Opinion
14889-20L
08-10-2023
MICHAEL KENNETH STEWART & LISA DOTIN STEWART, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Maurice B. Foley, Judge
On November 18, 2022, the Court filed respondent's Motion for Summary Judgment. The Court, on December 19, 2022, filed petitioners' Motion for Extension of Time to File Objections to Motion for Summary Judgment. On January 10, 2023, the Court granted petitioners' Motion and ordered petitioners to file an objection on or before February 2, 2023. No objection has been received. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On May 16, 2019, respondent issued petitioners a final Notice of Intent to Levy and Notice of Your Rights to a Hearing (Levy Notice) relating to 2013, 2014, 2015, 2016, and 2017. Prior to the Levy Notice, respondent, on April 25, 2019, issued a Notice of Federal Tax Lien Filing and Your Right to a Hearing under IRC 6320 relating to 2011, 2015, 2016, and 2017 (Lien Notice).
Petitioners requested a collection due process (CDP) hearing for both the Levy Notice and Lien Notice on Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated June 13, 2019. Petitioners stated they could not pay the liability due. In addition, they requested collection alternatives (i.e., an installment agreement and an offer in compromise) and withdrawal of the lien. The request relating to the Levy Notice was timely but the request relating to the Lien Notice was not timely. See I.R.C. § 6320(a)(3)(B).
Petitioner wife submitted a partially completed Form 433-A, Collection Information Statement, to respondent's Appeals officer on July 11, 2019. In a letter dated July 12, 2019, petitioner wife indicated petitioner husband would provide his information on a separate Form 433-A. The Appeals officer initially scheduled a telephonic CDP hearing for March 11, 2020, but the hearing was postponed several times at petitioner wife's request and was eventually held on July 24, 2020. Petitioner wife submitted an updated Form 433-A that included only her financial information prior to the hearing. Petitioner husband did not submit any of the required forms nor did he attend the CDP hearing.
After reviewing the submitted financial information, respondent offered multiple installment agreements. Petitioner wife rejected the Appeals officer's proposals, stated they had no ability to pay, did not suggest a collection alternative, and terminated the hearing. A subsequent telephonic CDP hearing was scheduled for August 13, 2020. Petitioners did not attend the hearing and ceased all further communication with respondent. On November 6, 2020, respondent issued a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code sustaining the Levy Notice. Petitioners, while residing in Austin, Texas, timely filed a petition with the Court.
On February 10, 2023, the Court filed petitioners' Motion to Withdraw Petition Without Prejudice. The Court, on March 8, 2023, filed respondent's Notice of Objection to Petitioners' Motion to Withdraw Petition Without Prejudice. On May 16, 2023, the Court filed petitioners' Supplement to Motion to Withdraw Without Prejudice.
Section 6330 provides that during a CDP hearing a taxpayer may raise relevant issues such as spousal defenses, the appropriateness of the proposed collection action, and possible collection alternatives. See § 6330(c)(2)(A). The Court cannot consider issues that were not raised during the CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107, 114 (2007). Because petitioners did not challenge the underlying liability during their CDP hearing, the underlying liability is not at issue. Accordingly, we review the Commissioner's administrative determinations for abuse of discretion. See Pough v. Commissioner, 135 T.C. 344, 351 (2010); Goza v. Commissioner, 114 T.C. 176, 182 (2000).
Respondent did not abuse his discretion. Petitioners rejected respondent's proposed alternatives, did not provide further or complete financial information, and did not propose a collection alternative. See McLaine v. Commissioner, 138 T.C. 228, 243 (2012). The Appeals officer met the requirements of section 6330(c). See Nestor v. Commissioner, 118 T.C. 162, 166 (2002); Lunsford v. Commissioner, 117 T.C. 183 (2001). Respondent has established that there is no genuine dispute relating to any material fact and that he is entitled to judgment as a matter of law. See Sundstrand Corp. v. Commissioner, 98 T.C. 518,520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). Accordingly, pursuant to Rule 121, summary judgment in favor of respondent is appropriate. Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion for Summary Judgment, filed November 18, 2022, is granted. It is further
ORDERED AND DECIDED that respondent may proceed with the collection action as determined in the notice of determination relating to 2013, 2014, 2015, 2016, and 2017. It is further
ORDERED that petitioners' Motion to Withdraw Petition Without Prejudice, as supplemented, is denied as moot.