T.C. Memo. 2004-16
UNITED STATES TAX COURT
ARIEL J. DORRA, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4437-03L. Filed January 26, 2004.
Ariel J. Dorra, pro se.
Leonard T. Provenzale, for respondent.
MEMORANDUM OPINION
GERBER, Judge: Respondent in a motion filed on August 12,
2003, moves for summary judgment on the question of whether
collection may proceed in accord with the Notice of Determination
Concerning Collection Actions(s) Under Section 6320 and/or 6330
(notice of determination) sent to petitioner February 20, 2003.
Petitioner contends that he did not have a “hearing” within the
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meaning of section 6320(b) or 6330(b).1 In particular,
petitioner contends that telephone contacts between himself, his
representative, and the Appeals officer do not constitute a
“hearing” as contemplated in section 6320(b).
Background
Petitioner filed 1997, 1999, and 2000 Federal income tax
returns, but failed to pay all of the reported tax liabilities.
The liabilities were assessed by respondent and on March 25,
2002, petitioner was sent a Notice of Federal Tax Lien Filing And
Your Right to a Hearing Under I.R.C. 6320. A Notice of Federal
Tax Lien had been filed and recorded on March 20, 2002, and on
March 28, 2002, petitioner entered into an installment agreement
to pay his outstanding tax liabilities. After the filing of the
Notice of Federal Tax Lien and entering into the installment
agreement, petitioner sought to have the Notice of Federal Tax
Lien removed.
On May 1, 2002, petitioner requested a hearing by submitting
a Form 12153, Request For A Collection Due Process Hearing, and
on November 25, 2002, respondent’s Appeals officer sent a letter
offering to schedule a hearing. In a December 13, 2002, letter,
petitioner’s representative, a lawyer under a power of attorney
from petitioner, set forth the relief sought by his client, to
1
Section references are to the Internal Revenue Code in
effect for the period under consideration. Rule references are
to the Tax Court’s Rules of Practice and Procedure.
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wit: The release of the Notice of Federal Tax Lien because it
was causing petitioner a significant hardship. The
representative proposed that if respondent released the Notice of
Federal Tax Lien, respondent could record a new notice if
petitioner defaulted with respect to the payments under the
installment agreement.
On December 17, 2002, the Appeals officer engaged in a
telephonic conference with petitioner and his representative.
Petitioner’s representative agreed that the administrative
requisites had been followed or met by respondent. Petitioner’s
representative also explained that petitioner was attempting to
refinance property and that respondent should release the Notice
of Federal Tax Lien because an installment payment agreement had
been entered into with petitioner. The Appeals Office advised
that a notice of lien is not released until the liability is
satisfied or becomes uncollectible as a matter of law.
Following the telephone conference with petitioner and his
representative, the Appeals officer, on February 20, 2003, issued
a notice of determination. In the accompanying writeup, the
Appeals officer explained that the Notice of Federal Tax Lien
would not be released and that the notice was not released as a
matter of right if a taxpayer entered into an installment
agreement. Petitioner resided in Jupiter, Florida, when he
timely filed his petition with this Court.
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Discussion
Respondent seeks summary judgment with respect to whether he
may proceed to collect certain outstanding tax liabilities
against petitioner. Rule 121 provides for summary judgment for
part or all of the legal issues in controversy if there is no
genuine issue as to any material fact and a decision may be
rendered as a matter of law. Sundstrand Corp. v. Commissioner,
98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). In
that regard, summary judgment is intended to expedite litigation
and avoid unnecessary and expensive trials. Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988).
There is no genuine issue as to any material fact in this
case. The sole issue raised in petitioner’s pleading is that he
did not have a “hearing”, and that question is susceptible to
resolution by means of summary judgment. Respondent, pursuant to
sections 6321 and 6323, seeks to maintain the Federal tax lien
filed with respect to petitioner’s property. In accord with
section 6320(a), respondent provided petitioner with a notice of
the filing of a Notice of Federal Tax Lien. The notice provided
to petitioner advised him of his right to an administrative
appeal of respondent’s determination to collect the tax. In that
regard, the Commissioner, after filing a Notice of Federal Tax
Lien, must provide a taxpayer with the opportunity for an
administrative and/or judicial review of the determination to
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file the lien and proceed with collection. See Davis v.
Commissioner, 115 T.C. 35, 37 (2000).
Under section 6320(b), if a taxpayer “requests a hearing
under subsection (a)(3)(B) [of section 6320], such hearing shall
be held by the Internal Revenue Service Office of Appeals.” We
have decided that, under appropriate circumstances, the hearing
envisioned in sections 6320(b) and 6330(b) may be conducted
telephonically. See Katz v. Commissioner, 115 T.C. 329, 334-339
(2000). In that case we concluded that the Appeals officer heard
and considered all of petitioner’s arguments during a telephone
conference. Id. at 337-338.
In this case, we also conclude that the Appeals officer
heard and considered all of petitioner’s arguments. In his
response to respondent’s motion, petitioner stated that, if given
another hearing, there is nothing more that he would argue to the
Appeals officer. Petitioner and his representative communicated
in writing and by telephone with respondent’s Appeals officer.
In spite of this, petitioner contends that there was no “hearing”
within the meaning of the statute. This contention is also
contrary to the regulations under section 301.6320-1(d)(2) A-D6
of the Procedural and Administrative Regs., which provide that
CDP hearings * * * are informal in nature and do not
require the Appeals officer or employee and the
taxpayer, or the taxpayer’s representative, to hold a
face-to-face meeting. A CDP hearing may, but is not
required to, consist of a face-to-face meeting, one or
more written or oral communications between an Appeals
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officer or employee and the taxpayer or the taxpayer’s
representative, or some combination thereof. * * *
Accordingly, we hold that petitioner did have an opportunity
for a “hearing” within the meaning of section 6320(b) and case
precedent and that the contention that his telephone conference
was not a “hearing” within the meaning of section 6320(b) is of
little moment since his representative, with power of attorney,
had authority to pursue or waive a hearing. Based on the
undisputed allegation of respondent, petitioner’s representative
elected a telephonic conference in lieu of one that was face-to-
face. It also appears that petitioner’s representative aired the
client’s concerns with the Appeals officer as petitioner
testified that he would not have raised any additional arguments
to the Appeals officer if given another hearing. In addition, it
would be neither necessary nor productive to remand for a hearing
in any event. See Lunsford v. Commissioner, 117 T.C. 183, 189
(2001).
In connection with the appeals consideration that was
afforded to petitioner, a collection alternative was considered,
and agreement was reached on an installment payment plan for
petitioner. The Appeals officer, however, refused to release the
Notice of Federal Tax Lien without full payment or other
arrangement to protect the Government’s priority creditor status
with respect to petitioner’s real property. See sec. 6325; cf.
sec. 6331(k), relating to levies. Petitioner has not shown
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entitlement to a release as a matter of law or right, and,
accordingly, petitioner has not shown an abuse of discretion. We
also note that petitioner and his representative were offered
proof that respondent had complied with the prerequisites of
sections 6320 and 6330 preliminary to proceeding with the filing
of a Notice of Federal Tax Lien or other collection activity.
Respondent’s Motion For Summary Judgment will be granted.
To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.