Opinion
14307-18L
10-15-2021
Scott Allan Webber Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson Judge
This is a "collection due process" ("CDP") case brought pursuant to 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. Our order dated October 15, 2020 (Doc. 33), remanded this case to IRS Appeals for further consideration of whether Mr. Webber's alleged credit elect was allowed or disallowed by the IRS. IRS Appeals issued a supplemental notice of determination on May 20, 2021 (Doc. 47 at 13-15), and the Commissioner filed his motion for summary judgment (Doc. 46) on August 18, 2021. In our order of August 7, 2021 (Doc. 50), we
ORDERED that, no later than October 1, 2021, the Commissioner shall file a supplement to his motion for summary judgment that includes the following: (1) the June 15 letter; (2) the complete Oct. 2017 letter; (3) Mr. Webber's 2005 account transcript; and (4) the case notes SO Roth obtained from SO Robinson. If the Commissioner needs more time to obtain the requested records than what is provided in this order, then he may request an extension of time by appropriate motion under Rule 50(a). If the Commissioner determines that he is unable to retrieve those documents, then he shall describe his efforts to retrieve them.
The Commissioner did not request an extension of time. Rather, on September 30, 2021, he filed a supplement (Doc. 52) to his motion for summary judgment with which he did file item 3 (transcripts) and item 4 (case notes) requested in our order; but as to items 1 and 2, he stated that he "is unable to provide [1] the June 15 letter or [2] the complete October 2017 letter at this time". (Emphasis added.) He explained that the settlement officer in Appeals who is responsible for this case reported to counsel "that retrieval from the federal records center would be her only suggestion" but that "the Kansas City Federal Records Center ["FRC"] remains closed due to the COVID-19 pandemic."
If the documents relevant to this case had been destroyed or were otherwise unable to be retrieved, then we would have to decide the Commissioner's motion without them, and would do so. But that is evidently not the case. Rather, the documents may exist in, and may eventually be retrievable from, the FRC--but not yet, because of the coronavirus.
The Commissioner is not in control of the Kansas City FRC. Rather, the FRC is under the National Archives. The Archives' most recent update on "FRC Reopening" is dated July 23, 2020, and it states:
The Federal Records Centers Program is gradually resuming Phase 1 operations on a records center by records center basis based on local conditions and specific safety criteria. Throughout, the highest priority will be the protection and health of staff. As mentioned in an earlier communication, during Phase 1, records centers will be limited to 10-20% of staff. That number increases to 25-50% in Phase 2 and to no more than 50% in Phase 3. [https://www.archives.gov/frc/communications-archives/2020/cm-072320]
The relevant webpage reporting the status of the 17 FRCs reports that eight FRCs (including Kansas City) are "closed"; that another eight FRCs are at "Phase 1 / Up to 20% of staff"; and that one lucky FRC (in San Bruno, California) is at "Phase 2 / Up to 50% of staff". See https://www.archives.gov/frc/operating-status.
But we do not despair. Rather, we take notice of the fact that vaccines for COVID-19 have been widely available for months, and that the CDC reports that in Clay County, Missouri (where we believe the Kansas City FRC is located) 55.4% of the eligible population has been fully vaccinated. See https://covid.cdc.gov/covid-data-tracker/#county-view|Missouri|29047|Risk|community_transmission_level.
We therefore confidently assume that the Kansas City FRC will soon reopen. Consequently, it is
ORDERED that no later than December 17, 2021, the Commissioner shall file a supplement to his motion for summary judgment that includes (1) the June 15 letter and (2) the complete October 2017 letter. If, to obtain the requested records, the Commissioner needs more time than is provided in this order, then he may request an extension of time by appropriate motion under Rule 50(a). Such a motion should include an update on the reopening of the Kansas City Federal Records Center. If the Commissioner concludes that he is unable to retrieve those documents, then he shall describe the basis for his conclusion. It is further
ORDERED that Mr. Webber need not file a response to the Commissioner's motion for summary judgment at this time. After the Commissioner has responded to this order, and before we rule on the Commissioner's motion, we expect to order Mr. Webber to file a response. It is further
ORDERED that, no later than November 5, 2021, counsel for the Commissioner shall initiate a telephone conference with Mr. Webber for the purpose of assuring that all possibilities of settling this case have been exhausted.