Opinion
18843-21L
10-14-2022
EDWARD SILVERMAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER & DECISION
L. Paige Marvel, Judge
This case arises under our jurisdiction pursuant to section 6330(d)(1) and is before the Court on respondent's motion for summary judgment, filed September 1, 2022. Petitioner, Edward Silverman (Mr. Silverman), filed a Response to Motion for Summary Judgment on September 22, 2022. Mr. Silverman resided in Florida when he petitioned this Court.
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. Some monetary amounts are rounded to the nearest dollar.
Mr. Silverman presently seeks review of a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code (Notice of Determination) issued by respondent on July 16, 2021, which sustained the levy action proposed in a notice of intent to levy. The notice of intent to levy relates to Mr. Silverman's liability for trust fund recovery penalties (TFRPs) assessed under section 6672. Mr. Silverman challenges his underlying liability for the TFRPs. Respondent contends that Mr. Silverman had a prior opportunity to dispute his underlying liability for the TFRPs, see § 6330(c)(2)(B), and therefore can no longer challenge his underlying liability for the TFRPs in a section 6330 hearing. For the reasons set forth below, we will grant respondent's motion.
Background
The following facts are drawn from the parties' pleadings and motion papers, including accompanying declarations and exhibits, and are not in dispute.
An Internal Revenue Service (IRS) revenue officer proposed assessing Mr. Silverman with TFRPs under section 6672 on a number of grounds. First, the revenue officer asserted that Mr. Silverman was a responsible officer of Premier Immediate Medical Care, LLC, who willfully failed to pay withheld trust fund taxes for the tax period ending September 30, 2016. The proposed TFRP related to this entity for this period was $17,746. Second, the revenue officer asserted that Mr. Silverman was the responsible officer of Premier Immediate Medical Care, LLC, who willfully failed to pay withheld trust fund taxes totaling $346,838 for the tax periods ending June 30, 2018, September 30, 2018, and December 31, 2018. The proposed TFRPs related to this entity for these periods totaled $346,838. Third, the revenue officer asserted that Mr. Silverman was the responsible officer for Urgent Care at Kennett Square, LLC, who willfully failed to pay withheld trust fund taxes totaling $186,853 for the periods ending September 30, 2018 and December 31, 2018. The proposed TFRPs for this entity for this period totaled $186,853. In sum, Mr. Silverman faced proposed TFRPs totaling $551,437.
Section 7501 generally deems persons who are required to collect or withhold taxes to hold such amounts in trust for the United States. Section 7501(a) provides that "[w]henever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose." Section 7501(b) provides, "For penalties applicable to violations of this section, see sections 6672 and 7202." Section 6672(a) provides, "Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 or part II of subchapter A of chapter 68 for any offense to which this section is applicable."
Before respondent assessed Mr. Silverman with TFRPs on account of the trust fund taxes that Mr. Silverman allegedly willfully failed to pay, respondent provided him with the opportunity to challenge respondent's assessment of the TFRPs by issuing him a Letter 1153. Mr. Silverman submitted an administrative appeal of the TFRPs in February 2020. After considering Mr. Silverman's appeal, and at the latest by January 14, 2021, Appeals Officer Joseph Taranto (AO Taranto) determined that Mr. Silverman was liable in full for each of the TFRPs that the revenue officer had proposed assessing. Between February 15, 2021, and February 22, 2021, respondent assessed Mr. Silverman with all of the proposed TFRPs, for a total of $551,437 in assessed TFRPs.
There are three "Schedule[s] of Adjustments" in the record, each of which contain AO Taranto's recommendation that Mr. Silverman be held liable for the three sets of TFRPs listed above (i.e., the set totaling $17,746, the set totaling $346,838, and the set totaling $186,853). In the bottom right-hand corner, two of the Schedules of Adjustments are dated December 15, 2020, and one is dated August 18, 2022. Because of this discrepancy, we do not find that the exact date on which AO Taranto completed or issued his Schedules of Adjustments is undisputed for purposes of resolving respondent's Motion for Summary Judgment. Nonetheless, the exact date on which AO Taranto completed or issued his Schedules of Adjustments is ultimately immaterial for purposes of resolving respondent's Motion for Summary Judgment. It is clear from the undisputed facts in the record that AO Taranto's denial of Mr. Silverman's appeal was completed at the latest by January 14, 2021, the date on which his decision that Mr. Silverman should be assessed the full amount of the proposed TFRPs was entered onto the IRS's internal "ICS History Transcript".
