T.C. Memo. 2008-15
UNITED STATES TAX COURT
HENRY M. LLOYD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4395-06L. Filed January 29, 2008.
Stephen P. Kauffman, for petitioner.
C. Teddy Li, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion for summary judgment (respondent’s motion). We
shall grant respondent’s motion.
Background
The record establishes and/or the parties do not dispute the
following.
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Petitioner resided in Washington, D.C., at the time he filed
the petition in this case.
On April 15, 1991, petitioner filed a Federal income tax
(tax) return (return) for his taxable year 1990 (1990 return).
When petitioner filed his 1990 return, he paid the tax due shown
in that return.
At a time not disclosed by the record after petitioner filed
his 1990 return and before September 2, 1996, the Internal
Revenue Service (IRS) conducted an examination with respect to
petitioner’s taxable year 1990. During that examination, the IRS
proposed an increase in petitioner’s tax of $55,609 for that
taxable year, to which petitioner agreed.
On September 2, 1996, respondent assessed the additional tax
of $55,609 to which petitioner had agreed and interest as pro-
vided by law for petitioner’s taxable year 1990.1 (We shall
refer to any unpaid assessed amounts with respect to petitioner’s
taxable year 1990, as well as interest as provided by law accrued
after September 2, 1996, as petitioner’s unpaid 1990 liability.)
1
On Feb. 13, 1997, and Jan. 22, 1998, petitioner made pay-
ments with respect to his taxable year 1990 of $3,000 and $6,000,
respectively. In addition, respondent credited a refund of $859
due to petitioner for his taxable year 2001 against the liability
for petitioner’s taxable year 1990.
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Respondent issued to petitioner the notice and demand for
payment required by section 6303(a)2 with respect to petitioner’s
unpaid 1990 liability.
On April 15, 1992, petitioner filed a return for his taxable
year 1991 (1991 return). In that return, petitioner showed no
tax due.
At a time not disclosed by the record after petitioner filed
his 1991 return and before August 26, 1996, the IRS conducted an
examination with respect to petitioner’s taxable year 1991.
During that examination, the IRS proposed an increase in peti-
tioner’s tax of $13,380 for that taxable year, to which peti-
tioner agreed.
On August 26, 1996, respondent assessed the additional tax
of $13,380 to which petitioner had agreed and interest as pro-
vided by law for petitioner’s taxable year 1991. (We shall refer
to any unpaid assessed amounts with respect to petitioner’s
taxable year 1991, as well as interest as provided by law accrued
after August 26, 1996, as petitioner’s unpaid 1991 liability.)
Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to petitioner’s
unpaid 1991 liability.
On July 12, 1993, petitioner filed a return for his taxable
2
All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
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year 1992 (1992 return). When petitioner filed his 1992 return,
he paid the tax due shown in that return.3
At a time not disclosed by the record after petitioner filed
his 1992 return and before September 2, 1996, the IRS conducted
an examination with respect to petitioner’s taxable year 1992.
During that examination, the IRS proposed an increase in peti-
tioner’s tax of $323 for that taxable year, to which petitioner
agreed.
On September 2, 1996, respondent assessed the additional tax
of $323 to which petitioner had agreed and interest as provided
by law for petitioner’s taxable year 1992. (We shall refer to
any unpaid assessed amounts with respect to petitioner’s taxable
year 1992, as well as interest as provided by law accrued after
September 2, 1996, as petitioner’s unpaid 1992 liability.)4
Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to petitioner’s
unpaid 1992 liability.
On April 15, 1995, petitioner filed a return for his taxable
year 1994 (1994 return). When petitioner filed his 1994 return,
3
On Aug. 16, 1993, respondent assessed an addition to tax
under sec. 6651(a)(2) of $3.27 and interest as provided by law.
On Aug. 31, 1993, petitioner paid those assessed amounts.
4
We shall refer collectively to petitioner’s unpaid 1990
liability, petitioner’s unpaid 1991 liability, and petitioner’s
unpaid 1992 liability as petitioner’s unpaid liabilities for
1990, 1991, and 1992.
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he did not pay the tax due shown in that return (i.e., $656).
On May 29, 1995, respondent assessed the tax due of $656
shown in petitioner’s 1994 return, an addition to tax under
section 6651(a)(2) of $6.56, and interest as provided by law for
petitioner’s taxable year 1994. (We shall refer to any unpaid
assessed amounts with respect to petitioner’s taxable year 1994,
as well as interest as provided by law accrued after May 29,
1995, as petitioner’s unpaid 1994 liability.)
Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to petitioner’s
unpaid 1994 liability.
On October 10, 1997, petitioner filed a return for his
taxable year 1996 (1996 return). When petitioner filed his 1996
return, he did not pay the tax due shown in that return (i.e.,
$4,291).
On November 10, 1997, respondent assessed the tax due of
$4,291 shown in petitioner’s 1996 return, additions to tax under
sections 6651(a)(1) and (2) and 6654 of $386.19, $133.38, and
$202, respectively, and interest as provided by law for peti-
tioner’s taxable year 1996. On April 13, 1998, respondent abated
$480 of the assessed tax and $43.20 of the assessed addition to
tax under section 6651(a)(1). On the same date, respondent also
assessed an addition to tax under section 6651(a)(2) of $95.28
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and interest as provided by law accrued after November 10, 1997.5
(We shall refer to any unpaid and unabated assessed amounts with
respect to petitioner’s taxable year 1996, as well as interest as
provided by law accrued after April 13, 1998, as petitioner’s
unpaid 1996 liability.)
Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to petitioner’s
unpaid 1996 liability.
On September 10, 1998, petitioner filed a return for his
taxable year 1997 (1997 return). When petitioner filed his 1997
return, he did not pay the tax due shown in that return (i.e.,
$12,530).
On October 26, 1998, respondent assessed the tax due of
$12,530 shown in petitioner’s 1997 return, additions to tax under
sections 6651(a)(1) and (2) and 6654 of $563.85, $438.55, and
$228.11, respectively, and interest as provided by law for
petitioner’s taxable year 1997. (We shall refer to any unpaid
assessed amounts with respect to petitioner’s taxable year 1997,
as well as interest as provided by law accrued after October 26,
1998, as petitioner’s unpaid 1997 liability.)
Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to petitioner’s
5
On Apr. 15, 1999, respondent credited a refund of $610 due
to petitioner for his taxable year 1998 against the liability for
petitioner’s taxable year 1996.
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unpaid 1997 liability.
On April 15, 2003, petitioner filed a return for his taxable
year 2002 (2002 return). When petitioner filed his 2002 return,
he paid $36,389 of the tax due shown in that return (i.e.,
$37,248).
