioner argues that the informal refund claim issue is properly before
us.
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[*17] In order to ascertain whether petitioner properly raised the informal refund
claim issue, we first consider his statements in the CDP requests. Therein
petitioner--who represented himself at the hearing--explained that he was unable
to file a timely formal request for refund because of his interpretation of the circuit
court order. After explaining the circumstances of his divorce, he wrote: “Based
on the foregoing, but not limited thereto, I am respectfully asking that the IRS
apply the applicable portion of the estimated tax payment to my 2006 Federal tax
[re]turns forward as well as those in the future until the funds are utilized.” We
understand the “but not limited thereto” phrase to mean that petitioner reserved the
right to make additional or alternative arguments for the application of the 2005
overpayment against the liabilities at issue. Construing petitioner’s request
liberally, we find it broad enough to include a request for consideration of the
informal refund claim issue.
However, requesting consideration of an issue during a CDP hearing is not
enough to preserve the issue for judicial review. The taxpayer must also present
Appeals with “evidence with respect to that issue after being given a reasonable
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[*18] opportunity” to do so. Sec. 301.6330-1(f)(2), Q&A-F3, Proced. & Admin.
Regs. According to respondent, petitioner failed to clear this threshold hurdle.11
The notices of determination tell the following story. After her first
telephone conversation with petitioner, SO Dallam forwarded petitioner’s case to
another unit within Appeals. In March 2014 AO Mansfield reviewed petitioner’s
information and determined that petitioner’s refund request was untimely.
Thereafter SO Dallam informed petitioner of AO Mansfield’s determination, about
which petitioner expressed dissatisfaction. On April 23, 2014, petitioner was
“advised * * * to submit additional information for consideration regarding the
specifics you claim would sway the decision of the Appeals Officer.” Petitioner
did not do so as of May 19, 2014, at which time Appeals determined to sustain the
collection action.
This narrative is favorable to respondent. If we were to take it at face value,
it could establish that: (1) after informing petitioner of AO Mansfield’s
determination, Appeals gave petitioner several weeks to present evidence
11
There is no dispute that petitioner provided AO Mansfield with divorce-
related documents during the hearing. However, those documents relate to an
argument petitioner made independently of his informal refund claim argument.
We consider the informal refund claim issue an alternative argument that
petitioner was required to raise separately. See Crews v. Commissioner, T.C.
Memo. 2019-80, at *33-*34 (declining to consider an alternative argument that the
taxpayer did not make at his CDP hearing).
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[*19] supporting any additional or alternative arguments he might wish to make
and (2) petitioner failed to do so. However, the administrative record tells a
different story--one in which petitioner might not have had a chance to present
additional evidence.
The administrative record reveals that AO Mansfield was the first person at
Appeals to consider the merits of petitioner’s request to apply the overpayment
against the liabilities at issue. Unfortunately, the administrative record does not
provide many details about the AO’s interactions with petitioner. For example,
AO Mansfield’s notes of a March 4, 2014, telephone call with petitioner state only
that they “[d]iscussed [the] issue”. As best we can tell from the sparse
administrative record, the only item AO Mansfield requested was a copy of the
September 2007 order. After petitioner timely provided copies of the September
2007 order and the December 2009 final judgment, AO Mansfield reviewed those
documents and determined that petitioner’s formal refund claim was untimely. He
apparently informed petitioner of his determination by leaving a voicemail. It is
unclear whether petitioner had an opportunity to follow up with the AO about the
determination or otherwise raise additional issues or arguments.
Appeals promptly transferred petitioner’s case back to SO Dallam.
Respondent’s case activity record print contains an entry from the SO dated
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[*20] April 23, 2014, summarizing a telephone call she conducted with petitioner
on that date. According to SO Dallam’s notes, petitioner “stated he did not feel he
had the chance to present all evidence” to AO Mansfield and asked to submit
additional information and speak to an Appeals manager. In response SO Dallam
advised petitioner that “the outcome has been decided” before changing the topic
to collection alternatives.
