Opinion
14307-18L
12-23-2021
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 I.R.C. section 6330(d) by petitioner Scott Allan Webber. Our order dated October 15, 2020 (Doc. 33), remanded this case to IRS Appeals for further consideration of whether an alleged credit elect was allowed or disallowed by the IRS. IRS Appeals issued a supplemental determination on May 20, 2021 (Doc. 47 at 13-15), stating "Appeals has not identified a credit elect to be applied to [Mr. Webber's] account." Respondent, the Commissioner of Internal Revenue, filed his motion for summary judgment (Doc. 46) on August 18, 2021. Our order of August 27, 2021 (Doc. 50), required the Commissioner to supplement his motion with certain documents.
The Commissioner filed a first supplement (Doc. 52) to his motion for summary judgment on September 30, 2021, with which he did file two of the documents requested in our order; but he also stated that he "is unable to provide [l] the June 15 letter or [2] the complete October 2017 letter at this time". He explained that "the Kansas City Federal Records Center ['FRC'] remains closed due to the COVID-19 pandemic."
Our order of October 15, 2021 (Doc. 54), then ordered the Commissioner to file a supplement to his motion for summary judgment that includes (1) the June 15 letter and (2) the complete October 2017 letter."
In response to our order, the Commissioner filed a status report (Doc. 55) on December 16, 2021, wherein he explains that "the requests sent by [SO] Walsh for the relevant documents did receive a response stating that the documents have been destroyed according to standard record retention policies." The response forms from the Kansas City FRC do each identify a unique document locator number ("DLN") for the requested documents, and a response of "Document Not In File (DNIF)". (Doc. 47 at 121-128 of 389.) In paragraph 6 of the Commissioner's status report, he asserts that "the DLNs provided match the document locator numbers associated with [Mr. Webber's] 2004 and 2005 refund claims, as shown on the Forms 4340 submitted with docket entry 51, Exhibits A and B." (We note that Exhibits A and B of docket entry 51 are not actually Forms 4340, "Certificate of Assessments, Payment, and Other Specified Matters (CERTS)", but are instead copies of Mr. Webber's account transcripts for the 2004 and 2005 years obtained from the IRS Transcript Delivery System ("TDS") which contain substantially the same information as Forms 4340 regarding his tax accounts for those years.) The Commissioner explains in paragraph 5 of his status report that he sent copies of the responses obtained from the Kansas City FRC "to personnel responsible for oversight of document search requests; the response was clear: 'For the DLNs provided, any documents/records associated have been disposed of.'"
We are grateful for the work of counsel and her colleagues, and we are satisfied that the appropriate documents were requested from the Kansas City FRC, and that they no longer exist in the files for Mr. Webber's 2004 and 2005 tax years. However, counsel's hearsay report of the comment of the unidentified employee is the only verification that these records were "destroyed according to standard record retention policies" as stated in the Commissioner's status report and presumably verified by him as explained in paragraph 5. We will therefore request the Commissioner to provide further information regarding the correspondence described in paragraph 5 of his status report.
In view of the foregoing, it is
ORDERED that, no later than January 28, 2022, the Commissioner shall file a second supplement to his motion for summary judgment that includes the identity of the person who made the assertion reported in paragraph 6, a copy of the communication in which that assertion was made, and a copy of or reference to the pertinent record retention policy. 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.