Dickes v. Comm'r

T.C. Memo. 2013-210

UNITED STATES TAX COURT

GEOFFREY S. DICKES, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15107-12L. Filed September 9, 2013.

Geoffrey S. Dickes, pro se.

Anne M. Craig, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

MARVEL, Judge: Pursuant to sections 6320(c) and 6330(d)(1),1 petitioner

seeks review of respondent’s determination to proceed with the collection by lien

or levy of petitioner’s 2007-09 tax liabilities.

1
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.
 -2-

[*2] The issues for decision are: (1) whether petitioner is liable for the following

additions to tax:

Additions to tax
Sec. Sec. Sec.
Year 6651(a)(1) 6651(a)(2) 6654

2007 $1,837.80 $1,347.72 -0-
2008 2,078.10 1,006.42 $305
2009 393.30 131.10 -0-

and (2) whether the Appeals Office abused its discretion in determining to proceed

with the collection by lien or levy of petitioner’s 2007-09 tax liabilities.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The stipulation of

facts and facts drawn from stipulated exhibits are incorporated herein by this

reference. Petitioner resided in Florida when he petitioned this Court.

I. Background

Petitioner earned a bachelor of science degree from the College of

Engineering and Mathematical Sciences at the University of Vermont in 1977.

After he earned his degree petitioner built furniture and then worked for a home

builder. After investing in a real estate venture that went bad petitioner

apprenticed with a boat builder for three years and then worked in the naval
 -3-

[*3] architecture industry designing powerboats. Since then he has maintained a

sole proprietorship working as a powerboat designer.

Petitioner generally did not file estimated tax returns or make quarterly

estimated tax payments. He always requested an extension of time to file his

annual Federal income tax return because spring was a busy season for his

business. Although his earnings from his naval architecture business were

sufficient for him to live on, he did not earn a lot and typically paid what he

estimated he owed for a given taxable year when he filed his extension request.

II. Petitioner’s Divorce

In approximately 2004 petitioner filed for divorce in Massachusetts, where

he and his then wife resided. When he filed for divorce petitioner had a net worth

of approximately $1.3 million. Of that amount, approximately $500,000 was

attributable to an inheritance.

The Massachusetts court with jurisdiction over his divorce case eventually

awarded petitioner’s wife most of his net worth. Additionally, the court awarded

alimony of $1,000 per week to the wife. Petitioner’s alimony obligation was

ultimately reduced to $400 per week; as of the time of trial he was in arrears.

In August 2006 at about the time that he was beginning to prepare his 2005

Form 1040, U.S. Individual Income Tax Return, which was then on extension,
 -4-

[*4] petitioner traveled to Massachusetts to deal with a contempt complaint

because he was in arrears on his alimony payments. The court ordered him jailed

for 90 days.

Shortly after petitioner was incarcerated, his attorney retrieved petitioner’s

computer and business records from petitioner’s hotel room. The attorney left the

computer and business records in her car over the weekend, and they were stolen.

The stolen records included petitioner’s books and records for his naval

architecture business from January 2004 to approximately August 15, 2006.

Petitioner filed a police report regarding the theft.

Petitioner was released from jail in November 2006. Because of his

imprisonment, petitioner lost all of his business; his clients went elsewhere. He

used his savings to pay bills, and he had no financial resources left. He began

replenishing his design jobs and continued working as best he could.

Petitioner is a beneficiary of a family trust. The family trust holds shares in

two family corporations--a construction company and a real estate holding

company. The family trust sometimes, but not always, makes an annual

distribution. Petitioner has no control over the family trust and cannot compel

those in control of the family trust to distribute any money to him.
 -5-

[*5] Petitioner used his trust distributions in 2007-092 to restore his personal

effects. For example, he purchased a TV, a 1997 Ford Expedition, and a boat.3

Petitioner also used what limited funds he had to support himself, his girlfriend,

her grown children who could not find jobs and had no other place to live, and two

of his girlfriend’s grandchildren.

