Opinion
10634-23L
03-20-2024
MICHAEL L. FANELLI & YASNA FANELLI, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Cary Douglas Pugh Judge.
This case is currently set for trial at the Court's April 22, 2024, San Francisco, California, trial session. On February 22, 2024, respondent filed a Motion for Summary Judgment, along with a supporting Declaration. Petitioners filed a Response to Motion for Summary Judgment on March 18, 2024.
Petitioners seek review pursuant to section 6330(d)(1) of a determination by the Internal Revenue Service Independent Office of Appeals (Appeals) to uphold a notice of intent to levy (levy notice) for tax year 2019. Respondent argues that Appeals did not abuse its discretion in sustaining the levy notice because petitioners did not provide Appeals with the documents it requested. Specifically, petitioners did not file their 2021 income tax return and did not provide all supporting documentation to substantiate their Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals. Petitioners claim that their 2021 income tax return, which was submitted after the Petition was filed, now is available and they are ready to provide any supporting documents Appeals may need to consider a collection alternative. They urge the Court to deny the Motion to allow the parties until trial to negotiate an installment agreement.
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.
It appears that the underlying liability is not in issue, so we will review Appeals' determination for abuse of discretion. Goza v. Commissioner, 114 T.C. 176, 182 (2000); Sego v. Commissioner, 114 T.C. 604, 610 (2000). That means we must consider whether Appeals abused its discretion in sustaining the levy notice given petitioners' noncompliance with its document requests. We consistently have held that it is not an abuse of discretion for Appeals to sustain a collection action where the taxpayer has failed, after being given sufficient opportunities, to supply Appeals with the required financial information and to come into compliance with their tax return filing obligations. See Bailey v. Commissioner, T.C. Memo. 2016-94, at *10-11 (collecting cases).
Given these principles, we are hard pressed to see how the information that petitioners are now making available makes Appeals' determination--made when that information was not available--unreasonable. We also note that petitioners did not attach to the Response, or otherwise file, evidence to support their claims, nor did they explain why additional time to negotiate an installment agreement is a proper basis for denying a motion for summary judgment. See Rule 121(d) ("The nonmovant must respond, setting forth specific facts and supporting those facts as required by Rule 121(c), to show that there is a genuine dispute of fact for trial.").
We nonetheless will set respondent's Motion for Summary Judgment for hearing to afford petitioners an opportunity to explain why respondent's Motion should be denied. Upon due consideration, and for cause, it is
ORDERED that respondent's Motion for Summary Judgment, filed February 22, 2024, is set for hearing at the Court's San Francisco, California, trial session, scheduled to commence on April 22, 2024, at 10:00 A.M., in Room 2-1408, 2nd Floor, Burton Federal Building & U.S. Courthouse, 450 Golden Gate Avenue, San Francisco, California 94102.