DocketNumber： Docket No. 26434-11L
Citation Numbers： 2013 T.C. Memo. 140, 105 T.C.M. 1827, 2013 Tax Ct. Memo LEXIS 141
Judges： CHIECHI
Filed Date： 6/4/2013
Status： Non-Precedential
Modified Date： 4/18/2021
An order granting respondent's motion and decision for respondent will be entered.
CHIECHI,
The record establishes and/or the parties do not dispute the following.
*141 Petitioner resided in Michigan at the time he filed the petition.
On October 19, 2006, petitioner filed Form 1040, U.S. Individual Income Tax Return (Form 1040), for his taxable year 2005 (2005 Form 1040). In that form, petitioner showed "adjusted gross income" of $69,685, "Taxable income" of $37,985, "total tax" of $18,259, and "2005 estimated tax payments and amount applied from 2004 return" of $25,908. Petitioner showed in his 2005 Form 1040 an overpayment of Federal income tax (tax) of $7,649.
Respondent credited against the "total tax" of $18,259 that petitioner showed in his 2005 Form 1040 estimated tax payments of $14,620. As a result, petitioner had tax due of $3,639 for his taxable year 2005. Petitioner has not paid any of that tax due for that *142 taxable year.
On August 22, 2008, petitioner filed Form 1040 for his taxable year 2004 (2004 Form 1040). In that form, petitioner showed "adjusted gross income" of $179,754, "Taxable income" of $146,061, "total tax" of $62,261, "Federal income tax withheld from Forms W-2 and 1099" of $11,703, "2004 estimated tax payments and amount applied from 2003 return" of $25,710, and "Amount paid with request for extension to file" of $36,136. Petitioner showed in his 2004 Form 1040 an overpayment of tax of $11,288.
*142 Respondent credited against the "total tax" of $62,261 that petitioner showed in his 2004 Form 1040 (1) tax withholding of $11,703, (2) estimated tax payments of $23,710, and (3) an overpayment of tax for his taxable year 2003 of $2,224.23. As a result, petitioner had tax due of $24,623.77 for his taxable year 2004. Petitioner has not paid any of that tax due for that taxable year.
On April 9, 2007, respondent assessed the "total tax" of $18,259 that petitioner showed in his 2005 Form 1040, an addition to tax under
On December 15, 2008, respondent assessed the "total tax" of $62,261 that petitioner showed in his 2004 Form 1040, additions to tax under
On June 30, *144 2009, respondent issued to petitioner a notice of Federal tax lien filing and your right to a hearing under
On July 15, 2009, respondent issued to petitioner a notice of intent to levy and notice of your right to a hearing (notice of intent to levy) with respect to petitioner's unpaid 2004 liability.
Petitioner timely submitted to respondent Form 12153, Request for a Collection Due Process or Equivalent Hearing (petitioner's Form 12153). In that form, petitioner, inter alia, requested a collection due process hearing with respondent's Appeals Office (Appeals Office) with respect to the notice of tax lien and the notice of intent to levy. In petitioner's Form 12153, petitioner (1) indicated that he intended to propose a collection alternative of (a) "Credit of up to $300,000 from Slodov trust fund not applied" and (b) "Amount claimed due *144 can not be verified"; (2) requested withdrawal of filed tax liens because, according to petitioner, "Lien and levy actions constitute a fraud on the part of IRS agents"; and (3) claimed that a certain internal revenue agent "has information *145 to correct record reversing a jury verdict and court order incarcerating me for evasion of an income tax refund." 2
On June 22, 2011, a settlement officer with the Appeals Office (settlement officer) held a telephonic hearing with petitioner. After that hearing, the settlement officer made the following pertinent entries in his "Case Activity Records": He [petitioner] stated that the only alternative collection proposal he can offer is that the government allow him his refunds for 1998-2001, as they would fully pay or close to fully pay the * * * CDP liabilities. * * * He questioned a carry forward from 2003. * * * He mentioned several times during the conference that he's hampered by loss of his records due to the foreclosure on his home and the incarceration. 3 * * * He contests that each of the latter * * * years' returns were filed late. He believes he filed them timely * * * within the extension period, and the IRS may not have timely processed them due to the criminal investigation. *146 * * * Another issue he wants considered is whether any collection actions * * * should have occurred during the criminal proceedings. * * * Finally, he said he wanted it on record that he believes there's been an IRS coverup in his case, and that several employees should be fired. * * * He said that the Commissioner says in the 'rendition' * * * instruction booklet not to file the *145 form if it doesn't comply with the Paperwork Reduction Act of 1995. He said that he knows I might consider that issue to be frivolous. * * * [Reproduced literally.]