III. Petitioner’s 2005-09 Returns

During his incarceration petitioner forgot about filing his 2005 return,

which he had neither completed nor filed before the theft of his records. He first

recalled that he had not filed the 2005 return when he began preparing his 2006

return in the late summer or fall of 2007. Petitioner prepared his own returns

using TurboTax. When he tried to import information from his 2005 return onto

his 2006 return, he could not do so. He called TurboTax to ask whether he could

file his 2006 return without first preparing his 2005 return. A TurboTax

representative advised him that he would first have to complete the 2005 return

because his 2006 return would have various carryover items from his 2005 return.

2
Petitioner’s 2007-09 returns reported dividends received from the family
trust of $998, $7,185, and $7,232, respectively.
3
Petitioner credibly testified that he bought the boat with the intention of
repairing it and selling it for a profit.
 -6-

[*6] On a date that is not in the record petitioner called the Internal Revenue

Service (IRS) about the problems he faced in filing his 2005 and 2006 returns. He

spoke with an IRS employee who advised him to pay whatever he thought he

owed and to reconstruct his missing information so that he could prepare and file

the 2005 and 2006 returns. Petitioner attempted to do this, spending

approximately 275 to 300 hours on the reconstruction effort between the fall of

2007 and the spring of 2010.

In April 2010 the IRS sent a letter to petitioner regarding his delinquent

2005 and 2006 returns. In the letter the IRS asserted that he owed a significant

amount of Federal income tax for those years. From May 2010 through January

2011, petitioner spent approximately 460 hours finishing the reconstruction effort,

meeting with the IRS representative, fending off levies, and preparing his 2005

and 2006 returns.

On October 2, 2010, petitioner filed his 2005 return. On November 10,

2010, he filed his 2006, 2007, and 2008 returns. He later filed an amended 2008

return to correct a mistake on his original return. On February 8, 2011, petitioner

filed his 2009 return.
 -7-

[*7] On his 2007-09 returns petitioner reported the following adjusted gross

income, total tax, withholding, refundable credits, amounts paid with requests for

extensions to file, and amounts owed:

Adjusted Amount
gross Total Refundable paid with Amount
Year income tax Withholding credits extension owed

2007 $38,341 $9,550 $735 -0- $647 $8,168
1
2008 46,883 10,920 735 $600 -0- 9,890
2009 27,578 3,320 735 400 -0- 2,185

1
Petitioner’s 2008 return shows an estimated tax penalty of
$305, which he included in his amount owed for 2008.

On attached Schedules C, Profit or Loss From Business, petitioner reported

the following gross receipts and net profits from his naval architecture business:

Year Gross receipts Net profit

2007 $61,177 $39,670
2008 66,039 41,746
2009 34,258 14,797

IV. Petitioner’s Section 6320/6330 Hearing

On January 20, 2011, respondent mailed to petitioner a Letter 1058, Final

Notice of Intent to Levy and Notice of Your Right to a Hearing, with respect to

petitioner’s tax liabilities for 2007 and 2008. Petitioner timely requested a section

6330 hearing. On April 28, 2011, respondent mailed to petitioner a Letter 3172,
 -8-

[*8] Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320, advising petitioner that a notice of Federal tax lien (NFTL) had been filed

with respect to his tax liability for 2009. Petitioner timely requested a section

6320 hearing.

On July 25, 2011, Settlement Officer Joe Breazeale (Settlement Officer

Breazeale) sent a letter to petitioner. In the letter Settlement Officer Breazeale

asked petitioner to submit a Form 433-A, Collection Information Statement for

Wage Earners and Self-Employed Individuals, together with supporting

documentation.

Petitioner requested a face-to-face hearing. On October 6, 2011, petitioner

faxed to Settlement Officer Breazeale a copy of his Form 433-A. However,

petitioner did not provide any of the supporting financial documents that

Settlement Officer Breazeale had requested.