On March 23, 2021, respondent sent Mr. Silverman a Letter 1058, Final Notice-Notice of Intent to Levy and Notice of Your Rights to a Hearing, advising him that respondent intended to levy to collect the unpaid TFRPs and that petitioner could receive a hearing with the IRS Independent Office of Appeals (Appeals Office)by timely completing and returning a Form 12153, Request for a Collection Due Process or Equivalent Hearing. On April 6, 2021, Mr. Silverman, through his authorized representative, Matt Lorenz (Mr. Lorenz), timely submitted a Form 12153 requesting a hearing. Mr. Silverman indicated that he disagreed with the assessment of the underlying liabilities and also that he wanted an installment agreement as a collection alternative.
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).
Notice and demand for payment had also been properly sent, and there was a balance due when the Letter 1058 was sent. The Letter 1058 recited an amount owed of $545,142 through April 2, 2021, which varied slightly from the assessed TFRPs of $551,437 due to the application of other amounts (including credits and interest) to Mr. Silverman's account contemporaneously with the TFRPs being assessed between February 15, 2021, and February 22, 2021.
Section 6330(b)(1) generally provides a taxpayer with the right to a hearing before the Appeals Office before a levy can be made on the taxpayer's property if the taxpayer timely requests a hearing in writing and states the grounds for the requested hearing.
Mr. Silverman also stated in his Form 12153 that he had filed a petition in this Court to dispute his liability for the TFRPs. The Court's docket in this case indicates that Mr. Silverman actually filed a Petition in this case on August 16, 2021, after he submitted his Form 12153 on April 6, 2021. The Court's review of its records also does not disclose another case initiated by Mr. Silverman with respect to the Notice of Determination. However, this discrepancy, while unexplained, is ultimately immaterial to the Court's resolution of respondent's Motion for Summary Judgment.
On May 19, 2021, Settlement Officer Colleen Girard (SO Girard) sent Mr. Silverman a Letter 4837 via mail (and via mail and fax to Mr. Lorenz) informing him that his request for a hearing was received and scheduling a hearing for June 3, 2021. The Letter 4837 also requested that Mr. Silverman provide certain financial and other information for SO Girard to consider a collection alternative, such as an installment agreement. On June 3, 2021, SO Girard sent Mr. Lorenz a fax confirming that she had received a message from him seeking to reschedule the hearing and offering alternative dates and times. SO Girard also stated in the fax that she had not received any of the information requested in her May 19, 2021, letter that she needed to consider for a collection alternative. On June 8, 2021, SO Girard sent Mr. Lorenz another fax confirming that the hearing had been rescheduled to June 14, 2021, per Mr. Lorenz's request.
On June 14, 2021, the hearing that Mr. Silverman had requested was held. SO Girard and Mr. Lorenz participated. Neither Mr. Silverman nor Mr. Lorenz provided the documentation related to collection alternatives requested by SO Girard in her May 19, 2021, letter either before or during the hearing. Instead, Mr. Lorenz stated at the hearing that Mr. Silverman was challenging the underlying liability. SO Girard stated that Mr. Silverman was unable to challenge his underlying liability for the TFRPs because he had a prior opportunity to do so when he received Letter 1153 and submitted a timely appeal that was considered by the Appeals Office.
Mr. Silverman indicated on his Form 12153 that he was requesting an installment agreement as a collection alternative. The undisputed facts in the record show that, at the section 6330 hearing, Mr. Lorenz informed SO Girard that Mr. Silverman did not want a collection alternative. However, in his Response to Motion for Summary Judgment, Mr. Silverman flatly denies (without documentary or other support) that Mr. Lorenz conceded this issue. This factual dispute is ultimately immaterial for reasons explained below. See infra note 10.
On July 16, 2021, respondent issued the Notice of Determination to Mr. Silverman, which sustained the proposed levy action for Mr. Silverman's TFRP liabilities. On August 16, 2021, Mr. Silverman timely filed a Petition in this Court challenging the Notice of Determination. On September 1, 2022, respondent filed a Motion for Summary Judgment contending that Mr. Silverman had a prior opportunity to dispute his underlying liability for the TFRPs, see § 6330(c)(2)(B), and therefore can no longer challenge his underlying liability for the TFRPs.
