Opinion
13025-19L
09-20-2024
DAVID J. TARANTINO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Joseph H. Gale Judge.
The Amended Petition in this case seeks review of a Notice of Determination Concerning Collection Actions Under Sections 6320 or 6330 issued by the Internal Revenue Service (IRS) Office of Appeals (Appeals), which sustained a proposed levy to collect unpaid federal income tax liabilities for petitioner's 2000, 2001, 2004 through 2011, and 2013 taxable years (collectively, the years at issue).
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
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).
As discussed infra Part II.B, petitioner also sought a determination concerning his 2003 taxable year, but that year is not at issue in this case.
Pending before the Court is respondent's Motion for Partial Summary Judgment, which is supported by a Declaration of Daniel J. Kleid, copies of documents from respondent's administrative file, and copies of Forms 4340, Certificate of Assessments, Payments, and Other Specified Matters, for the years at issue (collectively, the Motion). Petitioner timely filed a Response to the Motion, which is supported by a Declaration of David J. Tarantino and copies of reports summarizing psychological and psychiatric evaluations of petitioner (collectively, the Response). For the reasons that follow, we will deny respondent's Motion and remand this case for a supplemental hearing.
I. Background
The factual matters set forth herein have been drawn from the pleadings and the parties' motion papers. See Rule 121(c). Petitioner resided in California when he timely filed his Petition.
In June 2018 respondent issued to petitioner a Notice of Intent to Levy and Notice of Your Right to a Hearing (levy notice) to inform him that respondent intended to collect by levy his unpaid federal income tax liabilities for 2000, 2001, 2003 through 2011, and 2013.
In response to the levy notice, petitioner's authorized representatives submitted to respondent a letter requesting a collection due process (CDP) hearing under section 6330. The letter, which purported to request a CDP hearing for all of petitioner's taxable years 2000 through 2013, raised two issues. First, the letter explained that petitioner's unpaid liabilities would have been reduced if petitioner had received refunds that were otherwise barred by the expiration of the applicable section 6511 limitations periods. The letter contended, however, that the otherwise applicable refund limitations periods were suspended because petitioner was financially disabled within the meaning of section 6511(h), and that he should accordingly receive credits for the amounts of any otherwise time-barred refunds. Second, the letter took the position that petitioner's financial disability also established reasonable cause for relief from certain "penalties"-i.e., additions to tax-that had been assessed against him. The letter therefore requested abatement of the additions to tax.
The letter does not specifically identify the "penalties" to which it refers. In the context of the entire record before the Court, that term appears to refer only to additions to tax under sections 6651(a)(1) and (2) and 6654. We will therefore use the term "additions to tax" rather than "penalties."
The Appeals Settlement Officer (SO) assigned to conduct the CDP hearing thereafter held two telephone conferences with petitioner's representatives to discuss the issues raised in the letter. The SO was not persuaded that petitioner was entitled to relief under section 6511(h) or to penalty abatement. Appeals thereafter proceeded to issue its notice of determination sustaining the proposed levy for 2000, 2001, 2004 through 2011, and 2013. The notice of determination did not address 2003.
The notice of determination explained, among other things, that the SO had treated petitioner's section 6511(h) claims and his claims for penalty abatement as challenges to the underlying liabilities. The SO determined that those challenges should be rejected for two reasons. First, the SO concluded that petitioner was precluded from challenging the underlying liabilities for 2000 and 2001 because he had a prior opportunity to do so when respondent notified him of the filing of a Notice of Federal Tax Lien (NFTL) relating to those liabilities. Second, the SO concluded that petitioner had otherwise failed to establish that he was financially disabled for purposes of section 6511(h), because a medical opinion letter submitted in support of his claim did not "conclusively provide a medical diagnosis for [the] years involved" and petitioner was able to work and trade stocks during the relevant periods.
The notice of determination states that an unspecified "lien filing" provided petitioner a prior opportunity to dispute the underlying liabilities for 2000 and 2001. The Forms 4340 for 2000 and 2001 that respondent submitted in support of his Motion indicate that respondent filed NFTLs for those years in December 2005.