On June 16, 2003, respondent assessed the tax due, including
the $859 unpaid portion of that tax, shown in petitioner’s 2002
return, an addition to tax under section 6651(a)(2) of $12.88,
and interest as provided by law for petitioner’s taxable year
2002. On January 19, 2005, petitioner paid $1,095.63 with
respect to his taxable year 2002.6 On February 14, 2005, respon-
dent assessed a total of $216.42 consisting of an additional
amount of the addition to tax under section 6651(a)(2) of $150.33
and interest as provided by law accrued after June 16, 2003, of
$66.09 for petitioner’s taxable year 2002. (We shall refer to
any unpaid assessed amounts with respect to petitioner’s taxable
year 2002,7 as well as interest as provided by law accrued after
February 14, 2005, as petitioner’s unpaid 2002 liability.)8
6
After petitioner’s payment on Jan. 19, 2005, petitioner’s
account with respect to his taxable year 2002 showed a credit of
$216.42 with respect to that year.
7
It does not appear from the record that there is any unpaid
amount of liability with respect to petitioner’s taxable year
2002. However, neither party makes any argument that there is no
unpaid amount of liability with respect to that year.
8
We shall refer collectively to petitioner’s unpaid liabili-
(continued...)
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Respondent issued to petitioner the notice and demand for
payment required by section 6303(a) with respect to petitioner’s
unpaid 2002 liability.
On November 20, 2002, Kenneth H. Silverberg (Mr.
Silverberg), petitioner’s authorized representative, sent a
letter (Mr. Silverberg’s November 20, 2002 letter) to a manager
in the IRS’s offer-in-compromise unit (IRS offer-in-compromise
unit). In that letter, Mr. Silverberg stated in pertinent part:
RE: Henry M. Lloyd * * *
Henry M. Lloyd PC * * *
Attached Offers in Compromise
* * * * * * *
Pursuant to your letters of November 5, 2002, and
on behalf of my clients identified above, I respect-
fully submit copies of two Offers In Compromise, at-
tached as completed Forms 656, along with supporting
Forms 433-A and 433-B, and additional documentation
which was provided by your Revenue Officer * * * [first
revenue officer].
We were advised by your Process Examiners that
this OIC as previously submitted to you on October 28,
2002, was acceptable in form other than the fact that
certain previous-period returns were not on file with
the IRS (see attached statement by the taxpayer ex-
plaining why these returns were not required, and
attaching copies of returns as recently filed) and also
that an obsolete version of Form 433-A and 433-B was
used (the obsolete forms have been replaced with appro-
priate forms, revision date 5/2001).
8
(...continued)
ties for 1990, 1991, and 1992, petitioner’s unpaid 1994 liabil-
ity, petitioner’s unpaid 1996 liability, petitioner’s unpaid 1997
liability, and petitioner’s unpaid 2002 liability as petitioner’s
unpaid liabilities for 1990, 1991, 1992, 1994, 1996, 1997, and
2002.
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The history of this OIC is set forth here as
follows:
I am advised by the taxpayer and his accountant
that a lengthy Collection Division investigation and
negotiation process has been conducted by * * * [the
first revenue officer]. In early 2002, * * * [the
first revenue officer] and the taxpayers’ accountant
reached agreement regarding the amount of an OIC that
would be satisfactory to the Service. * * * [the first
revenue officer] had reviewed the taxpayers’ Forms 433-
A and 433-B, and had prepared the Service’s analysis of
the “Amount That Could Be Paid” by each taxpayer. * * *
[the first revenue officer] asked for an OIC in the
amount of $19,200 from Mr. Lloyd’s PC, and for an OIC
in the amount of $6,576 from Mr. Lloyd personally. The
accountant was assured by * * * [the first revenue
officer] that these OIC’s would be accepted by the
Service. A copy of the “Amount That Could Be Paid”
analysis is also included for your reference.
The OIC’s were submitted on February 13, 2002 in
the exact amounts requested and the taxpayer received
no response to date from the Service in respect of
these OIC’s.
We have been advised by your Revenue Officer * * *
[second revenue officer] of the IRS Appeals Office in
Baltimore that the PC was considered to be “out of
compliance” during the first quarter of 2002, because a
payment by the taxpayer of a Form 941 payroll deposit
was timely but mistakenly mailed as an attachment to
the Form 941 return as opposed to being correctly
deposited with a bank. Therefore, these two OIC’s were
not rejected, but rather “returned” and thus held in
abeyance and eligible for resubmission once the taxpay-
ers were compliant for two consecutive calendar quar-
ters from the first quarter of 2002. Both taxpayers
have been fully compliant for the second and third
quarters of 2002, and these OIC’s should thus be eligi-
ble for action.
After familiarizing herself with the case, and
after consulting with the OIC Manager in the IRS Balti-
more Office, * * * [the second revenue officer] in-
structed us that, since the February 13 OIC’s had not
been “rejected” (only “returned”), the taxpayers may
now resubmit the OIC’s directly to your office.
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Accordingly, since the taxpayers have now been in
compliance for the two calendar quarters ended June 30,
2002 and September 30, 2002——and since the taxpayers
are currently in full compliance——I respectfully submit
the attached OIC’s.
Mr. Silverberg enclosed with Mr. Silverberg’s November 20,
2002 letter, inter alia, (1) completed Form 656, Offer in Compro-
mise (Form 656 or offer-in-compromise), that petitioner signed
and that was dated November 27, 2002 (petitioner’s November 27,
2002 offer-in-compromise) and (2) completed Form 433-A, Collec-
tion Information Statement for Wage Earners and Self-Employed
Individuals (Form 433-A), that petitioner signed and that was
dated November 27, 2002 (petitioner’s November 27, 2002 Form 433-
A).9
Respondent assigned an offer-in-compromise specialist (first
offer specialist) with the IRS offer-in-compromise unit to
investigate petitioner’s November 27, 2002 offer-in-compromise.
On January 12, 2004,10 Mr. Silverberg sent a letter to the
first offer specialist (Mr. Silverberg’s January 12, 2004 let-
ter). In that letter, Mr. Silverberg stated in pertinent part:
9
The record does not indicate how Mr. Silverberg could have
enclosed with Mr. Silverberg’s November 20, 2002 letter Form 656
and Form 433-A that petitioner signed and that were dated Nov.
27, 2002, which was after the date of that letter. We note that
each of those documents was apparently signed by petitioner again
on Jan. 9, 2003.
10
The record does not disclose what transpired with respect
to petitioner’s November 27, 2002 offer-in-compromise and peti-
tioner’s November 27, 2002 Form 433-A between the time respondent
assigned them to the first offer specialist and Jan. 12, 2004.
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RE: Offer In Compromise -- Henry M. Lloyd * * *
and Henry M. Lloyd, P.C. * * *
* * * * * * *
This letter and its attachments constitute revised
Offers In Compromise (OIC) for the two taxpayers iden-
tified above.
In our telephone discussion of December 22, you
described certain things which needed to be done in
order for the Service to consider the revised offers.
