Rita Renee Pilate

United States Tax Court
T.C. Memo. 2023-136RITA RENEE PILATE,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 12875-20L. Filed November 9, 2023.
—————
On her tax return for 2012, P failed to report
retirement distributions from an equity account as income,
and she did not pay the corresponding tax. In 2015
R issued to P a notice of deficiency of about $120,000 in tax,
plus penalties; and when the liability remained unpaid in
September 2021, R issued to P a Notice of Intent to Levy.
P mailed to R a request for a collection due process (“CDP”)
hearing. She challenged the validity of the liability and
stated that she would like to pursue an offer-in-
compromise (“OIC”). The Internal Revenue Service (“IRS”)
Independent Office of Appeals (“IRS Appeals”) requested
but did not receive from P the financial documents
necessary to evaluate P’s eligibility for a collection
alternative, and IRS Appeals determined to deny
P’s request for a collection alternative and P’s challenge to
the underlying liability. Consequently, IRS Appeals issued
a notice of determination sustaining the notice of intent to
levy.
After IRS Appeals issued that notice of
determination, P proposed an OIC. Several days later,
P filed in this Court her petition for review of the NOD.
While this case was pending, IRS Appeals accepted
P’s OIC, but IRS Appeals thereafter held the OIC to have
been defaulted when P failed to make payments.
Served 11/09/23
2
[*2] Held: In this case the Court does not have
jurisdiction to review IRS Appeals’ determination that
P had defaulted on the OIC to which P and IRS Appeals
had agreed after the conclusion of her CDP hearing and the
filing of this case.
Held, further, IRS Appeals did not abuse its
discretion by issuing the notice of determination in which
it determined to deny P collection alternatives, to deny
consideration of P’s challenge of her liability, and to sustain
the proposed levy.
—————
Rita Renee Pilate, pro se
Jacob Russin, for respondent.
MEMORANDUM OPINION
GUSTAFSON, Judge: This is a collection due process (“CDP”)
case brought by petitioner, Rita Pilate, pursuant to section 6330(d), 1 in
which she asks us to review a notice of determination by the Internal
Revenue Service (“IRS”) Independent Office of Appeals (“IRS Appeals”)
that denied Ms. Pilate’s request for a collection alternative, denied her
challenge to her underlying federal income tax liability for the year
2012, and sustained the IRS’s notice of intent to levy to collect that
liability. Respondent, the Commissioner of Internal Revenue, filed a
motion for summary judgment. We will grant the Commissioner’s
motion.
Background
The following facts are derived from the parties’ pleadings and
the declaration attached to the Commissioner’s motion. We draw factual
inferences in favor of Ms. Pilate, as the nonmoving party, subject to the
1 Unless otherwise indicated, statutory references are to the Internal Revenue
Code, Title 26 U.S.C., as in effect at the relevant times, regulation references are to
the Code of Federal Regulations, Title 26 (Treas. Reg.), as in effect at the relevant
times, and Rule references are to the Tax Court Rules of Practice and Procedure. A
citation of a “Doc.” in this Opinion refers to a document as numbered in the Tax Court
docket record of this case. Dollar amounts are rounded.
3
[*3] limitations provided by Rule 121(d), discussed below in Part I.A.
When she filed her petition, Ms. Pilate resided in Florida.
Petitioner’s 2012 federal income tax liability
Ms. Pilate filed late her federal income tax return for 2012 in
December 2013 (after receiving an extension to October 2013), and the
IRS assessed the tax liability that she had reported, plus penalties.
However, Ms. Pilate did not report on that return $387,000 of retirement
income that she had received in 2012. (According to the notice of
deficiency, the payor, Equity Trust Co., reported the amount on Form
1099–R, “Distributions From Pensions, Annuities, Retirement or Profit-
Sharing Plans, IRAs, Insurance Contracts, etc.”, with the designation
“Distrib CD 1.” 2) The IRS examined her 2012 return and issued a notice
of deficiency in March 2015, determining an additional tax liability of
about $120,000 (apparently including the 10% additional tax of section
72(t)(1) for premature distributions to recipients under age 59-1/2) plus
penalties. Ms. Pilate received the notice of deficiency 3 but did not file a
Tax Court petition to challenge the deficiency determination. In August
2015 the IRS assessed the liabilities for tax, penalties, and interest.