In response to the notice of determination, petitioner (at that point proceeding pro se) timely filed a Petition with this Court alleging that Appeals erred by (1) concluding that the medical opinion supporting his financial disability claim was not conclusive, (2) concluding, without evidence, that he was able to work and trade stocks during the relevant periods, and (3) declining to find, on the facts presented, that section 6511(h) suspended the running of the limitations periods applicable to any refund claims for the years at issue. The Petition further alleged that the notice of determination addressed all of the taxable years 2000 through 2013.
In his Answer, respondent denied that the notice of determination addressed the taxable years 2002, 2003, and 2012.
Respondent subsequently filed his Motion. Therein, he seeks summary adjudication in his favor on all issues presented in this case with respect to petitioner's 2004, 2006, and 2007 taxable years. For the other years that he concedes are at issue, respondent asks us to decide all issues in his favor except to the extent he concedes that petitioner may challenge portions of his underlying liabilities.
Petitioner, through counsel, timely filed his Response opposing the Motion. He concurrently filed a Motion for Leave to File Amended Petition (Motion for Leave) and lodged therewith a proposed Amended Petition. Finding that the proposed Amended Petition merely elaborated and clarified the claims set forth in the original Petition, we granted petitioner's Motion for Leave and directed the Clerk to file it. The Amended Petition alleges, inter alia, that Appeals made erroneous determinations relating to all of the taxable years 2000 through 2013.
In his Answer to the Amended Petition, respondent affirmatively alleges that the taxable year 2003 is not at issue in this case and denies the other allegations in the Amended Petition encompassing the taxable years 2002, 2003, and 2012.
II. Discussion
A. Administrative Hearing and Judicial Review
Section 6331(a) authorizes the Secretary to levy upon property and property rights of a taxpayer who fails to pay the tax due within 10 days after notice and demand for payment is made. Before doing so, however, the Secretary generally must give the taxpayer written notice of his or her right to a prelevy hearing before Appeals. § 6330(a)(1), (b)(1).
At the hearing the taxpayer may raise any relevant issue relating to the unpaid tax or the proposed levy, including appropriate spousal defenses, challenges to the appropriateness of collection actions, and offers of collection alternatives. § 6330(c)(2)(A); Sego v. Commissioner, 114 T.C. 604, 608-09 (2000); Goza v. Commissioner, 114 T.C. 176, 180 (2000). A taxpayer may challenge the underlying tax liability if the taxpayer did not receive a statutory notice of deficiency for the liability or did not otherwise have an earlier opportunity to dispute it. § 6330(c)(2)(B); see also Sego, 114 T.C. at 609. A taxpayer is generally treated as not having had an opportunity to dispute a liability that is reported as due on a return. Montgomery v. Commissioner, 122 T.C. 1, 9 (2004). Following the hearing Appeals must determine whether the Commissioner may proceed with the proposed collection action, taking into consideration (1) whether the requirements of applicable law and administrative procedure have been met, (2) any relevant issues raised by the taxpayer, and (3) whether the proposed collection action appropriately balances the need for efficient collection of taxes with the taxpayer's legitimate concern that the collection action be no more intrusive than necessary. § 6330(c)(3).
We have jurisdiction to review Appeals' determination. § 6330(d)(1). Where the underlying liability is properly at issue, we review the determination de novo. Goza, 114 T.C. at 181-82. Otherwise, we review the Commissioner's administrative determination for abuse of discretion. Sego, 114 T.C. at 610; Goza, 114 T.C. at 182. An abuse of discretion occurs if the determination by Appeals is arbitrary, capricious, or without sound basis in fact or law. See Murphy v. Commissioner, 125 T.C. 301, 320 (2005), aff'd, 469 F.3d 27 (1st Cir. 2006); Freije v. Commissioner (Freije I), 125 T.C. 14, 23 (2005).
