Opinion
5597-20L
03-10-2022
Justine Gabbert, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
Diana L. Leyden Special Trial Judge
On July 10, 2020, petitioner filed a petition to review the Internal Revenue Service's (IRS) Notice of Determination Concerning Collection Action(s) under IRC Sections 6320 and/or 6330 of the Internal Revenue Code (notice of determination), which sustained the filing of a Notice of Federal Tax Lien.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On November 16, 2020, respondent filed a Motion for Summary Judgment (motion) pursuant to Rule 121 supported by two declarations that contained attached exhibits. The first declaration was submitted by Jasmine Jacobs, a settlement officer (SO) with the IRS Office of Appeals (Appeals) and contained Exhibits 1 through 11. SO Jacobs had conducted petitioner's collection due process (CDP) hearing.
On July 1, 2019, the IRS Office of Appeals was renamed the IRS Independent Office of Appeals. See Taxpayer First Act, Pub. L. No. 116-25, § 1001, 133 Stat. 981, 983 (2019). We will use the name in effect at the times relevant to this case, i.e., the Office of Appeals or Appeals.
The second declaration was submitted by Jason Krejci, an SO with Appeals, and contained Exhibits 1 through 4. SO Krejci declared that prior to becoming a settlement officer he had been a revenue officer and had been assigned to collect unpaid employment taxes of Halstontine Corporation. SO Krejci stated that he had determined that petitioner was liable for trust fund penalties with respect to Halstontine Corporation's unpaid employment taxes for tax periods 9/30/2012, 3/31/2013, 6/30/2013, 9/30/2013, 12/31/2013, 3/31/2014, 6/30/2014, 9/30/2014, 12/31/2014, 3/31/2015, 6/30/2015 and 9/30/2015.
By order dated November 19, 2020, the Court directed petitioner to file a response to respondent's motion. On January 14, 2021, petitioner filed a response opposing the motion (response). Petitioner disputed that the IRS mailed or delivered the Letter 1153 to petitioner.
The Court may grant summary judgment only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Rule121(b); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The Court agrees with petitioner that there is a genuine dispute as to whether trust fund penalties for the tax periods at issue were properly assessed against petitioner. I.R.C. § 6672(b); see Mason v. Commissioner, 132 T.C. 301, 322 (2009) (noting that generally before a trust fund penalty may be assessed, a Letter 1153 must (1) either be personally served on the responsible person, or (2) sent by certified mail to that responsible person's last known address); Hickey v. Commissioner, T.C. Memo. 2009-2, at *5; see also Lee v. Commissioner, 144 T.C. 40, 49-50 (2015) (denying the Commissioner's motion for summary judgment because of a factual issue related to receipt by the taxpayer of Letter 1153 regarding notification of trust fund recovery penalties); Hoyle v. Commissioner, 131 T.C. 197, 200-203 (2008).
Section 6330(c)(1) requires the settlement officer conducting the CDP hearing to "obtain verification *** that the requirements of any applicable law or administrative procedure have been met." See also I.R.C. § 6320(c). The record on respondent's motion contains an undated copy of the Letter 1153 attached to Jason Krejci's declaration and does not contain proof that it was either personally served on the petitioner or sent by certified mail to his last known address. The undated copy of Letter 1153 does not contain any evidence of certified mailing. Therefore, on the record on the motion respondent has not proven that SO Jacobs verified that all applicable laws or administrative procedures were met concerning the assessment of the section 6672 penalties for the tax periods at issue. Drawing all factual inferences against respondent as the moving party, the Court concludes that respondent has not established (1) that there is no genuine dispute as to any material fact, and (2) that a decision may be entered in his favor as a matter of law. See I.R.C. § 6672(b); Rule 121(b). Premises considered, it is hereby
ORDERED that respondent's Motion for Summary Judgment, filed November 16, 2020, is denied without prejudice.