Given that AO Mansfield apparently informed petitioner of his decision by
voicemail, the April 23, 2014, telephone conversation may have been petitioner’s
first opportunity to discuss additional or alternative arguments with an Appeals
representative. By telling petitioner the “outcome” was “decided” before he had a
chance to advance any additional or alternative arguments, SO Dallam may have
summarily dismissed petitioner’s informal refund claim argument without fully
considering it. While we cannot so find because of gaps in the administrative
record, we have found similar actions to be abuses of discretion. See Szekely v.
Commissioner, T.C. Memo. 2013-227 (finding abuse of discretion where SO
failed to give taxpayer ample time to provide information); Blosser v.
Commissioner, T.C. Memo. 2007-323 (finding abuse of discretion where SO
failed to consider taxpayer’s statements during telephone hearing).
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[*21] Further complicating matters is the lack of clarity in the administrative
record about the identity of the person who, on April 23, 2014, purportedly
advised petitioner to submit additional information to Appeals. Because SO
Dallam told petitioner that the “outcome” was “decided”, we doubt she requested
additional information from petitioner on that date. Our doubts find further
support in SO Dallam’s followup letter to petitioner. Therein SO Dallam
requested various documents “required to resolve your balance due via installment
agreement.” The letter did not request documentation pertaining to the additional
information petitioner had asked Appeals to consider during the April 23, 2014,
telephone call.12
That said, SO Dallam’s notes from April 23, 2014, also indicate that she
spoke with an Appeals team manager either during or immediately after her
telephone conversation with petitioner. According to SO Dallam’s notes, the
Appeals team manager told her that petitioner could “submit additional
information but discussion as to the details of the case is not necessary.” It is
12
The letter’s only reference to AO Mansfield’s determination is the
following sentence, which cryptically states: “The decision letter from the
Appeals Officer will be forwarded to you upon closure of your Collection Due
Process case.” It is unclear what “decision letter from the Appeals Officer” means
in this context. However, a reader could reasonably infer from this sentence that,
as of the date of the letter, AO Mansfield’s decision was final. We also note that
there is no “decision letter” from AO Mansfield in the administrative record.
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[*22] possible that the Appeals team manager joined the April 23, 2014, telephone
call and orally conveyed this invitation to petitioner. However, we are unable to
conclude from SO Dallam’s vague notes that such a conversation happened.
In any event SO Dallam’s notes reflect a radically different conversation
with petitioner on April 23, 2014, from that portrayed in the notices of
determination. The notices themselves are confusing, stating: “[Y]ou [petitioner]
were advised on 4/23/2014 to submit additional information for consideration
regarding the specifics you claim”. By relying on the passive voice here,
respondent deprives us of any clue as to who so advised petitioner. Without more
information about this purported dialogue, the administrative record is insufficient
for the Court to determine whether petitioner properly raised the informal refund
claim issue.
In such situations we can remand CDP cases to Appeals to develop the
record. See Wadleigh v. Commissioner, 134 T.C. 280, 299 (2010) (remanding “to
clarify and supplement the administrative record” when we determined that the
administrative record was “insufficient to enable us to properly evaluate whether
the Appeals Office abused its discretion”); Hoyle v. Commissioner, 131 T.C. 197,
204-205 (2008) (remanding so that Appeals could clarify the record as to why it
determined that all requirements of applicable law were met), supplemented by
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[*23] 136 T.C. 463 (2011). Accordingly, we will remand this case for Appeals to
clarify the record as to the evidence (if any) on which Appeals relies to conclude
that petitioner was advised on April 23, 2014, to submit additional information
regarding the specifics of his refund claim. If Appeals is unable to conclude that
petitioner was so advised, Appeals shall consider any additional information or
evidence that petitioner may wish to submit.
We will retain jurisdiction to preserve petitioner’s right to judicial review of
the administrative determination. See Wadleigh v. Commissioner, 134 T.C.
299. We have considered all the parties’ arguments and, to the extent not
addressed herein, we conclude that they are moot, premature, irrelevant, or without
merit.
To reflect the foregoing,
An appropriate order will be issued.