Settlement Officer Breazeale conducted a face-to-face hearing with

petitioner on October 12, 2011. Petitioner stated that he thought the IRS should

abate both interest and penalties. Settlement Officer Breazeale informed petitioner

that, unless the IRS had made a mistake or caused a lengthy delay, the IRS could

not abate interest. He asked petitioner to submit a written penalty abatement

request by October 17, 2011, addressing each year separately and stating what
 -9-

[*9] circumstances prevented him from filing and paying on time. Settlement

Officer Breazeale also asked petitioner to submit an offer-in-compromise (OIC) by

October 28, 2011. Settlement Officer Breazeale informed petitioner that he would

have to file his 2010 return with the OIC and that he would have to provide

various financial documents along with the OIC.

On October 17, 2011, petitioner sent by fax to Settlement Officer Breazeale

a letter requesting an extension until October 20, 2011, to submit his request for

penalty abatement letter. On October 24, 2011, petitioner sent to Settlement

Officer Breazeale by fax (1) a cover letter and (2) his written penalty abatement

request. In the cover letter petitioner mentioned problems he had encountered in

filing his 2010 return as well as some concerns that he had with respect to

requesting an OIC. He also stated as follows:

Along those lines, I know our agreement was that I would have
the OIC related materials gathered for you by around the end of the
month. I wonder though if we might amend that a bit to allow you to
process the abatement request first, before I start assembling the OIC
materials. Putting everything together should take no more than two
weeks and, not having a lot of it to spare these days, I would prefer
not to waste the time on it if it turns out the abatement is satisfactory.

If this is okay, I guess you don’t really need to do anything. I’ll
just wait to hear about the abatement. If not, let me know so I can
pick up with assembling the OIC materials.

Settlement Officer Breazeale noted petitioner’s request in the case activity record.
 - 10 -

[*10] On May 7, 2012, the Appeals Office issued to petitioner a notice of

determination, sustaining the proposed lien and levy. In the notice of

determination the Appeals Office determined that (1) petitioner was not eligible

for penalty abatement because he did not meet the reasonable cause requirements,

and (2) petitioner was not eligible for an OIC because he had failed to properly

request an OIC and had not yet filed his 2010 and 2011 returns. The Appeals

Office did not address petitioner’s interest abatement request in the notice of

determination.

OPINION

I. Section 6320/6330 Hearing

Section 6321 imposes a lien on all property and property rights of a

taxpayer liable for taxes where a demand for the payment of the taxes has been

made and the taxpayer fails to pay. The IRS is authorized to file an NFTL with

respect to taxpayers who have outstanding tax liabilities and fail to pay after notice

and demand. Sec. 6323. Section 6320(a) requires the Secretary4 to send written

notice to the taxpayer of the filing of an NFTL and of the taxpayer’s right to an

administrative hearing on the matter. The conduct and scope of section 6320

4
The term “Secretary” means the Secretary of the Treasury or his delegate.
Sec. 7701(a)(11)(B).
 - 11 -

[*11] hearings are governed by section 6330(c), (d) (other than paragraph (2)(B)),

(e), and (g). Sec. 6320(c).

The Secretary is authorized to collect tax by levy upon the taxpayer’s

property if any taxpayer liable to pay any tax neglects or refuses to pay such tax

within 10 days after notice and demand for payment. Sec. 6331(a). Section

6330(a) requires the Secretary to send written notice to the taxpayer of the

taxpayer’s right to request a section 6330 hearing before a levy is made. If the

taxpayer makes a timely request for a hearing, a hearing is held by the IRS Office

of Appeals. Sec. 6330(b).

At a section 6320 or 6330 hearing a taxpayer may raise any relevant issue,

including appropriate spousal defenses, challenges to the appropriateness of the

collection action, and collection alternatives, such as an OIC or an installment

agreement. Sec. 6330(c)(2)(A). Additionally, the taxpayer may contest the

validity of the underlying tax liability, but only if the taxpayer did not otherwise

have an opportunity to dispute the tax liability. Sec. 6330(c)(2)(B); Sego v.

Commissioner, 114 T.C. 604, 609 (2000).

Following a hearing, the Appeals Office must issue a notice of

determination regarding the appropriateness of the proposed collection action.

The Appeals Office is required to take into consideration: (1) verification
 - 12 -

[*12] presented by the Secretary that the requirements of applicable law and

administrative procedure have been met, (2) 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 concerns regarding the

intrusiveness of the proposed collection action. Sec. 6330(c)(3); Wadleigh v.