On September 22, 2022, Mr. Silverman filed a Response to Motion for Summary Judgment accompanied by documents relating to the events surrounding respondent's issuance of four Letters 3640, which Mr. Silverman claims are payoff letters establishing that he does not have any underlying liability for the TFRPs. Mr. Silverman's Response to Motion for Summary Judgment was also accompanied by a letter showing that, as of June 27, 2022, the Appeals Office had received an offer in compromise that Mr. Silverman submitted for consideration. Mr. Silverman alleges that respondent has ignored his challenges to the underlying tax liabilities. Mr. Silverman also argues that there are disputed material facts that preclude the entry of summary judgment and that the Appeals Office abused its discretion in sustaining the proposed collection action. Alternatively, he argues that we should either remand this case to the Appeals Office since he has recently submitted an offer in compromise or dismiss this case without prejudice so that he may pursue relief in another forum.
While we do not make any findings of fact related to the Letters 3640 or the existence or amount of Mr. Silverman's underlying liability for the TFRPs because they are not relevant to our decision in this section 6330 proceeding, we briefly describe Mr. Silverman's argument concerning the Letters 3640 here. Mr. Silverman alleges that, in connection with a business transaction with a third party that "was contingent upon a full extinguishment of all federal employment tax liability", he requested that the IRS provide him with payoff letters representing the full amount of federal employment tax liabilities for the entities involved in the transaction. He further alleges that the IRS provided Letters 3640 providing the full payoff amounts, that the IRS later assessed additional employment tax liabilities, and that he and the third party detrimentally relied on those amounts. Mr. Lorenz's declaration in response to respondent's Motion for Summary Judgment further states that no closing agreement was ever executed with respondent to resolve the issue conclusively, see § 7121, because a delay in completing the transaction with the third party would have "aborted and destroyed" the transaction. While we do not make any determination regarding these claims because it is not necessary to our decision in this case, we note that a payoff letter, in the absence of a closing agreement, does not generally bind the IRS. See Dorl v. Commissioner, 507 F.2d 406 (2d Cir. 1974), aff'g T.C. Memo. 1973-145; Benson v. United States, 934 F.Supp. 365 (D. Colo. 1996). Mr. Silverman presented this argument to AO Taranto, but AO Taranto determined that it did not negate the existence of Mr. Silverman's liability for the TFRPs.
Discussion
Summary adjudication is designed to expedite litigation and avoid unnecessary and expensive trials. Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Under Rule 121(b), we may grant summary judgment "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits or declarations, if any, show that there is no genuine dispute as to any material fact and that a decision may be rendered as a matter of law." See Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). In resolving a motion for summary judgment, we view the facts and draw inferences therefrom in the light most favorable to the nonmoving party. Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). The nonmoving party, however, may not rest on mere allegations or denials but must set forth specific facts showing that there is a genuine dispute for trial. Rule 121(d); see Sundstrand Corp., 98 T.C. at 520.
The Court has jurisdiction to review the Appeals Office's determination concerning levy action when the taxpayer timely petitions for review. § 6330(d)(1). Where the validity of the taxpayer's underlying liability is properly at issue, we review the underlying liability de novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000). We review the Appeals Office's determinations respecting any nonliability issues for abuse of discretion. Goza v. Commissioner, 114 T.C. 176, 181-82 (2000). Because Mr. Silverman challenges his underlying tax liabilities for the TFRPs, we discuss whether that challenge is properly at issue before us.
A taxpayer may challenge the existence or amount of his underlying tax liability in a hearing conducted pursuant to section 6330, and in a proceeding before this Court, only if he "did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute" it. § 6330(c)(2)(B). This Court cannot review an underlying tax liability in a proceeding brought pursuant to section 6330 if the taxpayer was unable to challenge it in the section 6330 hearing at the administrative level due to section 6330(c)(2)(B). See Giamelli v. Commissioner, 129 T.C. 107, 114-15 (2007) ("[I]ssues under section 6330 must have been raised properly when the Appeals officer made her determination before we can review those issues in the context of an appeal of that determination. . . . We hold today that we do not have authority to consider section 6330(c)(2) issues that were not raised before the Appeals Office."); see also Mason v. Commissioner, 132 T.C. 301, 318 (2009).