On October 13, 2011, respondent issued to petitioner a notice of determination concerning collection action(s) under Relief under Relief under
The notice of determination included an attachment that stated in pertinent part: You timely requested a Collection Due Process (CDP) hearing under Internal Revenue Code (IRC) *146 You timely requested a CDP hearing under You write that the amount claimed as due cannot be verified, and a credit of up to $300,000 has not been applied to these liabilities. You further write that an IRS agent has information that could correct a jury verdict and court order incarcerating you for an income tax related conviction, but she is fearful of doing so because she could lose her job. • Appeals' determination is to deny you relief from the filing of the NFTL. The revenue officer (RO) met all legal and procedural requirements for the filing of the NFTL. You neither challenged *148 the underlying liabilities, nor proposed a viable collection alternative that would allow for the withdrawal or release of the NFTL. • Appeals' determination is to grant you relief from the proposed collection action. All of your delinquent accounts will remain or be placed into currently not collectible status due to hardship. Each of these liabilities is based upon a Form 1040 income tax return that you voluntarily filed. You owe because you had insufficient withholding and did not make sufficient estimated tax payments to pay the tax. The IRS's Kansas City Service Center assessed the tax you reported for these years, with penalty and interest required by the IRC. The Service Center sent letters notifying you of each assessment and demanding payment, but you failed to pay. *147 Your delinquent accounts were assigned to a revenue officer (RO). As part of her effort to collect them, she initiated the filing of the NFTL. You were informed of the lien filing and of your right to a CDP hearing by Letter 3172, On July 15, 2009, the RO sent you Letter 1058 (L-1058), On August 3, 2009, the RO received your timely hearing request regarding both the NFTL and proposed Notice of Levy. Settlement Officer John Roney sent you a letter scheduling a hearing via telephone, but offering a face-to-face hearing if you preferred. You did not request such a hearing so, on June 22, 2011, you and he conducted the CDP hearing via telephone. (i) appropriate spousal defenses; (ii) challenges to the appropriateness of the collection actions; and (iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in-compromise. Appeals has verified that the RO met the requirements of various applicable laws and administrative procedures in issuing the CDP notices. These items were verified through review of IRS transcripts of these accounts: • These assessments were made pursuant to • The notice and demand for payment letter for each assessment was mailed to your last known address within sixty (60) days of assessment, in accordance with • There were balances due when the CDP notices were issued, as required by • There is no indication you have a pending bankruptcy case. There is no indication you had a pending bankruptcy case when the CDP notices were sent. • A computer code (TC 520) has been properly input to suspend collection action on these accounts and to suspend the running of their statutory collection periods while your case was being considered in Appeals. • Pursuant to These items were verified through review of the RO's administrative *151 file: • In accordance with *149 • In accordance with • The RO had contact with you prior to issuing the two CDP notices. The settlement officer has had no prior involvement with you, either in a previous Appeals hearing or in Compliance activities, concerning these liabilities. During the hearing, you did not challenge the underlying liabilities. You stated that the only collection alternative you can propose is that the government allow you refunds for the years 1998 through 2001 pursuant to amended returns you filed for those years. Those refunds would possibly fully pay these two CDP liabilities, as well as your 1999 and 2006 income tax liabilities that are currently the subjects of a CDP equivalent hearing. • Your 1998, 1999, 2000, 2001, and 2002 years are currently under the jurisdiction of the U.S. Tax *152 Court. If the Court's decisions for those years result in refunds due you, those refunds will be offset to the CDP liabilities. You said that you are homeless and have lost everything due to your criminal conviction and incarceration, so you can't pay these liabilities. The RO told you that she had decided your accounts are currently not collectible. You would like them to remain in currently not collectible status. • IRS records indicate that after you requested this CDP hearing, the RO placed your accounts into currently not collectible status due to hardship based upon a collection information statement you gave her. *150 • These accounts will remain in currently not collectible status following this hearing. Penalties and interest will continue to accrue, and