The U.S. Court of Appeals for the Ninth Circuit has held that the scope of our review of Appeals' determination is generally limited to the administrative record. See Keller v. Commissioner, 568 F.3d 710, 718 (9th Cir. 2009), aff'g in part T.C. Memo. 2006-166, and aff'g in part, vacating in part decisions in related cases. This case is presumptively appealable to the Ninth Circuit, see § 7482(b)(1)(G)(i), and we follow its precedent to the extent it is squarely on point, see Golsen v. Commissioner, 54 T.C. 742, 757, aff'd, 445 F.2d 985 (10th Cir. 1971). However, because section 6330 requires de novo review of an underlying liability that is properly at issue, our review of such a liability is not confined to the administrative record. See Jordan v. Commissioner, 134 T.C. 1, 9 (2010), supplemented by T.C. Memo. 2011-243.
This rule does not preclude our consideration of Forms 4340 to the extent that they reflect information from the IRS's computer systems that was available to Appeals during the CDP hearing. See Bowman v. Commissioner, T.C. Memo. 2007-114, 93 T.C.M. (CCH) 1204, 1208.
B. Jurisdiction
The Tax Court is a court of limited jurisdiction. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). We may exercise jurisdiction only to the extent expressly provided by statute. § 7442; Breman v. Commissioner, 66 T.C. 61, 66 (1976). Jurisdiction must be shown affirmatively, and petitioner, as the party invoking the Court's jurisdiction, bears the burden of proving that the Court has jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001). Either party, or the Court sua sponte, may question jurisdiction at any time. Stewart v. Commissioner, 127 T.C. 109, 112 (2006).
Our jurisdiction under section 6330(d)(1) extends to review of a collection action only with respect to tax liabilities for which Appeals issued a valid notice of determination. See LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 27-33 (2016), aff'd, 684 Fed.Appx. 744 (10th Cir. 2017). For jurisdictional purposes, we may not look behind the notice of determination to ascertain whether a taxable period not addressed therein was, in substance, part of the CDP hearing covered by the notice, see id. at 31, nor may a jurisdictional defect arising from the omission of a particular taxable period be cured by remanding a case for issuance of a supplemental notice of determination that includes all periods addressed during the hearing, see id. at 32- 33.
As we have noted, the notice of determination addresses a proposed levy to collect petitioner's unpaid tax liabilities for 2000, 2001, 2004 through 2011, and 2013. But the Amended Petition includes allegations that evidently seek our review of Appeals' determination with respect to all of petitioner's taxable years 2000 through 2013. We have carefully reviewed the notice of determination, and we can identify no references to 2002, 2003, or 2012 in the notice itself or any attachment thereto. Because the notice of determination does not in any way suggest that Appeals made a determination concerning 2002, 2003, or 2012, we do not have jurisdiction in this case to review any determination concerning those years.
We will accordingly dismiss this case for lack of jurisdiction to the extent that petitioner seeks review of a determination concerning 2002, 2003, and 2012. We will proceed to review Appeals' determination with respect to only the taxable years 2000, 2001, 2004 through 2011, and 2013.
In the levy notice, respondent did not propose any collection action with respect to 2002 or 2012, but he did propose to collect petitioner's 2003 tax liability by levy. Petitioner's request for a CDP hearing indicated that he sought review of the proposed levy for 2003. Additionally, although the SO did not directly address the point in the notice of determination, her case activity record indicates that she determined that petitioner's hearing request was timely with respect to 2000, 2001, 2003 through 2011, and 2013. Appeals was thus required under section 6330(b) and (c)(3) to make a determination regarding 2003. See Craig v. Commissioner, 119 T.C. 252, 257 & n.4 (2002). In view of Appeals' failure to do so, respondent may not proceed with the proposed levy for 2003 unless Appeals issues a valid notice of determination affording petitioner the opportunity to seek this Court's review of the proposed levy for that year. See LG Kendrick, 146 T.C. at 29. Additionally, we note that we may consider facts and issues relating to nondetermination years, including 2002, 2003, and 2012, to the extent that they affect the appropriateness of the proposed collection action for a determination year over which we do have jurisdiction. See, e.g., Freije I, 125 T.C. at 28.
