DocketNumber： Docket No. 20408-11L.
Citation Numbers： 105 T.C.M. 1484, 2013 Tax Ct. Memo LEXIS 81, 2013 T.C. Memo. 79
Judges： CHIECHI
Filed Date： 3/18/2013
Status： Non-Precedential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.
Petitioner's mailing address was in Michigan at the time he filed the petition.
*80 Petitioner did not file a Federal income tax (tax) return for his taxable year 2007. 2013 Tax Ct. Memo LEXIS 81">*82 to tax for petitioner's taxable year 2007 that respondent had determined in the 2007 notice of deficiency as well as interest as provided by law thereon. (We shall refer to the amounts that respondent assessed on May 24, 2010, as well as interest as provided by law accrued after that date, as the 2007 unpaid liability.)
On May 24, 2010, and on certain dates thereafter, respondent issued to petitioner notices of balance due with respect to his 2007 unpaid liability.
On January 18, 2011, respondent issued to petitioner a final notice of intent to levy and notice of your right to a hearing (notice of intent to levy) with respect to his 2007 unpaid liability.
*81 Petitioner timely filed with respondent Form 12153, Request for a Collection Due Process or Equivalent Hearing (petitioner's Form 12153), and requested a hearing with respondent's Appeals Office (Appeals Office). In that form, petitioner indicated his disagreement with the notice of intent to levy. 2013 Tax Ct. Memo LEXIS 81">*83 In petitioner's Form 12153, petitioner requested an installment agreement and an offer-in-compromise as collection alternatives.
By letter dated March 23, 2011 (March 23, 2011 letter), a settlement officer with the Appeals Office (settlement officer) who was assigned petitioner's Form 12153 acknowledged receipt of that form. That letter stated in pertinent part: Appeals received your request for a Collection Due Process (CDP) Hearing. ****
*83 During the hearing, I must consider: • Whether the IRS met all the requirements of any applicable law or administrative procedure • Any non frivolous issues you wish to discuss. These can include: 1. Collection alternatives to levy such as full payment of the liability, installment agreement, offer in compromise or temporary suspension of collection action if the action imposes a hardship condition. Although they may not be considered an 2013 Tax Ct. Memo LEXIS 81">*86 "alternative" to a notice of lien filing, these collection options may also be discussed at a lien hearing. 2. Challenges to the appropriateness of collection action. If this is a lien hearing, you may ask us to determine if the notice of lien filing was appropriate and if you qualify for a lien withdrawal or other lien options, such as subordination. 3. Spousal defenses, when applicable. • We may also consider whether you owe the amount due, but • We will balance the IRS' need for efficient tax collection and your legitimate concern that the collection action be no more intrusive than necessary. **** For me to consider alternative collection methods such as an installment agreement or • • • • • **** If you do not participate in the conference or respond to this letter, the determination and/or decision letter that we issue will be based on your CDP request, any information you previously provided to this office about the applicable tax periods, and the Service's administrative file and records.
In response to the settlement officer's March 23, 2011 letter, on May 8, 2011, three days before the scheduled telephonic conference, petitioner sent a *85 letter (May 8, 2011 letter) to the settlement officer. In that letter, petitioner stated in pertinent part: You sent me your letter dated March 23, 2011 that was in response to my request for CDP Hearing, the copy attached. In response to your letters, 2013 Tax Ct. Memo LEXIS 81">*88 I do not wish to have a telephone conference nor do I wish to discuss this matter via correspondence since the majority of my questions over the years pertaining to this matter have gone unanswered. I requested a face-to-face hearing as I am entitled to under the law. The things I will discuss include collection alternatives, including OIC and payment schedule, procedural irregularities, and possibly Currently Non Collectible. Please send me the necessary forms, including the financial statement form. What I am requesting is an in-person meeting as prescribed by law. * * * **** I would like a copy of all information, documentation and the administrative records you have on us before the CDP Hearing. Please send me Form 4340 with the transcripts and certificate. This is necessary for my CDPH. At the hearing, I will bring a tape recorder and a few witnesses to observe the process. Please schedule the Hearing at the IRS office closest to my residence and notify me of the date, time and place. Please contact security and make arrangements for me to bring my tape recorder, etc. through the security check point. In your letter, you stated I would be allowed a face-to-face conference on any relevant, 2013 Tax Ct. Memo LEXIS 81">*89 non-frivolous issues if I requested this in writing. Is this still correct? I have listed above in this letter the issues that will be raised. These will not exclude me from the face-to-face confer- *86 ence. Please respond to my issues and concerns, and please provide me with the information I have requested from you. As for this form 433-A and the other forms you have requested from me, there are no laws that require me to fill out this form before you I will work with appeals to provide all the necessary forms. At the hearing, I will bring copies of my books and records. Please schedule the hearing 90 days in advance so I can arrange my schedule.
