Opinion
18001-22L
10-28-2024
KELLIE WEDGEWORTH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Elizabeth Crewson Paris, Judge.
This case is before the Court on a petition for review of a Notice of Determination Concerning Collection Action(s) under Sections 6320 and/or 6330, sustaining a notice of intent to levy with respect to petitioner's 2019 tax year. On October 5, 2023, docket entry 23, respondent filed a Motion for Summary Judgment (Motion), seeking adjudication on the issue of whether the Appeals Officer abused his discretion in denying petitioner a collection alternative and sustaining the levy. In the Motion, respondent contends that there are no genuine issues of material fact and that the determination should be upheld as a matter of law. By Order dated October 11, 2023, docket entry 25, the Court ordered petitioner to respond on or before October 26, 2023. The Court subsequently extended the time to respond to July 15, 2024, and again to August 15, 2024. To this date, the Court has received no response or objection to respondent's Motion.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C, in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Background
The following facts are based on the parties' pleadings and motion papers, the attached declaration, and exhibits which comprise the administrative record. Petitioner resided in Mississippi when she timely filed the Petition.
On August 16, 2021, respondent issued to petitioner Notice CP90, Notice of Intent to Seize Your Assets and of Your Right to a Hearing, to collect unpaid self-reported federal income tax liability for petitioner's 2019 tax year. Petitioner timely submitted Form 12153, Request for a Collection Due Process or Equivalent Hearing (CDP Hearing Request) to request a collection due process (CDP) hearing. On the CDP Hearing Request, petitioner checked the box to request Innocent Spouse Relief, but did not attach Form 8857, Request for Innocent Spouse Relief, as instructed. Petitioner did not request a collection alternative. Petitioner did not dispute the underlying tax liability.
In her CDP Hearing Request, petitioner additionally listed tax year 2018. Respondent had sent petitioner a Notice of Intent to Levy with respect to petitioner's 2018 tax year on December 9, 2019. Because petitioner submitted the CDP Hearing Request more than one year after respondent issued the Notice of Intent to Levy with respect to tax year 2018, the Appeals Officer determined that petitioner was not entitled to a CDP Hearing or an Equivalent Hearing with respect to tax year 2018.
Petitioner's case was assigned to Appeals Officer Erek Gaines (AO Gaines). On March 30, 2022, AO Gaines sent petitioner Letter 4837, advising her that a telephonic CDP hearing had been scheduled for May 4, 2022. In his letter, AO Gaines requested a completed Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, and a signed tax return for tax year 2020.
Petitioner did not call into the CDP Hearing at the designated time, nor did she provide the requested documents. On May 4, 2022, AO Gaines sent petitioner another letter, allowing petitioner 14 days to provide any information she would like him to consider, after which time he would issue a determination on petitioner's case. Petitioner called AO Gaines on May 17, 2022, and rescheduled the CDP Hearing for May 26, 2022.
On May 26, 2022, petitioner and AO Gaines held the rescheduled CDP Hearing. AO Gaines verified that the assessments were properly made, notice and demand for payment was mailed to petitioner's last known address, there was a balance due when the Notice of Intent to Levy was issued, and that he had no prior involvement with respect to the specific tax period at issue.
Petitioner did not provide a completed Form 433-A, Form 8857, or 2020 tax return before or during the CDP hearing. During the CDP hearing, petitioner explained that she did not file a return for tax year 2020 because she was unemployed and had no income during that year. Petitioner also explained that her Form 8857 was "essentially completed," and AO Gaines provided instructions on how to fax the completed form to him. AO Gaines provided a deadline of June 2, 2022, to submit the completed Form 8857. Petitioner raised no other issues during the CDP hearing.
By July 5, 2022, petitioner had neither faxed the Form 8857 to AO Gaines nor contacted him for additional time. AO Gaines attempted to call petitioner on July 5, 2022, and left a voicemail requesting that petitioner fax the requested documents or to contact him to discuss other collection alternatives. Petitioner failed to respond, and on July 20, 2022, AO Gaines began taking steps to close petitioner's case. On July 26, 2022, AO Gaines issued the Notice of Determination, sustaining the proposed collection action. Petitioner timely petitioned this Court for review.