C. Respondent's Motion
Rule 121(a) allows a party to move for summary adjudication of "all or any part of the legal issues in controversy." Summary judgment "is intended to expedite litigation and avoid unnecessary and expensive trials." Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). Summary judgment may be granted where there is no genuine issue of material fact and a decision may be rendered as a matter of law. Rule 121(a). The moving party bears the burden of proving that there is no genuine issue of material fact, and factual inferences are viewed in a light most favorable to the nonmoving party. Craig, 119 T.C. at 260; Dahlstrom v. Commissioner, 85 T.C. 812, 821 (1985). The party opposing summary judgment must set forth specific facts showing that a genuine question of material fact exists and may not rely merely on allegations or denials in the pleadings. Rule 121(d); Grant Creek Water Works Ltd. v. Commissioner, 91 T.C. 322, 325 (1988).
1. Challenges to the Underlying Liabilities
The primary issue presented by respondent's Motion is the extent to which petitioner is entitled to challenge the underlying liabilities in this proceeding under section 6330(c)(2)(B).
The SO's discussion of the underlying liabilities in the notice of determination indicates that although she concluded that petitioner was precluded from challenging the underlying liabilities for 2000 and 2001, she "considered [petitioner's] argument for the other tax periods." The SO thus seems to have concluded that petitioner was entitled to challenge the full amounts of his liabilities for all the years addressed in the notice of determination, except for 2000 and 2001, on the section 6511(h) and penalty abatement grounds he raised at the hearing.
Nevertheless, an Appeals officer's consideration of a challenge to an underlying liability does not operate as a waiver of any otherwise applicable section 6330(c)(2)(B) bar to our consideration of that liability. See Behling v. Commissioner, 118 T.C. 572, 577-79 (2002). Respondent now contends that section 6330(c)(2)(B) bars some of petitioner's underlying liability challenges because (1) petitioner received notices of deficiency for 2004, 2006, and 2007 that preclude any challenge to the underlying liabilities assessed for those years, (2) petitioner received notices of deficiency for 2000, 2001, and 2005 that preclude any challenge to those portions of the underlying liabilities that were assessed for those years in accordance with the deficiency determinations, and (3) petitioner failed to raise during the CDP hearing any claim of irregularity in the assessment procedure. Respondent concedes, however, that petitioner may raise his section 6511(h) financial disability claims and his penalty abatement claims to challenge the portions of his underlying liabilities for 2000, 2001, and 2005 corresponding to amounts he reported as due, in excess of the deficiency assessments, on federal income tax returns that he subsequently filed in 2015. Similarly, for 2008, 2009, 2010, 2011, and 2013, respondent concedes that petitioner may raise his section 6511(h) financial disability claims and his penalty abatement claims to challenge the full amounts of the underlying liabilities for those years, which petitioner reported as due on federal income tax returns that he filed in 2015.
For purposes of his Motion, respondent apparently adopts the view set forth in the notice of determination that petitioner's section 6511(h) claims are properly characterized as challenges to the underlying liabilities. Although we need not resolve that issue to dispose of the Motion, we note that we disagree with respondent's view. When a taxpayer contends in a CDP hearing that his liability for a given year (Year 1) should be reduced by the amount of a credit available in another year (Year 2), his claim is not that the Year 1 liability was incorrectly determined. Rather, his claim is that the Year 2 credit provides a means-other than any proposed collection action-of satisfying the established amount of the Year 1 liability. The claim is thus properly characterized as a "relevant issue" raised by the taxpayer under section 6330(c)(2)(A) rather than as a challenge to the underlying liability under section 6330(c)(2)(B), and we therefore review determinations concerning the application of credits between taxable years for abuse of discretion. See Freije I, 125 T.C. at 25-26 (holding that a claim that a payment made in one taxable year was improperly applied to the balance due for another taxable year was raised under section 6330(c)(2)(A)); Shuman v. Commissioner, T.C. Memo. 2018-135, at *31 (explaining that Appeals' determination concerning the application of a credit elect overpayment would be reviewed for abuse of discretion), aff'd, 774 Fed.Appx. 813 (4th Cir. 2019). Regardless of the applicable standard of review, we also observe that we generally lack jurisdiction in CDP cases to determine that an overpayment exists for any of the years at issue or to order a refund or credit of any such overpayment. See Greene-Thapedi v. Commissioner, 126 T.C. 1, 11 & n.19, 12-13; McLane v. Commissioner, T.C. Memo. 2018-149, at *14-20 (rejecting attempts to distinguish Greene-Thapedi where taxpayer did not receive a notice of deficiency and explaining that the existence of an overpayment for a year at issue in a CDP case is "relevant only in that a taxpayer's overpayment would mean that he had no unpaid liability and that the proposed collection action would thus be invalid"), aff'd, 24 F.4th 316 (4th Cir. 2022), cert. denied, 143 S.Ct. 408 (2022). In view of our limited authority with respect to overpayments, we cannot discern from the present record what relief we could grant petitioner pursuant to section 6511(h).
