Opinion
21211-22L
02-22-2023
DAVID M. PON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Mark V. Holmes Judge
This case is on the Court's May 1, 2023 San Francisco, California trial calendar. It's based on a notice of from the IRS that it intends to collect unpaid tax through a lien on petitioner's assets.
Mr. Pon is a resident of California, which means that Tax Court's review of the IRS's decision is subject to Keller v. Commissioner, 568 F.3d 710, 718 (9th Cir. 2009). This case requires the Tax Court to follow what lawyers call the "record rule." What this means is that the Court has to look at the same things that the IRS looked at during the collection due process hearing (the so-called "administrative record") to decide whether the IRS officer abused her discretion in upholding the lien.
It's best if the parties can agree on what the administrative record is. It is therefore
ORDERED that on or before April 3, 2023, counsel for the IRS and Mr. Pon stipulate (i.e., agree) to what the administrative record in this case is. If they are unable to do so, counsel for the IRS shall serve Mr. Pon with an index listing the documents that the IRS thinks should be in the administrative record. The Court urges the IRS to make this index comprehensible to a nonlawyer. If the parties have not agreed on what the administrative record is, it is also
ORDERED that on or before April 17, 2023 Mr. Pon: (1) provide the IRS with any evidence that he thinks should be added to the administrative record but is not in the IRS index and (2) list any documents in the IRS index that he thinks should not be in the administrative record.
If the parties do not settle the case by May 1, 2023, the Court intends to limit any trial to the proper contents of the administrative record, unless some exception to the general rule applies. It will also hear at that time any arguments from both parties about whether or not the IRS did abuse its discretion in upholding the determination that a levy is appropriate, and about whether there is any reason to send the case back to the IRS for reconsideration because of new evidence or a change in circumstance since the collection due process hearing was held.