Compliance has the right to contact you in the future to determine your collectibility. Regarding your 2004 liability, you questioned whether a loss carried forward from your 2003 account had been properly applied. You said that you are hampered by the loss of many records due to your incarceration and the loss of your house to foreclosure. However, you think the carry forward from 2003 was approximately $13,000. • The settlement officer *153 reviewed transcripts of both 2003 and 2004. They show a 2003 overpayment of $2,224.23 credited to your 2004 account. You did not provide any documentation showing that the 2003 overpayment should have been larger. The settlement officer assumes, therefore, that the credited amount is correct. Regarding both 2004 and 2005, you disputed that either return was filed late. You said that both returns would have been timely filed within the automatic filing extension period. • Review of the 2004 transcript indicates that the IRS assessed a $5,540.35 • Review for the 2005 transcript shows the return was received within several days of the extended October 15, 2006, filing deadline. The IRS did not assert a You questioned whether the NFTL should have been filed and the L-1058 issued for these liabilities during the criminal proceedings against you. *151 • You stated that you wanted on record that you believe there has been an IRS cover-up in your case, and that several of the IRS employees involved should be fired. Finally, you said that in the IRS's Form 1040 instruction booklet, the Commissioner says not to file the form if it doesn't comply with the Paperwork Reduction Act of 1995. You raised no other issues during the conference. After your conference, you sent the settlement officer a letter stating your positions. In the letter, you reiterate that you would like the $300,000 withheld from your wages from 1997 through 2001 to be applied to these liabilities. You state that if those amounts had been properly applied during the criminal *155 trial, you would not have a stigma and would have received at least $800,000 of additional funds since 2008. *152 • This is not so much a collection alternative as it is a chal- lenge of those earlier years' liabilities. As stated earlier, the Tax Court will address those earlier years. You challenge the validity of these assessments for several reasons, including that the Forms 1040 and 1040X are not in compliance with the Paperwork Reduction Act of 1995 and cannot carry a valid OMB number; therefore, you are subject to the protections of 44 U.S.C. 3512" type="statute"> • This argument is among the frivolous arguments listed in the IRS's You state that if there is any balance of tax due after the application of your refunds from the earlier years, you would like that balance reduced to .25 % due to hardship. You calculated the .25 % based on the fact that, prior to your tax conviction, your earning potential was $48 per hour. Post conviction earnings, based on the stigma of having been convicted as a felon, are $0.12 per hour. • The settlement officer takes this to be a request to compromise your liabilities. An offer-in-compromise can be a legitimate *156 collection alternative within CDP. However, you did not submit Form 656, Although you did not request the withdrawal of the NFTL, the settlement officer considered whether any of the following criteria for withdrawal of the NFTL existed in your case. the filing of the NFTL was premature or otherwise not in accordance with the IRS's administrative procedures, *153 the taxpayer has entered into an installment agreement under the withdrawal of the NFTL will facilitate collection of the liability, or with the consent of the taxpayer or the National Taxpayer Advocate, the withdrawal of the NFTL would be in the best interests of the taxpayer (as determined by the National Taxpayer Advocate) and the United States. You provided no information in this hearing, and there is no information in the RO's administrative file, that indicates withdrawal of the *157 filed lien should be considered. You did not challenge the underlying liabilities, nor did you propose a viable collection alternative that would allow Appeals to consider withdrawal or release of the filed NFTL. Appeals believes, therefore, that the filing of the NFTL was appropriate and balances the government's need to efficiently collect these liabilities with your legitimate concern regarding the intrusiveness of the NFTL. The NFTL is one of the less intrusive collection tools and is necessary to protect the government's interest in your property from other creditors. You provided financial information to the RO showing that you currently lack the assets and income to pay these liabilities. The enforced collection of these liabilities, therefore, would not be appropriate. Appeals believes that the placing of all your accounts into currently not collectible status due to hardship is appropriate and *154 balances the need for efficient collection with your legitimate concern regarding intrusiveness.