Petitioner counters in his Response, which is properly supported by a declaration, that he did not receive a notice of deficiency for any of the years at issue. He accordingly contends that he may challenge the full amounts of his underlying liabilities for all such years.
At the outset, we reject respondent's implicit suggestion that petitioner's alleged failure at the hearing to identify any irregularity in the assessment procedure amounts to a waiver of any challenge to the existence, mailing, or receipt of the notices of deficiency on which respondent relies. Petitioner's efforts to challenge the underlying liabilities at the hearing, as well as the SO's treatment of the underlying liability issues for years other than 2000 and 2001 in the notice of determination, implicitly rest on the premise that petitioner did not receive notices of deficiency that would have precluded his challenges under section 6330(c)(2)(B). The SO's failure to address the consequences of the notices of deficiency on which respondent now relies suggests that she either failed to recognize their existence or significance, or that she concluded for some reason that they did not have preclusive effect. We are thus left to question whether the SO properly verified that the underlying liabilities were lawfully assessed following the issuance of the notices of deficiency, and even if she did, whether her conclusions are adequately explained in the notice of determination.
Furthermore, respondent can prevail on his section 6330(c)(2)(B) preclusion argument only if petitioner actually received (or deliberately refused, and thus constructively received) the relevant notices of deficiency. See Kuykendall v. Commissioner, 129 T.C. 77, 80 & n.2 (2007). Petitioner's properly supported Response raises a genuine dispute concerning whether he did so. Respondent accordingly has not established that he is entitled to summary judgment concerning the extent to which section 6330(c)(2)(B) precludes petitioner's challenges to the underlying liabilities because of his alleged receipt of notices of deficiency.
Respondent does not contend in his Motion that petitioner avoided receipt of any notice affecting his entitlement to challenge the underlying liabilities under section 6330(c)(2)(B).
In some circumstances a taxpayer's assertion that he did not receive a notice of deficiency may not be sufficient to raise a genuine factual dispute as to that issue. See Golditch v. Commissioner, T.C. Memo. 2022-26, at *4-5 (finding implausible taxpayer's assertion in response to motion for summary judgment that he had not received notices of deficiency, where taxpayer had long resided at the same address, had received other documents sent to that address, and the Commissioner had produced properly completed Postal Service Form 3877 and corresponding notices of deficiency), aff'd, 132 A.F.T.R.2d (RIA) 2023-5109 (9th Cir. 2023). Respondent has not produced similarly compelling evidence in this case.
As an alternative position, respondent seems to contend that section 6330(c)(2)(B) might preclude petitioner from challenging the deficiency assessments for 2000 and 2001 because petitioner had a prior opportunity to request a CDP hearing regarding those amounts when respondent previously, in 2006, issued notices to petitioner proposing to collect those liabilities by levy. We are unpersuaded that respondent is entitled to judgment as a matter of law on this alternative theory.
