Opinion
14307-18L
01-25-2023
SCOTT ALLAN WEBBER, Petitioner v. COMMISSIONEROF INTERNAL REVENUE, Respondent
ORDER
David Gustafson, Judge.
This is a "collection due process" ("CDP") case brought pursuant to I.R.C. section 6330(d), in which petitioner, Scott Allan Webber, asks us to review a determination by the IRS Office of Appeals ("IRS Appeals") sustaining proposed collection of Mr. Webber's tax liability for the year 2013 by levy. The Commissioner filed a motion for summary judgment (Doc. 17), which we denied because we held (see Doc. 28 at 10) that, on the question whether the IRS allowed an overpayment but failed to credit it, "there is a genuine dispute of material fact . . . arising chiefly from the fact that, as we noted above, the Office of Appeals itself stated in 2012 (Ex. FF at 21): '[W]e are allowing the full amount of your claim [for 2004 and 2005].'" The Commissioner thereafter did additional fact-finding and filed a second motion for summary judgment (Doc. 46), which he has twice supplemented (see Docs. 52, 57) in compliance with our orders (Docs. 50, 54, 56). The Commissioner contends that his records show that the 2012 statement was in error. Mr. Webber still opposes the motion on grounds of a "genuine dispute of material fact" (see Doc. 62); and the Commissioner replied (Docs. 67-68).
We will deny the Commissioner's motion and set the case for trial. To be clear, we have not rejected (or accepted) the Commissioner's proffered explanation, but it seems that in order to grant the Commissioner's motion we would need to weigh evidence-i.e., to weigh his explanation against the apparent purport of IRS Appeals' 2012 statement that "we are allowing the full amount of your claim". Under Rule 121 we do not weigh evidence and decide facts; we simply identify the existence of disputes of fact, which then become the subject of trial.
The parties should cooperate in preparing for trial. One especially important piece of that work will be the preparation of the parties' joint stipulation of facts.
Presumably, that stipulation will include documents that have been identified in the parties' briefing of the motions for summary judgment. It is
ORDERED that the Commissioner's motion (Doc. 46) for summary judgment is denied. It is further
ORDERED that this case is calendared for trial at the Court's Washington, D.C. trial session beginning at 10:00 a.m. (ET) on Monday, May 8, 2023, in the South Courtroom of the United States Tax Court, 400 Second Street, NW, Washington, D.C., 20217. It is further
ORDERED that, together with this Order, the Clerk of the Court shall serve on the parties: (1) a Notice Setting Case for Trial and (2) a copy of the Standing Pretrial Order for the Court's May 8, 2023, Washington, D.C., trial session.
This Order constitutes official notice to the parties.