Commissioner, 134 T.C. 280, 287-288 (2010).

Pursuant to sections 6320(c) and 6330(d)(1), we have jurisdiction to review

the Appeals Office’s determination. See Murphy v. Commissioner, 125 T.C. 301,

308 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006). Where the validity of the

underlying tax liability is properly at issue, we review the determination regarding

the underlying tax liability de novo. Sego v. Commissioner, 114 T.C. at 610;

Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). Where the validity of the

underlying tax liability is not properly at issue, we review the Appeals Office’s

determination for abuse of discretion. Sego v. Commissioner, 114 T.C. at 610;

Goza v. Commissioner, 114 T.C. at 182. In reviewing for abuse of discretion, we

must uphold the Appeals Office’s determination unless it is arbitrary, capricious,

or without sound basis in fact or law. See, e.g., Murphy v. Commissioner, 125

T.C. at 320; Taylor v. Commissioner, T.C. Memo. 2009-27, 97 T.C.M. (CCH)

1109, 1116 (2009). However, we can uphold the Appeals Office’s determination
 - 13 -

[*13] only on grounds actually relied upon by the Appeals officer in the notice of

determination. See SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Antioco v.

Commissioner, T.C. Memo. 2013-35, at *24-*25; Jones v. Commissioner, T.C.

Memo. 2012-274, at *22-*23.

Respondent concedes that petitioner was entitled to contest the validity of

the underlying liability for the additions to tax because he had not received a

notice of deficiency. Accordingly, we have jurisdiction to review the Appeals

Office’s determination with respect to the underlying liability for the additions to

tax, and we review that determination de novo. We also review for abuse of

discretion respondent’s determination to proceed with the collection by lien or

levy of petitioner’s 2007-09 tax liabilities.

II. Underlying Liability for the Additions to Tax

The Commissioner bears the burden of production with respect to the

taxpayer’s liability for additions to tax and must produce sufficient evidence

indicating that it is appropriate to impose the additions to tax. See sec. 7491(c);

Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001). Once the Commissioner

meets his burden of production, the taxpayer must come forward with persuasive

evidence that the Commissioner’s determination is incorrect or that the taxpayer
 - 14 -

[*14] had reasonable cause or substantial authority for the position. See Higbee v.

Commissioner, 116 T.C. at 447.

A. Addition to Tax Under Section 6651(a)(1)

Section 6651(a)(1) authorizes the imposition of an addition to tax for failure

to timely file a return, unless it is shown that such failure is due to reasonable

cause and not due to willful neglect. See United States v. Boyle, 469 U.S. 241,

245 (1985); United States v. Nordbrock, 38 F.3d 440, 444 (9th Cir. 1994). A

failure to timely file a Federal income tax return is due to reasonable cause if the

taxpayer exercised ordinary business care and prudence but nevertheless was

unable to file the return within the prescribed time. See sec. 301.6651-1(c)(1),

Proced. & Admin. Regs. Circumstances that are considered to constitute

reasonable cause for failure to timely file a return are typically those outside of the

taxpayer’s control, including, for example: (1) unavoidable postal delays; (2) the

timely filing of a return with the wrong office; (3) the death or serious illness of

the taxpayer or a member of the taxpayer’s immediate family; (4) a taxpayer’s

unavoidable absence from the United States; (5) destruction by casualty of a

taxpayer’s records or place of business; and (6) reliance on the erroneous advice of

an IRS officer or employee. McMahan v. Commissioner, 114 F.3d 366, 369 (2d

Cir. 1997), aff’g T.C. Memo. 1995-547. However, the unavailability of
 - 15 -

[*15] information or records does not necessarily establish reasonable cause, see

Estate of Vriniotis v. Commissioner, 79 T.C. 298, 311 (1982); Elec. & Neon, Inc.

v. Commissioner, 56 T.C. 1324, 1342-1343 (1971), aff’d without published

opinion, 496 F.2d 876 (5th Cir. 1974); Cayabyab v. Commissioner, T.C. Memo.