This cover letter describes how everything you sought
has been accomplished. The attached Forms 656 contain
the actual OIC’s.[11]
* * * * * * *
Court-Ordered Payments
You advised me that your computation of Reasonable
Collection Potential, which indicates Mr. Lloyd has the
ability to pay monthly installments of $1,304, includes
no consideration of the cost of supporting his children
or providing for their education, because we had pro-
duced no evidence that he was required by a court order
to pay such amounts. I apologize if you asked for the
court order and I neglected to supply it – I did not
understand that such a request had been made.
The Marital Settlement Agreement between Mr. Lloyd
and his ex-wife is attached for your use. It imposes a
number of financial obligations on Mr. Lloyd, including
the provision of health insurance and education, both
of which Mr. Lloyd is currently paying for. If you add
these obligations to the other Necessary Living Ex-
penses on your worksheet, you will see that they to-
tally eliminate Mr. Lloyd’s ability to make any in-
11
The record does not contain Forms 656 referred to in Mr.
Silverberg’s January 12, 2004 letter. That is because the
declaration by Mr. Silverberg filed in support of petitioner’s
response to respondent’s motion indicates that he was unable to
locate such forms. (Petitioner filed a response to respondent’s
motion, a declaration by Mr. Silverberg in support of that
response, and a supplement to that response consisting of a
declaration by petitioner. We shall refer collectively to those
filings by petitioner as petitioner’s response.)
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stallment payments in connection with this OIC.
He is required to pay for private school or col-
lege undergraduate tuition for his two children, and
his wife is only required to contribute in the event
her income exceeds $75,000 per year (page 10 of agree-
ment). It does not. In this event, Mr. Lloyd’s obli-
gation is limited to the cost of providing the cost of
undergraduate out-of-state education at the University
of Virginia. I have attached information from the
internet which indicates that the cost of tuition,
required fees, room and board for an out-of-state
student was $25,036 per year during the 2002-2003
academic year.
Per child annual obligation 25,036
X 2 children 50,072
Per month 4,172
Since this additional obligation exceeds by more
than threefold the amount you computed as a reasonable
installment payment, I trust you will understand why
the OIC cannot include any installment amount. * * *
On September 6, 2004, the first offer specialist sent a
letter to petitioner (first offer specialist’s September 6, 2004
letter). In that letter, the first offer specialist stated in
pertinent part:
This letter is only being sent to you because your
representative Mr. Silverberg, doesn’t have coverage
for the Excise tax assessed on Form 5330, Return of
Initial Excise Taxes Related to Employee Benefit Plans
for tax periods ending December 31, 1991 and December
31, 1992. The payoff balance computed through October
15, 2004 is $5,875.78.
In order to perfect your offer we have enclosed an
amended Form 656, Offer in Compromise that includes
these tax periods and have adjusted the offer figure to
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$139,766.00[12] and this is based on the math error on
your last amended F656 that you signed on September 29,
2004.[13] If agreed, sign, date and return to the ad-
dress listed below.
Your timely response is requested by October 15, 2004
or your current offer may be returned without any
appeal rights.
If you have any questions or need more information,
please contact me at the address or the telephone
number listed below * * *
On September 15, 2004, the first offer specialist sent
another letter to petitioner (first offer specialist’s September
15, 2004 letter). In that letter, the first offer specialist
stated in pertinent part:
During an offer investigation an offer may be returned
when the investigation reveals the taxpayer doesn’t
have sufficient income tax withheld or paid. Our
records show you have an extension until October 15,
2004 for filing your year 2003 return. But only
$68,499.00 in tax payments was withheld. Based on our
calculations for year 2003 and using a gross income
figure of $351,223.00 a total of $105,161.00 should
have been paid on the income earned.
Enclosed is a copy of Form 1040-ES, Estimated Tax for
Individuals for you to figure and pay your estimated
tax due for year 2003. Provide us with a copy of the
completed worksheet and a check for the payment due, if
any[,] should be mailed to the address listed below.
12
The record does not contain the “amended Form 656” re-
ferred to in the first settlement officer’s September 6, 2004
letter.
13
The record does not indicate why the “last amended F656”
referred to in the first offer specialist’s September 6, 2004
letter could have been signed by petitioner and dated Sept. 29,
2004, which was after the date of that letter. See infra note
15.
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Your timely response and receipt of this information
are requested by September 29, 2004 or this offer may
be returned[.]
If you have any questions or need more information,
please contact me at the address or the telephone
numbers listed below * * *
On September 17, 2004, Mr. Silverberg and the first offer
specialist had a telephonic discussion with respect to the first
offer specialist’s September 15, 2004 letter (September 17, 2004
telephonic discussion). During that discussion, the first offer
specialist requested certain information from Mr. Silverberg.
Thereafter, on October 1, 2004, the first offer specialist left
Mr. Silverberg a voice mail message (first offer specialist’s
October 1, 2004 voice mail) requesting certain additional infor-
mation.
On October 1, 2004, in response to, inter alia, at least
certain of the requests made by the first offer specialist during
the September 17, 2004 telephonic discussion and the first offer
specialist’s October 1, 2004 voice mail,14 Mr. Silverberg sent a
letter (Mr. Silverberg’s October 1, 2004 letter) to the first
offer specialist via facsimile. In that letter, Mr. Silverberg
stated in pertinent part:
This responds to your voice mail message received
this morning.
14
The record does not indicate whether Mr. Silverberg re-
sponded to all of the requests made by the first offer specialist
during the September 17, 2004 telephonic discussion and the first
offer specialist’s October 1, 2004 voice mail.
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You asked that I fax to you today a copy of the
personal Form 656 Offer In Compromise which has been
reformatted to reflect the amount of $139,797, payable
over the 84 month period in equal installments. That
is attached to this fax, and the signed original will
be hand-delivered to your office on Monday. Please let
me know if there are any questions.
In response to your other questions, Mr. Lloyd’s
accountant informs me that Mr. Lloyd is neither under-
paid nor under-withheld for 2003 and 2004. For 2003,
the tax which has been withheld via the amended 941’s
($68,655) exceeds 100% of Mr. Lloyd’s 2002 liability
($36,389). His 2003 return is extended until October
15, and if there is any balance due for 2003 we under-
stand he is “in compliance” by paying in full on that
date. For the P.C., he has filed 941’s and made appro-
priate payments for the first two quarters of 2004.
The third quarter payment is not due until October 15.
The following items are attached to substantiate
his compliance.
1. Approval of the extension of the 2003 form
1040.
2. Copy of form 941 for the first quarter of
2004.
3. Copy of cancelled check for payment with the
first quarter of 2004.
4. Copy of form 941 for the second quarter of
2004.
5. Copy of bank receipt for deposit with the
second quarter of 2004.
Please let me know if you have any questions.
