Opinion
Case No.: 3:04-cv-1082-J-99MMH.
May 10, 2005
ORDER
Before the Court is Defendant Internal Revenue Service/United States' Motion for Judgment on the Pleadings. (Doc. No. 10, filed February 25, 2005). Plaintiff responded in opposition on March 9, 2005. (Doc. No. 11).
I. Factual Background
On December 19, 2003 Defendant notified Plaintiff of its intent to collect unpaid fees by way of levy pursuant to I.R.C. §§ 6330-6334. The document, entitled "Final Notice of Intent to Levy and Notice of Your Right to a Hearing" informed Plaintiff of the process by which Defendant collects past due tax amounts and included a form to be used by Plaintiff to request a collection due process hearing. Plaintiff filled out this form requesting a hearing. On the form, Plaintiff argued both that Defendant's actions were improper because he is not a "taxpayer" according to the IRS Code and that the penalties were mistakenly assessed because "[t]hey are not relevant to any `activity' in which a `tax liability' occurred under your jurisdiction, as per the Code and Regulations." See Complaint, Exhibit 2.
In response to Plaintiff's request, Defendant provided him with written information about the collection due process hearing. Specifically, the document provided:
The Collection Due Process Hearing is informal. The hearing will be by telephone and/or correspondence. The right to a hearing under IRC § 6330 does not include the right to subpoena and examine witnesses, nor does it include the right to record hearings. See Complaint, Exhibit 3.
Plaintiff wrote a letter in response demanding an in-person interview and stating that a telephonic conference was unacceptable to him. A sequence of written and oral correspondence ensued in which Plaintiff was consistently told that an in-person or face-to-face hearing would not be held. On May 19, 2004 Plaintiff received a document entitled "Notice of Determination Concerning Collection Action(s) Under Section 6330 (Levy) of the Internal Revenue Code." The document stated that all information in the record as well as all arguments made by Plaintiff had been reviewed and all legal and procedural requirements had been followed. Based on this review, the Office of Appeals determined that levy was the appropriate method to collect the unpaid fees and rejected Plaintiff's arguments.
Plaintiff now appeals the determination by the Office of Appeals and raises only one issue: whether Plaintiff has a right to a face-to-face collection due process hearing.
II. Standard of Review
On a motion for judgment on the pleadings, the court can look only to the pleadings and must view them in the light most favorable to the nonmoving party. Hallberg v. Pasco County, 1996 WL 153673, *2 (M.D. Fla. 1996). Judgment on the pleadings is appropriate when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. Cannon v. City of West Palm, 250 F.3d 1299, 1301 (11th Cir. 2001).
In addition, a determination by the IRS Office of Appeals, except a determination regarding the underlying tax liability, is reviewed for abuse of discretion. See Whiting v. Commissioner of Internal Revenue, 2004 WL 1277997 (T.C.M. 2004); Gatlos v. Commissioner v. Internal Revenue, 2004 WL 1902976 (T.C.M. 2004). As the determination at issue involves the proposed levy, and not the underlying tax liability, this Court will employ the abuse of discretion standard of review. Whiting, 2004 WL 1277997.
III. Legal Standards
Pursuant to I.R.C. §§ 6330 et. seq., before the Commissioner of the IRS may levy on a taxpayer's property, the taxpayer must be notified in writing of the Commissioner's intent to levy and of the taxpayer's right to a collection due process hearing. A taxpayer is entitled to a hearing that includes the following elements: 1) an impartial officer will conduct the hearing; 2) the conducting officer will receive verification from the Secretary that the requirements of applicable law and administrative procedure have been met; 3) certain issues may be heard such as spousal defenses and offers-in-compromise; and 4) a challenge to the underlying liability may be raised if the taxpayer did not receive a statutory notice of deficiency or otherwise receive an opportunity to dispute the liability. I.R.C. § 6330; Leineweber v. Commissioner of Internal Revenue, 2004 WL 167264 (T.C.M. 2004).
Following the hearing, the Appeals Office must make a determination as to whether the levy on the taxpayer's property may proceed. In making this determination, the Appeals Office must take into consideration the verification presented by the Secretary, the issues raised by the taxpayer, and whether the proposed levy balances the need for efficient collection of taxes with the taxpayer's concerns regarding the intrusiveness of the proposed levy action. I.R.C. § 6330(c)(3); Whiting, 2004 WL 1277997.
IV. Analysis
In the present case, Plaintiff does not dispute that he received written notice of his right to a hearing. Instead, he contends that he was entitled to and denied a face-to-face hearing. The Court does not agree.
The Code of Federal Regulations governing a collection due process (CDP) hearing makes clear that a face-to-face hearing is not required. "CDP hearings are much like Collection Appeal program (CAP) hearings in that they are informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer's representative, to hold a face-to-face meeting." 26 C.F.R. § 301.6330-1 at A-D6. Instead, a procedurally proper CDP hearing may consist of "one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer's representative, or some combination thereof." Id. Indeed, the need for a face-to-face hearing appears minimal, and in turn a telephonic or correspondence hearing seems appropriate, as the taxpayer is not permitted to subpoena or examine witnesses at the CDP hearing. Id.
Case law echoes the instruction of the Regulations. It has been consistently held that in-person interviews are not required in a § 6330 hearing. See Katz v. Commissioner of Internal Revenue, 115 T.C. 26 (T.C. 2000) (taxpayer not entitled to a face-to-face CDP hearing, but rather, telephone conference was procedurally proper); Leineweber, 2004 WL 167264 (face-to-face hearing not required and no abuse of discretion for review of administrative record and prior telephone conversations to constitute CDP hearing); Whiting, 2004 WL 1277977 (oral and written communications between taxpayer and Office of Appeals constituted proper CDP hearing even though taxpayer unaware that conference being conducted); Tilley v. United States, 270 F. Supp.2d 731 (M.D.N.C. 2003); (face-to-face hearing not required, but rather telephone conversations sufficed); Guy v. United States, 90 A.F.T.R.2d 2002-5462 (E.D.N.Y. 2002) (in affording taxpayer a CDP hearing, the IRS did not owe taxpayer a duty to hold a face-to-face hearing).
It is clearly settled and consistent with the informal nature of the hearings that, as a matter of law, a taxpayer has no intrinsic right to a face-to-face CDP hearing under I.R.C. § 6330. The Court, therefore, finds no abuse of discretion in denying Plaintiff's request for one. Defendant's Motion for Judgment on the Pleadings (Doc. No. 10) is GRANTED and this case is DISMISSED WITH PREJUDICE. The Clerk shall enter Judgment in favor of Defendant and close the file.
DONE AND ENTERED.