TFRPs are "assessable penalties" and thus are not subject to deficiency procedures, so a taxpayer would not receive a statutory notice of deficiency in respect of them. See Chadwick v. Commissioner, 154 T.C. 84, 91 (2020); Lee v. Commissioner, 144 T.C. 40, 47 (2015). However, "[a]n opportunity to dispute the underlying liability includes a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability." Treas. Reg. § 301.6330-1(e)(3), Q&A-E2; see Lewis v. Commissioner, 128 T.C. 48, 53 (2007). "A taxpayer has the opportunity to dispute his liability for a TFRP by filing an appeal with the IRS when he receives a Letter 1153." Chadwick, 154 T.C. at 89; see also Chavis v. Commissioner, No. 11835-20L, 158 T.C., slip op. at 7 (June 15, 2022) (holding that taxpayer had a prior opportunity to dispute a tax liability for purposes of section 6330(c)(2)(B) where she received a Letter 1153 permitting her to appeal a proposed TFRP assessment, but she declined to do so); Morgan v. Commissioner, T.C. Memo. 2011-290, slip op. at 7-8 (holding that taxpayer had a prior opportunity to dispute a tax liability for purposes of section 6330(c)(2)(B) when he received a Letter 1153 permitting him to appeal a proposed TFRP assessment, and he did in fact contest it). Because it is undisputed that Mr. Silverman was permitted to (and did) contest his underlying liability for the proposed TFRPs pursuant to Letter 1153 before they were assessed, he was not entitled to challenge his underlying liability again in the section 6330 hearing before SO Girard, and he is not entitled to challenge his underlying liability before this Court.
Respondent argues that we can end our inquiry here without evaluating any nonliability issues for abuse of discretion because Mr. Silverman raised no issues in his Petition other than challenging the underlying liability. We agree, subject to our limited consideration (and rejection) below of the issues raised by Mr. Silverman in his Response to Motion for Summary Judgment. Under Rule 331(b)(4), "[a]ny issue not raised in the assignments of error [in a petition in a lien or levy action conducted pursuant to section 6320(c) or 6330(d)] shall be deemed to be conceded." See Goza, 114 T.C. at 183. Mr. Silverman has not alleged in his Petition that he "challenge[d] the appropriateness of the intended method of collection, offer[ed] an alternative means of collection, or raise[d] a spousal defense to collection as directed under section 6330(c)(2)(A)." Id. In addition, Mr. Silverman has made no challenge in his Petition to SO Girard's verification that the requirements of applicable law or administrative procedure have been met under section 6330(c)(1), nor to SO Girard's balancing of the need for the efficient collection of taxes with his legitimate concern that any collection action be no more intrusive than necessary under section 6330(c)(3)(C).
Mr. Silverman indicated on his Form 12153 that he was requesting an installment agreement as a collection alternative. See supra note 8 and accompanying text. However, the issue is deemed to be conceded because he did not raise it in his Petition. Rule 331(b)(4) (deeming issues not raised in the assignments of error in the petition in a lien or levy action to be conceded). Furthermore, we note that Mr. Lorenz did not provide the documentation related to collection alternatives requested by SO Girard in her May 19, 2021, letter. It is not an abuse of discretion to sustain a collection action if the taxpayer fails to submit requested information by a reasonable deadline set by the settlement officer. See Pough v. Commissioner, 135 T.C. 344, 351 (2010); see also Shanley v. Commissioner, T.C. Memo. 2009-17, slip op. at 11.