Ms. Pilate did not promptly pay those liabilities.
Notice of intent to levy and CDP request
On August 17, 2019, the Commissioner mailed to Ms. Pilate a
Notice LT11, “Notice of Intent to Levy and Notice of Your Right to a
Hearing” (“NIL”). The NIL advised Ms. Pilate that for 2012 she had a
total amount due of $221,810, which consisted of tax, penalties, and
interest. The notice further advised Ms. Pilate of her right to request a
CDP hearing with IRS Appeals by September 16, 2019.
2 We take judicial notice that the 2012 Form 1099–R instructions explain that
code “1” of the distribution codes reportable in box 7 indicates “Early distribution, no
known exception (in most cases, under age 59½).”
3 The Commissioner shows by a U.S. Postal Service Form 3877, “Firm Mailing
Book for Accountable Mail”, that the notice of deficiency was mailed to Ms. Pilate by
certified mail. Ms. Pilate “denies receipt of the notice in time to petition the court. The
petitioner disagrees there was unreported income. There will be written
documentation to support this and that the referenced exhibits contain errors.”
(Emphasis added.) That is, she admits receipt of the notice and does not state the date
on which she received it. We discuss the issue of receipt of the notice in Part II.B.3
below.
4
[*4] Ms. Pilate timely filed Form 12153, “Request for a Collection Due
Process or Equivalent Hearing”. On that form she did not check any box
in section 8 for collection alternatives. However, in the “Other” category
of section 8, Ms. Pilate stated that she did not believe she should be
responsible for penalties, that she had acted “on the advice from the IRS
initial communication”, and that she would like to make an offer-in-
compromise (“OIC”). Section 8 of Form 12153 states that the taxpayer,
if she wishes to pursue a collection alternative, should submit a
completed Form 433–A, “Collection Information Statement for Wage
Earners and Self-Employed Individuals”, when she submits her Form
12153. Ms. Pilate did not attach a completed Form 433–A to her Form
12153.
CDP hearing
On March 12, 2020, IRS Appeals Officer (“AO”) Nicole Mullins, to
whom Ms. Pilate’s case was assigned, sent to Ms. Pilate a Letter 4837
notifying her that IRS Appeals had received her request for a CDP
hearing. The letter advised Ms. Pilate that a telephone conference was
to take place on April 14, 2020, at 10 a.m. AO Mullins’s letter described
the general process of the CDP hearing, what IRS Appeals was required
to consider, and what would happen after the hearing concluded.
AO Mullins’s letter provided two important details regarding the scope
of issues in Ms. Pilate’s CDP hearing: (1) that Ms. Pilate could not
challenge her underlying tax liability because she had a prior
opportunity to do so; and (2) that Ms. Pilate must provide a completed
Form 433–A “[f]or me to consider an alternative collection method such
as an . . . offer in compromise”.
Ms. Pilate missed her telephone conference on April 14, 2020, and
she did not answer AO Mullins’s call made shortly after the scheduled
conference time. After leaving Ms. Pilate a voicemail, AO Mullins
drafted and sent Letter 4000 reminding Ms. Pilate of the previous Letter
4837 and of her scheduled conference. The letter stated that Ms. Pilate
had 14 days to call IRS Appeals and to mail or fax the completed Form
433–A that IRS Appeals had previously requested.
The next day, April 15, 2020, Ms. Pilate called AO Mullins.
