Estate of Andrews v. Comm'r

T.C. Memo. 2007-30

UNITED STATES TAX COURT

ESTATE OF CAROL ANDREWS, DECEASED, ROBERT ANDREWS, SPECIAL
ADMINISTRATOR, AND ROBERT ANDREWS, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 18174-04L. Filed February 7, 2007.

Terri A. Merriam, for petitioners.

Gregory M. Hahn and Thomas N. Tomashek, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

HAINES, Judge: Petitioners filed a petition with this Court

in response to a Notice of Determination Concerning Collection

Actions Under Section 6330 (notice of determination) for 1981
 - 2 -

through 1987.1 Pursuant to section 6330(d), petitioners seek

review of respondent’s determination. The issue for decision is

whether respondent abused his discretion in sustaining the

proposed collection action.2

FINDINGS OF FACT

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

The first, second, third, fourth, and fifth stipulations of fact

and the attached exhibits are incorporated herein by this

reference.3

1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. Amounts
are rounded to the nearest dollar.
2
Petitioners also dispute respondent’s determination that
they are liable for the increased rate of interest on tax-
motivated transactions under sec. 6621(c). As to this dispute,
the parties filed a stipulation to be bound by the Court’s
determination in Ertz v. Commissioner, T.C. Memo. 2007-15, which
involves a similar issue.
3
Respondent reserved relevancy objections to many of the
exhibits attached to the stipulations of fact. Fed. R. Evid. 402
provides the general rule that all relevant evidence is
admissible, while evidence which is not relevant is not
admissible. Fed. R. Evid. 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
While the relevance of some exhibits is certainly limited, we
find that the exhibits meet the threshold definition of relevant
evidence and are admissible. The Court will give the exhibits
only such consideration as is warranted by their pertinence to
the Court’s analysis of petitioners’ case.

Respondent also objected to many of the exhibits on the
basis of hearsay. Even if we were to receive those exhibits into
(continued...)
 - 3 -

Petitioners resided in Lodi, California, when they filed

their petition. After filing the petition, but before trial,

Carol Andrews (Mrs. Andrews) passed away from complications

arising after surgery. At the time of her death, Robert Andrews

(Mr. Andrews) and Mrs. Andrews (collectively referred to as

petitioners) had been married for more than 33 years. At the

time of trial, Mr. Andrews was 61 years old.

In 1984, petitioners became partners in Durham Genetic

Engineering 1984-2, Ltd. (DGE 84-2), a cattle breeding

partnership organized and operated by Walter J. Hoyt III (Hoyt).

DGE 84-2 was also known as Timeshare Breeding Service 1984-2,

Ltd. (TBS 84-2). After 1984, petitioners became partners in

Durham Genetic Engineering 1985-4, Ltd. (DGE 85-4), another Hoyt

partnership.4

From about 1971 through 1998, Hoyt organized, promoted, and

operated more than 100 cattle breeding partnerships. Hoyt also

organized, promoted, and operated sheep breeding partnerships.

From 1983 to his subsequent removal by the Tax Court in 2000

3
(...continued)
evidence, they would have no impact on our findings of fact or on
the outcome of this case.
4
Petitioners were also partners in another Hoyt-related
partnership identified as HS Truck. The details regarding HS
Truck are not in the record. Though unclear, it appears that all
adjustments made to petitioners’ income tax liability for the
years 1981-87 arose from their involvement in DGE 84-2 (or TBS
84-2) and DGE 85-4 only.
 - 4 -

through 2003, Hoyt was the tax matters partner of each Hoyt

partnership. From approximately 1980 through 1997, Hoyt was a

licensed enrolled agent, and as such, he represented many of the

Hoyt partners before the Internal Revenue Service (IRS). In

1998, Hoyt’s enrolled agent status was revoked. Hoyt was

convicted of various criminal charges in 2000.5

Beginning in 1984 until at least 1987, petitioners claimed

losses and credits on their Federal income tax returns arising

from their involvement in the Hoyt partnerships. Petitioners

also carried back unused investment credits to 1981, 1982, and

5
Petitioners ask the Court to take judicial notice of
certain “facts” in other Hoyt-related cases and apply judicial
estoppel to “facts respondent has asserted in previous [Hoyt-
related] litigation”. We do neither.

A judicially noticeable fact is one not subject to
reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned. Fed. R. Evid.
201(b). Petitioners are not asking the Court to take judicial
notice of facts that are not subject to reasonable dispute.
Instead, petitioners are asking the Court to take judicial notice
of the truth of assertions made by taxpayers and the Commissioner
in other Hoyt-related cases. Such assertions are not the proper
subject of judicial notice.

The doctrine of judicial estoppel prevents a party from
asserting in a legal proceeding a claim that is inconsistent with
a position successfully taken by that party in a previous
proceeding. New Hampshire v. Maine, 532 U.S. 742, 749 (2001).
Among the requirements for judicial estoppel to be invoked, a
party’s current litigating position must be “clearly
inconsistent” with a prior litigating position. Id. at 750-751.
Petitioners have failed to identify any clear inconsistencies
between respondent’s current position and his position in any
previous litigation.
 - 5 -

1983. As a result of these losses and credits, petitioners

reported overpayments of tax for 1981 through 1987 and received

refunds in the amounts claimed.