Mr. Silverman does raise two assignments of error in his Petition that do not clearly constitute a challenge on any of these grounds nor a challenge to the underlying tax liabilities. First, Mr. Silverman states that "Respondent erroneously determined that Petitioner had no further options to appeal, . . . [but] Petitioner intends to file for a refund petition and subsequently file in the appropriate District Court if such refund petition is denied or no response is received within six months." Second, Mr. Silverman states that "Respondent erroneously determined it could collect on an amount that is not final nor conclusively determined as Petitioner has not exhaust[ed] all options for appeal." These bare allegations in the Petition do not prevent us from granting summary judgment to respondent for a number of reasons. First, pursuant to Rule 121(d), when a motion for summary judgment is made, the nonmoving party "may not rest upon the mere allegations or denials of such party's pleading, but such party's response, by affidavits or declarations or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine dispute for trial." Mr. Silverman has not set forth, and the record does not disclose, any specific facts relating to these two assignments of error. In fact, it is not clear that he still advances these arguments in his Response to Motion for Summary Judgment. Second, even accepting the allegations in these two assignments of error as true, they do not create a genuine issue of material fact. Respondent determined, and we agree, that section 6330(c)(2)(B) prevents Mr. Silverman from challenging his underlying tax liabilities in a hearing pursuant to section 6330. Mr. Silverman's ability to dispute his underlying tax liability in another forum has no bearing on whether he is able to challenge his underlying tax liability in a hearing (or in a case in this Court) pursuant to section 6330. Unlike a provision allowing a taxpayer to pursue a challenge to an underlying tax liability, e.g., § 7422, section 6330 generally serves purposes related to the fairness of a proposed collection action and therefore only allows for reconsideration of the underlying tax liability that the IRS proposes to collect under limited circumstances. See Goza, 114 T.C. at 180-81 ("[S]ection 6330(c) provides for an Appeals Office . . . hearing to address collection issues such as spousal defenses, the appropriateness of the Commissioner's intended collection action, and possible alternative means of collection. Section 6330(c)(2)(B) provides that the existence and amount of the underlying tax liability can only be contested at an Appeals Office . . . hearing if the taxpayer did not receive a notice of deficiency for the taxes in question or did not otherwise have an earlier opportunity to dispute such tax liability."). We further note that Mr. Silverman could not challenge the Notice of Determination pursuant to section 6330 in United States District Court or in any other venue (even absent the res judicata effect of this decision). Under § 6330(d)(1), this Court is the only forum that has jurisdiction to hear such a challenge. Finally, it is wrong as a matter of law to state that respondent cannot collect on liabilities for TFRPs pending the outcome of proceedings on a refund claim in United States District Court or in the Court of Federal Claims. See, e.g., Wood v. United States, 14 A.F.T.R.2d (RIA) 5385 (N.D. Ind. 1964) (holding that the IRS may collect on liabilities for TFRPs while a refund suit is pending). However, we note that Mr. Silverman may have the ability to contest his liabilities for TFRPs in a refund suit without first paying the full amount of liabilities for TFRPs owed. While the general rule under Flora v. United States, 357 U.S. 63 (1958), aff'd on reh'g, 362 U.S. 145 (1960), is that a taxpayer must pay the full amount of an income deficiency before filing suit for a refund, there is an exception for "divisible taxes," including TFRPs, that permits a taxpayer to pay only "the divisible amount of the penalty assessment attributable to a single individual's withholding before instituting a refund action." Boynton v. United States, 566 F.2d 50, 52 (9th Cir. 1977); cf. § 6672(c) (providing a mechanism, if certain requirements are met, for a taxpayer to achieve a stay on collection of TFRP liabilities pending the outcome of a refund suit).
Instead, in his Response to Motion for Summary Judgment, Mr. Silverman appears to contend that because the IRS allegedly erred in asserting, and AO Taranto allegedly erred in sustaining, the TFRPs on the merits in the first place, SO Girard abused her discretion for purposes of section 6330 in sustaining the proposed collection action in the Notice of Determination. Indeed, this is the primary argument that Mr. Silverman makes in his Response to Motion for Summary Judgment, and most of the exhibits accompanying that response provide background on the events surrounding the IRS's decision to assess the TFRPs. That argument represents a fundamental misunderstanding of the scope of section 6330 hearings generally and of the Court's role in reviewing the determinations issued by the Appeals Office through them, both of which generally focus on issues specific to the collection of tax except under limited circumstances. See Goza, 114 T.C. at 182 ("Section 6330(c)(2)(A) prescribes the issues that may be raised by a taxpayer in an Appeals Office . . . hearing, including spousal defenses to collection, challenges to the appropriateness of the Commissioner's intended collection action, and offers of alternative means of collection. Section 6330(c)(2)(B) provides that the Appeals Office . . . hearing is not a forum for the taxpayer to contest the existence or amount of the underlying taxes unless the taxpayer did not receive a notice of deficiency for the taxes in question or did not otherwise have an earlier opportunity to dispute such tax liability."). As discussed previously, Mr. Silverman is not able to take advantage of the limited avenue in section 6330(c)(2)(B) for taxpayers to challenge underlying tax liabilities in section 6330 hearings when they have had no previous opportunity to contest those liabilities and did not receive a notice of deficiency. Nothing in Mr. Silverman's Response to Motion for Summary Judgment or the exhibits accompanying it addresses any issues specific to the collection action sustained in the Notice of Determination independent of Mr. Silverman's underlying liability for the TFRPs.