Mr. Silverberg enclosed with Mr. Silverberg’s October 1, 2004
letter, inter alia, completed Form 656, that petitioner signed
and that was dated September 29, 2004 (petitioner’s September 29,
2004 offer-in-compromise).15 In item 5 of petitioner’s September
15
The first offer specialist’s September 6, 2004 letter
referred to a “last amended F656”, that petitioner signed and
(continued...)
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29, 2004 offer-in-compromise, petitioner provided the responses
indicated to the following questions:
Item 5 — To: Commissioner of Internal Revenue Service
I/We * * * submit this offer to compromise the tax
liabilities plus any interest, penalties, additions to
tax, and additional amounts required by law (tax
liability) for the tax type and period marked below:
* * *
: 1040/1120 Income Tax — Year(s) 1990, 1991, 1992,
1994, 1996, 1997, 2002
* * * * * * *
: Trust Fund Recovery Penalty as a responsible
person of (enter corporate name) Henry M. Lloyd
PC, for failure to pay withholding and Federal
Insurance Contributions Act Taxes (Social Security
taxes), for period(s) ending 9703.
9 Other Federal Tax(es) [specify type(s) and
period(s)]
In items 6 and 7 of petitioner’s September 29, 2004 offer-
in-compromise, petitioner provided the responses indicated to the
following questions:
15
(...continued)
that was dated Sept. 29, 2004. We do not know whether Form 656
that petitioner signed and that was dated Sept. 29, 2004, and
that Mr. Silverberg enclosed with Mr. Silverberg’s October 1,
2004 letter was the “last amended F656” referred to in the first
offer specialist’s September 6, 2004 letter. See supra note 13
and accompanying text.
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Item 6 — I/We submit this offer for the reason(s)
checked below:
9 Doubt as to Liability — “I do not believe I owe
this tax.” * * *
: Doubt as to Collectibility — “I have insufficient
assets and income to pay the full amount.” You
must include a complete Collection Information
Statement, Form 433-A and/or Form 433-B.
9 Effective Tax Administration — “I owe this amount
and have sufficient assets to pay the full amount,
but due to my exceptional circumstances, requiring
full payment would cause an economic hardship or
would be unfair and inequitable.” You must
include a complete Collection Information
Statement, Form 433-A and/or Form 433B * * *.
Item 7
I/We offer to pay $139,707.00 (must be more than
zero). * * *
Check only one of the following:
* * * * * * *
9 Short-Term Deferred Payment Offer (Offered amount
paid in MORE than 90 days but within 24 months
from written notice of acceptance of the offer.)
* * * * * * *
: Deferred Payment Offer (Offered amount will be
paid over the remaining life of the collection
statute.)
$1,664 within 90 days * * * from written notice of
acceptance of the offer; and
beginning in the first month after written notice of
acceptance of the offer $1,664 on the 1st day of each
month for a total of 83 months.
On November 3, 2004, respondent’s collection division sent a
letter to petitioner (respondent’s November 3, 2004 letter) and
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sent a copy of that letter to Mr. Silverberg. That letter stated
in pertinent part:
We are returning your Form 656, Offer in Compro-
mise for the following reason(s):
All tax periods with a balance due must be in-
cluded in your Offer in Compromise. Our records indi-
cate the following period(s) was/were not included:
Excise tax for 1991 and 1992 tax periods.
If a deposit was made with the offer, we will mail
the refund separately in four to six weeks.
If you believe the return of your offer was made
in error, or your failure to provide the information/
substantiation we requested was due to circumstances
beyond your control (your serious illness, death or
serious illness of your immediate family member, or
disaster)[,] within 30 days from the date of this
letter you may contact * * * [the first settlement
officer] to request reconsideration of our decision to
close your offer. You should be prepared to discuss
specifics, provide verification of the circumstances
beyond your control and provide the information previ-
ously requested.
Enclosed with respondent’s November 3, 2004 letter was peti-
tioner’s September 29, 2004 offer-in-compromise.16 At no time
did respondent accept petitioner’s September 29, 2004 offer-in-
compromise by issuing a written notice of acceptance to peti-
tioner as required by section 301.7122-1(e)(1), Proced. & Admin.
Regs.
Around December 7, 2004, respondent issued to petitioner a
notice of Federal tax lien filing and your right to a hearing
16
The record does not establish that petitioner responded to
respondent’s November 3, 2004 letter.
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(notice of tax lien) with respect to petitioner’s taxable years
1990 through 1992, 1994, 1996, and 2002.17 Petitioner did not
file Form 12153, Request for a Collection Due Process Hearing
(Form 12153), with respect to that notice of tax lien. See infra
note 18.
On February 7, 2005, respondent issued to petitioner a
notice of intent to levy and notice of your right to a hearing
with respect to each of petitioner’s taxable years 1990 through
1992, 1994, 1996, 1997, and 2002. (We shall refer collectively
to those notices of intent to levy as the notices of intent to
levy.)
On March 7, 2005, respondent received Form 12153 that Mr.
Silverberg submitted on behalf of petitioner (petitioner’s Form
12153). In that form, Mr. Silverberg indicated petitioner’s
disagreement with the notices of intent to levy and requested a
hearing with respondent’s Appeals Office (Appeals Office).18 Mr.
Silverberg attached a letter to petitioner’s Form 12153. In that
17
The record does not indicate why respondent did not issue
to petitioner a notice of tax lien with respect to petitioner’s
taxable year 1997. As discussed below, the notice of determina-
tion concerning collection action(s) under section 6320 and/or
6330 (notice of determination) made no determination with respect
to the notice of tax lien with respect to petitioner’s taxable
years 1990 through 1992, 1994, 1996, and 2002.
18
In petitioner’s Form 12153, Mr. Silverberg did not indi-
cate disagreement with the notice of tax lien filed with respect
to petitioner’s taxable years 1990 through 1992, 1994, 1996, and
2002. See supra note 17 and accompanying text.
- 20 -
letter, Mr. Silverberg stated in pertinent part:
Mr. Lloyd has been dealing, through me as his
representative, with the Collections Division in
Fairfax, Virginia, and with your [first] Offer Special-
ist * * *. Mr. Lloyd has submitted Form 656 proposing
Offers in Compromise to settle these liabilities due to
doubt as to collectibility. Throughout a period ex-
ceeding one year, * * * [the first offer specialist]
has evaluated Mr. Lloyd’s Reasonable Collection Poten-
tial (RCP) and has performed an extensive investigation
of his assets, his income potential and his costs of
living.
After conducting his investigation, * * * [the
first offer specialist] and Mr. Lloyd reached an agree-
ment in principle, whereby Mr. Lloyd submitted an
Amended Form 656 in October, 2004, offering to pay
$139,707 over an installment period of 84 months. This
amount is 100 per cent of the RCP finally determined by
* * * [the first offer specialist]. For reasons which
Mr. Lloyd and I do not understand, this OIC was treated
by the Service as withdrawn at the last minute, rather
than accepted. We were given the explanation that some
out-of-compliance situation had been identified, and
that the OIC could not be considered until Mr. Lloyd
was back in compliance. Upon investigation, it was
determined he was not out-of-compliance. However, no
action was taken on his OIC. Instead, you have issued
notices indicating you intend to levy.