On September 21, 2012, we issued an Order in which we ordered petitioner to file *158 a response to respondent's motion. In that Order, we also indicated that our review of the petition suggested that petitioner might intend to advance in this case certain frivolous and/or groundless statements, contentions, arguments, and/or questions. We reminded petitioner in the Order dated September 21, 2012, about
On October 11, 2012, petitioner filed a response to respondent's motion (petitioner's response).
We may grant summary judgment where there is no genuine dispute as to any material fact and a decision may be rendered as a matter of law.
*155 It is petitioner's position that there are genuine disputes of material fact that preclude us from granting respondent's motion. In support of that position, petitioner argues in petitioner's response (petitioner's *159 overpayment argument) (1) that he overpaid his tax for each of his taxable years 1998 through 2001 by an aggregate amount of approximately $100,000 and (2) that he overpaid his tax for his taxable year 2003 by an amount that exceeds the $2,224.23 that respondent credited against the "total tax" that petitioner showed in his 2004 Form 1040. According to petitioner, those alleged overpayments of tax eliminate, or at least reduce, petitioner's unpaid 2004 liability and petitioner's unpaid 2005 liability.
In An overpayment of a * * * [tax liability] that has been determined by the IRS or a court but has not been either refunded or applied to another liability may be an "available credit" that * * * could be taken into *160 account in a CDP hearing to determine whether the tax at issue remains "unpaid" and whether the IRS can proceed *156 with collection. But a mere claim of an overpayment is not an "
Neither respondent nor any court has determined that petitioner overpaid his tax for any of his taxable years 1998 through 2001 4 or that petitioner overpaid his tax for his taxable year 2003 by an amount that exceeds the $2,224.23 that respondent credited against the "total tax" that petitioner showed in his 2004 Form 1040. Therefore, petitioner does not have an "available credit" for any of his taxable years 1998 through 2001 and 2003 that can be taken into account in determining whether his tax liability for his taxable years 2004 and 2005 remains unpaid.
In addition to petitioner's overpayment argument, petitioner advances in petitioner's response certain statements, contentions, arguments, and/or questions that we find to be frivolous and/or groundless.
Based upon our examination of the entire record before us, we conclude *162 that there is no genuine dispute as to any material fact that requires a trial in this case. On that record, we further conclude that the determinations in the notice of determination with respect to petitioner's unpaid 2004 liability and petitioner's unpaid 2005 liability should be sustained.
We consider sua sponte whether to impose on petitioner a penalty under
We believe that petitioner instituted and maintained this case primarily for delay and that certain of the statements, contentions, arguments, and/or questions that petitioner advances in the petition and petitioner's response are frivolous and/or groundless. Nonetheless, we shall not impose a penalty under
We have considered any statements, contentions, arguments, and/or questions of petitioner that are not frivolous and/or groundless and that are not discussed herein, and we find them to be without merit and/or irrelevant.
On the record before us, we shall grant respondent's motion.
*159 To reflect the foregoing,
1. All section references are to the Internal Revenue Code in effect at all relevant times. All Rule references are to the Tax Court Rules of Practice and Procedure.↩
2. We take judicial notice that the U.S. Court of Appeals for the Sixth Circuit (Court of Appeals) affirmed petitioner's conviction for tax evasion under
3.
4. Indeed, as discussed
5. Petitioner is no stranger to us. In