Respondent issued notices of final partnership

administrative adjustments (FPAAs) to TBS 84-2 for its 1984 and

1985 taxable years, to DGE 84-2 for its 1986 taxable year, and to

DGE 85-4 for its 1985 and 1986 taxable years.6 After completion

of the partnership-level proceedings, respondent determined

deficiencies in petitioners’ income tax for their 1981 through

1987 tax years.

On August 21, 2001, respondent issued petitioners a Final

Notice--Notice of Intent to Levy and Notice of Your Right to a

Hearing (final notice). The final notice included petitioners’

outstanding tax liabilities for 1981 through 1987.

On September 12, 2001, petitioners submitted a Form 12153,

Request for a Collection Due Process Hearing. Petitioners argued

that the proposed levies were inappropriate, that an offer-in-

compromise should be accepted, and that Mr. Andrews was entitled

to innocent spouse relief under section 6015.

Petitioners’ case was assigned to Settlement Officer Linda

Cochran (Ms. Cochran). Ms. Cochran scheduled a telephone section

6330 hearing for March 17, 2004. During the hearing,

6
The FPAAs and other information specific to TBS 84-2’s,
DGE 84-2’s, and DGE 85-4’s partnership-level proceedings are not
in the record.
 - 6 -

petitioners’ representative, Terri A. Merriam (Ms. Merriam),

requested additional time to submit information. Ms. Cochran

extended petitioners’ deadline for producing information to March

31, 2004.

On March 31, 2004, petitioners submitted to Ms. Cochran a

Form 656, Offer in Compromise, a Form 433-A, Collection

Information Statement for Wage Earners and Self-Employed

Individuals, one letter setting forth medical and retirement

considerations and explaining the offer amount, and three letters

setting out in detail petitioners’ position regarding the offer-

in-compromise. Petitioners’ letters included several exhibits.

The Form 656 indicated that petitioners were seeking an

offer-in-compromise based on either doubt as to collectibility

with special circumstances or effective tax administration.

Petitioners offered to pay $25,000 to compromise their

outstanding tax liabilities for 1981 through 1996, which they

estimated to be $255,254.
 - 7 -

On the Form 433-A, petitioner listed the following assets:

Asset Current Balance/Value Loan Balance
Checking accounts $881 n/a
Savings accounts 53 n/a
401(k) plan account 107,449 -0-
Life insurance 4,975 $1,737
1998 Chevrolet 2,465 303
Lumina
1991 Chevrolet S-10 450 -0-
1988 Pontiac -0- -0-
Grand Prix
House 200,000 164,155
Total 316,273 166,195

The reported value of the section 401(k) plan account reflected

only 70 percent of its then-current value. The reported value of

the life insurance reflected its then-current cash value. The

loan balance on the house included the balance on a mortgage

($121,155), and the balance on a home equity line of credit

($43,000).

Petitioners reported gross monthly income of $5,252,

representing Mr. Andrews’s wage income of $2,382, and Mrs.

Andrews’s pension/Social Security income of $2,870. Petitioners

also reported the following monthly living expenses:
 - 8 -

Expense item Monthly expense
Food, clothing, misc. $1,005
Housing and utilities 1,756
Transportation 307
Health care 533
Taxes (income and FICA) 707
Life insurance 121
Other secured debt 460
Other expenses 458
Total 5,347

Petitioners did not explain the “other secured debt” or “other

expenses”.7

In the letter explaining the offer amount, petitioners

stated that they were offering to pay $25,000 “in satisfaction

for all years related to the Hoyt investment (1981 through 1996).

Our retirement analysis shows that the Andrews will run out of

funds in 2011, even without making the $25,000.00 payment. Thus,

due to their age and medical concerns, $25,000.00 is a reasonable

offer.” The letter also included “medical and retirement

considerations” and a “retirement analysis”. Petitioners’

medical and retirement considerations included: (1) Mrs. Andrews

had suffered two heart attacks, underwent several angioplasties,

7
It appears, however, that the other secured debt
represented petitioners’ monthly payment on their home equity
line of credit, and the other expenses represented attorney’s
fees petitioner paid to Ms. Merriam’s law firm in connection with
the present litigation.
 - 9 -

and had to take several medications; (2) due to her heart

condition, Mrs. Andrews was forced to retire in March 2004; (3)

Mr. Andrews suffered from depression and skin cancer; and (4) due

to his health, Mr. Andrews expected to retire at 65 years old.

The retirement analysis outlined the likelihood of increased

housing and medical costs as petitioners aged. Petitioners also

noted that Mr. Andrews had an innocent spouse case pending before

the Tax Court at docket No. 19705-02.

In the remaining three letters, petitioners alleged that

they were victims of Hoyt’s fraud and asserted various arguments

regarding the appropriateness of an offer-in-compromise.

On May 21, 2004, petitioners submitted another letter to Ms.

Cochran, which included 42 exhibits not provided with the

previous letters.

