T.C. Memo. 2005-41
UNITED STATES TAX COURT
CATHERINE BEVERLY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10774-03L. Filed March 7, 2005.
P filed a bankruptcy petition. R subsequently
issued to P a Final Notice of Intent to Levy and Notice
of Your Right to Hearing (final notice of intent to
levy) under sec. 6330, I.R.C. After P’s bankruptcy
case was closed, R issued to P a Notice of
Determination Concerning Collection Action(s). P filed
with the Court a Petition for Lien or Levy Action. R
filed a Motion for Summary Judgment, and a supplement
thereto.
Held: The final notice of intent to levy was
issued to P in violation of the automatic stay imposed
under 11 U.S.C. sec. 362(a) (2000) and was invalid and
of no effect. Held, further, R’s Motion for Summary
Judgment, as supplemented, is denied, and a decision
will be entered that respondent may not proceed with
the proposed collection action.
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Catherine Beverly, pro se.
Karen Baker and Michael W. Bitner, for respondent.
MEMORANDUM OPINION
PANUTHOS, Chief Special Trial Judge: This collection review
case is before the Court on respondent’s Motion for Summary
Judgment, as supplemented, filed pursuant to Rule 121.1
Summary judgment is intended to expedite litigation and avoid
unnecessary and expensive trials. Fla. Peach Corp. v.
Commissioner, 90 T.C. 678, 681 (1988); Naftel v. Commissioner, 85
T.C. 527 (1985). Summary judgment may be granted with respect to
all or any part of the legal issues in controversy “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.”
Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520
(1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.
Commissioner, 90 T.C. 753, 754 (1988). The moving party bears
the burden of proving that there is no genuine issue of material
fact, and factual inferences will be read in a manner most
favorable to the party opposing summary judgment. Dahlstrom v.
1
Unless otherwise indicated, section references are to the
Internal Revenue Code, as amended. Rule references are to the
Tax Court Rules of Practice and Procedure.
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Commissioner, 85 T.C. 812, 821 (1985); Jacklin v. Commissioner,
79 T.C. 340, 344 (1982).
Based upon our review of the record, we are satisfied that
there is no genuine issue as to any material fact and that
judgment may be rendered as a matter of law. However, as
discussed in detail below, we conclude that the law does not
support respondent’s position. We hold that the final notice of
intent to levy was issued to petitioner in violation of the
automatic stay arising from her case in bankruptcy and therefore
is invalid. Accordingly, we shall deny respondent’s Motion for
Summary Judgment, as supplemented, and we shall enter a decision
that respondent may not proceed with the proposed collection
action.
Background2
On November 2, 2001, petitioner filed a voluntary petition
for relief under chapter 13 of the Bankruptcy Code with the U.S.
Bankruptcy Court for the Southern District of Illinois. On
November 26, 2001, respondent issued to petitioner a Final Notice
of Intent to Levy and Notice of Your Right to a Hearing Under
Section 6330 (final notice of intent to levy) with regard to her
unpaid Federal income taxes for 1985 to 1988 and 1994 and 1995.
On November 27, 2001, the bankruptcy court issued an order
2
The record establishes and/or the parties do not dispute
the following.
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dismissing petitioner’s bankruptcy case due to her failure to
file required schedules. On December 6, 2001, the bankruptcy
court entered an order closing petitioner’s case.
In the meantime, on December 5, 2001, petitioner filed a
second bankruptcy petition.
On December 19, 2001, petitioner filed with respondent a
Form 12153, Request for a Collection Due Process Hearing,
challenging the proposed levy.
On May 17, 2002, the bankruptcy court dismissed petitioner’s
second bankruptcy case.
On June 5, 2003, respondent issued to petitioner a Notice of
Determination Concerning Collection Action(s) Under Section 6320
and/or 6330 (notice of determination) which stated that
respondent intended to proceed with the proposed levy. On July
7, 2003, petitioner filed with the Court a Petition for Lien or
Levy Action challenging respondent’s notice of determination.3
At the time the petition was filed, petitioner resided in
Collinsville, Illinois.
As indicated, respondent filed a Motion for Summary
Judgment. Respondent contends that the Court should sustain the
notice of determination on the ground that the Appeals officer
did not abuse her discretion in rejecting petitioner’s offer in
3
The petition arrived at the Court in an envelope bearing
a timely U.S. Postal Service postmark dated July 1, 2003. See
sec. 7502(a).
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compromise-–the sole issue that petitioner purportedly raised
during the administrative proceedings-–because petitioner was not
current in filing her tax returns at that time.
