DocketNumber: Docket No. 7377-10L
Citation Numbers: 102 T.C.M. 605, 2011 Tax Ct. Memo LEXIS 293, 2011 T.C. Memo. 294
Judges: WELLS
Filed Date: 12/22/2011
Status: Non-Precedential
Modified Date: 4/18/2021
Decision will be entered for respondent.
WELLS,
Some of the facts and certain exhibits have been stipulated. The parties' stipulations of fact are incorporated in this opinion by reference and are found accordingly. At the time he filed his petition, petitioner was a resident of Georgia.
Petitioner is retired, and he receives income from Social Security and a pension. Before any deductions, he receives monthly benefits of $1,471.40 from the Social Security Administration and a monthly pension of $2,458. His total *294 monthly income is $3,929.40.
Petitioner has Federal income tax liabilities for his 1995, 1996, 1997, 1999, 2000, 2001, 2005, and 2006 tax years. Petitioner's Social Security payments have been subject to respondent's levy since 2006. On or about October 13, 2009, respondent mailed petitioner Letter 3172, Notice of Federal Tax Lien Filing and Your Right to a Hearing Under
During the telephone conference, petitioner also indicated that he was 70 years old and in failing health. He contended that his monthly expenses sometimes exceeded his income and that his income was below the median income in Georgia. He provided no financial records to support his contention that his monthly expenses sometimes exceeded his monthly income.
After the hearing, the Appeals Office issued a notice of determination dated February 25, 2010, sustaining the lien. Petitioner timely filed his petition with this Court.
Where the underlying tax liability is not in issue, we review the determination of the Appeals Office for abuse of discretion. See
Where, as in the instant case, we review the Appeals Office's determination to sustain the filing of an NFTL for abuse of discretion, we review the reasoning underlying that determination to decide whether it was arbitrary, capricious, or without sound basis in fact or law. We do not substitute our judgment for that of the settlement officer, and we do not decide independently whether we believe the lien should be withdrawn. See id="I54JWNFR2SF8CJ00H0000400" name="citation" type="case">
Pursuant to
If the Commissioner chooses to file an NFTL, he must provide the taxpayer with written notice not more than 5 business days after the filing, and he must advise the taxpayer of the right to a hearing before the Appeals Office.
During his telephone conference with the Appeals Office and during his trial before this Court, petitioner contended that respondent's NFTL was filed prematurely because he had no equity in his house since he had purchased it with an interest-only, adjustable-rate mortgage. He also contended that the NFTL damaged his credit. Finally, he contended that his tax liabilities should be considered "uncollectible" because his monthly expenses sometimes exceeded his income, which he contends was less than the median income in Georgia. Respondent contends that the filing of the NFTL should be sustained because it is necessary to protect respondent's interests in petitioner's property.
Petitioner's contention that the lien is premature because he has no interests in real property, even if true, is not a reason the NFTL should be withdrawn. The lien that arises under
Petitioner contends that the NFTL should be withdrawn because it hurts his credit. Every NFTL filed by the Commissioner damages the taxpayer's credit. By itself, that fact does not show that the NFTL impairs the taxpayer's ability to satisfy the tax liability. Even when the taxpayer has shown that the withdrawal of the NFTL will facilitate collection of the tax liability, withdrawal of the NFTL is permissive, not mandatory.
Finally, we reject petitioner's argument that respondent should withdraw the NFTL because his income was below the median *300 income in Georgia and he sometimes had trouble paying all of his expenses. Even if it is true that petitioner's income was below the median income in Georgia, accepting petitioner's contention would preclude the Commissioner from filing an NFTL against half of the taxpayers in Georgia; i.e., all those who make less than the median income. Moreover, even when the Commissioner considers the taxpayer's liability to be currently uncollectible, the Commissioner may still file an NFTL to preserve his interests in the taxpayer's property against the interests of the taxpayer's other creditors. See
Respondent's Appeals Office considered all of petitioner's contentions, verified compliance by the Internal Revenue Service with all applicable laws and regulations, and considered whether the proposed collection actions balanced the need for efficient tax collection with petitioner's concern that they be no more intrusive than necessary. We conclude that the Appeals Office did not abuse its discretion by sustaining respondent's *301 filing of the NFTL.
In reaching these holdings, we have considered all the parties' arguments, and, to the extent not addressed herein, we conclude that they are moot, irrelevant, or without merit.
To reflect the foregoing,
1. Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as amended.↩