On August 25, 2004, respondent issued petitioners a notice

of determination. In evaluating petitioners’ offer-in-

compromise, respondent made the following changes to the values

of assets petitioners reported on the Form 433-A: (1) Respondent

determined that the value of the section 401(k) plan account was

$153,499 instead of $107,449 (the 70-percent value reported by

petitioners) and reduced petitioners’ net realizable equity by

$35,700 to $117,799 to reflect estimated tax and penalties; and

(2) respondent determined that the house was worth $350,000

instead of $200,000 and reduced petitioners’ net realizable
 - 10 -

equity by $164,155 to $185,845 to reflect the amount outstanding

on the first and second mortgages. Respondent concluded that

petitioners had a total net realizable equity of $310,011.

Respondent accepted petitioners’ reported gross monthly

income of $5,252 but made the following adjustments to their

monthly expenses: (1) Reduced the housing and utilities expense

from $1,756 to $1,254 because petitioners failed to document that

they were entitled to an amount higher than the local guideline

amount; and (2) disallowed the other expenses of $458 because

petitioners failed to itemize expenses, but allowed the $460 of

“other secured debt” because Ms. Cochran believed that amount

represented the attorney’s fees being paid to Ms. Merriam’s law

firm. Regarding the possible future increases in expenses

outlined in petitioners’ letters, respondent determined that

these were “general projections from the taxpayers’

representative and may never, in fact, be incurred” and thus did

not take them into account.

After making adjustments to petitioners’ monthly expenses,

respondent determined that $70,065 was collectible from their

future income.8 Respondent concluded that petitioners had a

reasonable collection potential of $380,076.

8
Respondent determined that petitioners had monthly
disposable income of $865 and multiplied this by 81, the number
of months remaining on the collection statute.
 - 11 -

Because petitioners had the ability to pay substantially

more than the amount offered, respondent rejected their offer-in-

compromise based on doubt as to collectibility with special

circumstances. Respondent also rejected petitioners’ effective

tax administration offer-in-compromise based on economic hardship

because they had the ability to pay their tax liability in full.

Finally, respondent rejected petitioners’ effective tax

administration offer-in-compromise based on public policy or

equity ground because the case “fails to meet the criteria for

such consideration”.

Respondent determined that petitioners did not offer an

acceptable collection alternative and that all requirements of

law and administrative procedure had been met. Respondent

concluded that the proposed collection action could proceed, but

that any activity against Mr. Andrews’s assets should be stayed

until his pending innocent spouse case had been decided.

In response to the notice of determination, petitioners

filed a petition with this Court on September 27, 2004.

OPINION

Section 7122(a) provides that “The Secretary may compromise

any civil * * * case arising under the internal revenue laws”.

Whether to accept an offer-in-compromise is left to the

Secretary’s discretion. Fargo v. Commissioner, 447 F.3d 706, 712
 - 12 -

(9th Cir. 2006), affg. T.C. Memo. 2004-13; sec. 301.7122-1(c)(1),

Proced. & Admin. Regs.

The regulations under section 7122(a) set forth three

grounds for the compromise of a tax liability: (1) Doubt as to

liability; (2) doubt as to collectibility; or (3) promotion of

effective tax administration. Sec. 301.7122-1(b), Proced. &

Admin. Regs. Doubt as to liability is not at issue in this

case.9

The Secretary may compromise a tax liability based on doubt

as to collectibility where the taxpayer’s assets and income are

less than the full amount of the assessed liability. Sec.

301.7122-1(b)(2), Proced. & Admin. Regs. Generally, under the

Commissioner’s administrative pronouncements, an offer-in-

compromise based on doubt as to collectibility will be acceptable

only if it reflects the taxpayer’s reasonable collection

potential. Rev. Proc. 2003-71, sec. 4.02(2), 2003-2 C.B. 517,

517. In some cases, the Commissioner will accept an offer-in-

compromise of less than the reasonable collection potential if

there are “special circumstances”. Id. Special circumstances

are: (1) Circumstances demonstrating that the taxpayer would

suffer economic hardship if the IRS were to collect from him an

amount equal to the reasonable collection potential; or (2)

9
While petitioners dispute their liability for sec.
6621(c) interest, see supra note 2, they did not raise doubt as
to liability as a ground for compromise.
 - 13 -

circumstances justifying acceptance of an amount less than the

reasonable collection potential of the case based on public

policy or equity considerations. See Internal Revenue Manual

(IRM) sec. 5.8.4.3(4). However, in accordance with the

Commissioner’s guidelines, an offer-in-compromise based on doubt

as to collectibility with special circumstances should not be

accepted, even when economic hardship or considerations of public

policy or equity circumstances are identified, if the taxpayer

does not offer an acceptable amount. See IRM sec. 5.8.11.2.1(11)

and .2(12).

The Secretary may also compromise a tax liability on the

ground of effective tax administration when: (1) Collection of

the full liability will create economic hardship; or (2)

exceptional circumstances exist such that collection of the full

liability would undermine public confidence that the tax laws are

being administered in a fair and equitable manner; and (3)

compromise of the liability would not undermine compliance by

taxpayers with the tax laws. Sec. 301.7122-1(b)(3), Proced. &

Admin. Regs.

