Opinion
20532-19L
07-20-2021
James E. Moore, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER AND DECISION
Courtney D. Jones Judge
In this collection due process (CDP) case, petitioner, James E. Moore, seeks review pursuant to section 6330(d)(1) of the determination by the Internal Revenue Service (IRS) Independent Office of Appeals (Appeals) upholding a notice of intent to levy. The notice concerns Mr. Moore's outstanding tax liability (for taxable year 2015), associated interest, and penalty for his failure to pay. Respondent has filed a motion for summary judgment contending that the collection action should be sustained. For the reasons elaborated upon below, we will grant respondent's motion.
Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Background
There is no dispute as to the following facts which are drawn from the petition, respondent's motion, and the associated declaration and exhibits. See Rule 121(b). Mr. Moore resided in Pennsylvania when he timely filed his petition.
On December 17, 2018, the IRS issued Mr. Moore a Notice of Intent to Levy and Notice of Your Right to a Hearing (notice of intent to levy). The notice of intent to levy indicated Mr. Moore owed the IRS at that time a total of $2, 349.11 in tax (for taxable year 2015), interest, and penalty for failure to pay. The notice also instructed Mr. Moore to complete and mail an enclosed Form 12153, Request for a Collection Due Process or Equivalent Hearing, by January 16, 2019, if he wished to appeal. Mr. Moore completed and timely returned the enclosed Form 12153, indicating the proposed levy as his basis for requesting a hearing and that he could not pay the balance owed. Moreover, Mr. Moore did not dispute the underlying tax liability on the form nor did he identify any other issue.
On August 1, 2019, Appeals Officer Linda A. Dirma (AO Dirma), issued Mr. Moore a letter acknowledging Appeals' timely receipt of his completed Form 12153. The letter indicated that Mr. Moore's CDP hearing was to take place via telephone on September 11, 2019, and that he should contact her within 14 days (i.e., by August 15, 2019) if that date was not convenient for him. The letter also requested Mr. Moore return within 14 days: 1) a completed Form 433-A, Collection Information Statement for Wage Earners and Self-Employed Individuals, 2) proof of income, and 3) three months of current statements for any and all bank, pension, or retirement accounts, if he desired a collection alternative. Mr. Moore did not contact AO Dirma within the 14 days to reschedule the hearing date nor did he return any of the requested materials.
On Monday, September 9, 2019, AO Dirma called Mr. Moore to reschedule his CDP hearing by one day to Thursday, September 12, 2019. He was not available when she called, however, she left a voicemail to that effect. On September 12, 2019, AO Dirma called Mr. Moore to conduct the CDP hearing as rescheduled, however, he was not available. AO Dirma left him a voicemail requesting that he call her back. AO Dirma also issued Mr. Moore a letter on that date informing him that his CDP hearing had been rescheduled to the 12th and that he was not available when called. The letter similarly requested that Mr. Moore call her and also instructed him to send her any materials he wished to have considered within 14 days (i.e., September 26, 2019), upon which time Appeals would make a determination based upon the administrative file and any materials received.
Mr. Moore did not send any materials to AO Dirma for her consideration nor did he call her back within the 14 days. Appeals subsequently issued Mr. Moore a notice of determination on November 5, 2019, sustaining the proposed levy.
Beyond returning the completed Form 12153, there is no record of any communication from Mr. Moore to AO Dirma nor Appeals throughout the administrative proceeding.
Mr. Moore timely petitioned this Court for review of the determination. In his petition, he does not dispute the underlying tax liability, however, he notes that he "was unaware of the court dates" due to a lack of stable living conditions as a result of which he claims he was not receiving all of his mail. Mr. Moore did not allege that AO Dirma had addressed correspondence to the wrong mailing addressnor did he deny receiving AO Dirma's multiple voicemails.
We construe this to mean the initially scheduled September 11, 2019 CDP hearing date and the rescheduled CDP hearing date of September 12, 2019.
Indeed, Mr. Moore's stated mailing address as indicated in his petition is identical to the mailing address he provided on his Form 12153 and as used by Appeals in its correspondence to him.
To the extent AO Dirma may have committed error in rescheduling the CDP hearing two days prior to the initially scheduled date thus depriving Mr. Moore of adequate advanced notice of the rescheduled date, we deem the issue conceded given his failure to identify the issue in his petition. See Rule 331(b)(4).