Petitioner attached to her Petition a partially completed Form 8857. In the Motion respondent represents that the partially completed Form 8857 was forwarded to respondent's Centralized Innocent Spouse Office for consideration. On December 4, 2023, an examiner from respondent's Centralized Innocent Spouse Office returned her decision, recommending that petitioner's request be denied. A copy of the examiner's workpapers were included with respondent's Status Report filed September 19, 2024.
Discussion
Summary judgment serves to "expedite litigation and avoid unnecessary and expensive 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(a)(2); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). The moving party bears the burden of proving that there is no genuine issue of material fact. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). In deciding whether to grant a motion for summary judgment, the Court construes factual materials and inferences drawn from them in a light most favorable to the nonmoving party. Sundstrand Corp., 98 T.C. at 520. The nonmoving party may not rest upon mere allegations or denials in its pleadings and must set forth specific facts showing there is a genuine dispute for trial. Rule 121(d); see also Celotex Corp. v. Catrett, 427 U.S. 317, 324 (1986).
The Court has jurisdiction to review determinations concerning collection actions when the taxpayer timely petitions for review. § 6330(d)(1). Where the validity of a taxpayer's underlying liability is properly at issue, the Court reviews the determination with respect to that issue de novo. Goza v. Commissioner, 114 T.C. 176, 181-2 (2000). The Court reviews all other determinations for abuse of discretion. Id. at 182. Because petitioner does not dispute the underlying tax liability, the Court reviews the determination only for abuse of discretion.
In reviewing an Appeals Officer's determination for abuse of discretion, the Court considers whether he (1) properly verified that the requirements of applicable law or administrative procedure have been met, (2) considered any relevant issues raised during the hearing, and (3) considered whether the proposed collection action balances the Government's need for the efficient collection of taxes with the taxpayer's legitimate concern that any collection action be no more intrusive than necessary. § 6330(c).
Section 6330(c)(1) requires the Appeals Officer to "obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met." The Court has authority to review satisfaction of the verification requirements regardless of whether petitioner raised that issue at the hearing. Hoyle v. Commissioner, 131 T.C. 197, 202-03 (2008), supplemented by 136 T.C. 463 (2011). Petitioner did not challenge the verification requirement, and the Court concludes that AO Gaines properly verified that the legal and procedural requirements were met. Rule 331(b)(4); see also Ansley v. Commissioner, T.C. Memo. 2019-46, at *19.
The Appeals Officer is required to consider any relevant issued raised by the taxpayer during the hearing. § 6330(c)(2)(A), (3)(B). In the CDP Hearing Request, petitioner requested innocent spouse relief, but did not attach Form 8857 to her request. AO Gaines provided petitioner an opportunity to submit the requested documentation following the CDP hearing, but petitioner did not do so. No abuse of discretion exists when an Appeals Officer sustains a proposed collection action where the taxpayer fails, after being given sufficient time, to supply the Appeals Officer with required forms and supporting information. Wright v. Commissioner, T.C. Memo. 2012-24, 2012 WL 204181, at *3. Petitioner did not request any other collection alternative, either in the CDP Hearing Request or during the CDP hearing. It is not an abuse of discretion for an Appeals Officer to not consider any collection alternatives where a taxpayer has proposed none. See, e.g., Huntress v. Commissioner, T.C. Memo. 2009-161, 2009 WL 1883984, at *5. Accordingly, the Court concludes that AO Gaines did not abuse his discretion in not granting innocent spouse relief or providing any other collection alternative.
Petitioner does not allege that AO Gaines failed to consider "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)(3)(C). The Court concludes that AO Gaines properly considered the balancing obligation as required by section 6330(c)(3)(C).
Respondent has shown that there is not genuine dispute as to any material fact and AO Gaines did not abuse his discretion in sustaining the proposed levy action. Accordingly, the Court will grant summary judgment in favor of respondent and sustain the proposed collection action.
Upon due consideration, it is
ORDERED that respondent's Motion for Summary Judgment, filed October 5, 2023, docket entry 23, is granted. It is further
ORDERED AND DECIDED that the determination set forth in the Notice of Determination Concerning Collection Action under Sections 6320 and/or 6330, upon which this case is based, is sustained.