Petitioners proposed an offer-in-compromise based

alternatively on doubt as to collectibility with special

circumstances or effective tax administration. Petitioners

offered to pay $25,000 to compromise their outstanding tax

liabilities for 1981 through 1996, which they estimated to be
 - 14 -

$255,254. Petitioners argued that collection of the full

liability would create economic hardship and would undermine

public confidence that the tax laws are being administered in a

fair and equitable manner. Respondent determined that

petitioners’ reasonable collection potential was $380,076 and

that their offer-in-compromise did not meet the criteria for an

offer-in-compromise based on either doubt as to collectibility

with special circumstances or effective tax administration.

Because the underlying tax liability is not at issue, our

review under section 6330 is for abuse of discretion. See Sego

v. Commissioner, 114 T.C. 604, 610 (2000); Goza v. Commissioner,

114 T.C. 176, 182 (2000). This standard does not ask us to

decide whether in our own opinion petitioners’ offer-in-

compromise should have been accepted, but whether respondent’s

rejection of the offer-in-compromise was arbitrary, capricious,

or without sound basis in fact or law. Woodral v. Commissioner,

112 T.C. 19, 23 (1999); Keller v. Commissioner, T.C. Memo. 2006-

166; Fowler v. Commissioner, T.C. Memo. 2004-163. Because the

same factors are taken into account in evaluating offers-in-

compromise based on doubt as to collectibility with special

circumstances and on effective tax administration (economic

hardship or considerations of public policy or equity), we

consider petitioners’ separate grounds for their offer-in-

compromise together. See Murphy v. Commissioner, 125 T.C. 301,
 - 15 -

309, 320 n.10 (2005), affd. 469 F.3d 27 (1st Cir. 2006); Barnes

v. Commissioner, T.C. Memo. 2006-150.

A. Economic Hardship

Petitioners assert that Ms. Cochran abused her discretion by

rejecting their offer-in-compromise because “There is no

indication that SO Cochran gave any substantive consideration to

Petitioners’ demonstrated special circumstances or that they

would experience a hardship if required to make a full-payment.”

In support of this assertion, petitioners argue: (1) Ms. Cochran

failed to discuss petitioners’ special circumstances in the

notice of determination; and (2) Ms. Cochran erroneously

determined petitioners’ reasonable collection potential and

failed to take into account their future expenses.

Section 301.6343-1(b)(4)(i), Proced. & Admin. Regs., states

that economic hardship occurs when a taxpayer is “unable to pay

his or her reasonable basic living expenses.” Section 301.7122-

1(c)(3), Proced. & Admin. Regs., sets forth factors to consider

in evaluating whether collection of a tax liability would cause

economic hardship, as well as some examples. One of the examples

involves a taxpayer who provides full-time care to a dependent

child with a serious long-term illness. A second example

involves a taxpayer who would lack adequate means to pay his

basic living expenses were his only asset to be liquidated. A

third example involves a disabled taxpayer who has a fixed income
 - 16 -

and a modest home specially equipped to accommodate his

disability, and who is unable to borrow against his home because

of his disability. See sec. 301.7122-1(c)(3)(iii), Examples (1),

(2), and (3), Proced. & Admin. Regs. None of these examples

bears any resemblance to this case, but instead they “describe

more dire circumstances”. Speltz v. Commissioner, 454 F.3d 782,

786 (8th Cir. 2006), affg. 124 T.C. 165 (2005); see also Barnes

v. Commissioner, supra. Nevertheless, we address petitioners’

arguments.

1. Discussion of Special Circumstances in the Notice of
Determination

Petitioners argue that Ms. Cochran failed “to follow proper

procedure by discussing Petitioners’ special circumstances, what

equity was considered in relation to their special circumstances,

and how the special circumstances affected her determination of

their ability to pay.” Petitioners infer that, because the

special circumstances were not discussed in detail in the notice

of determination, Ms. Cochran failed to adequately take their

circumstances into consideration.

We do not believe that Appeals must specifically list in the

notice of determination every single fact that it considered in

arriving at the determination. See Barnes v. Commissioner,

supra. This is especially true in a case such as this, where

petitioners provided Ms. Cochran with multiple letters and

hundreds of pages of exhibits. As discussed below, Ms. Cochran
 - 17 -

considered all of the arguments and information presented to her.

Given the amount of information, it would be unreasonable to put

the burden on Ms. Cochran to specifically address in the notice

of determination every single asserted fact, circumstance, and

argument presented. The fact that all of the information was not

specifically addressed in the notice of determination was not an

abuse of discretion.

2. Petitioners’ Income and Future Expenses

Petitioners assert that Ms. Cochran erroneously determined

their reasonable collection potential by: (1) Considering 81

months of petitioners’ future income instead of 48 months; and

(2) failing to adequately consider their age, health and

retirement status, medical costs, and the likelihood of future

increases in medical and housing costs.10 Petitioners’ arguments

are not persuasive.

Section 5.8.5.5 of the IRM provides that, when a taxpayer

makes a cash offer to compromise an outstanding tax liability,

10
Additionally, petitioners argued on brief that Mr.
Andrews has incurred additional costs arising from the illness
and death of Mrs. Andrews. Petitioners cite Exhibit 427-P, an
explanation of benefits from their insurance provider, as support
for this argument. However, Exhibit 427-P was not offered for
the truth of the matter asserted but was used only to show Mr.
Andrews’s understanding of what his medical bills might be.
Further, Mr. Andrews testified that he was unsure as to how much,
if any, of the medical bills he would ultimately be liable for.
Because there is no evidence in the record that establishes Mr.
Andrews will incur any additional costs, we reject petitioners’
argument.
 - 18 -

only 48 months of future income should be considered.