Respondent’s motion was called for hearing at the Court’s
motions session held in Washington, D.C. During the hearing,
counsel for respondent informed the Court that respondent had
recently discovered that the final notice of intent to levy was
issued to petitioner while petitioner’s first bankruptcy case
remained open. The Court subsequently directed respondent to
file a supplement to his motion addressing the question whether
the final notice of intent to levy was issued to petitioner in
violation of the automatic stay imposed under 11 U.S.C. section
362(a)(2000). Respondent filed a supplement, as directed, and
the matter was called for further hearing at the Court’s motions
session. Respondent maintains that while the issuance of the
final notice of intent to levy may have violated the automatic
stay, petitioner should nevertheless be estopped from arguing
that the final notice of intent to levy was issued in violation
of the automatic stay because she failed to inform respondent
during the administrative proceedings that she had filed a
bankruptcy petition.4
4
Upon questioning by the Court, respondent was hesitant to
acknowledge that the final notice of intent to levy violated the
automatic stay. In a footnote to his supplement to the motion
for summary judgment, respondent states that “it is not clear
(continued...)
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Discussion
Section 6331(a) provides that, if any person liable to pay
any tax neglects or refuses to pay such tax within 10 days after
notice and demand for payment, the Secretary is authorized to
collect such tax by levy upon property belonging to the person.
Section 6331(d) provides that the Secretary is obliged to provide
the person with notice, including notice of the administrative
appeals available to the person, before proceeding with
collection by levy on the person’s property.
Section 6330 generally provides that the Commissioner cannot
proceed with the collection of taxes by way of a levy on a
person’s property until the person has been given notice of, and
the opportunity for, an administrative review of the matter (in
the form of an Appeals Office hearing), and if dissatisfied, with
judicial review of the administrative determination.
Section 6330(d) provides for judicial review of the
administrative determination in the Tax Court or a Federal
District Court, as may be appropriate. To obtain judicial
review, the person must file a petition with the appropriate
4
(...continued)
whether the providing of a notice of right to a hearing under
section 6330 is an ‘act to collect’ in violation of the automatic
stay”. Respondent further states that the final notice of intent
to levy required under sec. 6331(a) is in the same document as
the notice of a right to hearing. Respondent concludes in the
footnote that “Arguably, in contrast to the notice of intent to
levy and the notice of levy, the mere notice of a right to a pre-
levy hearing does not violate the stay.”
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court within 30 days of the mailing of the notice of
determination. Sec. 6330(d)(1).5
There is no dispute in this case that respondent issued to
petitioner a final notice of intent to levy after petitioner
filed her bankruptcy petition and while the automatic stay
remained in effect. Under the circumstances, we must evaluate
respondent’s position in light of the provisions governing the
automatic stay.
Title 11 of the United States Code provides uniform
procedures designed to promote the effective rehabilitation of
the bankrupt debtor and, when necessary, the equitable
distribution of his or her assets. See H. Rept. 95-595, at 340
(1977). One key to achieving these aims is the automatic stay
which generally operates to temporarily bar actions against or
concerning the debtor or property of the debtor or the bankruptcy
estate. See Allison v. Commissioner, 97 T.C. 544, 545 (1991);
Halpern v. Commissioner, 96 T.C. 895, 897-898 (1991).
The automatic stay provisions are set forth in 11 U.S.C.
section 362(a) (2000), which provides in pertinent part:
(a) Except as provided in subsection (b) of this
section, a petition filed under section 301, 302, or
303 of this title, * * * operates as a stay, applicable
to all entities, of --
5
Sec. 6330 is effective with respect to collection actions
initiated more than 180 days after July 22, 1998 (Jan. 19, 1999).
See Internal Revenue Service Restructuring and Reform Act of
1998, Pub. L. 105-206, sec. 3401(d), 112 Stat. 750.
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(1) the commencement or continuation, including
the issuance or employment of process, of a judicial,
administrative, or other action or proceeding against
the debtor that was or could have been commenced before
the commencement of the case under this title, or to
recover a claim against the debtor that arose before
the commencement of the case under this title;
* * * * * * *
(3) any act to obtain possession of property of
the estate or of property from the estate or to
exercise control over property of the estate;
* * * * * * *
(6) any act to collect, assess, or recover a claim
against the debtor that arose before the commencement
of the case under this title; * * *
Unless relief from the automatic stay is granted by order of
the bankruptcy court, see 11 U.S.C. sec. 362(d) (2000), the
automatic stay generally remains in effect until the earliest of
the closing of the case, dismissal of the case, or the grant or
denial of a discharge, 11 U.S.C. sec. 362(c)(2); see Allison v.
Commissioner, supra at 545; Smith v. Commissioner, 96 T.C. 10, 14
(1991); Neilson v. Commissioner, 94 T.C. 1, 8 (1990).