Ms. Pilate told AO Mullins that she had not received the Letter 4837,
and she requested that AO Mullins use a different address for future
correspondence in the CDP hearing. AO Mullins proceeded to explain
the CDP hearing process to Ms. Pilate and to explain why Ms. Pilate
would not be able to challenge her underlying tax liability in the CDP
5
[*5] hearing. Ms. Pilate decided that she would like to pursue an OIC,
and AO Mullins again requested the Form 433–A in addition to a
completed Form 656–B, “Offer in Compromise”. AO Mullins sent to
Ms. Pilate blank copies of these forms via email while on the phone with
her. Ms. Pilate was to follow up with AO Mullins on April 29, 2020.
On April 29, 2020, Ms. Pilate and AO Mullins had another phone
conference during which Ms. Pilate asked various questions regarding
Form 656–B. Ms. Pilate told AO Mullins that, in order to complete the
forms, she would need the help of her accountant but that he was
currently difficult to meet with because of the Covid-19 pandemic.
AO Mullins agreed to suspend Ms. Pilate’s case for two months until
June 30, 2020, by which time Ms. Pilate was to have submitted her OIC.
However, this April 29 conversation was the last time that Ms. Pilate
spoke with AO Mullins, because June 30 came and went without contact
from Ms. Pilate. AO Mullins attempted to call Ms. Pilate on June 30
and again on July 10, 2020, before preparing and mailing on that date a
letter notifying Ms. Pilate that she had 14 days from the time of the
letter to respond to AO Mullins, or else the case would be closed and a
notice of determination would be issued.
After receiving no response from Ms. Pilate, AO Mullins closed
the CDP case on July 29, 2020, and prepared documents to sustain the
notice of intent to levy.
Notice of determination
IRS Appeals issued a notice of determination on September 21,
2020, sustaining the notice of intent to levy against Ms. Pilate. Under
the “Issues You Raised” section of the notice of determination, IRS
Appeals noted that while Ms. Pilate had raised the issues of a collection
alternative and the underlying liability during her hearing, she did not
actually propose an OIC during the hearing and her liability challenge
was precluded from the proceedings. The notice advised Ms. Pilate of
her right to file a petition in the U.S. Tax Court to challenge the
determination.
Subsequent OIC
Ms. Pilate submitted an OIC on October 13, 2020 (i.e., shortly
after AO Mullins issued the notice of determination), and the IRS
eventually accepted that OIC about a year later on October 21, 2021.
There is no copy of that OIC (Form 656–B) in the record of this case, and
we are unaware of most of the details regarding that OIC. However,
6
[*6] according to a joint motion for continuance filed by the parties (and
signed by Ms. Pilate) in April 2022, Ms. Pilate’s final payment under the
OIC had been due on March 21, 2022, but Ms. Pilate had requested and
the Commissioner had allowed an extension until July 21, 2022.
The Commissioner alleges that a further extension for that final
payment was requested and allowed until December 30, 2022, but that
Ms. Pilate missed the December 30 deadline, and that the Commissioner
issued a default letter on February 27, 2023. Ms. Pilate states a general
“disagree[ment]” with these allegations, but she does not explicitly
dispute them; and her contention seems to be that she had proceeded in
good faith but had been unable to make the payment because of “issues
that arose . . . due to litigation (that is still ongoing) in a related case”
and because of serious medical problems, medical bills, “and a resulting
decrease in income”. For purposes of the Commissioner’s motion, we
assume her contentions about the nonpayment to be true.
Tax Court proceedings
On October 19, 2020 (i.e., after IRS Appeals issued the notice of
determination but before Ms. Pilate submitted the OIC), Ms. Pilate
timely filed a petition with this Court, challenging the Commissioner’s
determination to sustain the levy because she disagreed “with the IRS’s
addition of taxable retirement income, assessment of penalties and
interest”, because “a levy would constitute financial hardship for [her]”,
and because she “proposed an offer in compromise” which had not yet
been acknowledged by the Commissioner.
