Opinion
8633-20SL
12-08-2021
Babajide Muhammed Ola-Buraimo Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Daniel A. Guy, Jr. Special Trial Judge
Petitioner brought this collection review case pursuant to section 6330(d) and seeks review of a notice of determination issued by the IRS Independent Office of Appeals (Appeals Office) sustaining a proposed levy action to collect Federal income tax for the taxable years 2013, 2014, and 2016. Unless otherwise indicated, section references are to the Internal Revenue Code of 1986, as amended and in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
The case was called for trial on December 1, 2021, and both parties appeared and were heard. Before trial, on November 29 and 30, 2021, respondent filed a motion to dismiss on grounds of mootness as to the taxable year 2013, and a supplement to that motion, respectively. As explained in detail below, we will grant respondent's motion.
In addition, on November 30, 2021, petitioner filed (1) a motion to enforce subpoena (which amounted to petitioner's argument that the IRS should investigate his former spouse), and (2) a document titled "Second Stipulation of Facts" which was not a stipulation of facts at all. Under the circumstances, and for the reasons set forth more fully in the transcript of the proceedings, we will deny petitioner's motion to enforce subpoena and we will direct the Clerk of the Court to recharacterize petitioner's second stipulation of facts as petitioner's pretrial memorandum.
Background
Respondent examined petitioner's Federal income tax return for 2013 and issued a notice of deficiency to him determining a deficiency, an addition to tax for late filing under section 6651(a)(1), and an accuracy-related penalty under section 6662(a). The deficiency was attributable to respondent's determination that petitioner was not entitled to a claimed dependent exemption, which led respondent to change petitioner's filing status from head of household to single and to deny petitioner's claimed earned income tax credit. Although respondent properly mailed the notice of deficiency to petitioner at his last known address, it appears that petitioner did not actually receive the notice of deficiency. When no petition for redetermination was filed with the Court within the period prescribed in section 6213(a), respondent duly assessed the tax, addition to tax, and accuracy-related penalty determined in the notice of deficiency, along with interest.
The IRS subsequently notified petitioner of the amount that he owed for 2013, but he failed to remit payment, leading the IRS to issue a notice of intent to levy. Petitioner responded to the levy notice by timely requesting an administrative hearing with the Appeals Office in accordance with the provisions of section 6330. On March 6, 2020, following an administrative hearing, the Appeals Office issued the notice of determination upon which this action is based. In the meantime, respondent offset petitioner's overpayments for the taxable years 2017, 2018, and 2019 against his unpaid tax liability for the taxable year 2013. See sec. 6402(a). As of August 24, 2020, there was no balance due on petitioner's account for the taxable year 2013.
Discussion
As previously mentioned, respondent moves to dismiss as to the taxable year 2013 on the ground of mootness. In particular, inasmuch as there is no longer a balance due on petitioner's tax account for 2013, respondent reports that he has no intention of proceeding with the proposed levy action for that year. Petitioner 1 objects to respondent's motion to dismiss and maintains that the Court should consider his claim that respondent erred in determining an income tax deficiency for 2013 in the first instance.
Section 6330(d)(1) vests this Court with jurisdiction to review an Appeals Office determination sustaining a proposed collection action. In general, our jurisdiction is limited to reviewing whether the Commissioner's proposed collection activity is appropriate. See Greene-Thapedi v. Commissioner, 126 T.C. 1, 7 (2006). Ordinarily, once the Commissioner concedes that there is no unpaid liability for a disputed year upon which a collection action could be based, a proceeding filed in this Court pursuant to section 6330 is moot. Id.; Gerakios v. Commissioner, T.C. Memo. 2004-203; Chocallo v. Commissioner, T.C. Memo. 2004-152.
Much like the instant case, in Greene-Thapedi v. Commissioner, supra, the Commissioner offset the taxpayer's 1999 overpayment against the taxpayer's outstanding 1992 liability, resulting in full payment of the 1992 liability. Id. at 4. We noted in that case that an offset under section 6402(a) is not a levy action that is subject to review under section 6330. Id. at 7-8. The taxpayer, who sought to challenge her 1992 liability, also moved to amend her petition to include a claim that the Commissioner incorrectly offset the 1999 overpayment against the 1992 liability and that the Commissioner should refund the 1999 overpayment. We denied the taxpayer's motion on the ground that we did not have jurisdiction to review her refund claim. Id. at 9-13.
Consistent with the foregoing, it is clear that so much of this case as concerns the taxable year 2013 must be dismissed as moot. In short, petitioner's underlying liability for tax year 2013 has been satisfied in full by way of offsets of petitioner's 2017, 2018, and 2019 overpayments. Because there is no longer a balance due on petitioner's account for the taxable year 2013, respondent has abandoned the proposed levy action for that taxable year.
Upon due consideration, it is
ORDERED that petitioner's motion to enforce subpoena, filed November 30, 2021, is denied. It is further
ORDERED that the Clerk of the Court is directed to recharacterize petitioner's second stipulation of facts, filed November 30, 2021, as petitioner's pretrial memorandum. It is further
ORDERED that respondent's Motion to Dismiss on Ground of Mootness, filed November 29, 2021, as supplemented, is granted, and this case is dismissed as moot as to the taxable year 2013. 2