In addition, Mr. Silverman cannot present a challenge to his underlying liability for the TFRPs that is precluded by section 6330(c)(2)(B) by arguing that it is a challenge to SO Girard's verification under section 6330(c)(1) that applicable law and administrative procedure were followed. While that verification must encompass "the Service's proper assessment of the trust fund recovery penalties," Lee, 144 T.C. at 48, a review of whether an assessment is proper is very distinct from a review of the merits of the IRS's assertion of the underlying tax liability. A taxpayer's liability and its collectibility exist independently of assessment. See Goldston v. United States (In re Goldston), 104 F.3d 1198, 1200-01 (10th Cir. 1997) (holding that trust fund recovery penalties under section 6672 could be collected by the IRS in a taxpayer's subsequent bankruptcy case after an assessment was held to be void and stating that "[a]bundant precedent exists for the proposition in a variety of tax contexts that liability for federal taxes does not hinge on whether the IRS has made a valid assessment. . . . While the absence of an assessment prevents the IRS from administratively collecting the tax, it may still file a civil action[.]"). Accordingly, the review conducted under section 6330(c)(1) of whether TFRPs have been properly assessed generally focuses on whether the procedural or other requirements for their assessment (and, therefore, their ability to be administratively collected) have been met, not on providing a taxpayer who cannot meet the requirements of section 6330(c)(2)(B) with a way to obtain a rehearing on underlying tax liabilities on which the taxpayer has already been heard. See Lee, 144 T.C. at 48 (identifying section 6672(b), which contains provisions providing for notice and an opportunity to file a protest before the assessment of trust fund recovery penalties is permitted, as a proper subject of the verification required under section 6330(c)(1)).
While Mr. Silverman makes this argument in his Response for Motion to Summary Judgment, it was not raised in the assignments of error in the Petition. Cf. Rule 331(b)(4) (deeming issues not raised in the assignments of error in the petition in a lien or levy action to be conceded).
Here, Mr. Silverman received a Letter 1153 pursuant to section 6672(b), and he submitted a protest to AO Taranto challenging the underlying tax liabilities, which AO Taranto considered. In addition, SO Girard properly verified that all of the applicable requirements for assessment of the TFRPs were met. Although Mr. Silverman may be able to continue to dispute his underlying tax liabilities through a refund claim in United States District Court or the Court of Federal Claims, see § 7422, he may not attempt to do so in this Court by claiming that section 6330 required SO Girard to conduct a rehearing of the challenge to the assertion of the TFRPs that AO Taranto had already heard.
Finally, in the alternative, Mr. Silverman asks us either to (1) remand this case to the Appeals Office due to his submission of an offer in compromise as of June 27, 2022, or (2) dismiss this case without prejudice in order for Mr. Silverman to pursue a challenge to the underlying tax liabilities in another venue. Both requests are unavailing. Rule 50(a) requires that "[a]n application to the Court for an order . . . be by motion in writing" and that other requirements be met. Either a remand or a dismissal would require us to file an order mandating that relief, but neither request has been presented by motion. We also decline to deem the requests presented in the Response to Motion for Summary Judgment as motions where no showing has been made that the other requirements of Rule 50(a), such as "prior notice" to respondent, have been met nor have the grounds for such relief been stated with "particularity" in the Response to Motion for Summary Judgment. Accordingly, neither Mr. Silverman's request for a remand to the Appeals Office nor his request for a dismissal without prejudice are warranted.
For the reasons stated herein, it is
ORDERED that respondent's Motion for Summary Judgment is granted. It is further
ORDERED AND DECIDED that respondent's determination as set forth in the Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code issued July 16, 2021, is sustained in full.