T.C. Memo. 2007-261
UNITED STATES TAX COURT
MITRA H. SALMASSI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20091-05L. Filed August 30, 2007.
Mitra H. Salmassi, pro se.
Kaelyn J. Romey, for respondent.
MEMORANDUM OPINION
HALPERN, Judge: This case is before the Court to review a
determination (the determination) by respondent’s Appeals Office
(Appeals) to proceed with the collection of petitioner’s Federal
income tax liabilities for 2000, 2001, and 2002. We review the
determination pursuant to sections 6320(c) and 6330(d)(1).1
1
While petitioner checked the box on the petition
indicating that the petition was for redetermination of a
deficiency, clearly this action concerns a collection action, and
(continued...)
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All section references are to the Internal Revenue Code of
1986, as amended and as applicable to this case, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
Some facts have been stipulated and are so found. The
stipulation of facts, with attached exhibits, is incorporated
herein by this reference.
Background
Petitioner assigns error to the determination on the basis
that, in making the determination, Appeals failed to address “the
issue of over $150,000 in capital losses that I have incurred
since tax year 2000. Clearly there is ‘doubt as to Liability’.
Pursuing collections would violate the law and my rights
according to ‘Effective Tax Administration.’”
At both the beginning and end of the trial, the Court
endeavored to clarify the basis of petitioner’s assignments of
error. We summarized our understanding of petitioner’s claims as
follows: (1) The Appeals employee assigned to her case abused
her discretion by rejecting petitioner’s collection alternatives
for the years in issue; (2) in considering her ability to pay,
the Appeals employee failed to take into account unrealized
losses on securities that petitioner owned; (3) she failed to
allow petitioner to deduct or otherwise take into account for any
of the years in issue her 2002 net capital loss of $80,013, and
1
(...continued)
we shall treat it as such.
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(4) she should have relieved petitioner of failure-to-pay
penalties for the years in issue.
At trial petitioner’s testimony was brief, dealing mostly
with a decline in the value of her stock portfolio. She called
no witnesses, and she offered one document, which, because of
respondent’s relevance objection, we did not receive into
evidence. Respondent did not question petitioner, and he called
no witnesses of his own. We set a briefing schedule, requiring
seriatim briefs, with respondent to go first. We explained to
petitioner that, in her brief, she would be able to respond to
respondent’s brief and to raise any additional arguments she
wished to raise. Petitioner agreed that she was satisfied to
proceed that way.
Respondent filed an opening brief of 21 pages, requesting 34
proposed findings of fact and addressing petitioner’s claims as
summarized by the Court at trial. Petitioner filed an answering
brief of one page (plus cover sheet), in which she describes her
loss of employment in 1997 and the challenge, since that time, of
living on savings in a declining securities market. She states
that, in the spring of 2006, she took a large distribution from
her retirement account to pay down her credit card debt of over
$120,000. She further states that, in the spring of this year,
she took another large distribution in order to rebuild an
investment portfolio and to prepare for upcoming expenses,
including exploring employment and business opportunities and a
possible home purchase.
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Discussion
At the conclusion of the trial, we instructed petitioner as
to her briefing rights; i.e., to respond to respondent’s brief
and to raise any additional arguments she wished to raise. Our
instruction reflected the requirements of Rule 151(e), addressing
the form and content of briefs. Petitioner agreed to proceed in
that fashion. In her brief, petitioner has argued only the
hardship of complying with her tax obligations. Therefore, we
deem petitioner to have abandoned other arguments supporting her
assignments of error. See Mendes v. Commissioner, 121 T.C. 308,
312-313 (2003) (“If an argument is not pursued on brief, we may
conclude that it has been abandoned.”).
Among respondent’s proposed findings of fact are the
following (we paraphrase): During the course of the proceedings
leading to the determination, petitioner submitted an offer-in-
compromise as an alternative to respondent’s collection action
(viz, respondent filed a notice of Federal tax lien (NFTL)). The
offer-in-compromise was accompanied by an Internal Revenue
Service Form 433-A, Collection Information Statement for Wage
Earners and Self-Employed Individuals. The Form 433-A shows an
investment account balance of $388,597 and a Charles Schwab
account balance of $112,962. The Appeals employee assigned to
petitioner’s case determined that petitioner had the ability to
pay her tax liabilities in full from accessible income in
checking accounts and by liquidating assets. Petitioner makes no
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objection to those proposed findings, and we so find. See Rule
151(e)(3).
The NFTL shows an unpaid balance of tax for the years in
issue of $171,747.45. From the Form 433-A, we can determine that
the sum of petitioner’s investment and Charles Schwab accounts
was $501,559. Even taking into account liabilities of $186,788
that petitioner listed on the Form 433-A, petitioner had
sufficient assets that could be liquidated ($314,771 = $501,559 -
$186,788) that we agree with the Appeals employee’s conclusion
that petitioner had the ability to pay her tax liabilities in
full. The Appeals employee did not abuse her discretion in
deciding that petitioner could pay her tax liabilities, nor, in
making the determination, did Appeals abuse its discretion. See
Goza v. Commissioner, 114 T.C. 176, 182 (2000) (“where the
validity of the underlying tax liability is not properly at
issue, the Court will review the Commissioner’s administrative
determination for abuse of discretion”).
To reflect the foregoing,
Decision will be entered
for respondent.