PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3501
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JOHN A. HARTMANN,
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
____________________________________
Appeal from the United States Tax Court
Tax Court No. 09-27758
(Tax Court Judge: Honorable Robert N. Armen, Jr.)
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 15, 2011
Before: RENDELL, CHAGARES and ALDISERT,
Circuit Judges
(Opinion filed March 22, 2011)
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John A. Hartmann
18 Montague Avenue
West Trenton, NJ 08628
Appearing pro se
Gary R. Allen, Esq.
Jonathan S. Cohen, Esq.
John Schumann, Esq.
United States Department of
Justice Tax Division
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, D.C. 20044
John A. DiCicco, Esq.
United States Department of Justice
Office of Special Litigation
P.O. Box 7238
Washington, DC 20044
Wendy Gardner, Esq.
Internal Revenue Service
1085 Raymond Boulevard
Suite 1500
Newark, NJ 07102
William J. Wilkins, Esq.
Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington, DC 20224
Counsel for Appellee
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___________
OPINION OF THE COURT
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PER CURIAM
John A. Hartmann appeals from the decision of the
United States Tax Court granting the Commissioner of
Internal Revenue’s (“IRS”) motion for summary judgment in
this action to collect unpaid taxes. Because Hartmann’s
arguments on appeal do not demonstrate the existence of a
genuine issue of material fact, or that the IRS is not
entitled to judgment as a matter of law, we will affirm the
decision of the Tax Court.
I.
Hartmann filed a federal income tax return for 2006,
but did not pay the liability reported on the return. The IRS
subsequently assessed the delinquent tax, along with interest
and a failure-to-pay penalty and issued Hartmann a notice and
demand for payment. After Hartmann failed to remit
payment, the IRS sent him a final notice of intent to levy
upon his property, and informed him of his right to request a
collection due process hearing (“CDP”).1 Hartmann filed a
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CDP hearings are informal proceedings that provide a
delinquent taxpayer with an opportunity to be heard before
the IRS can levy upon his or her property in order to satisfy
outstanding tax liabilities. See generally 26 U.S.C. § 6330.
During the hearing, the taxpayer is permitted, inter alia, to
propose collection alternatives such as a settlement or
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timely request for a CDP hearing and indicated that he
intended to propose a tax collection alternative. Following an
October 2009 CDP hearing, and after failing to receive
documentation from Hartmann in support of a tax collection
alternative, the IRS Office of Appeals issued a Notice of
Determination approving the proposed levy.
Hartmann timely challenged that determination before
the Tax Court. The IRS moved for summary judgment. In
May 2010, the Tax Court granted the IRS’ motion for
summary judgment and sustained the determination made by
the IRS. Hartmann timely appealed from that order.
II.
The Tax Court had jurisdiction under 26 U.S.C. §
6330(d)(1), and we have jurisdiction under 26 U.S.C. §
7482(a)(1). We exercise plenary review of the Tax Court’s
order granting the IRS’ summary judgment motion. See
Conn. Gen. Life Ins. Co. v. Comm’r, 177 F.3d 136, 143 (3d
Cir. 1999). Like Rule 56(c) of the Federal Rules of Civil
Procedure, Rule 121(b) of the Tax Court Rules of Practice
and Procedure provides that summary judgment may be
payment schedule, and the Settlement Officer ultimately must
determine whether the proposed levy “balances the need for
the efficient collection of taxes with the legitimate concern of
the person that any collection action be no more intrusive
than necessary.” Id. at § 6330(c)(3). The Settlement
Officer’s decision generally is reviewable by the Tax Court
for abuse of discretion. See Kindred v. Comm’r, 454 F.3d
688, 694 (7th Cir. 2006).
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granted “if the pleadings, answers to interrogatories,
depositions, admissions, and any other acceptable materials,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that a decision may
be rendered as a matter of law.” Craig v. Comm’r, 119 T.C.
252, 259-60 (2002).
III.