Petitioners made a cash offer, but Ms. Cochran used 81 months of

future income. At trial, Ms. Cochran acknowledged that she

should have used only 48 months of future income. Ms. Cochran

recomputed petitioners’ reasonable collection potential using 48

months and determined that it was $351,531, instead of $380,076,

as reflected in the notice of determination. Ms. Cochran

testified that the change would not have had an effect on her

final determination because, using either calculation,

petitioners’ reasonable collection potential was greater than

their offer amount ($25,000). We find that Ms. Cochran’s error

did not amount to an abuse of discretion because, even when the

error is corrected, petitioners’ reasonable collection potential

of $351,531 far exceeds their offer amount of $25,000.

With regard to age, health, and retirement status,

petitioners’ argument is not supported by the record. In their

letter describing their offer amount, petitioners represented

that Mrs. Andrews was retired and Mr. Andrews would retire when

he reached 65 years old. Petitioners also indicated that they

suffered from various medical conditions and that Mrs. Andrews

was taking several medications. On their Form 433-A, petitioners

reported monthly medical expenses of $533.

Ms. Cochran accepted petitioners’ monthly medical expenses

without change. Ms. Cochran also accepted petitioners’
 - 19 -

representation that Mrs. Andrews was retired, and thus only

considered her future income from pension/Social Security. While

petitioners indicated that Mr. Andrews would retire at 65, he was

only 59 at the time of the section 6330 hearing.11 Thus, based

on the information submitted by petitioners, Mr. Andrews would

continue to work for at least 5 to 6 more years. Given that Ms.

Cochran accepted petitioners’ medical expenses as reported and

considered future income consistent with the retirement

considerations listed by petitioners, we reject petitioners’

assertion that Ms. Cochran failed to consider petitioners’ age,

health, retirement status, and current medical costs.

Petitioners’ argument is also unavailing with regard to the

likelihood of future increases in medical and housing costs.

Petitioners did not inform Ms. Cochran with any specificity that

they would have to pay a greater amount of unreimbursed medical

expenses in the future, or that their housing expenses would

increase. Instead, they made general assertions about the

increase of medical costs as people age and about the need for

some seniors to seek in-home care or nursing home care or to make

their houses handicapped accessible.

11
In the letter explaining the offer amount, petitioners
stated that Mr. Andrews was 62 instead of 59. However,
petitioners listed Mr. Andrews’s date of birth as September 5,
1944, which would mean that he was 59 years old on March 17, 2004
(the date of the sec. 6330 hearing).
 - 20 -

As reflected in the notice of determination, Ms. Cochran

took into consideration the information petitioners presented,

but concluded that “these possible future expenses are general

projections from the taxpayers’ representative and may never, in

fact, be incurred. The present offer, therefore, must be

considered within the framework of present facts.” Given the

information presented to her, it was not arbitrary or capricious

for Ms. Cochran to ignore these speculative future costs in

making her final determination.

Petitioners also raise challenges to various other

determinations made by Ms. Cochran, including: (1) The

determination that their house had a value of $350,000; (2) the

inclusion of 100 percent of the value of the section 401(k) plan

account (less estimated tax and penalties); (3) the reduction of

their housing and utilities expense; and (4) the disallowance of

$460 in other expenses. We need not discuss in detail these and

other minor disputes raised by petitioners. Even assuming

arguendo that petitioners’ income, expenses, and value of assets

should have been accepted as reported, we would not find that Ms.

Cochran abused her discretion in rejecting petitioners’ offer-in-

compromise.

Ms. Cochran testified that, had she accepted the income,

expenses, and value of assets as reported, petitioners’

reasonable collection potential would have been $160,146.
 - 21 -

Petitioners offered to pay only $25,000 to compromise their

outstanding tax liability, which they estimated to be $255,254.

In some situations, respondent may accept an offer-in-compromise

of less than petitioners’ reasonable collection potential.

However, given all other considerations discussed herein, we do

not believe that Ms. Cochran abused her discretion by rejecting

an offer-in-compromise that was only 10 percent of petitioners’

outstanding tax liability and that bore no relationship to their

ability to pay based on their own calculations.

3. Encouraging Voluntary Compliance With the Tax Laws

We are also mindful that any decision by Ms. Cochran to

accept petitioners’ offer-in-compromise due to doubt as to

collectibility with special circumstances or effective tax

administration based on economic hardship must be viewed against

the backdrop of section 301.7122-1(b)(3)(iii), Proced. & Admin.

