Opinion
34514-21L
07-18-2022
HASHAM ALI & AMANI A. SAIBAN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes, Judge
This case is on the Court's September 12, 2021 San Francisco, California trial calendar. It's based on a notice of from the IRS that it intends to collect unpaid tax through a levy of petitioners' assets.
Petitioners are residents of California, which means that Tax Court's review of the IRS's decision is subject to Keller v. Commissioner, 568 F.3d 710, 718 (9th Cir. 2009). This case requires the Tax Court to follow what lawyers call the "record rule." What this means is that the Court has to look at the same things that the IRS looked at during the collection due process hearing (the so-called "administrative record") to decide whether the IRS officer abused her discretion in upholding the levy.
The next step in this process is for the Court to review the IRS's work, which it does through summary-judgment motions. The IRS has filed papers in which the IRS lawyer argues that no trial is necessary in this case, because (the IRS says) no relevant facts are in dispute -- everything is in the record that the IRS Appeals Officer already looked at. The motion argues that, on the basis of these undisputed facts, the Court has to rule in the IRS's favor.
The Court wants to hear from petitioners. They need to file a response to the IRS's motion. If they disagree with the facts set out in the IRS's motion -- e.g., there's something in the record that shouldn't be there, or something that is missing from the record that should be there -- then their response should point out the specific facts in dispute. If they disagree with the IRS's argument as to the law, then their response should also set out their position on the disputed legal issues. They should label this response "Petitioners' Cross-Motion for Summary Judgment and Response to Respondent's Motion for Summary Judgment" on the first page so that it gets filed as soon as the Court receives it.
The Court has prepared Q&As on the subject "What is a motion for summary judgment? How should I respond to one?" and these are available at ustaxcourt.gov/taxpayer_info_start.htm#START40
Petitioners should note that Tax Court Rule 121(d) provides, "If the adverse party [i.e., Mr. Ali and Ms. Saiban] does not so respond [to a motion for summary judgment], then a decision, if appropriate, may be entered against such party" --i.e., against petitioners.
It is therefore
ORDERED that petitioners file their cross-motion for summary judgment and response to respondent's motion for summary judgment on or before August 15, 2022.