We set a trial date for December 13, 2021, but the parties jointly
moved for a continuance on October 15, 2021, because of “significant
progress” regarding the OIC proposed by Ms. Pilate in October 2020. We
granted the motion and rescheduled the trial for May 9, 2022. Before
the trial could occur, the parties on April 5, 2022, filed another joint
motion to continue, on the grounds that the due date for Ms. Pilate’s
final payment for the OIC agreement had been extended from March 21
to July 21, 2022, and the parties expected that a trial would be
unnecessary if Ms. Pilate met her final payment deadline. In January
2023 we rescheduled the trial for May 8, 2023.
However, on March 9, 2023, the Commissioner filed a motion for
summary judgment and a declaration in support of the motion. The
declaration included IRS transcripts and other documents from the CDP
hearing record that show the facts set out above. We issued an order
7
[*7] directing Ms. Pilate to respond to the motion, and in that order we
provided Ms. Pilate an informational sheet describing the requirements
for a response to a motion for summary judgment, and we encouraged
Ms. Pilate to initiate a telephone conference if she was unsure how to
proceed. We instructed Ms. Pilate that, in her response, she should
“state, by number, any assertion with which she disagrees, . . . explain
the reason for her disagreement, and . . . cite whatever evidence supports
her position.” We also notified Ms. Pilate that Rule 121(d) authorizes
the Court to enter a decision against her if she did not so respond.
Ms. Pilate initiated a conference call with the Court on March 28,
2023 (one day past her filing deadline for her response to the motion for
summary judgment), expressing concern over her ability to provide a
response to the motion. Ms. Pilate requested, and we permitted, an
extension of time to accommodate her health problems and to “allow
time for her participation in ‘Settlement Day’”, at which she could
consult with volunteers from low-income taxpayer clinics. Ms. Pilate
subsequently submitted her response to the Commissioner’s motion for
summary judgment. With that response she did not provide any
affidavit, nor any unsworn declaration under 28 U.S.C. § 1746, nor any
other documents. 4 The Commissioner filed a reply.
Discussion
I. General legal principles
A. Summary judgment
The purpose of summary judgment is to expedite litigation and
avoid unnecessary trials. Fla. Peach Corp. v. Commissioner, 90 T.C.
678, 681 (1988). The Court may grant a motion for summary judgment
if, after considering the evidence in the light most favorable to the
4 Throughout her response (Doc. 27) to the motion for summary judgment,
Ms. Pilate made these statements: “The petitioner asserts there are additional
relevant documents that exist that were not set out in the respondent’s motion.” (¶ 4.)
“There will be written documentation to support this and that the referenced exhibits
contain errors.” (¶ 7.) “Written documentation and witnesses will be presented.”
(¶¶ 13, 14, 15, 16.) “Written documentation will be used to rebut the exhibits.” (¶ 18.)
“Written documentation will be provided.” (¶¶19, 40.) “The petitioner will provide
written documentation and testimony to challenge the exhibits.” (¶ 23.) “Written
documentation will be used for rebuttal.” (¶ 26.) “Multiple witnesses and written
documentation will be provided.” (¶¶ 30, 34, 37.) “[T]his will be supported with
written documentation.” (¶ 38.) She did not submit any documentation with her
response nor thereafter.
8
[*8] nonmoving party, “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Rule
121(a)(2); see Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). A
moving party must demonstrate, through “pleadings, answers to
interrogatories, depositions, admissions and any other acceptable
materials”, that there is no genuine dispute of material fact. Fla. Peach
Corp., 90 T.C. at 681.
While the burden to make that showing is on the moving party,
the nonmoving party “may not rest on the allegations or denials in that
party’s pleading” to oppose a motion for summary judgment. Rule
121(d); see also Lipka v. Commissioner, T.C. Memo. 2022-116, at *6.
Instead, “[t]he nonmovant must respond, setting forth specific facts and
supporting those facts as required by Rule 121(c) [i.e., by “depositions,
documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other
materials”], to show that there is a genuine dispute of fact for trial.”
Rule 121(d); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 324 (1986).