2012-89, 103 T.C.M. (CCH) 1479, 1480 (2012), and mere forgetfulness does not

constitute reasonable cause, see Beck Chem. Equip. Corp. v. Commissioner, 27

T.C. 840, 859 (1957).

The parties agree that petitioner failed to timely file his Federal income tax

returns for 2007-09. Accordingly, respondent has met his burden of producing

evidence showing that the additions to tax under section 6651(a)(1) for 2007-09

are appropriate.

Petitioner contends that he exercised ordinary business care and prudence

but was unable to timely file his 2007-09 returns because of the problems he faced

in filing his 2005 and 2006 returns. Petitioner was incarcerated during the time

that he would have otherwise filed his 2005 return, and he forgot about filing the

2005 return until he began preparing his 2006 return. Because his business and

tax records for 2005 and part of 2006 were stolen from his attorney’s car and his

tax software did not allow him to properly complete his 2006 return until he

completed his 2005 return, petitioner contends he was unable to timely file his
 - 16 -

[*16] 2005 and 2006 returns. Petitioner asked an IRS employee for guidance with

respect to the filing of his 2005 and 2006 returns, but he did not document the

advice that the IRS employee provided.

The issue of whether the facts recited above establish reasonable cause for

purposes of the section 6651(a)(1) additions to tax for 2005 and 2006 is not before

us. The only additions to tax that are at issue are those for 2007-09.

Petitioner has not proven that he made a diligent and reasonable effort to

timely file his 2007-09 returns. Petitioner’s 2007-09 records were not stolen and

were presumably available to him. He could have used those records to prepare

and timely file his 2007-09 returns. Even if the information available to petitioner

was not complete, he should have timely filed the 2007-09 returns and later filed

amended returns to correct any mistakes caused by any missing information. See

Estate of Vriniotis v. Commissioner, 79 T.C. at 311; Elec. & Neon, Inc. v.

Commissioner, 56 T.C. at 1342-1343; Cayabyab v. Commissioner, 103 T.C.M.

(CCH) at 1480. We therefore conclude that petitioner has not shown that he

exercised ordinary business care and prudence with respect to his failure to timely

file his 2007-09 returns. Accordingly, petitioner is liable for the additions to tax

under section 6651(a)(1) for 2007-09.
 - 17 -

[*17] B. Addition to Tax Under Section 6651(a)(2)

Section 6651(a)(2) imposes an addition to tax for failure to pay the amount

of tax shown on a taxpayer’s Federal income tax return on or before the payment

due date, unless such failure is due to reasonable cause and not due to willful

neglect.5 The section 6651(a)(2) addition to tax applies only when an amount of

tax is shown on a return filed by the taxpayer or prepared by the Secretary. Sec.

6651(a)(2), (g)(2); Cabirac v. Commissioner, 120 T.C. 163, 170 (2003). A failure

to timely pay the amount shown on a Federal income tax return is due to

reasonable cause if the taxpayer exercised ordinary business care and prudence in

providing for the timely payment of his tax liability but nevertheless was either

unable to pay the tax or would suffer an undue hardship if he paid on the due date.

See sec. 301.6651-1(c)(1), Proced. & Admin. Regs.

The parties agree that petitioner failed to pay the amounts of tax shown on

his 2007-09 returns on or before the payment due date. Accordingly, respondent

has met his burden of producing evidence showing that the additions to tax under

section 6651(a)(2) for 2007-09 are appropriate.

5
The amount of the addition to tax under sec. 6651(a)(2) reduces the amount
of the addition to tax under sec. 6651(a)(1) for any month for which an addition to
tax applies under both paragraphs. Sec. 6651(c)(1).
 - 18 -

[*18] Petitioner contends that he exercised ordinary business care and prudence

but was unable to timely pay the tax shown on his 2007-09 returns because he was

unable to timely file those returns.6 However, as we explained above, see supra

pp. 15-16, petitioner has failed to prove that he had reasonable cause for failing to

timely file his 2007-09 returns. Moreover, petitioner’s purported inability to

timely file his 2007-09 returns should not have prevented him from reasonably

estimating the amount of tax that he would owe on those returns. We therefore

conclude that petitioner has not shown that he exercised ordinary business care

and prudence with respect to his failure to pay the amounts of tax shown on his

2007-09 returns on or before the payment due dates.