Analysis
As previously discussed, the automatic stay under 11 U.S.C.
section 362(a)(1) bars “the commencement or continuation,
including the issuance or employment of process, of a judicial,
administrative, or other action or proceeding against the debtor
that was or could have been commenced before the commencement of
the case under this title”. Based upon the plain language of 11
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U.S.C. section 362(a)(1), we conclude that respondent violated
the automatic stay when he issued to petitioner the final notice
of intent to levy dated November 26, 2001. In particular, there
is no dispute in this case that respondent could have issued a
final notice of intent to levy to petitioner regarding her unpaid
income taxes for 1985 to 1988, and 1994 and 1995 before
petitioner filed her bankruptcy petition. Moreover, we are
satisfied that the issuance of the final notice of intent to levy
constituted the commencement of an administrative proceeding
against petitioner within the meaning of 11 U.S.C. section
362(a)(1). See, e.g., Smith v. Commissioner, 124 T.C. __ (2005)
(holding that a notice of determination issued under section 6330
to a taxpayer/debtor in bankruptcy constituted the continuation
of an administrative collection action against the debtor within
the meaning of 11 U.S.C. section 362(a)(1)). In particular, when
the Commissioner issues to a person a final notice of intent to
levy, that person is entitled to invoke the administrative and
judicial procedures prescribed under section 6330. Id. at __.
Indeed, should such person fail to timely request an
administrative hearing, the Commissioner generally is free to
proceed with the proposed levy. Consistent with the foregoing,
we conclude that 11 U.S.C. section 362(a)(1)
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barred respondent from issuing to petitioner the final notice of
intent to levy dated November 26, 2001.6
Our holding that the issuance to petitioner of the final
notice of intent to levy violated the automatic stay is
consistent with both bankruptcy case law and respondent’s
administrative guidance. See In re Parker, 279 Bankr. 596,
602-603 (Bankr. S.D. Ala. 2002) (The Commissioner conceded, and
the bankruptcy court held, that the issuance of a final notice of
intent to levy under section 6330 violated the automatic stay.);
In re Covington, 256 Bankr. 463, 465-466 (Bankr. D.S.C. 2000)
(The bankruptcy court held that a final notice of intent to levy
did not constitute a notice and demand for payment within the
meaning of 11 U.S.C. section 362(b)(9)(D)) and that such notice
was issued to the debtor in violation of the stay); see also
Chief Counsel Adv. 00-18-005 (May 5, 2000) (A Final Notice of
Intent to Levy issued to a person who had filed a bankruptcy
petition violated the automatic stay and was void).
At this point, a brief comment regarding the Court’s
jurisdiction is warranted. We recently held in Smith v.
Commissioner, 124 T.C. __, that a notice of determination under
section 6330 issued to a taxpayer/debtor while the automatic stay
was in effect was invalid, and we dismissed the case for lack of
6
Respondent does not contend that the final notice of
intent to levy qualified under any of the exceptions to the
automatic stay prescribed in 11 U.S.C. sec. 362(b)(2000).
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jurisdiction on that ground. The facts in the present case are
distinguishable from those in Smith v. Commissioner, 124 T.C. __.
Specifically, the notice of determination upon which this case is
based was issued to petitioner well after the automatic stay was
terminated. Because the petition was timely filed in response to
a notice of determination that is valid on its face, we conclude
that petitioner properly invoked our jurisdiction under section
6330. See Sarrell v. Commissioner, 117 T.C. 122, 125 (2001);
Moorhous v. Commissioner, 116 T.C. 263, 269 (2001); Offiler v.
Commissioner, 114 T.C. 492, 498 (2000); see also Rule 330(b).
Respondent maintains that petitioner should be estopped from
asserting that the final notice of intent to levy violated the
automatic stay because she failed to inform respondent during the
administrative proceedings that she had filed a bankruptcy
petition. Respondent cites Matthews v. Rosene, 739 F.2d 249 (7th
Cir. 1984), for the proposition that a debtor may be barred by
the equitable doctrine of laches from challenging an action that
arguably violated the automatic stay.
We are not persuaded by respondent’s argument. The record
suggests that petitioner was acting pro se throughout the
administrative proceedings. Without more, we presume that
petitioner acted in good faith and that she was unaware that
respondent’s issuance of the final notice of intent to levy
violated the automatic stay. Respondent, on the other hand, had
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previously issued administrative guidance in the form of a Chief
Counsel Advisory (cited above) concluding that the issuance of a
final notice of intent to levy to a person with an open
bankruptcy case would violate the automatic stay. Considering
respondent’s administrative guidance on this specific point, we
disagree with respondent that petitioner should be estopped.
Considering all the circumstances, we decline to apply an
equitable principle to bar consideration of the validity of the
final notice of intent to levy.
We recently noted that collection activity undertaken in
violation of the automatic stay generally is considered void or
invalid. See Smith v. Commissioner, 124 T.C. __ (2005) (citing
9B Am. Jur. 2d, Bankruptcy, sec. 1756 (1999)). The U.S. Court of
Appeals for the Seventh Circuit, the court to which an appeal in
this case would lie, adheres to this view. See Middle Tenn. News
Co. v. Charnel of Cincinnati, Inc., 250 F.3d 1077, 1082 (7th Cir.
2001).
In sum, we conclude that the final notice of intent to levy
was issued to petitioner in violation of the automatic stay, and
therefore, it was invalid. It follows that respondent abused his
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discretion by concluding in the notice of determination that the
proposed levy should proceed.
To reflect the foregoing,
An Order denying respondent’s
Motion for Summary Judgment, as
supplemented, and a decision will
be entered for petitioner.