Pending before the Court is respondent's motion for summary judgment for adjudication in his favor all issues in this case. Mr. Moore has not filed any response to the motion. Consequently, we could enter decision against him for that reason alone. See Rule 121(d); Chadwick v. Commissioner, 154 T.C. 84, 89 (2020). Nonetheless, we will consider the motion on its merits.
Discussion
I. General Principles
A. Summary Judgment Standard
Summary judgment serves to "expedite litigation and avoid unnecessary and expensive trials." Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). We may grant summary judgment when there is no genuine dispute of material fact and a decision may be rendered as a matter of law. See Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). In deciding whether to grant summary judgment, we construe factual materials and inferences drawn from them in a light most favorable to the nonmoving party. Id. The nonmoving party may not rest upon mere allegations nor denials in their pleadings and must set forth specific facts showing that there is a genuine dispute for trial. Rule 121(d); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
We conclude that no material facts are in genuine dispute and that this case may be adjudicated summarily.
B. Standard of Review
We have jurisdiction to review Appeals' determination pursuant to section 6330(d)(1). Where the underlying tax liability is not at issue, as is the case here, the determination is reviewed for abuse of discretion. See Sego v. Commissioner, 114 T.C. 604, 610 (2000). In reviewing for abuse of discretion, we must uphold Appeals' determination unless it 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).
As previously stated, Mr. Moore did not raise as an issue in his petition the underlying tax liability. Even if he had, the issue would not properly be before the Court because he did not raise it on his Form 12153 nor did he participate in the September 12, 2019 CDP hearing. See Giamelli v. Commissioner, 129 T.C. 107, 114 (2007) ("[W]e shall not review an underlying liability when raised for the first time on appeal of a notice of determination.").
II. Analysis
We review the record to determine whether AO Dirma, in reaching the determination at issue: 1) properly verified that the requirements of applicable law or administrative procedure had been met; 2) considered any relevant issues raised by Mr. Moore at the CDP hearing, including collection alternatives; and 3) considered whether "any proposed collection action balance[d] the need for the efficient collection of taxes with the legitimate concern of * * * [Mr. Moore] that any collection action be no more intrusive than necessary." See sec. 6330(c)(3).
We note that Mr. Moore did not allege in his petition, nor did he argue at any later point, that AO Dirma failed to satisfy any of the above requirements. Consequently, he has conceded these issues. See Rule 331(b)(4) ("Any issue not raised in the assignments of error [in the petition] shall be deemed conceded."). Nonetheless, we conclude that AO Dirma satisfied all of the section 6330(c)(3) requirements in reaching her determination to sustain the proposed levy. AO Dirma expressly affirmed in the notice of determination that the verification requirement and the balancing requirement were satisfied and nothing in the record disturbs AO Dirma's conclusions.
As to the requirement that AO Dirma consider any relevant issues raised by Mr. Moore at the CDP hearing, there were none for her to consider due to his failure to participate on September 12, 2019. Assuming, arguendo, that he did raise as an issue his request for a collection alternative at the hearing, we would nonetheless conclude that AO Dirma appropriately declined such a request because he failed to provide her with the financial information needed to determine his ability to pay. Mr. Moore was initially instructed to provide such information within 14 days of AO Dirma's August 1, 2019 letter acknowledging Appeals' receipt of his Form 12153. He was afforded a second opportunity to provide such information when AO Dirma issued her September 12, 2019 letter, which, inter alia, advised him to send any materials he would like considered within 14 days. Mr. Moore made no attempt to furnish the requested information. This Court has held that it is not an abuse of discretion to reject collection alternatives and sustain a proposed collection action where a taxpayer fails to provide the required forms and information. See e.g., Windsurf and Sail Pools, Inc. v. Commissioner, T.C. Memo. 2019-130, *4. Thus, we conclude that AO Dirma committed no abuse of discretion with respect to this aspect of the determination.
Mr. Moore checked the box for "I Cannot Pay Balance" on his Form 12153, which is an option nested under "Collection Alternative." We construe this to be a request for a collection alternative.
III. Conclusion
Upon review of the record, we conclude that AO Dirma did not abuse her discretion. Consequently, we will grant respondent's motion for summary judgment and affirm Appeals' determination to sustain the proposed levy.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion for Summary Judgment (index #8), filed on September 2, 2020, is granted. It is further
ORDERED and DECIDED that respondent's notice of determination concerning collection action dated November 5, 2019, upon which this case is based, is sustained.