Regs.12 See Barnes v. Commissioner, T.C. Memo. 2006-150. That

section requires that Ms. Cochran deny petitioners’ offer-in-

compromise if its acceptance would undermine voluntary compliance

with tax laws by taxpayers in general. Thus, even if we were to

assume arguendo that petitioners would suffer economic hardship,

12
The prospect that acceptance of an offer-in-compromise
will undermine compliance with the tax laws militates against its
acceptance whether the offer-in-compromise is predicated on
promotion of effective tax administration or on doubt as to
collectibility with special circumstances. See Rev. Proc. 2003-
71, 2003-2 C.B. 517; IRM sec. 5.8.11.2.3; see also Barnes v.
Commissioner, T.C. Memo. 2006-150.
 - 22 -

a finding that we decline to make, we would not find that Ms.

Cochran’s rejection of petitioners’ offer-in-compromise was an

abuse of discretion. As discussed below (in our discussion of

petitioners’ “equitable facts” argument), we conclude that

acceptance of petitioners’ offer-in-compromise would undermine

voluntary compliance with tax laws by taxpayers in general.

B. Public Policy and Equity Considerations

Petitioners assert that “There are so many unique and

equitable facts in this case that this case is an exceptional

circumstance” and respondent abused his discretion by not

accepting those facts as grounds for an offer-in-compromise. In

support of their assertion, petitioners argue: (1) The

longstanding nature of this case justifies acceptance of the

offer-in-compromise; (2) respondent’s reliance on an example in

the IRM was improper; and (3) respondent failed to consider

petitioners’ other “equitable facts”.

1. Longstanding Case

Petitioners assert that the legislative history requires

respondent to resolve “longstanding” cases by forgiving penalties

and interest which would otherwise apply. Petitioners argue

that, because this is a longstanding case, respondent abused his

discretion by failing to accept their offer-in-compromise.

Petitioners’ argument is essentially the same considered and

rejected by the Court of Appeals for the Ninth Circuit in Fargo
 - 23 -

v. Commissioner, 447 F.3d at 711-712. See also Keller v.

Commissioner, T.C. Memo. 2006-166; Barnes v. Commissioner,

supra. We reject petitioners’ argument for the same reasons

stated by the Court of Appeals. We add that petitioners’ counsel

participated in the appeal in Fargo as counsel for the amici. On

brief, petitioners suggests that the Court of Appeals knowingly

wrote its opinion in Fargo in such a way as to distinguish that

case from the cases of counsel’s similarly situated clients

(e.g., petitioners), and to otherwise allow those clients’

liabilities for penalties and interest to be forgiven. We do not

read the opinion of the Court of Appeals in Fargo to support that

conclusion. See Keller v. Commissioner, supra; Barnes v.

Commissioner, supra.

Respondent’s rejection of petitioners’ longstanding case

argument was not arbitrary or capricious.

2. The IRM Example

Petitioners argue that respondent erred when he determined

that they were not entitled to relief based on the second example

in IRM section 5.8.11.2.2(3). Petitioners assert that many of

the facts in this case were not present in the example, and,

therefore, any reliance on the example was misplaced.

Petitioners’ argument is not persuasive.

IRM section 5.8.11.2.2(3) discusses effective tax

administration offers-in-compromise based on equity and public
 - 24 -

policy grounds and states in the second example:

In 1983, the taxpayer invested in a nationally marketed
partnership which promised the taxpayer tax benefits
far exceeding the amount of the investment.
Immediately upon investing, the taxpayer claimed
investment tax credits that significantly reduced or
eliminated the tax liabilities for the years 1981
through 1983. In 1984, the IRS opened an audit of the
partnership under the provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 (TEFRA). After
issuance of the Final Partnership Administrative
Adjustment (FPAA), but prior to any proceedings in Tax
Court, the IRS made a global settlement offer in which
it offered to concede a substantial portion of the
interest and penalties that could be expected to be
assessed if the IRS’s determinations were upheld by the
court. The taxpayer rejected the settlement offer.
After several years of litigation, the partnership
level proceeding eventually ended in Tax Court
decisions upholding the vast majority of the
deficiencies asserted in the FPAA on the grounds that
the partnership’s activities lacked economic substance.
The taxpayer has now offered to compromise all the
penalties and interest on terms more favorable than
those contained in the prior settlement offer, arguing
that TEFRA is unfair and that the liabilities accrued
in large part due to the actions of the Tax Matters
Partner (TMP) during the audit and litigation. Neither
the operation of the TEFRA rules nor the TMP’s actions
on behalf of the taxpayer provide grounds to compromise
under the equity provision of paragraph (b)(4)(i)(B) of
this section. Compromise on those grounds would
undermine the purpose of both the penalty and interest
provisions at issue and the consistent settlement
principles of TEFRA. * * *

1 Administration, Internal Revenue Manual (CCH), sec.

5.8.11.2.2(3), at 16,378. We agree with respondent that the

example presents circumstances similar to those in petitioners’

case, including: Petitioners invested in TEFRA partnerships in

the early 1980s; petitioners’ outstanding tax liability is

related to their investment in the partnerships; FPAAs were
 - 25 -

issued to the partnerships; after several years of litigation,

Tax Court decisions upheld the vast majority of the deficiencies

asserted in the FPAAs; and petitioners argue that interest has

accumulated as the result of delays by and other actions of the

tax matters partner.

Petitioners are also correct in asserting that not all the

facts in their case are present in the example. However, it is

unreasonable to expect that facts in an example be identical to

facts of a particular case before the example can be relied upon.