Mr. Lloyd is still willing to agree to the October
2004 OIC which is 100 per cent of his RCP. He believes
that he and the IRS have an agreement. However, for
reasons unknown to us the Collections Division was
unwilling to indicate its acceptance by signing off on
the OIC.
Too much time has been invested by Mr. Lloyd and
by the Service to waste it by treating the OIC as
withdrawn. The agreement should be signed and Mr.
Lloyd should begin making the monthly installments
which will put this matter to rest.
Mr. Lloyd and I hereby request an opportunity to
appear in person to discuss this matter at a CDP hear-
ing. Our hope is that an agreed OIC will result from
that hearing. * * *
- 21 -
On May 24, 2005, a settlement officer with the Appeals
Office (settlement officer) sent a letter (settlement officer’s
May 24, 2005 letter) to petitioner with respect to petitioner’s
Form 12153. In that letter, the settlement officer stated in
pertinent part:
I have received your Collection Due Process hearing
request. The objective of a Collection Due process
hearing is to determine whether an acceptance alterna-
tive to the levy/lien exists, while balancing the
Government’s need to efficiently collect this tax
liability. Options available to you for resolution of
your lien/levy issue may include the following:
• Full payment
• Installment agreement
• Offer in Compromise
• Surety bond
On your hearing request you indicated your offer was
rejected because of non-compliance. A check of our
records indicated you had an outstanding balance on
your tax return for period ending 12/31/2003. The
outstanding balance was paid after the offer was re-
jected. You cannot accumulate new liabilities. Our
records also indicate you have an outstanding liability
for period ending 12/31/2004. I have attached a tran-
script for period ending 12/31/2003.[19] If you wish to
submit an offer, you must start the process again.
If you feel that one of the above resolutions are
possible, please respond back with your proposal by no
later than June 15th 2005. If your proposal is any-
thing other than full payment, then I will need you to
complete and return the enclosed Forms 433-A & B. If
you do not own a business, then please disregard the
19
The record does not contain the “transcript for period
ending 12/31/2003” referred to in the settlement officer’s May
24, 2005 letter.
- 22 -
Form 433-B.
* * * * * * *
If you do not provide the information requested, I
cannot consider certain collection alternatives. If I
do not have a detailed response by June 15th 2005 I
will make a determination based upon the evidence that
I have in the case file. If I do that[,] I will sus-
tain the District’s position and issue a determination
letter.
On June 7, 2005, Mr. Silverberg and the settlement officer
had a telephonic discussion (June 7, 2005 telephonic discussion).
The settlement officer made the following pertinent entries in
her “Case Activity Records” with respect to that discussion:
Received a call from POA [Mr. Silverberg] and he wanted
to know what did his client [petitioner] has to do to
have the offer [petitioner’s September 29, 2004 offer-
in-compromise] accepted. I explained his client wasn’t
in full compliance and the offer [petitioner’s Septem-
ber 29, 2004 offer-in-compromise] was rejected. He
must submit a new offer and fee of $150.00. He was
also made aware the new offer will be investigated as a
new offer and the rejected offer [petitioner’s Septem-
ber 29, 2004 offer-in-compromise] is not considered.
[Reproduced literally.]
On June 21, 2005, the settlement officer sent a letter to
petitioner. In that letter, the settlement officer stated in
pertinent part:
I have reviewed your appeal and additional information
was requested. The information was due in the office
on or before June 15th 2005 and as of today we haven’t
received the information. If you wish to bring this
information to the office and have a conference, please
call to arrange an appointment.
Please submit the requested information or contact me
to arrange a telephone conference on or before July 6th
2005.
- 23 -
If you do not submit the information or call to sched-
ule an appointment I will make a determination based
upon the information in the case file. If I do that I
will sustain the IRS position and issue a determination
letter.
If you have any questions, please contact me at the
address or telephone number shown above.
On July 7, 2005, Mr. Silverberg sent a letter to the settle-
ment officer (Mr. Silverberg’s July 7, 2005 letter). Mr.
Silverberg enclosed with that letter (1) completed Form 656, that
petitioner signed and that was dated June 24, 2005 (petitioner’s
June 24, 2005 offer-in-compromise), (2) completed Form 433-A,
that petitioner signed and that was dated June 24, 2005 (peti-
tioner’s June 24, 2005 Form 433-A), and (3) various documents
with respect to those forms.
In item 5 of petitioner’s June 24, 2005 offer-in-compromise,
petitioner provided the responses indicated to the following
questions:
- 24 -
Item 5 — To: Commissioner of Internal Revenue Service
I/We * * * submit this offer to compromise the tax
liabilities plus any interest, penalties, additions to
tax, and additional amounts required by law (tax
liability) for the tax type and period marked below:
* * *
: 1040/1120 Income Tax — Year(s) 1990, 1991, 1992,
1994, 1996, 1997, 2002
* * * * * * *
: Trust Fund Recovery Penalty as a responsible
person of (enter corporate name) Henry M. Lloyd
PC, for failure to pay withholding and Federal
Insurance Contributions Act Taxes (Social Security
taxes), for period(s) ending 9703.
: Other Federal Tax(es) [specify type(s) and
period(s)] excise taxes (all) 1991 & 1992
In items 6 and 7 of petitioner’s June 24, 2005 offer-in-
compromise, petitioner provided the responses indicated to the
following questions:
Item 6 — I/We submit this offer for the reason(s)
checked below:
9 Doubt as to Liability — “I do not believe I owe
this tax.” You must include a detailed
explanation of the reason(s) why you believe you
do not owe the tax in Item 9.
: Doubt as to Collectibility — “I have insufficient
assets and income to pay the full amount.” You
must include a complete Collection Information
Statement, Form 433-A and/or Form 433-B.
9 Effective Tax Administration — “I owe this amount
and have sufficient assets to pay the full amount,
but due to my exceptional circumstances, requiring
full payment would cause an economic hardship or
would be unfair and inequitable.” You must
include a complete Collection Information
Statement, Form 433-A and/or Form 433B and
complete Item 9.
- 25 -
Item 7
I/We offer to pay $139,776 (must be more than zero).
Complete item 10 to explain where you will obtain the
funds to make this offer.
Check only one of the following:
9 Cash Offer (Offered amount will be paid in 90 days
or less.)
* * * * * * *
9 Short-Term Deferred Payment Offer (Offered amount
paid in MORE than 90 days but within 24 months
from written notice of acceptance of the offer.)
* * * * * * *
: Deferred Payment Offer (Offered amount will be
paid over the remaining life of the collection
statute.)