After having received the May 8, 2011 letter from petitioner, the 2013 Tax Ct. Memo LEXIS 81">*90 settlement officer called him to inform him that a face-to-face hearing could not be held until he provided the settlement officer with the information and the documents that the settlement officer had requested in her March 23, 2011 letter. Petitioner did not respond to that telephone call.
On May 11, 2011, the date of the scheduled telephonic conference, the settlement officer called petitioner, but petitioner was not available. On the same date, after petitioner failed to participate in the scheduled telephonic conference, the settlement officer sent him a letter (May 11, 2011 letter). In that letter, the settlement officer stated in pertinent part: *87 I sent you a letter dated March 23, 2011 offering you a telephonic Collection Due Process conference. The conference was scheduled for May 11, 2011 at 1:00pm EST. I tried calling you at the scheduled time but you were not available and you had not called to indicate that this date and/or time was not convenient. The conference letter also asked that you send me the information I needed to consider the issues you raised in your request for a hearing. • I never received the information from you. Please be advised that we will make a determination 2013 Tax Ct. Memo LEXIS 81">*91 in the Collection Due Process hearing you requested by reviewing the Collection administrative file and whatever information you have already provided. If you would like to provide information for our consideration, please do so within 14 days from the date on this letter, no later than May 25, 2011. We will promptly issue you a determination and/or decision letter with our findings.
In July 2012, petitioner sent one check or two checks to respondent with respect to his respective tax liabilities for his taxable years 2005 and 2006. *88 On August 10, 2011, the Appeals Office issued to petitioner a notice of determination with respect to his taxable year 2007. That notice stated in pertinent part:
Appeals 2013 Tax Ct. Memo LEXIS 81">*92 has determined that your Notice of Intent to Levy is sustained.
The notice of determination included an attachment that stated in pertinent part: You requested a Collection Due Process Hearing under authority of IRC Code 6330 in response to the proposed levy action on the above accounts. The request was timely as it was received within 30 days from the date of the levy notice. Appeals has determined that the Notice of Intent to Levy is sustained. On March 23, 2011 the Settlement Officer sent you a letter which scheduled a telephone conference for you on May 11, 2011 at 1:00pm EST. You were offered the opportunity to request a face to face conference but you did not send any of the requested information that was needed in order for the Settlement Officer to consider it for you. In the letter, you were asked to provide Form 433A, collection information statement with all income and expense substantiation and three months of bank statements along with Form 1040 for tax years 2004 through 2009, estimated tax payments for 2011 or a corrected W4 and Form 656 for the offer in compromise you requested. The *89 Settlement Officer did not receive any of the 2013 Tax Ct. Memo LEXIS 81">*93 requested information from you. On May 8, 2011, the Settlement Officer received a letter from you requesting a face to face conference. The Settlement Officer called you to advise you that a face to face could not be granted until you sent the requested information. You did not respond to that telephone attempt. On May 11, 2011 the Settlement Officer called you for your scheduled conference, You were not available. You were advised that the call was in reference to you collection due process and that a letter would be sent dated May 11, 2011. The Settlement Officer sent you the letter which stated that the telephone conference was attempted and that you had 14 days from the date of the letter which was by May 25, 2011 for you to provide any information you wished to be considered prior to determination on your account. You were to provide this information within 14 days, no later than May 25, 2011; The Settlement Officer did not receive any information. a. Verification of legal and procedural requirements: Appeals has obtained verification from the IRS office collecting the tax that the requirements of any applicable law, regulation or administrative procedure with 2013 Tax Ct. Memo LEXIS 81">*94 respect to the proposed levy or NFTL filing have been met. Computer records indicate that the notice and demand, notice of intent to levy and/or notice of federal tax lien filing, and notice of a right to a Collection Due Process hearing were issued. Assessment was properly made per *90 The notice and demand for payment letter was mailed to the taxpayer's last known address, within 60 days of the assessment, as required by There