Opinion
311-21L
10-29-2021
William G. Pederson & Jamie K. Pederson, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
JUAN F. VASQUEZ JUDGE
This collection due process (CDP) case is calendared for remote trial at the session of the Court scheduled to commence on November 15, 2021, for cases in which Los Angeles, California, is the place of trial. Petitioners seek review of notices of determination sustaining a proposed levy for their 2003 Federal income tax liability.
On September 16, 2021, respondent filed a motion for summary judgment. In support thereof, respondent filed the declaration of Settlement Officer (SO) Frank Siino. In his motion respondent states that SO Siino's declaration "sets out the relevant documents contained in the administrative file from the CDP hearing." On October 21, 2021, petitioners filed an objection and declaration in support thereof. Petitioners contend, among other things, that SO Siino's declaration does not set forth the complete administrative record.
We presume that petitioners resided at their South Dakota mailing address when the petition in this case was filed. Absent a contrary stipulation, our decision in this case would be appealable to the U.S. Court of Appeals for the Eighth Circuit, see sec. 7482(b)(1), which has held that the scope of review in the CDP context is confined to the administrative record, see Robinette v. Commissioner, 439 F.3d 455, 459-462 (8th Cir. 2006), rev'g 123 T.C. 85 (2004). For CDP cases appealable to record rule jurisdictions such as the Eighth Circuit, "summary judgment serves as a mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Belair v. Commissioner, 157 T.C., (slip op. at 11) (Aug. 2, 2021) (quoting Van Bemmelen v. Commissioner, 155 T.C. 64, 79 (2020)).
The parties have not agreed or stipulated to the contents of the administrative record. Petitioners' objection raises genuine questions as to whether SO Siino's declaration includes the complete administrative record, and respondent acknowledges that the declaration only references "the relevant documents contained in the administrative file from the CDP hearing." Because we doubt that the complete administrative record is before us, we cannot ascertain whether that record supports respondent's determination to sustain the proposed levy. Accordingly, we will deny respondent's motion without prejudice and with leave to refile.
The foregoing considered, it is
ORDERED that respondent's motion for summary judgment, filed on September 16, 2021, is denied without prejudice and with leave to refile. It is further
ORDERED that this case is continued generally, sua sponte, and stricken from the calendar of the remote Los Angeles, California, trial session commencing November 15, 2021.