$1,664 within 90 days * * * from written notice of
acceptance of the offer; and
beginning in the first month after written notice of
acceptance of the offer $1,664 on the 1st day of each
month for a total of 83 months.
In items 9 and 10 of petitioner’s June 24, 2005 offer-in-
compromise, petitioner provided the responses indicated to the
following questions:
- 26 -
Item 9 — Explanation of Circumstances
I am requesting an offer in compromise for the
reason(s) listed below:
Note: If you are requesting compromise based on
doubt as to liability, explain why you
don’t believe you owe the tax. If you
believe you have special circumstances
affecting your ability to fully pay the
amount due, explain your situation. You
may attach additional sheets if necessary.
* * *
Doubt as to collectibility. Taxpayer is a 70-year-
old sole practitioner with significant tax debts and
a declining law practice. This OIC accompanies
another OIC being made by Mr. Lloyd’s professional
corporation for its tax debts.[20] Based on a
detailed investigation just completed by the IRS,
this offer is 100% of the Reasonable Collection
Potential of Mr. Lloyd, and the P.C.’s offer is 100%
of its Reasonable Collection Potential.
Item 10 — Source of Funds
I/We shall obtain the funds to make this offer from
the following source(s):
Liquidation of assets and borrowing.
Petitioner’s June 24, 2005 Form 433-A contained several
sections identified as sections 1 through 9. In sections 1 and 2
of that form, petitioner provided the responses indicated to the
following questions:
6. List the dependents you can claim on your tax
return: * * *
20
Mr. Silverberg did not enclose with Mr. Silverberg’s July
7, 2005 letter Form 656 with respect to petitioner’s professional
corporation.
- 27 -
First Name Relationship Age Does this person
live with you?
Victoria Daughter 24 : No 9 Yes
Hunter Son 18 9 No : Yes
* * * * * * *
7. Are you or your spouse self-employed or operate a
business? (Check “Yes” if either applies)
9 No : Yes
If yes, provide the following
information:
7a. Name of Business Henry M. Lloyd P.C.
* * * * * * *
7e. Do you have accounts/notes receivable? : No 9 Yes
If yes, please complete Section 8 on page 5.
In section 3 of petitioner’s June 24, 2005 Form 433-A,
petitioner indicated that he did not have an employer other than
Henry M. Lloyd, P.C.
In section 4 of petitioner’s June 24, 2005 Form 433-A,
petitioner provided the response indicated to the following
question:
10. Do you receive income from sources other than your
own business or your employer? (Check all that
apply.)
: Pension : Social Security : Other (specify, i.e.
child support, alimony,
rental) Rental
In section 5 of petitioner’s June 24, 2005 Form 433-A,
petitioner indicated that he (1) maintained a checking account
that had a balance of $15,000, (2) owned a brokerage account with
no current account balance, (3) had two credit cards with unspec-
- 28 -
ified balances, and (4) had $16,300 of credit available to him.
In sections 5 and 6 of petitioner’s June 24, 2005 Form 433-
A, petitioner provided the responses indicated to the following
questions:
16. LIFE INSURANCE. Do you have life insurance with a
cash value? : No 9 Yes
* * * * * * *
17a. Are there any garnishments against your wages?
: No 9 Yes
* * * * * * *
17b. Are there any judgments against you? : No 9 Yes
* * * * * * *
17e. In the past 10 years did you transfer any assets
out of your name for less than their actual value?
: No 9 Yes
* * * * * * *
17f. Do you anticipate any increase in household income
in the next two years? : No 9 Yes
* * * * * * *
17g. Are you a beneficiary of a trust or an estate?
: No 9 Yes
* * * * * * *
17h. Are you a participant in a profit sharing plan?
: No 9 Yes
In section 7 of petitioner’s June 24, 2005 Form 433-A,
petitioner indicated that he owned real estate in Washington,
D.C., the current value of that real estate was $741,330, there
were two outstanding mortgage loans totaling $625,000 with
- 29 -
respect to that real estate, and he was required to make monthly
payments totaling $3,929.59 with respect to those loans.
In section 7 of petitioner’s June 24, 2005 Form 433-A,
petitioner indicated that he did not own or lease any automobiles
and did not respond to the question asking whether he owned any
personal assets (e.g., furniture/personal effects) or business
assets.
In section 9 of petitioner’s June 24, 2005 Form 433-A,
petitioner listed various income items and various living expense
items. With respect to the income items listed in that section,
petitioner indicated that he had total monthly income of
$4,342.33 consisting of $2,708.33 of monthly income from wages
and $1,634 of monthly income from his pension and/or Social
Security benefits. With respect to the monthly expense items
listed in section 9 of petitioner’s June 24, 2005 Form 433-A,
petitioner indicated that he had total monthly living expenses of
$5,658.94 consisting of $3,463.94 of monthly expenses for housing
and utilities and $2,195 of monthly expenses for court-ordered
payments.
On August 2, 2005, the settlement officer sent a letter to
petitioner. In that letter, the settlement officer stated in
pertinent part:
I recently received the offer in compromise file to be
associated with the CDP case file. I am making an
Appeals Referral Investigation request to have the
offer analyzed along with the supporting documentation
- 30 -
that you provided. You will be contacted by an offer
specialist in the near future. I will maintain juris-
diction of the case and all final decisions regarding
this matter will be rendered by appeals. If you have
any further questions regarding this correspondence, do
not hesitate to call me.
On August 2, 2005, the settlement officer forwarded peti-
tioner’s June 24, 2005 offer-in-compromise and petitioner’s June
24, 2005 Form 433-A to the IRS offer-in-compromise unit.
Around August 4, 2005, respondent assigned an offer-in-
compromise specialist other than the first offer specialist to
investigate petitioner’s June 24, 2005 offer-in-compromise and
petitioner’s June 24, 2005 Form 433-A.
On September 1, 2005, the offer-in-compromise specialist
(second offer specialist) with the IRS offer-in-compromise unit
assigned to investigate petitioner’s June 24, 2005 offer-in-
compromise and petitioner’s June 24, 2005 Form 433-A made the
following pertinent entries in the “integrated collection system
history transcript”:
Initial Review: TP is making a DPO of $139,777 at
$1,664 in 84 payments to compromise approx $264,457
sole liability, on the basis of DATC.
* * * * * * *
- Special Circumstances: doubt as to collectibility,
because TP is 70-yr-old and his law practice is declin-
ing.
- Funding for the offer: Liquidation of assets and
borrowing.
* * * * * * *
TP is unmarried 70-yr old practicing attorney,
with no health issues and a household of 2 (18-yr old
- 31 -
son) in Wash D.C. * * * Claims income of 4342 vs 5659
living expenses. However, TP reported AGI of 87,163 in
‘04; 345,165 in ‘03; 216,074 in ‘02.