For the reasons discussed below, we hold that the Commissioner’s
motion satisfies the standard for summary judgment and that
Ms. Pilate’s response fails to do so.
B. Agency-level CDP review
Any person who neglects or refuses to pay his tax liability within
10 days of notice and demand for payment may be subject to a levy on
his property by the Secretary under section 6331(a). Prior to collection,
the Secretary must notify the taxpayer of the intent to levy and of the
taxpayer’s right to an administrative appeal. §§ 6330(a), 6331(d). The
right to administrative appeal can be invoked by requesting, in writing,
a hearing with IRS Appeals. § 6330(b)(1).
During a CDP hearing, IRS Appeals must: (1) verify that
applicable law and administrative procedures have been met;
(2) consider any relevant issues raised by the taxpayer; and
(3) determine “whether any proposed collection action balances the need
for the efficient collection of taxes with the legitimate concern of the
person that any collection action be no more intrusive than necessary.”
§ 6330(c)(1)–(3).
A taxpayer may raise issues described in section 6330(c)(2) in her
request for, and during, her hearing. The two issues relevant to the
Commissioner’s motion now before us are collection alternatives and a
9
[*9] challenge to the underlying liability. 5 See § 6330(c)(2). One such
collection alternative, and the only one Ms. Pilate raised, is an OIC. The
taxpayer is responsible for proposing an OIC and must provide the
requisite documentation to the IRS Appeals officer handling her case.
Treas. Reg. § 301.7122-1(d).
A taxpayer may also challenge her underlying liability in a CDP
hearing, but only if she did not receive a statutory notice of deficiency or
if she did not otherwise have a prior opportunity to dispute the
underlying liability. § 6330(c)(2)(B).
In making its determination, IRS Appeals is required to consider
all issues properly raised by a taxpayer during the course of her CDP
hearing. § 6330(c)(3). Conversely, if a taxpayer did not properly raise
an issue during her CDP hearing, or if a taxpayer raised an issue after
the conclusion of the CDP hearing, then we do not have jurisdiction to
consider it because it was never a part of the Appeals officer’s
determination. Giamelli, 129 T.C. at 113; Sego v. Commissioner, 114
T.C. 604, 612 (2000) (“Matters raised after a hearing do not reflect on
whether the determinations . . . were an abuse of discretion.”).
C. Tax Court review
We review CDP determinations under an abuse-of-discretion
standard for all issues except a challenge to the underlying liability,
which receives de novo review if validly raised during the CDP hearing.
Goza v. Commissioner, 114 T.C. 176, 181–82 (2000). Under the abuse-
of-discretion standard, we determine whether IRS Appeals’
determination to sustain the levy was arbitrary, capricious, or without
sound basis in fact or law. See Murphy v. Commissioner, 125 T.C. 301,
320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006). We do not substitute our
judgment for IRS Appeals’, nor do we independently decide whether the
levy should be withdrawn. See id.5 In her petition Ms. Pilate also raised hardship. However, because she did not
raise hardship in her request for a CDP hearing nor during the hearing itself (rather,
she raises it for the first time as an excuse for her nonpayment of her obligation under
the later OIC), we do not have jurisdiction to consider it in this CDP case. See Giamelli
v. Commissioner, 129 T.C. 107, 112–13 (2007).
10
[*10] II. Analysis
A. Wholesale noncompliance with Rule 121
Ms. Pilate’s response does not comply with Rule 121. Despite our
order setting out the requirements of the Rule, she makes only general
assertions that she “disagrees” with the Commissioner’s assertions,
without stating any specific contrary facts that she attests. She foretells
future showings of documents, witnesses, and facts to support a finding
of a genuine dispute of material fact, but what those facts and
documents are and who those witnesses are is unknown because
Ms. Pilate provided no further detail. While Ms. Pilate purported to
respond to each paragraph of the Commissioner’s motion, her lack of
specific allegation or supporting evidence leaves the Court with nothing
more than her conclusory statements. Ms. Pilate’s response therefore
does not comply with the standards of Rule 121(d) or with our
instructions to her.