The IRM example was only one of many factors respondent

considered. Given the similarities to petitioners’ case,

respondent’s reliance on that example was not arbitrary or

capricious.

3. Petitioners’ Other “Equitable Facts”

Petitioners argue that respondent abused his discretion by

failing to consider the other “equitable facts” of this case.

Petitioners’ “equitable facts” include reference to: (1)

Petitioners’ reliance on Bales v. Commissioner, T.C. Memo. 1989-

568;13 (2) petitioners’ reliance on Hoyt’s enrolled agent status;

13
Bales v. Commissioner, T.C. Memo. 1989-568, involved
deficiencies determined against various investors in several Hoyt
partnerships. This Court found in favor of the investors on
several issues, stating that “the transaction in issue should be
respected for Federal income tax purposes.” Taxpayers in many
Hoyt-related cases have used Bales as the basis for a reasonable
cause defense to accuracy-related penalties. This argument has
been uniformly rejected by this Court and by the Courts of
(continued...)
 - 26 -

(3) Hoyt’s criminal conviction; (4) Hoyt’s fraud on petitioners;

and (5) other letters and cases. The basic thrust of

petitioners’ argument is that they were defrauded by Hoyt and

that, if they were held responsible for penalties and interest

incurred as a result of their investment in a tax shelter, it

would be inequitable and against public policy. Petitioners’

argument is not persuasive.

While the regulations do not set forth a specific standard

for evaluating an offer-in-compromise based on claims of public

policy or equity, the regulations contain two examples. See sec.

301.7122-1(c)(3)(iv), Examples (1) and (2), Proced. & Admin.

Regs. The first example describes a taxpayer who is seriously

ill and unable to file income tax returns for several years. The

second example describes a taxpayer who received erroneous advice

from the Commissioner as to the tax effect of the taxpayer’s

actions. Neither example bears any resemblance to this case.

Unlike the exceptional circumstances exemplified in the

regulations, petitioners’ situation is neither unique nor

exceptional in that their situation mirrors those of numerous

other taxpayers who claimed tax shelter deductions in the 1980s

13
(...continued)
Appeals for the Sixth, Ninth, and Tenth Circuits. See, e.g.,
Hansen v. Commissioner, 471 F.3d 1021 (9th Cir. 2006), affg. T.C.
Memo. 2004-269; Mortensen v. Commissioner, 440 F.3d 375, 390-391
(6th Cir. 2006), affg. T.C. Memo. 2004-279; Van Scoten v.
Commissioner, 439 F.3d 1243, 1254-1256 (10th Cir. 2006), affg.
T.C. Memo. 2004-275.
 - 27 -

and 1990s. See Keller v. Commissioner, T.C. Memo. 2006-166;

Barnes v. Commissioner, T.C. Memo. 2006-150.

Of course, the examples in the regulations are not meant to

be exhaustive, and petitioners have a more sympathetic case than

the taxpayers in Fargo v. Commissioner, 447 F.3d at 714, for whom

the Court of Appeals for the Ninth Circuit noted that “no

evidence was presented to suggest that Taxpayers were the subject

of fraud or deception”. Such considerations, however, have not

kept this Court from finding investors in the Hoyt tax shelters

to be liable for penalties and interest, nor have they prevented

the Courts of Appeals for the Sixth, Ninth, and Tenth Circuits

from affirming our decisions to that effect. See Hansen v.

Commissioner, 471 F.3d 1021 (9th Cir. 2006), affg. T.C. Memo.

2004-269; Mortensen v. Commissioner, 440 F.3d 375 (6th Cir.

2006), affg. T.C. Memo. 2004-279; Van Scoten v. Commissioner, 439

F.3d 1243 (10th Cir. 2006), affg. T.C. Memo. 2004-275.

Ms. Cochran testified that she considered all of Ms.

Merriam’s and petitioners’ assertions, including the numerous

letters and exhibits. Nevertheless, Ms. Cochran determined that

petitioners did not qualify for an offer-in-compromise.

The mere fact that petitioners’ “equitable facts” did not

persuade respondent to accept their offer-in-compromise does not

mean that those assertions were not considered. The notice of

determination and Ms. Cochran’s testimony demonstrate
 - 28 -

respondent’s clear understanding and careful consideration of the

facts and circumstances of petitioners’ case. We find that

respondent’s determination that the “equitable facts” did not

justify acceptance of petitioners’ offer-in-compromise was not

arbitrary or capricious, and thus it was not an abuse of

discretion.

We also find that compromising petitioners’ case on grounds

of public policy or equity would not enhance voluntary compliance

by other taxpayers. A compromise on that basis would place the

Government in the unenviable role of an insurer against poor

business decisions by taxpayers, reducing the incentive for

taxpayers to investigate thoroughly the consequences of

transactions into which they enter. It would be particularly

inappropriate for the Government to play that role here, where

the transaction at issue is participation in a tax shelter.

Reducing the risks of participating in tax shelters would

encourage more taxpayers to run those risks, thus undermining

rather than enhancing compliance with the tax laws. See Barnes

v. Commissioner, supra.