In particular, respondent has not explained how we should evaluate his alternative position (or Appeals' similar but distinct conclusion in the notice of determination that petitioner was precluded from challenging the underlying liabilities for 2000 and 2001 because he had an opportunity for a CDP hearing when respondent previously, in 2005, notified him of the filing of an NFTL) in view of the relevant regulations. Under those regulations, the effect of a prior notice offering an opportunity for a CDP hearing depends on the types of collection activity involved. Compare Treas. Reg. § 301.6330-1(b)(2), Q&A-B2 (explaining that a taxpayer who does not timely request a CDP hearing in response to the first notice offering a CDP hearing concerning a levy relating to a particular unpaid tax and period "foregoes the right to a CDP hearing with Appeals and judicial review of Appeals' determination with respect to levies relating to that tax and tax period"), and id. Q&A-B4 (same) with id. subpara. (e)(3), Q&A-E7 (explaining that a taxpayer who "previously received" a notice offering a CDP hearing concerning the filing of an NFTL for a particular tax and period is precluded from challenging the same liability at a subsequent CDP hearing relating to a levy). Moreover, the regulations contemplate that a taxpayer will be entitled to sequential opportunities for prelevy CDP hearings in cases involving sequential assessments. See id. subpara. (d)(2), Q&A-D1 (providing that a taxpayer may receive more than one prelevy CDP hearing "where the same type of tax for the same period is involved, but where the amount of the unpaid tax has changed as a result of an additional assessment," so long as the additional assessment does not "represent[] accruals of interest, accruals of penalties, or both"); see also Freije v. Commissioner (Freije II), 131 T.C. 1, 5 (2008) ("Since in certain circumstances the Commissioner may assess tax more than once for the same tax period, it is quite reasonable that a taxpayer can have a separate opportunity for a hearing regarding each of the distinct assessments."), aff'd, 325 Fed.Appx. 448 (7th Cir. 2009).
Neither respondent's Motion nor the notice of determination adequately elucidates whether the current collection action relates to any portion of the same assessments that respondent was previously attempting to collect by levy or lien. The Forms 4340 for 2000 and 2001 reflect that respondent assessed deficiencies for those years in 2004 and 2005, respectively. As we have already noted, the Forms 4340 also show that respondent thereafter took action to collect those deficiency assessments by filing NFTLs in 2005 and then by issuing levy notices in 2006. Subsequent entries indicate that respondent successfully collected the assessed amounts in full, and respondent acknowledges as much in his Motion Only years later, in 2015, did petitioner file returns that resulted in further assessments, followed by the collection activity that resulted in the Petition that commenced this case.
Accordingly, to the extent that respondent relies on the 2006 levy notices for preclusion purposes with respect to 2000 and 2001, his position would seem to be that he is, at least in part, still attempting to collect the same liabilities that he sought to collect in 2006 (which is at odds with the relevant Forms 4340). And even if respondent were still trying to collect those same liabilities, petitioner presumably would not have been entitled to a second CDP hearing (and subsequent judicial review) at all under Treasury Regulation § 301.6330-1(b)(2), Q&A-B2, concerning a levy to collect the 2000 and 2001 deficiency assessments, unless respondent concedes that petitioner is entitled to equitable tolling of the period for requesting a CDP hearing with respect to the 2006 levy notices. See Organic Cannabis Found., LLC v. Commissioner, Nos. 381-22L, 5442-22L, 161 T.C. (Sept. 27, 2023) (holding that the statutory period for requesting a CDP hearing is subject to equitable tolling); Day v. Commissioner, T.C. Memo. 2014-215, at *9-10 & n.5 (holding that the Court lacked jurisdiction to review proposed levy as to year for which Appeals officer was not authorized to offer a CDP hearing in view of a prior levy notice), aff'd, 692 Fed.Appx. 897 (9th Cir. 2017); Thompson v. Commissioner, T.C. Memo. 2013-260, at *11-17 (holding that the Court lacked jurisdiction to review collection action as to certain assessments subject to a prior unchallenged NFTL filing, but did have jurisdiction as to subsequent assessments subject to a later NFTL filing). Respondent's alternative preclusion argument thus leaves us uncertain which assessments constitute the underlying liabilities that were properly before Appeals for resolution in the notice of determination that is now before us for review.
The SO's position set forth in the notice of determination, which relies on the 2005 NFTLs, likewise fails to resolve whether those NFTLs related to any portion of the same liabilities that respondent now proposes to collect. Moreover, to the extent that the SO apparently relied on petitioner's prior opportunity for a CDP hearing for review of the 2005 NFTLs to conclude that he was precluded from challenging any assessment made for 2000 and 2001, including the additional assessments of tax that petitioner reported as due on his subsequently filed returns, the SO's conclusion was an error of law. See Montgomery, 122 T.C. at 9; Thompson, T.C. Memo. 2013-260. Accordingly, we also cannot sustain Appeals' determination as to the underlying liabilities for 2000 and 2001 on the theory originally set forth in the notice of determination.