Our analysis could end there. However, we reach the same result
and grant the motion even if we consider Ms. Pilate’s particular
contentions.
B. CDP hearing requirements
1. Verification and balancing
As noted in Part I.B, in every CDP hearing IRS Appeals must
verify that all applicable law and administrative procedures have been
met, § 6330(c)(1), (3)(A), must consider relevant issues raised by the
taxpayer, § 6330(c)(2)(A), (3)(B), and must balance any collection action
with the “legitimate concern of the person that any collection action be
no more intrusive than necessary”, § 6330(c)(3)(C). While Ms. Pilate did
not raise in her petition the first and third issues—verification and
balancing—she did “disagree” in her response to the Commissioner’s
motion for summary judgment that the Commissioner met these two
requirements. See Doc. 21, ¶¶ 33, 40. However, her denials lack specific
factual assertions or supporting documentation. Meanwhile, the
Commissioner provided AO Mullins’s case activity log demonstrating
that she did meet the verification requirement, and the balancing
analysis is discussed in the notice of determination. Therefore, we hold
that Ms. Pilate did not raise any genuine dispute as to whether IRS
Appeals met its obligations regarding the first and third requirements
of the CDP hearing.
11
[*11] 2. Offer-in-compromise
Ms. Pilate requests that this Court review IRS Appeals’
determination regarding her OIC. To the extent that Ms. Pilate raised
the issue of an OIC as a collection alternative during her CDP hearing
(i.e., by mentioning her desire for an OIC in her request for a CDP
hearing), we hold that AO Mullins did not abuse her discretion by
declining to agree to an OIC. At no point during the CDP hearing did
Ms. Pilate provide AO Mullins with an actual proposed OIC (on Form
656) or with the financial information (on Form 433–A) that might have
justified an OIC—despite multiple opportunities and requests to do so.
Therefore, given the insufficient information she had before her in
considering a collection alternative, we find no abuse of discretion by
AO Mullins in sustaining the proposed levy in the notice of
determination issued in September 2020. See, e.g., Yoel v.
Commissioner, T.C. Memo. 2012-222, at *8.
It appears, however, that Ms. Pilate’s principal OIC-related
criticism of IRS Appeals concerns its later defaulting on the October
2020 OIC when, because of her hardships, she failed in December 2022
to make the payments she had agreed to make. But, as is discussed
above, this Court may only review information which the AO had before
her during the CDP hearing. See Giamelli, 129 T.C. at 113. Of
necessity, IRS Appeals must exercise its discretion in light of the facts
that exist at the time it issues its notice of determination. Here, IRS
Appeals did not receive the OIC until after the conclusion of the CDP
hearing and the issuance of the notice of determination. Therefore, we
cannot fault IRS Appeals for not knowing the future, and we do not have
jurisdiction to consider a later-submitted OIC in our review of the notice
of determination.
3. Underlying liability and prior opportunity
In this CDP case we have jurisdiction to entertain Ms. Pilate’s
challenge to her underlying tax liability only if she can demonstrate that
she “did not receive any statutory notice of deficiency . . . or did not
otherwise have an opportunity to dispute such tax liability.”
§ 6330(c)(2)(B).
Ms. Pilate did attempt to challenge her underlying liability
during the CDP hearing, despite the fact that the IRS had sent her a
notice of deficiency (which she did not challenge in a deficiency case in
the Tax Court). However, she insists that she did not have a prior
12
[*12] opportunity for a liability challenge because, as she states in her
response to the Commissioner’s motion for summary judgment, she did
not receive a notice of deficiency “in sufficient time to petition the Tax
Court.” Section 6330(c)(2)(B) does indeed allow a liability challenge “if
the person did not receive any statutory notice of deficiency”, but
Ms. Pilate implied that she did receive it—albeit not (she said) “in
sufficient time to petition the Tax Court.” (Emphasis added.) She
provided no explanation, precise or approximate, as to when she
received the notice of deficiency.