was a balance due when the CDP levy notice was issued or when the NFTL filing was requested. There is no pending bankruptcy case, nor did you have a pending bankruptcy case at The Time the CDP was sent ( The Settlement Officer had no prior involvement with respect to the specific tax periods either in Appeals or Compliance. The collection statute has been suspended; the collection period allowed by statute to collect these taxes has been suspended by the appropriate computer codes for the tax periods at issue. Collection 2013 Tax Ct. Memo LEXIS 81">*95 followed all legal and procedural requirements and the actions taken or proposed were appropriate under the circumstances. You requested the collection alternative of an installment agreement or an offer in compromise but you did not provide any of the requested information in order for the Settlement Officer to consider one for you. You disagree with your liability because you state that the tax *91 assessments were incorrect but you did not provide any information showing why. You annotated subordination, discharge or withdrawal of a lien. Our records show that the Notice of Federal Tax Lien has not been filed. The proposed collection action has been determined to be appropriate in you case. Although a levy is intrusive a levy is the most efficient method of collection remaining. You did not send in any requested information in order for the Settlement Officer to explore for collection alternatives. It is our judgment that the proposed levy 2013 Tax Ct. Memo LEXIS 81">*96 action balances the need for efficient collection with your legitimate concern that the collection action be no more intrusive than necessary. [Reproduced literally.] In the petition commencing this case, petitioner alleged in pertinent part: 2. Pursuant to 3. The IRS Appeals Office issued a "Notice of Determination Concerning Collection Action under **** 5. Appeals Officer Roseann Novetti sent taxpayer a letter dated March 23, 2011, scheduling a telephone conference for May 11, 2011 at 1 pm. The same letter indicated taxpayer could have a face to face hearing if he notified Ms. Novetti. (Exhibit E) *92 6. On May 8, 2011, taxpayer sent Ms. Novetti a letter requesting a face-to-face hearing. Petitioner never heard from Ms. Novetti after the May 8th letter. (Exhibit F) 7. Congress has set forth three pre-conditions for Collection Due Process Hearing (herein 2013 Tax Ct. Memo LEXIS 81">*97 referred to as CDPH): a. Petitioner must make request. b. Petitioner must make request in a timely manner, 30 days. c. Petitioner must state the purpose of the hearing which includes collection alternatives, procedure irregularities, spousal relief and tax liability in some cases. 8. Petitioner complied with all of these. Further, the IRS has an extra precondition for taxpayer not to raise political, Constitutional and religious concerns. Petitioner complied with this extra requirement. 9. The IRS has other irregular and interesting preconditions such as filling out forms and submitting a payment schedule. These requirements are impossible for Petitioner to meet on the Appeals Office time table. 10. Petitioner stated in his CDPH Request that he would provide all applicable forms. In 11. The IRS illegally and wrongfully did not allow an in-person hearing and violated Petitioner's 2013 Tax Ct. Memo LEXIS 81">*98 statutory and *93 administrative due process rights. Petitioner's rights under the administrative procedure code include an opportunity to appear before the fact-finding tribunal. The U.S. Tax Court has held many times that the law requires an in-person hearing. Marett v. CIR, Docket # 4048-061, decided 7 Jul 06; Shell v. CIR, Docket # 20188-05L, decided 31 May 06; Nelson v. CIR, Docket # 13212-05L, decided 7 Nov 05. 12. The Settlement Officer prematurely issued her Notice of Determination without taking into consideration Petitioner's reasoning for a face to face hearing. She failed to consider all available collection alternatives and the facts of the case. 13. Petitioner requested a face-to-face hearing so that he could tape record the hearing as is allowed by law pursuant to 14. Petitioner requested a face-to-face hearing within the time period and raised relevant issues. Therefore taxpayer is entitled to an in-person hearing. Under 15. Petitioner was not given the opportunity to raise any 2013 Tax Ct. Memo LEXIS 81">*99 relevant issue relating to the unpaid tax or the proposed levy at a hearing in accordance with 16. Petitioner was not able to discuss collection alternatives, which is a relevant issue for a face-to-face hearing, be cause no in-person hearing was held. In 17. At the in-person hearing, which should have been scheduled since Petitioner requested it and has relevant issues to discuss; Petitioner would have been present in person and brought with him a tape recorder, witnesses to observe the process and possibly a representative. 