CONCLUSION: Does not appear to be a valid offer
on the basis of DATC: not everything is on the table,
and his income and residence seem extravagant. Next
step: do preliminary investigation and if RCP exceed
liability of 264,457, conclude investigation and report
findings to Appeals.
* * * * * * *
* * * Claims declining income, but no evidence provided
and research indicates “fluctuating” income. [Repro-
duced literally.]
On September 6, 2005, the second offer specialist sent
petitioner a letter (second offer specialist’s September 6, 2005
letter). In that letter, the second offer specialist stated in
pertinent part:
I have been assigned to investigate your offer in
compromise dated 06/24/2005. I have completed a pre-
liminary analysis of your offer, after reviewing the
information you provided. My analysis shows that you
have the ability to pay your liability in full within
the time provided by law, based on the following compu-
tations:
Total net equity in assets: $372,231.00
Total future income value: $607,296.00
Total ability to pay: $979,527.00
Balance due (as of 08/15/2005) $264,457.49
Amount you offered: $139,776.00
Copies of my worksheets are enclosed for you[r] review.
If you disagree, you may provide additional documenta-
tion showing that the figures are incorrect. You may
also provide any other information you believe I should
consider in making my recommendation as to whether to
accept your offer.
- 32 -
Please respond by September 19, 2005, or I will proceed
with my recommendation that your offer not be accepted.
If you have any questions or need more information,
please contact me at the address or the telephone
number listed below:
* * * * * * *
A copy of this letter with all enclosures is being
provided to your Power of Attorney, Mr. Silverberg, and
to the Appeals Officer controlling your case.
The second offer specialist enclosed with the second offer
specialist’s September 6, 2005 letter the following so-called
Asset/Equity Table:
ASSET/EQUITY TABLE (AET)
(Rev. 10-2002)
Quick Sale Encumbrances Net
Fair Market Quick Sale
ASSETS Reduction or Realizable
Value Value
Percentage Exemptions Equity
1. Cash/Bank Accounts $1,517.00 $1,517.00
* * * * * * *
***
5. Real Estate $995,714.00 0 $995,714.00 $625,000.00 $370,714.00
6. Furniture/Personal ???
Effects
7. Vehicles
8. Accounts ???
Receivable
* * * * * * *
Business Interest ???
* * * * * * *
Future Income Value (see Income and Expense Table (IET) attached) $607,296.00
TOTAL MINIMUM VALUE $979,527.00
* * * * * * *
REMARKS: *** Encumbrances not documented -- subject to further valuation.
??? Information not disclosed -- subject to further valuation
The second offer specialist also enclosed with the second offer
specialist’s September 6, 2005 letter the following so-called
Income/Expense Table:
- 33 -
INCOME/EXPENSE TABLE (IET)
(Rev. 1-2001)
The Internal Revenue Service uses established National and Local standards for necessary living
expenses when considering Offers in Compromise. Only necessary living expenses will be
allowed. Other expenses, such as charitable contributions, education, credit cards, and
voluntary retirement allotments are generally not considered as necessary living expenses.
Total Income Necessary Living Expenses
Source Gross Claimed Allowed
31. Wages/Salaries (T/P) $16,903.00 42. National Standard $0.00 $1,280.00
Expenses
32. Wages/Salaries $0.00 43. Housing and Utilities $3,464.00 $1,318.00
(Spouse)
33. Interest $0.00 44. Transportation $0.00 $0.00
34. Net Business Income $0.00 45. Health care $0.00 $0.00
(from Form 433-B)
35. Rental Income $296.00 46. Taxes $0.00 $1,450.00
36. Pension (Taxpayer) $145.00 47. Court ordered payments $2,195.00 $2,195.00
37 Pension (Spouse) $0.00 48. Child/dependent care $0.00 $0.00
38. Child Support $0.00 49. Life Insurance $0.00 $0.00
39. Alimony $0.00 50. Secured or legally- $0.00 $0.00
perfected debts (specify)
40. Other - Social $1,551.00 51. Other - $0.00 $0.00
Security
* * * * * * *
41. Total Income $18,895.00 52. Total Expenses $5,659.00 $6,243.00
(Line 41 minus Line 52) NET DIFFERENCE $12,652.00
53. Net difference times (a,b or c) = Amount that could be paid from future income:
Net difference = $12,652.00 Months Amount that could be paid = $607,296.00
48
a) If taxpayer is making a cash offer (offering to pay in 90 days or less) multiply the amount
in line 53 times 48 or the number of months remaining in the statute.
b) If the taxpayer is making a short term deferred payment offer (offering to pay within 2
years) multiply the amount in line 53 times 60 months or times the number of months remaining
in the statute, whichever is shorter.
c) If the taxpayer is making a deferred payment offer (offering to pay over the life of the
statute), use the Deferred Payment Chart to determine the number of months.
The total offer must equal the sum of the equity in assets and the amount that could be paid
from future income unless special circumstance considerations have been approved.
NOTES:
Line 42 National Standard expenses: Maximum allowable by IRS National Expense Standard for
food, housekeeping supplies, apparel and services, and personal care products, based upon gross
monthly income and number of persons in the household.
Line 43 Housing & Utilities expenses: Housing and utility expenses are limited to standards
established for the county of residence and the number of household members.
Line 44 Transportation expenses: Transportation expenses are limited to the standards
established for zero, one or two vehicles, and to a maximum allowable amount for lease or
purchase of one or two vehicles.
Line 31 Wages based on 3-yr average.
Line 35 Rental income, after adjusting for depreciation expense claimed on Schedule E
Line 46 Taxes based on last record of Fed, State, FICA, Medicare paid or withheld.
Line 47 Court ordered payments tentatively allowed, subject to itemization and proof of
payments.
- 34 -
Petitioner did not respond by September 19, 2005, to the
second offer specialist’s September 6, 2005 letter. On September
20, 2005, the second offer specialist returned petitioner’s June
24, 2005 offer-in-compromise to the settlement officer and
recommended that it not be accepted.
On September 23, 2005, Mr. Silverberg sent a note by facsim-
ile to the settlement officer and the second offer specialist.
In that note, Mr. Silverberg stated in pertinent part:
I am writing to request an extension of time until
October 14 for Mr. Lloyd to respond to * * * [the
second offer specialist’s] letter of 9/6/05. My sched-
ule has been full and I have until now been unable to
confer with him about providing additional information
for you to consider. Thank you in advance for your
consideration.
On September 27, 2005, Mr. Silverberg sent another note by
facsimile to the settlement officer and the second offer special-
ist. In that note, Mr. Silverberg stated in pertinent part:
Please grant Mr. Lloyd additional time to get back to
you through * * *, his accountant. * * * [petitioner’s
accountant] will be sending you a new Power of Attorney
to discuss both Henry M. Lloyd PC and Mr. Lloyd’s
individual accounts. If you have any questions before
receiving the new Power, please contact me.
