T.C. Memo. 2005-99
UNITED STATES TAX COURT
MERRY J. CHANDLER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6201-02L. Filed May 9, 2005.
Held: R’s Appeals officer did not abuse his
discretion by sustaining a determination to proceed
with collection by levy of P’s unpaid liabilities
following a telephonic conversation and an exchange of
correspondence with P. P failed to prove that she
requested a face-to-face interview with the Appeals
officer during the course of the sec. 6330, I.R.C.,
hearing.
Merry J. Chandler, pro se.
Ann M. Welhaf and Jeffrey E. Gold, for respondent.
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MEMORANDUM FINDINGS OF FACT AND OPINION
HALPERN, Judge: This case is before the Court to review a
determination (the determination) made by respondent’s Appeals
Office (Appeals) that respondent may proceed to collect by levy
petitioner’s tax liabilities for her 1988, 1993, 1994, 1996,
1997, and 1998 taxable (calendar) years. We review the
determination pursuant to section 6330(d)(1).1 At the start of
the trial in this case, respondent conceded that petitioner had
paid in full her liability for 1993 and that respondent would not
pursue a levy with respect to that year. We accept that
concession and will reflect it in our decision. We therefore
consider only respondent’s proposed levy with respect to
petitioner’s unpaid liabilities for 1988, 1994, 1996, 1997, and
1998 (collectively, the unpaid liabilities). Petitioner’s sole
argument on brief is that Appeals erred in making the
determination because it failed to accord petitioner the face-to-
face interview that she claims to have requested. Because
petitioner has failed to persuade us that she requested a face-
to-face interview, we sustain the determination.2
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986.
2
During the trial in this case, petitioner also claimed
that she had paid in full her liability for 1997 and that Appeals
Officer McNichol (the individual in Appeals assigned to her case)
had failed to allow her reasonable time to submit an amended
offer in compromise. Respondent denied both of those claims. At
(continued...)
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FINDINGS OF FACT
The parties filed a stipulation of facts, which, with
accompanying exhibits, is incorporated herein by reference.
Petitioner resided in Bowie, Maryland, at the time the
petition was filed.
On July 25, 2000, respondent issued to petitioner a Final
Notice - Notice of Intent To Levy and Notice of Your Right to a
Hearing (the notice), which sets forth the unpaid liabilities and
describes respondent’s intent to levy on petitioner’s property to
collect those liabilities. On August 7, 2000, petitioner timely
filed a Request for a Collection Due Process Hearing (the
request). On June 26, 2001, the request was assigned to Appeals
Officer Francis McNichol, Jr. Mr. McNichol maintained a written
2
(...continued)
the conclusion of the trial, the Court instructed petitioner that
she was required to file briefs. In particular, we instructed
her that, as to any argument she wished to make, she should state
in her brief the facts she wished the Court to find and then,
based on those facts, argue her case to the Court. Petitioner
filed both an opening brief and an answering brief. Although in
her opening brief petitioner proposes facts and makes an argument
with respect to the issue of whether she requested a face-to-face
interview with Appeals Officer McNichols, she neither proposes
facts nor makes any argument with respect to her claims that she
paid in full her liability for 1997 or that Appeals Officer
McNichols failed to allow her reasonable time to submit an
amended offer in compromise. If an argument is not pursued on
brief, we may conclude that it has been abandoned. E.g., Mendes
v. Commissioner, 121 T.C. 308, 312-313 (2003). Because of our
instruction to petitioner concerning her brief and her pursuit on
brief exclusively of the face-to-face interview issue, we
conclude that she has abandoned her other two claims, and we need
not discuss them.
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record of actions that he took with respect to the request that
he considered to be significant, including correspondence and
other contacts with petitioner and the final disposition of the
request (the case activity record). The entry in the case
activity record for October 12, 2001, chronicles a telephone
conversation with petitioner. In pertinent part, it states:
“Personal conference is not necessary per [petitioner].
Telephone discussion will be fine.” The remainder of the entry
discusses (1) an offer in compromise that petitioner claimed to
have filed, but as to which Mr. McNichol could find no evidence
in an Internal Revenue Service (IRS) database, and (2) Mr.
McNichol’s advice to petitioner that, before an offer in
compromise could be considered, she must file her 2000 return.
Mr. McNichol’s entry in the case activity record for
December 4, 2001, states that petitioner filed her 2000 return
and that the IRS received an offer in compromise from petitioner.
The entry states that there were problems with the offer and that
Mr. McNichol sent a letter to petitioner asking for revisions to
the offer and for additional information; the entry further
states that petitioner would be allowed 30 days to respond. An
entry for January 2, 2002, states that there had been no word
from petitioner and that Mr. McNichol had determined to sustain
the collection (levy) action. A further entry for that date
states that Mr. McNichol had prepared the case for closing.
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Besides the entry on October 12, 2001, no entry in the case
activity record references any discussion of a personal
conference.
On February 19, 2002, Appeals issued to petitioner the
determination.
OPINION
I. Introduction
If any person liable for Federal tax liability neglects or
refuses to make payment within 10 days of notice and demand, the
Commissioner is authorized to collect the tax by levy on that
person’s property. See sec. 6331(a). As a general rule, at
least 30 days before taking such action, the Commissioner must
provide the person with a written final notice of intent to levy
that describes, among other things, the administrative appeals
available to the person. See sec. 6331(d).
Upon request, the person is entitled to an administrative
review hearing before Appeals (a collection due process hearing).