18. Petitioner understands that face-to-face hearings are not required but if a taxpayer asks for a face-to-face hearing, 2013 Tax Ct. Memo LEXIS 81">*100 one must be granted on all non-frivolous issues. * * * **** 20. In the case of Schulz II, the U.S. Court of Appeals for the 2nd Circuit issued a definitive ruling: Independent judicial review is required for all IRS collection enforcement activities. Now, the IRS is like landlords, banks and loan companies who need a court hearing before state action. The Debtor is entitled to an independent judge to scrutinize the enforcement activities of all collection agencies. Harsh actions are no longer allowed without the acquiescence or intervention from a judge. A judge is defined as holding a lifetime appointment with no diminishment in salary. **** 22. Petitioner's rights were violated in the following manner: *95 A. Petitioner was not granted an in-person hearing as he had requested; B. Petitioner did not have the opportunity to raise collection alternatives such as OIC, payment schedules, non-collectible status; C. Petitioner did not have the opportunity to examine the administrative record to verify that all procedural re quirements had been met by the IRS and that all payments had been properly 2013 Tax Ct. Memo LEXIS 81">*101 applied. D. This caused financial hardship for Petitioner as well as severe emotional and physical distress. 23. Issuance of the Notice of Determination was inappropriate. It did not balance the need for efficient collection with Taxpayer's concerns that the collection action be no more intrusive than necessary. 24. The Notice of Determination should be overturned, and a new proper CDP hearing should be scheduled. The Settlement Officer was not a person authorized to hold a CDPH.
Petitioner also alleged in the petition that he was seeking "judicial review of the IRS tax assessment under the
Petitioner concluded the petition by alleging: *96 30. This Petition explains Petitioner's position and Petitioner requests that the Court remand this case to Appeals Office and order the IRS to schedule a face-to-face hearing. 31. In conclusion, Petitioner requests 2013 Tax Ct. Memo LEXIS 81">*102 independent judicial review of IRS's enforcement actions. The courts have a long string of cases requiring a judicial intervention under the
Many of the allegations that petitioner made in the petition are very similar to allegations that we have seen advanced repeatedly by so-called tax protesters.
On October 26, 2012, we issued an Order in which we ordered petitioner to file a response to respondent's motion. In that Order, we also indicated that our review of the record suggested that petitioner might intend to advance in this case frivolous and/or groundless statements, contentions, arguments and/or questions. We reminded petitioner in the Order dated October 26, 2012, about
On December 4, 2012, petitioner filed a response to respondent's motion (petitioner's response).
The Court may grant summary judgment where there is no genuine dispute of material fact and a decision may be rendered as a matter of law.
Petitioner did not file a petition with the Court with respect to the 2007 notice of deficiency that he received. Where, as is the case here, the validity of the underlying tax liability is not properly placed at issue, the Court will review the determination of the Commissioner of Internal Revenue for abuse of discretion.
It is petitioner's position that respondent abused respondent's 2013 Tax Ct. Memo LEXIS 81">*104 discretion in issuing the notice of determination with respect to his taxable year 2007. In support of that position, petitioner relies in petitioner's response to respondent's *98 motion on respondent's refusal to grant him a face-to-face hearing with respect to the proposed collection action relating to that taxable year. Your attached letter requests a face to face hearing. In order to have a face to face you must be in full compliance. Our records 2013 Tax Ct. Memo LEXIS 81">*105 indicate that you are currently missing you [sic]
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For me to consider alternative collection methods such as an installment agreement or
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If you do not participate in the conference or respond to this letter, the determination and/or decision letter that we issue will be based on your CDP request, any information you previously provided to this office about the applicable tax periods, and the Service's administrative file and records.
In response to the settlement officer's March 23, 2011 letter, petitioner sent the settlement officer his May 8, 2011 letter. In that letter, petitioner indicated that he would provide the settlement officer with the information and the documents that the settlement officer had requested from him in her March 23, 2011 letter only at a face-to-face hearing.
