Opinion
15174-20L
03-18-2022
TONUZI FIELDS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
David Gustafson Judge
This is a "collection due process" ("CDP") case brought under section 6320.Petitioner Tozuni Fields invokes our jurisdiction under section 6330(d)(1) to review a determination by the Internal Revenue Service ("IRS") Independent Office of Appeals ("IRS Appeals") sustaining the filing of a notice of Federal tax lien ("NFTL") covering her unpaid Federal income tax liabilities for the 2010, 2016, 2017, and 2018 years. Respondent, the Commissioner of Internal Revenue, filed his motion for summary judgement (Doc. 8), to which Ms. Fields failed to file a response. We will grant the Commissioner's motion.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure. Dollar amounts are rounded. Parenthetical references to "Doc." are to documents as they are numbered in the docket record of this case, and the page numbers cited in such references are according to the numbering in the portable document format ("PDF") of the digital file.
Background
The following facts are derived from the parties' pleadings and the Commissioner's motion. Ms. Fields has not disputed them.
Ms. Fields owes unpaid Federal income tax, interest, and penalties for the 2010, 2016, 2017, and 2018 years totaling approximately $4,252. (Doc. 9 at 5-20.) After issuing notice and demand for payment to Ms. Fields, the IRS filed an NFTL with Bronx Recorder, NY on August 26, 2019, and sent to Ms. Fields a letter titled "Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320" and dated August 22, 2019. (Doc. 10 at 10.) The letter advised Ms. Fields of her right to request a CDP hearing with IRS Appeals. Ms. Fields submitted a Form 12153, "Request for a Collection Due Process or Equivalent Hearing", upon which she identified the filed notice of federal tax lien as the basis for her hearing, and on which she checked boxes to request, as "Collection Alternative[s]", "Offer in Compromise" and "I Cannot Pay Balance". (Doc. 10 at 14.)
For tax years not involved in the collection notices that gave rise to the CDP hearing, Ms. Fields owes approximately $26,000. (Doc. 10 at 7.)
After receiving Ms. Fields's Form 12153, Appeals sent Ms. Fields a letter dated December 19, 2019, that stated:
We received your Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated Sep. 24, 2019.
We're forwarding your request for a Collection Due Process hearing to the Office of Appeals. That office will contact you within 60 days.
We didn't receive the completed Form 656, Offer in Compromise. Please complete Form 656-B, Offer in Compromise (Booklet), and send it to the appropriate address as shown in the booklet's checklist.
Before we can consider your request for collection alternative, we need additional information. Please complete the enclosed Form 433-F, Collection Information Statement, and return it within 30 days from the date of this letter . . . .
As far as the record now before us shows, Ms. Fields never responded to that letter. Ms. Fields' request for a CDP hearing was assigned to Settlement Officer Nathan August ("SO August"). SO August sent to Ms. Fields an appointment letter scheduling the CDP hearing for July 13, 2020. (Doc. 10 at 7.) On July 13, 2020, SO August contacted Ms. Fields' representative and left a voicemail requesting a call back. The CDP hearing was eventually held on July 27, 2020. At the hearing, Ms. Fields' representative stated that Ms. Fields had submitted an offer in compromise but had not yet received a response. (Doc. 10 at 8.) SO August asked for a copy of the pending offer in compromise, but Ms. Fields' representative was unable to provide a copy of the offer or any specific information about when it was submitted, where it was sent, or the amount of the offer. (Doc. 10 at 8.) SO August researched Ms. Fields' account and could not verify any pending offer in compromise. (Doc. 10 at 8.) SO August considered whether Ms. Fields may have qualified for lien withdrawal under section 6323(j), but determined that she did not qualify. (Doc. 10 at 9.) On November 30, 2020, SO August issued a notice of determination sustaining the filing of the NFTL because he could not verify a pending offer in compromise and did not receive one from Ms. Fields. (Doc. 10 at 9.) The notice of determination advised Ms. Fields of her right to file a petition in in United States Tax Court within 30 days. (Doc. 1 at 4.)
The most recent offer in compromise on Ms. Fields' account was an offer of $600 which had been rejected by the IRS in July 2019, before the collection notices and the CDP hearing that we review in this case. (Doc. 10 at 8.) We have no jurisdiction to review the IRS's action on that OIC, and Ms. Fields has not requested that we do so.
Ms. Fields timely filed her petition on her own behalf (without an attorney), alleging that she cannot pay the balance owed. (Doc. 1 at 2-3.) Her petition stated:
I am a disabled/handicapped nurse - working on 2 days (sometimes 3 days) per week. I cannot afford to pay these taxes, especially through garnishment. Don't want to end up any worse than I am. I cannot work [more] hours due to my handicap. Just barely making it now for the last several years. Not living "high on the hog" ever. Living in "blood land" in the Bronx, but at least I have a home/apt. Want to be forgiven these back taxes or at least some of it….