Sec. 6330(b)(1). Appeals must offer the person an opportunity
for a hearing, in person, at the Appeals Office closest to the
person’s residence. See sec. 301.6330-1(d)(2), Q&A-D7, Proced. &
Admin. Regs. Nevertheless, a collection due process hearing
“may, but is not required to, consist of a face-to-face meeting,
one or more written or oral communications between an Appeals
officer or employee and the taxpayer * * *, or some combination
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thereof.” Id., Q&A-D6, Proced. & Admin. Regs. The Appeals
officer conducting the collection due process hearing must verify
that the requirements of any applicable law or administrative
procedure have been met. Sec. 6330(c)(1). Section 6330(c)
prescribes the relevant matters that a person may raise at the
collection due process hearing, including spousal defenses, the
appropriateness of respondent’s proposed collection action, and
possible alternative means of collection. A taxpayer may contest
the existence or amount of the underlying tax liability at a
collection due process hearing if the taxpayer did not receive a
statutory notice of deficiency with respect to the underlying tax
liability or did not otherwise have an opportunity to dispute
that liability. Sec. 6330(c)(2)(B).
Following the collection due process hearing, the Appeals
officer must determine whether the collection action is to
proceed, taking into account the verification the Appeals officer
has made, the issues raised by the taxpayer at the hearing, and
whether the collection action, “balances the need for the
efficient collection of taxes with the legitimate concern of the
* * * [taxpayer] that any collection action be no more intrusive
than necessary.” Sec. 6330(c)(3). We have jurisdiction to
review such determinations where we have jurisdiction over the
type of tax involved in the case. Sec. 6330(d)(1)(A); see
Iannone v. Commissioner, 122 T.C. 287, 290 (2004). Where the
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underlying tax liability is properly at issue, we review the
determination de novo. E.g., Goza v. Commissioner, 114 T.C. 176,
181-182 (2000). Where the underlying tax liability is not at
issue, we review the determination for abuse of discretion. Id.
at 182. Whether an abuse of discretion has occurred depends upon
whether the exercise of discretion is without sound basis in fact
or law. See Ansley-Sheppard-Burgess Co. v. Commissioner, 104
T.C. 367, 371 (1995).
II. Arguments of the Parties
Petitioner argues that, because petitioner was not granted a
face-to-face interview, Mr. McNichol abused his discretion by
determining that collection of the unpaid liabilities by levy was
proper. Respondent answers that petitioner received an adequate
hearing by telephone and exchange of correspondence and declined
a face-to-face interview when, on October 12, 2001, such an
interview was offered.
III. Discussion
We decide whether, before Appeals determined to proceed by
levy with collection of the unpaid liabilities, Appeals Officer
McNichol accorded petitioner a fair hearing, as required by
section 6330(b)(1). Procedures for the conduct of collection due
process hearings are set forth in section 301.6330-1(d), Proced.
& Admin. Regs. As set forth above, section 301.6330-1(d), Q&A-D6
and D7, Proced. & Admin. Regs., provides that, although a
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taxpayer must be offered a face-to-face interview, an acceptable
hearing can consist of an exchange of correspondence or oral
(telephonic) communications, or some combination of the two. See
also Katz v. Commissioner, 115 T.C. 329, 334-338 (2000);
Armstrong v. Commissioner, T.C. Memo. 2002-224; cf. Parker v.
Commissioner, T.C. Memo. 2004-226. Entries made by Mr. McNichol
in the case activity record show both an exchange of
correspondence and telephone conversations. Based on the
testimony of Mr. McNichol and the corroborating October 12, 2001,
entry in the case activity record, we believe, and find, that, on
that date, Mr. McNichol offered petitioner the opportunity for a
face-to-face interview, which she declined. We further find that
petitioner did not thereafter change her mind and request a face-
to-face interview. Petitioner testified that, at some time,
perhaps after she received a letter from Mr. McNichol dated
December 4, 2001, she telephoned him and asked to meet with him,
and he refused. Mr. McNichol testified that he recalled no such
request; indeed, he could recall no conversations with petitioner
after December 4, 2001. The case activity record shows no
communication with petitioner after December 4, 2001.
Petitioner’s testimony was inexact as to dates, and she offers
nothing to corroborate her testimony. While petitioner may have
decided at some point after initially having been contacted by
Mr. McNichol on October 12, 2001, and declining a face-to-face
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interview, that, indeed, she did wish such an interview, we are
unconvinced that she communicated that fact to Mr. McNichol.
IV. Conclusion
As we understand her underlying claim, petitioner argues
that she should be allowed to make (and Appeals should accept) an
offer in compromise of the unpaid liabilities. Petitioner
attempted to make an offer in compromise, but Mr. McNichol found
problems with the offer and asked petitioner to revise it and to
provide him with additional information. Mr. McNichol gave
petitioner 30 days to do so. At the end of 30 days, when
petitioner had failed to make the revisions or provide the
additional information, Mr. McNichol took steps to close
petitioner’s case and deny the request. It took more than 6
weeks for Appeals to close the case and issue the determination.
Despite the additional 6 weeks, petitioner never revised the
offer or provided the additional information. We do not think
that Appeals abused its discretion in determining to proceed to
collect the unpaid liabilities by levy. See Roman v.
Commissioner, T.C. Memo. 2004-20 (reasonable to issue adverse
section 6330 determination when, after 6 weeks, taxpayer had
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failed to submit information requested with respect to offer in
compromise).
To reflect the foregoing,
An appropriate decision
will be entered for respondent.