*100 After having received the May 8, 2011 letter from petitioner, the settlement officer called him to inform him that a face-to-face hearing could not be held until he provided the settlement officer with the information and the documents that the settlement officer had 2013 Tax Ct. Memo LEXIS 81">*107 requested in her March 23, 2011 letter. Petitioner did not respond to that telephone call.
We conclude that the settlement officer's refusal to schedule a face-to-face hearing with petitioner unless he provided the information and the documents that the settlement officer had requested in her March 23, 2011 letter was not an abuse of discretion. Indeed, the settlement officer's actions were consistent with I sent you a letter dated March 23, 2011 offering you a telephonic Collection Due Process conference. The conference was scheduled for May 11, 2011 at 1:00pm EST. I tried calling you at the scheduled time but you were not available and you had not called to indicate that this date and/or time was not convenient. The conference letter also asked that you send me the information I needed to consider the issues you raised in your request for a hearing. • I never received the information from you. Please be advised that we will make a determination in the Collection Due Process hearing you requested by reviewing the Collection administrative file and whatever information you have already provided. If you would like to provide information for our consideration, please do so within 14 days from the date on this letter, no later than May 25, 2011. We will promptly issue you a determination and/or decision letter with our findings.
On August 10, 2011, the Appeals Office issued to petitioner the notice of determination with respect to his taxable year 2007. 2013 Tax Ct. Memo LEXIS 81">*109 In that notice, that office sustained the proposed collection action with respect to that taxable year.
*102 Based upon our examination of the entire record before us, we find that respondent did not abuse respondent's discretion in making the determinations in the notice of determination with respect to petitioner's taxable year 2007.
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 the arguments in support of his position that he was entitled to a face-to-face hearing with the Appeals Office are frivolous and/or groundless. Nonetheless, we shall not impose a penalty under
*103 We have considered any of petitioner's contentions and arguments that are not discussed herein and that are not frivolous and/or groundless, and we find them to be without merit, irrelevant, and/or moot.
On the record before us, we shall grant respondent's motion.
To reflect the foregoing,
1. Moreover, petitioner did not file a tax return for any of his taxable years 2004, 2005, 2006, 2008, and 2009. Respondent prepared a substitute for return for each of those years.↩
2. In petitioner's Form 12153, petitioner also indicated his disagreement with a notice of Federal tax lien filing. The record does not establish that respondent issued to petitioner any such notice with respect to his taxable year 2007. The notice of determination concerning collection action(s) under
3. We shall refer to the telephonic conference with petitioner that the settlement officer scheduled for May 11, 2011, as the scheduled telephonic conference.
4. The attachment to the notice of determination that respondent issued to petitioner with respect to his taxable year 2007 (quoted in pertinent part in the text below) stated that respondent did not have any tax returns from petitioner for his taxable years 2004
5. The record does not establish whether petitioner sent one check with respect to his tax liability for his taxable year 2005 and one check with respect to his tax liability for his taxable year 2006 or whether he sent one check with respect to his respective liabilities for both of those years. For convenience, we assume and state hereafter that petitioner sent two checks to respondent.↩
6. 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.↩
7. Petitioner relies in the petition on several additional allegations in support of his position that respondent abused respondent's discretion in issuing the notice of determination, including certain frivolous and/or groundless allegations. For example, petitioner alleged in the petition that his "rights were violated" because, inter alia, he "did not have the opportunity to examine the administrative record to verify that all procedural requirements had been met by the IRS and that all payments had been properly applied." We have rejected that type of allegation on numerous occasions.
8. A face-to-face CDP conference concerning a collection alternative * * * will not be granted unless other taxpayers would be eligible for the alternative in similar circumstances. For example, because the IRS does not consider offers to compromise from taxpayers who have not filed required returns * * * no face-to-face conference will be granted to a taxpayer who wishes to make an offer to compromise but has not fulfilled those obligations. * * *↩
Goza v. Commissioner , 114 T.C. 176 ( 2000 )
Robert L. Schulz v. Internal Revenue Service and Anthony ... , 413 F.3d 297 ( 2005 )
Calafati v. Comm'r , 127 T.C. 219 ( 2006 )
Sundstrand Corporation v. Commissioner of Internal Revenue , 17 F.3d 965 ( 1994 )