Opinion
24977-22L
07-11-2024
MARK EDWARD BEHREND, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Maurice B. Foley Judge
On August 24, 2023, the Court filed respondent's Motion for Summary Judgment. The Court, on August 29, 2023, ordered petitioner to file any objection on or before September 20, 2023. On October 23, 2023, the Court filed petitioner's Letter dated October 13, 2023. Unless otherwise indicated, section references are to the Internal Revenue Code in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On August 16, 2021, respondent issued petitioner a Notice of Intent to Seize Your Assets And of Your Right to a Hearing relating to 2018. In a timely filed Form 12153, Request for a Collection Due Process or Equivalent Hearing, dated September 15, 2021, petitioner requested a collection due process (CDP) hearing and a collection alternative (e.g., an Offer in Compromise (OIC)). Petitioner did not dispute the underlying liability.
In a letter dated June 23, 2022, respondent's settlement officer notified petitioner that his telephonic CDP hearing was scheduled for July 7, 2022. The settlement officer further requested that petitioner complete Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, and Form 656, Offer in Compromise; provide signed copies of tax returns for 2017, 2019, 2020, and 2021; and make estimated tax payments for the current year. On July 12, 2022, the settlement officer called petitioner to reschedule the CDP hearing and petitioner informed the settlement officer he planned on filing an OIC by mail.
On July 26, 2022, the settlement officer called petitioner and left a voicemail asking petitioner about the status of his OIC application, reminding him to file his 2019, 2020, and 2021 tax returns, and requesting that petitioner call back to schedule the CDP hearing. On July 27, 2022, petitioner called the settlement officer back and left a voicemail informing her that he did not file an OIC and instead offered an alternative arrangement for settling his liability. In a letter dated July 29, 2022, the settlement officer notified petitioner that his CDP hearing was rescheduled for September 8, 2022.
On September 9, 2022, the parties held the CDP hearing. During the hearing, the settlement officer informed petitioner that she had not received any of the documents she requested and instead asked petitioner to verbally provide his monthly income. The settlement officer determined that petitioner was currently not collectible (CNC) and requested that petitioner complete and sign Form 12257, Summary Notice of Determination and Waiver of Judicial Review, if he agreed with going into CNC while he filed his delinquent returns and submitted an OIC. Petitioner agreed, and in a letter dated September 9, 2022, the settlement officer requested that petitioner sign the attached Form 12257 and mail it back to her.
On September 26, 2022, petitioner called the settlement officer and stated he did not sign the Form 12257 because he had the funds to pay his liability in full but he disagreed with his account balance because the Social Security Administration did not inform him that he would owe a tax liability upon receiving those payments. The settlement officer explained to petitioner that he could not be placed in CNC if he had the funds to pay his liability and that he needed to be in filing compliance to receive another collection alternative. Petitioner informed the settlement officer that he would file his missing returns by the end of the week.
On October 3, 2022, the settlement officer closed petitioner's case after not receiving the unfiled returns or any of the other documents she requested from petitioner. On October 5, 2022, respondent issued petitioner a Notice of Determination Concerning Collection Actions under IRS Sections 6320 or 6330 of the Internal Revenue Code, sustaining the levy relating to 2018. Petitioner, while residing in California, timely filed a Petition with the Court and contended respondent abused his discretion by not allowing his proposed payment arrangement. The Court, on January 23, 2023, filed respondent's timely Answer.
Section 6330 provides that during a CDP hearing a taxpayer may raise relevant issues (e.g., spousal defenses, the appropriateness of the proposed collection action, and possible collection alternatives). See I.R.C. § 6330(c)(2)(A). A taxpayer may dispute the underlying liability during the CDP hearing if the taxpayer did not receive a notice of deficiency or otherwise have a prior opportunity to dispute such liability. See I.R.C. § 6330(c)(2)(B). The Court cannot consider issues that were not raised during the CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107, 114 (2007). Because petitioner did not challenge his underlying liability during his 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).
Petitioner was ineligible for collection alternatives because he failed to provide the requested forms and financial documentation and was not in filing compliance. See McClaine v. Commissioner, 138 T.C. 228, 243 (2012); Pough, 135 T.C. at 351. The Appeals officer met the requirements of section 6330(c) and respondent did not abuse his discretion. See I.R.C. § 6330(c)(2)(A); Nestor v. Commissioner, 118 T.C. 162, 166 (2002); Lunsford v. Commissioner, 117 T.C. 183, 187-88 (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 on August 24, 2023, 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 2018.