C. Addition to Tax Under Section 6654

Section 6654 imposes an addition to tax on an individual who underpays his

estimated tax. The addition to tax is calculated with reference to four required

installment payments of the taxpayer’s estimated tax liability. Sec. 6654(c). Each

required installment of estimated tax is equal to 25% of the “required annual

6
Petitioner does not contend that his failure to timely pay the tax shown on
his 2007-09 returns was due to his financial circumstances on the payment due
dates. His contention is that his failure to timely pay the tax shown on his 2007-09
returns was due to his lack of knowledge of the amounts of tax due. Accordingly,
we do not consider whether petitioner has established that his financial
circumstances on the relevant due dates were such that he could not pay the tax
shown on his 2007-09 returns even if he had known the amounts due.
 - 19 -

[*19] payment”. Sec. 6654(d). The “required annual payment” is equal to the

lesser of (1) 90% of the tax shown on the individual’s return for that year (or, if no

return is filed, 90% of his tax for such year), or (2) if the individual filed a return

for the immediately preceding taxable year, 100% of the tax shown on that return.

Sec. 6654(d)(1)(B) and (C). A taxpayer has an obligation to pay estimated tax

only if he has a “required annual payment”. Wheeler v. Commissioner, 127 T.C.

200, 211-212 (2006), aff’d, 521 F.3d 1289 (10th Cir. 2008); see also Mendes v.

Commissioner, 121 T.C. 308, 324 (2003).

The parties agree that petitioner was required and failed to make estimated

tax payments for 2008. Accordingly, respondent has met his burden of producing

evidence showing that the addition to tax under section 6654 is appropriate.

Because there is no reasonable cause exception to the section 6654 addition to tax,

petitioner is liable for the addition to tax under section 6654 for 2008.

III. Whether the Appeals Office Abused Its Discretion

Petitioner contends that the Appeals Office abused its discretion in

sustaining the proposed collection actions because Settlement Officer Breazeale

(1) did not allow him to submit an OIC during the section 6320/6330 hearing and

(2) failed to address his interest abatement request in the notice of determination.
 - 20 -

[*20] The administrative record shows that, on October 24, 2011, petitioner asked

Settlement Officer Breazeale to first process his penalty abatement request before

he submitted his OIC. Petitioner further asked Settlement Officer Breazeale to let

him know whether this was unacceptable. Settlement Officer Breazeale noted this

request in the case activity record. The administrative record, however, does not

show that Settlement Officer Breazeale ever responded to petitioner’s request.

By failing to respond to petitioner’s request Settlement Officer Breazeale

effectively caused petitioner to be under the mistaken impression that he would

have an opportunity to submit his OIC--and to become current on his tax reporting

obligations--if his penalty abatement request was denied.7 We conclude that

Settlement Officer Breazeale erred in failing to respond to petitioner’s request and

that therefore Settlement Officer Breazeale effectively denied petitioner an

opportunity to submit an OIC during the section 6320/6330 hearing. Under these

circumstances, remand is appropriate. See sec. 6330(c)(2)(A); Lunsford v.

Commissioner, 117 T.C. 183, 189 (2001); Churchill v. Commissioner, T.C. Memo.

2011-182, 102 T.C.M. (CCH) 116, 118 (2011).

7
There is no indication that petitioner’s request was submitted for an
improper purpose.
 - 21 -

[*21] The administrative record further shows that petitioner requested interest

abatement pursuant to section 6404(e) during the section 6320/6330 hearing. The

Appeals Office failed to address this issue in the notice of determination. Upon

remand, the Appeals Office shall address this issue in a supplemental notice of

determination. See Chenery, 318 U.S. at 93-95; Antioco v. Commissioner, at

*24-*25; Jones v. Commissioner, at *22-*23.

We have considered the parties’ remaining arguments, and to the extent not

discussed above, conclude those arguments are irrelevant, moot, or without merit.

To reflect the foregoing,

An appropriate order will

be issued.