The Commissioner, on the other hand, provided a copy of the
certified mail list showing the address for and the date on which the
notice of deficiency was sent. The address is the same as the one
provided by Ms. Pilate on her 2011, 2012, and 2013 tax returns. This
Court maintains that “[i]n the absence of clear evidence to the contrary,
the presumptions of official regularity and of delivery justify the
conclusion that the statutory notice was sent.” Sego, 114 T.C. at 611.
Once that presumption is established, a rebuttable presumption of
receipt may follow. As we explained in Buffano v. Commissioner, T.C.
Memo. 2016-121, at *6–7:
Evidence that [the Commissioner] properly mailed
the notice[] of deficiency raises a presumption that [it was]
actually received by the addressee, namely, [the
taxpayer]. . . .
The Court may find on the basis of the foregoing
presumption that [the taxpayer] did in fact receive the
notice[] of deficiency unless he adequately rebuts the
presumption through credible testimony or other
competent evidence that he did not in fact receive [it].
Thus, the burden was on Ms. Pilate to rebut the presumption of receipt
with testimony or documentary evidence showing that the notice was
not received.
Ms. Pilate has not met that burden here. Her allegation is not in
an affidavit or declaration under penalty of perjury but is simply a
statement in her response. Perhaps more important, her statement is
fatally vague. By stating simply that the notice of deficiency was not
received “in sufficient time to petition the Tax Court”, she implies that
she did indeed receive the notice before the due date of a Tax Court
petition but she leaves open the question of precisely when. Maybe she
means she received the notice on the last day for filing, and that might
13
[*13] indeed be a winning scenario for her. Or maybe she received it
much earlier than the last day but she thinks that filing a timely Tax
Court petition was not possible (not practicable? not expedient?) in her
particular circumstances. To resist summary judgment, all she had to
do was raise a genuine dispute of fact by making a forthright showing,
with evidence, that she did not receive the notice of deficiency; but
instead she has left us to guess the precise meaning of her vague and
unsworn allegation, perhaps hoping we will assume a scenario in her
favor. We decline to do so. She did not give an unequivocal statement
as to nonreceipt of the notice of deficiency, and we hold that Ms. Pilate
is not entitled to challenge her underlying liability and that AO Mullins
did not abuse her discretion when she declined to consider Ms. Pilate’s
challenge of her underlying tax liability.
Moreover, even if Ms. Pilate was entitled to contest her liability
at the CDP hearing and in our Tax Court case reviewing that hearing,
she failed, in responding to the motion for summary judgment, to make
any showing that her liability was other than as the IRS assessed it.
The main issue underlying the deficiency that the IRS determined was
her receipt of retirement income. As a general rule, such income is
taxable. 6 If Ms. Pilate would resist summary judgment by urging that,
for some non-obvious reason, she does not really owe income tax on the
retirement distribution that the IRS treated as taxable, then it was
incumbent on her not merely to allege that the distribution was not
taxable but actually to make a showing based on “materials” of the sort
permitted in Rule 121(c). Instead, she relies solely on a statement in
her response that is devoid of particularity: “The petitioner disagrees
there was unreported income. There will be written documentation to
support this . . . .” Doc. 27, ¶ 7. But under Rule 121, the time for
Ms. Pilate to come forward with that “documentation” was no later than
her response to the motion for summary judgment. In the absence of
such documentation, she has not raised any genuine issue that calls for
a trial.
III. Conclusion
IRS Appeals did not abuse its discretion when it denied Ms. Pilate
a collection alternative, denied Ms. Pilate’s challenge to her underlying
6 Section 61(a), as in effect in the year at issue, provided that “gross income
means all income from whatever source derived, including . . . (9) Annuities; [and] . . .
(11) Pensions”.
14
[*14] liability, and sustained the notice of intent to levy. As a result, we
will grant the Commissioner’s motion for summary judgment.
To reflect the foregoing,
An appropriate order and decision will be entered.