We consequently conclude that respondent has not demonstrated that he is entitled to summary adjudication of the underlying liability issues raised in his Motion.
2. Issues Other than the Underlying Liabilities
Respondent contends that we should resolve all other issues relating to our review of Appeals' determination in his favor. It would be premature, however, to conclude that Appeals properly sustained the proposed levy before the existence and amounts of the underlying liabilities that respondent seeks to collect have been established. See McCree v. Commissioner, T.C. Memo. 2017-145, at *20. We will therefore deny respondent's Motion with respect to the nonliability issues he asks us to resolve.
III. Conclusion
Because petitioner has shown the existence of genuine issues of material fact relating to his receipt of the notices of deficiency that respondent relies upon in his Motion, and respondent has otherwise failed to persuade us that he is entitled to summary adjudication in his favor on the issues presented for resolution therein, we conclude that the Motion must be denied.
We further conclude that this case should be remanded for a supplemental hearing. In CDP cases where Appeals "has not considered all relevant factors . . . the proper course, except in rare circumstances, is to remand . . . for additional investigation or explanation." Loveland v. Commissioner, 151 T.C. 78, 84 (2018) (alterations in original) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
We have previously found it appropriate to remand CDP cases for clarification of the grounds on which Appeals officers relied in reaching conclusions concerning issues relating to the mailing and receipt of notices of deficiency and for supplementation of the administrative record to the extent necessary to demonstrate the basis for Appeals' determinations. See Jordan, 134 T.C. at 12-13; Hoyle v. Commissioner, 131 T.C. 197, 203-05 & n.7 (2008), supplemented by 136 T.C. 463 (2011); Meyer v. Commissioner, T.C. Memo. 2013-268, at *26-30. Remand is also appropriate where Appeals' determination not to consider an underlying liability is inconsistent with the record. See Shaddix v. Commissioner, T.C. Memo. 2022-11, at *8-9; Conn v. Commissioner, T.C. Memo. 2008-186, 96 T.C.M. (CCH) 72, 73 (citing Kuykendall, 129 T.C. at 82).
For the reasons we have described herein, the administrative record in this case is inadequate to fully explain the SO's resolution of the issues before her and to show that she considered all factors relevant to her determination. We are thus unable to ascertain whether the SO properly discharged her responsibilities under section 6330, and we conclude that this case should be remanded for a supplemental hearing.
The foregoing considered, it is
ORDERED that this case is dismissed for lack of jurisdiction to the extent that the Amended Petition seeks review of a determination to sustain a proposed levy as to the taxable years 2002, 2003, and 2012. It is further
ORDERED that respondent's Motion for Partial Summary Judgment, filed September 21, 2020, is denied. It is further
ORDERED that this case is remanded to respondent's Independent Office of Appeals for the purpose of affording petitioner a supplemental administrative hearing during which the parties shall supplement the administrative record to the extent necessary for Appeals to clarify its conclusions concerning: (1) whether a notice of deficiency was properly issued to petitioner for any of the years at issue, (2) the validity of any assessment made for any of the years at issue on the basis of a notice of deficiency, (3) to what extent, and on what grounds, petitioner is precluded from challenging his underlying liability for each of the years at issue, and (4) for each taxable year for which Appeals concludes that petitioner is entitled to challenge any portion of the underlying liability, whether and on what grounds any amount assessed against petitioner should be abated. It is further
ORDERED that respondent shall offer petitioner a supplemental administrative hearing at such place as may be mutually agreed upon (or by telephone or video conference if preferable) at a reasonable and mutually agreed upon date and time, but no later than December 19, 2024. It is further
ORDERED that each party shall, on or before January 21, 2025, file with the Court a report regarding the then present status of this case. Respondent shall attach to his report the Supplemental Notice of Determination Concerning Collection Actions Under Sections 6320 or 6330 issued to petitioner, if any.