C. Petitioners’ Other Arguments

1. Compromise of Penalties and Interest in an Effective
Tax Administration Offer-in-Compromise

Petitioners advance a number of arguments focusing on their

assertion that respondent determined that penalties and interest

could not be compromised in an effective tax administration
 - 29 -

offer-in-compromise. Petitioners argue that such a determination

is contrary to legislative history and is therefore an abuse of

discretion. These arguments are not persuasive.

The regulations under section 7122 provide that “If the

Secretary determines that there are grounds for compromise under

this section, the Secretary may, at the Secretary’s discretion,

compromise any civil * * * liability arising under the internal

revenue laws”. Sec. 301.7122-1(a)(1), Proced. & Admin. Regs. In

other words, the Secretary may compromise a taxpayer’s tax

liability if he determines that grounds for a compromise exist.

If the Secretary determines that grounds do not exist, the amount

offered (or the way in which the offer is calculated) need not be

considered.

Petitioners’ arguments regarding the compromise of penalties

and interest do not relate to whether there are grounds for a

compromise. Instead, these arguments go to whether the amount

petitioners offered to compromise their tax liability was

acceptable. As addressed above, respondent’s determination that

the facts and circumstances of petitioners’ case did not warrant

acceptance of their offer-in-compromise was not arbitrary or

capricious and was thus not an abuse of discretion. Because no

grounds for compromise exist, we need not address whether

respondent can or should compromise penalties and interest in an
 - 30 -

effective tax administration offer-in-compromise. See Keller v.

Commissioner, supra.

2. Information Sufficient for the Court To Review
Respondent’s Determination

Petitioners argue that respondent failed to provide the

Court with sufficient information “so that this Court can conduct

a thorough, probing, and in-depth review of respondent’s

determinations.” Petitioners’ argument is without merit.

Generally, a taxpayer bears the burden of proving the

Commissioner’s determinations incorrect. Rule 142(a)(1); Welch

v. Helvering, 290 U.S. 111, 115 (1933).14 The burden was on

petitioners to show that respondent abused his discretion. The

burden was not on respondent to provide enough information to

show that he did not abuse his discretion. Nevertheless, we find

that we had more than sufficient information to review

respondent’s determination.

3. Deadline for Submission of Information

Petitioners argue that Ms. Cochran abused her discretion by

not allowing their counsel additional time to submit information

14
While sec. 7491 shifts the burden of proof and/or the
burden of production to the Commissioner in certain
circumstances, this section is not applicable in this case
because respondent’s examination of petitioners’ returns did not
commence after July 22, 1998. See Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, sec.
3001(c), 112 Stat. 727.
 - 31 -

to be considered. Petitioners’ argument is not supported by the

record.

Petitioners assert that they were “initially only given

weeks” to provide all information. However, they ignore the fact

that Ms. Cochran granted their requested extension and allowed

them until March 31, 2004, to submit information. Additionally,

petitioners have not identified any documents or other

information that they believe Ms. Cochran should have considered

but that they were unable to produce because of the deadline for

submission. Given the thoroughness and the amount of information

submitted, it is unclear why petitioners needed additional time.

We do not believe that Ms. Cochran abused her discretion by

establishing a deadline for the submission of information.

4. Mr. Andrews’ Pending Innocent Spouse Claim

At the time of the section 6330 hearing, Mr. Andrews had an

innocent spouse case pending before the Tax Court at docket No.

19705-02. In their petition, petitioners argued that, because of

Mr. Andrews’s pending innocent spouse claim: (1) Respondent

abused his discretion by considering the assets of both spouses;

and (2) the notice of intent to levy was invalid against Mr.

Andrews.

Petitioners did not argue on brief that respondent abused

his discretion by considering the assets of both spouses.
 - 32 -

Therefore, we conclude that petitioners have abandoned this

argument.

Petitioners continued to argue on brief that the notice of

intent to levy was invalid against Mr. Andrews. However,

petitioners’ concern that Mr. Andrews’s property will be levied

against before the resolution of his innocent spouse case is

without merit. In the notice of determination, respondent

specifically stated that any activity against Mr. Andrews’s

assets would be stayed until his pending innocent spouse case had

been decided.

5. Efficient Collection Versus Intrusiveness

Petitioners argue that respondent failed to balance the need

for efficient collection of taxes with the legitimate concern

that the collection action be no more intrusive than necessary.

See sec. 6330(c)(3)(C). Petitioners’ argument is not supported

by the record.

Petitioners have an outstanding tax liability. In their

section 6330 hearing, petitioners proposed only an offer-in-

compromise. Because no other collection alternatives were

proposed, there were not less intrusive means for respondent to

consider. We find that respondent balanced the need for

efficient collection of taxes with petitioners’ legitimate

concern that collection be no more intrusive than necessary.
 - 33 -

D. Conclusion

Petitioners have not shown that respondent’s determination

was arbitrary or capricious, or without sound basis in fact or

law. For all of the above reasons, we hold that respondent’s

determination was not an abuse of discretion, and respondent may

proceed with the proposed collection action as determined in the

notice of determination.

In reaching our holdings herein, we have considered all

arguments made, and, to the extent not mentioned above, we find

them to be moot, irrelevant, or without merit.

To reflect the foregoing,

Decision will be

entered for respondent.