Years ago I was told that I was fine after filing early years 3Xs with this in paper and by someone on the phone. Suddenly I was audited and from that point I owed taxes & fines/interest etc. from the 1st year. Not fair-especially after I was told I was fine. I never even made that much money (the most was something like $56,000 for 1 year of my entire life). How on earth does a woman like me come to owe so much. Can part or all of this be forgiven?
Ms. Fields understandably fears garnishment of her wages, but at issue here is not a notice of proposed levy (which would precede such a garnishment) but rather a notice of lien. She has not alleged that she ever received a notice of proposed levy. In the event Ms. Fields later does receive a notice of proposed levy, she would then have the right (if it is her first such notice) to a CDP hearing (and to eventual Tax Court review in a subsequent case) before garnishment could occur. See § 6330(d).
The Commissioner filed his motion for summary judgment on January 24, 2022. On January 27, 2022, the Court ordered (Doc. 11) Ms. Fields to file a response to the Commissioner's motion no later than February 18, 2022. (Doc. 11 at 2.) In that order, the Court explained some of the requirements for opposing summary judgment and stated:
If Ms. Fields disagrees with the facts set out in paragraphs 6-14 of the Commissioner's motion for summary judgment (see Doc. 8, pp. 3-10), then her response should point out the specific facts in dispute. Ms. Fields's response should state, by number, any assertion with which she disagrees, should explain the reason for her disagreement, and should cite whatever evidence supports her position. If Ms. Fields disagrees with the Commissioner's argument as to the law (in paragraphs 15-23), then her response should also set out her position on the disputed legal issues. Q&As that the Court has prepared on the subject: "What is a motion for summary judgment? How should I respond to one?", are available at the Court's website and are printed on
the page attached to this order. If Ms. Fields is unsure how to proceed, she should promptly initiate a telephone conference with the Court and the Commissioner by placing a call (at 202-521-0850) to the Chambers Administrator of the judge signing this order.
Ms. Fields should note that Tax Court Rule 121(d) provides, "If the adverse party [i.e., Tozuni Fields] does not so respond [to a motion for summary judgment], then a decision, if appropriate, may be entered against such party". (Doc. 11 at 1-2.)Ms. Fields has not filed a response to the Commissioner's motion.
Discussion
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 summary judgment when there is no genuine dispute as to any material fact and a decision may be rendered as a matter of law. Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). The moving party (here, the Commissioner) bears the burden of showing that no genuine issue of material fact exists, and the Court will view any factual material and inferences in the light most favorable to the nonmoving party (here, Ms. Fields). See Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). Here, the factual assertions contained in the Commissioner's motion are undisputed.
In CDP cases (such as this one) where the underlying liability is not in dispute, we review IRS Appeals' determination for abuse of discretion. Downing v. Commissioner, 118 T.C. 22, 30-31 (2002). Applying that abuse-of-discretion standard, we decide whether IRS Appeals's determination to sustain the NFTL 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).
Her petition, as quoted above, does refer to an audit and to liabilities being "not fair". We cannot treat this vague reference as a liability challenge to be reviewed here. Ms. Fields did not show that she lacked any prior opportunity to dispute that liability, see sec. 6330(c)(2)(B), nor that she raised a liability challenge in the CDP hearing, as she would have needed to do before getting court review. Moreover, if she wished to dispute liability, it would have been incumbent on her to articulate and substantiate that challenge in response to the IRS's motion for summary judgment, but she made no response to the motion.
During a CDP hearing, IRS Appeals must determine whether the proposed collection action may proceed. In making that determination, the appeals officer must consider the following: (1) whether the requirements of any applicable law or administrative procedure have been met; (2) any issues raised by the taxpayer, including (relevant here) challenges to the appropriateness of the collection action and proposed collection alternatives; and (3) whether the proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the taxpayer that any collection action be no more intrusive than necessary. §§ 6320(c), 6330(c). The Commissioner's motion shows that IRS Appeals did not abuse its discretion in sustaining the filing of the NFTL because SO August did the following: He verified that the applicable law and administrative procedures for filing an NFTL were followed; he considered Ms. Fields proposed collection alternative of an offer in compromise, but he could not conclude, based on information available to him, that an offer was either currently being considered or would soon be submitted; and he balanced the relative interests of the government and Ms. Fields with respect to the filing of the NFTL. Based on these facts and circumstance and in the absence of any genuine dispute of material fact, we find that IRS Appeals did not abuse its discretion in sustaining the filing of the NFTL and the Commissioner's motion should accordingly be granted.
We note that Ms. Fields remains able to propose to the IRS, outside of the CDP process (and not subject to Tax Court review), an offer in compromise or another collection alternative (such as an installment agreement or "currently not collectible" status).
In view of the foregoing, it is ORDERED that respondent's motion for summary judgment is granted. It is further
ORDERED AND DECIDED that respondent may proceed with collection of petitioner's unpaid income tax liabilities for the 2010, 2016, 2017, and 2018 tax years, as described in the "Notice of Determination Concerning Collection Actions Under Sections 6320 or 6330 of the Internal Revenue Code" dated November 30, 2020.