We conclude that Hartmann has failed to demonstrate
that the Tax Court erred in granting the IRS’s summary
judgment motion. Hartmann argues here, as he did before the
Tax Court, that the levy upon his property cannot be sustained
because the IRS improperly refused to consider a proposed
tax collection alternative to satisfy his delinquent federal
income taxes. Contrary to Hartmann’s assertion, the record
demonstrates that the IRS did provide him with an
opportunity to submit a proposed collection alternative with
supporting documentation, but that he failed to timely do so.
In a September 3, 2009 letter, the Settlement Officer
(“SO”) assigned to Hartmann’s case informed him that the
IRS would consider a proposed collection alternative, but
that, in support of such a proposal, Hartmann had to submit
certain documentation. (See Tax Court Record at 4.)
Specifically, the letter stated that Hartmann had to provide the
following within fourteen days of the date of the letter: (1) a
completed collection information statement (IRS Form 433-A
for individuals and/or Form 433-B for businesses); (2) signed
copies of his 2007 and 2008 tax returns; (3) proof of his
estimated tax payments for 2009; (4) IRS Form 656 (offer in
compromise); (5) the application fee; and (6) an advance
partial payment. Listed as enclosures to the letter were Form
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433-A, Form 433-B, and Form 656. Id. The letter also
informed Hartmann that a telephone hearing with the SO was
scheduled for October 7, 2009. Id.
Hartmann then sent a letter to the SO asking that the
CDP hearing be rescheduled and, per his request, it was
rescheduled for October 20, 2009. The parties do not dispute
that Hartmann and the SO discussed his desire to have an
installment payment agreement during the hearing. However,
at that time, Hartmann had neither submitted the required
documentation, nor had he made a partial payment. On
October 26, 2009, after failing to receive the documentation
that the SO requested in the September 3, 2009 letter, the IRS
Office of Appeals issued Hartmann a Notice of Determination
sustaining the proposed levy.
Hartmann argued for the first time on petition to the
Tax Court that he was effectively denied the right to file a
collection alternative proposal because the enclosures
intended to accompany the SO’s September 3, 2009 letter had
been omitted. He also argued that the SO improperly failed
to remind him of the filing requirements during the October
20, 2009 CDP hearing, further excusing his obligation to
comply with them.
As an initial matter, there is no evidence that
Hartmann timely complied with any of the requirements for
filing a collection alternative. Indeed, he does not dispute the
Tax Court’s finding that his 2007 and 2008 tax returns were
not filed until November 6, 2009 and March 11, 2010,
respectively. As the Tax Court noted, the record
demonstrates that the filing requirements were clearly set
forth in the SO’s September 3, 2009 letter, regardless of
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whether the enclosures were omitted.
In his September 23, 2009 letter to the SO, in which he
acknowledged his receipt of the September 3, 2009 letter,
Hartmann made no mention of the allegedly missing
enclosures. However, Hartmann, who has been involved in
other proceedings before the IRS, was undoubtedly aware that
certain forms must be submitted to the IRS before it will
consider or approve a tax collection alternative. See
Hartmann v. Comm’r, 351 F. App’x. 624 (3d Cir. 2009).
Hartmann’s further assertion that the SO did not
remind him of the need to submit these materials during the
October 20, 2009 hearing is of no consequence. Again, even
if the assertion were true, there is no dispute that the SO’s
September 3, 2009 letter explicitly informed him that
alternative collection methods would not be considered absent
timely submission of the required documentation. Therefore,
we agree with the Tax Court that the IRS did not abuse its
discretion in sustaining the proposed levy where Hartmann
failed to comply with the requirements for filing a proposed
collection alternative. Cf. Christopher Cross, Inc. v. United
States, 461 F.3d 610, 613 (5th Cir. 2006) (“[t]he failure to
timely pay owed taxes is a perfectly reasonable basis for
rejecting an offer in compromise relating to other unpaid
taxes”); Olsen v. United States, 414 F.3d 144, 152-54 (1st
Cir. 2005) (no abuse of discretion in rejecting an offer in
compromise where taxpayer failed to provide financial
information during the administrative hearing).
Accordingly, we will affirm the decision of the Tax
Court.
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