Opinion
12109-23L
06-03-2024
GREGORY A. PASSMORE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Cary Douglas Pugh Judge
Petitioner seeks 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 years 2015 and 2016. The notice of determination sustained the levy notice because petitioner did not provide financial information as requested (it did note that the liability for tax year 2015 had been paid). On February 20, 2024, respondent filed the administrative record, an accompanying certificate as to its genuineness, and a notice of its filing, as required by Rule 93(a).
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.
On February 22, 2024, respondent filed a Motion for Summary Judgment, along with a supporting Declaration asking that we sustain Appeals' determination. We ordered petitioner to file a response by March 25, 2024, and set respondent's Motion for hearing at the Court's April 22, 2024, San Francisco, California, trial session. Petitioner did not file a response but appeared at the hearing and made an Oral Motion for Continuance to allow him time to find counsel and to file a response. Counsel for respondent did not object and we granted petitioner's Motion allowing him an extension of time to May 22, 2024. Petitioner timely filed a document entitled "Unsworn Declaration Under Penalty of Perjury" which we will restyle as his Opposition to Motion for Summary Judgment.
Respondent seeks summary adjudication, arguing that Appeals did not abuse its discretion sustaining the levy notice because petitioner did not provide Appeals the information it requested to support his requested collection alternative. (Petitioner stated that he could not pay the balance owed.)
Summary judgment is intended to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). The Court may "grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 121(a)(2). In deciding whether to grant summary judgment, we consider factual materials and inferences drawn from them in the light most favorable to the nonmoving party. Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994).
In a collection case our standard of review depends on whether the underlying tax liability is at issue. Section 6330(c)(2)(B) permits taxpayers to challenge the existence or amount of their underlying tax liability only if they did not receive a notice of deficiency or otherwise have a prior opportunity to contest that liability. Petitioner does not dispute that he received the notice of deficiency or otherwise argue that he lacked a prior opportunity to contest his underlying tax liability. By statute, therefore, he cannot challenge his underlying tax liability again in the administrative hearing or before us. See § 6330(c)(2)(B). Consequently, any disagreement between the parties as to petitioner's underlying tax liability cannot be a dispute of material fact.
The underlying liability does not appear to be in issue, so we 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). We therefore consider whether Appeals abused its discretion in sustaining the levy notice given petitioner's failure to provide requested information. 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 requested financial information. See Bailey v. Commissioner, T.C. Memo. 2016-94, at *10 (collecting cases).
In deciding whether a settlement officer abused her discretion in sustaining a collection action we also consider whether she (1) properly verified that the requirements of any applicable law or administrative procedure have been met, (2) considered any relevant issues the taxpayer raised, and (3) considered "whether any proposed collection action balances the need for the efficient collection of taxes with the legitimate concern of the [taxpayer] that any collection action be no more intrusive than necessary." § 6330(c)(3). Petitioner has not identified, nor have we found in the record, any abuse of discretion by Appeals in sustaining the levy notice.
In his Opposition to Motion for Summary Judgment petitioner offers no legal authority, and adds no new facts or issues that warrant denying respondent's Motion. Rather, he largely recites previously made arguments and seeks "time to collect more facts [and] a resonable [sic] offer agreeable to both parties to settle this matter." In short, he provides no basis for concluding that Appeals' determination, made without the requested financial information, was unreasonable. And this is the question we are to decide.
One of petitioner's primary arguments is that his tax liability for 2015 and 2016 should have been satisfied by his bankruptcy case. Respondent agrees that the 2015 tax liability was paid. But respondent contends that the bankruptcy payment did not apply for tax year 2016 in full because petitioner filed his 2016 tax return after filing for bankruptcy. The administrative record shows that the settlement officer considered this issue as well.
Petitioner also argues that there was a "Declaration Disaster code" on his account for tax year 2016 (and tax years not before the Court, including 2017-20) and as a result he "had until Oct 2023 to pay." As best we can discern, petitioner is referring to the relief many Californians received of certain extended deadlines in 2023 (e.g., the due date for 2022 individual income tax returns and payments was extended to November 16) due to disaster relief provided by the Internal Revenue Service. See IR-2023-189 (Oct. 16, 2023). But he has not explained how this relates to the collection action for tax year 2016, or his failure to provide requested financial information.
Upon review of the parties' filings to date, and viewing the facts and inferences drawn from them in the light most favorable to petitioner as the nonmoving party, we conclude that there is no genuine dispute of material fact. We will grant respondent's Motion for the reasons stated in the Motion. We note that our sustaining respondent's determination does not preclude petitioner from seeking a collection alternative; our granting respondent's Motion means that we will not have any further role to play. For the foregoing reasons and for cause more fully appearing in the record, it is therefore
ORDERED that petitioner's Unsworn Declaration Under Penalty of Perjury filed on March 24, 2024, is recharacterized as petitioner's Opposition to Motion for Summary Judgment. It is further
ORDERED that respondent's Motion for Summary Judgment, filed February 22, 2024, is granted. It is further
ORDERED AND DECIDED that respondent may proceed with the collection action as determined in the notice of determination dated June 9, 2023, upon which this case is based.