On November 9, 2005, the settlement officer sent a letter to
petitioner. In that letter, the settlement officer stated in
pertinent part:
I have scheduled a telephone conference call for you on
December 6, 2005 at 10:00AM. This call will be your
CDP hearing.
- 35 -
Please call me at * * * the date and time indicated
above.
Your offer in compromise will not be recommended for
acceptance and we need to discuss other alternatives
[sic] means for payment such as full payment or an
installment agreement.
On November 14, 2005, at 1:02 p.m., Stephen P. Kauffman (Mr.
Kauffman) sent a letter by facsimile to the settlement officer
(Mr. Kauffman’s first November 14, 2005 letter). In that letter,
Mr. Kauffman stated in pertinent part:
Re: Henry M. Lloyd * * *
Henry M. Lloyd, P.C. * * *
* * * * * * *
I have been retained to represent the above-refer-
enced taxpayers in matters pending before the Internal
Revenue Service. Enclosed you will find two (2) powers
-of-attorney, form 2848, pursuant to which these tax-
payers have authorized me to represent them.[21] I
understand that a Collection Due Process Hearing is
currently scheduled for December 6, 2005 at 10:00 a.m.
to review levies that have been issued to Mr. Lloyd
personally, and that offers-in-compromise are pending
for both taxpayers. Earlier today, I sent you a copy
of a CDP request I filed in connection with levies
issued to Henry M. Lloyd, PC.
* * * I am planning to contact * * * the [second]
Offer Specialist assigned to determine the RCP of these
matters to discuss his calculations. * * *
21
Only Form 2848, Power of Attorney and Declaration of
Representative (Form 2848), appointing Mr. Kauffman as the
attorney-in-fact for petitioner is attached to the copy of Mr.
Kauffman’s first November 14, 2005 letter that is in the record.
Form 2848 appointing Mr. Kauffman as the attorney-in-fact for
Henry M. Lloyd, P.C., is not attached to the copy of Mr.
Kauffman’s first November 14, 2005 letter that is in the record.
- 36 -
Because I have just been retained, I have an open
mind about this case, and will be happy to discuss with
you any and all resolutions which you might consider
appropriate, giving due consideration, of course, to
Mr. Lloyd’s advanced age and what I consider to be
limited earning ability.
On November 14, 2005, at 4:51 p.m., Mr. Kauffman sent
another letter by facsimile to the settlement officer. In that
letter, Mr. Kauffman stated in pertinent part:
Re: Henry M. Lloyd * * *
Henry M. Lloyd, P.C. * * *
* * * * * * *
I want to thank you for your prompt reply to the
letter I sent you earlier this morning. This letter is
written to confirm our conversations this afternoon.
Because I have just been retained, let me summarize my
understanding of the status of the above-referenced
matters in the remainder of this letter. Please re-
spond to this letter only if my summary is incorrect.
I understand that offers-in-compromise were sub-
mitted for Henry M. Lloyd (“Mr. Lloyd”) and Henry M.
Lloyd, P.C. (the “PC”). After the PC’s offer was
formally rejected, it filed an appeal. Sometime in
August of this year, the PC’s appeal was rejected, and
the PC’s delinquency is now back in collection.
In contrast, Mr. Lloyd’s offer has not yet been
formally rejected; however, I understand that you do
intend to reject it, but not until after we speak on
December 6th. When you reject Mr. Lloyd’s offer, you
will send a formal written notice of rejection and
appeal rights. I also understand that * * * [the
second offer specialist] is no longer working the case
at this time.
On December 6th, we will discuss Mr. Lloyd’s
pending request for due process hearing, and potential
alternative approaches to resolving the PC’s and Mr.
Lloyd’s tax delinquencies.
- 37 -
On December 6, 2005, the settlement officer held a tele-
phonic conference with Mr. Kauffman. The settlement officer made
the following pertinent entries in her “Case Activity Records”
with respect to that conference:
Telephone conference with POA Mr.Kauffman. We dis-
cussed the OIC and I explained taxpayer RCP is close to
1 million dollars. He wanted to know if the taxpayer
obtain the equity in his real property would I recom-
mend acceptance of the offer. This request was denied
because it appears taxpayer can enter into an install-
ment agreement at a rate of $12,000.00 a month. he
stated that the taxpayer is elder and his business is
no longer at a high point. I explained he is still
working and in good health. We average his last three
years to determine his monthly income. We discussed
the one-year rule in allowing expenses. He requested a
copy of the 433A and the O/S worksheet computation. He
requested time to discuss with client and telephone
conference scheduled for 12/16/2005 @ 10:00AM. Infor-
mation faxed to POA. [Reproduced literally.]
On December 15, 2005, Mr. Kauffman sent a letter to the
settlement officer via facsimile (Mr. Kauffman’s December 15,
2005 letter). In that letter, Mr. Kauffman stated in pertinent
part:
This letter is written as a follow-up to our
several telephone conversations, and in anticipation of
our telephone conference tentatively scheduled for
Friday afternoon. Up to this time, the focus of our
discussions has been on Mr. Lloyd’s income, and specif-
ically how to calculate his average monthly income in a
fair fashion. Enclosed with this letter are the in-
come/expense table which you were kind enough to fax me
last week, and a spreadsheet analysis of Mr. Lloyd’s
income which I have prepared. Before addressing the
enclosed spreadsheet analysis, a few observations about
Mr. Lloyd’s income are in order.
Mr. Lloyd, who is an attorney engaged in the
private practice of law, will be 71 this March. The
- 38 -
cases handles are virtually all contingent fee cases.
This means he doesn’t make a cent unless and until his
client recovers, at which time he receives a percentage
of the recovery. A contingent fee practice is very
risky for an attorney, for a variety of reasons.
Sometimes you lose, in which case you recover nothing.
Sometimes you win, but much less than what you hoped
for. Sometimes you win a big judgment against a defen-
dant who doesn’t have any money, in which case you
recover nothing. Sometimes you win, but only after
year and years of hard work, during which time you are
spending your own money to advance your client’s case.
In Mr. Lloyd’s case, he is the only employee of
Henry M. Lloyd, P.C., a professional corporation which
he owns. Each year the corporation pays all of its net
income before salary to Mr. Lloyd as his salary.
Consequently, each year, the corporation has no net
income and all of the net income from Mr. Lloyd’s law
practice is reported by Mr. Lloyd on his personal
income tax return.
The income/expense table was prepared on September
2, 2005, which means that it probably covered the
three-year period September 1, 2002 through August 31,
2005. These were the three best years Mr. Lloyd has
had in the past twelve years. In contrast and as
discussed below, my enclosed analysis looks at Mr.
Lloyd’s income for the previous 7 and 12 year periods.
As you can see, for the past 7 years, Mr. Lloyd
earned nothing from his law practice for the years
1998, 1999, 2000, and 2001. If his average income had
been computed for that four year period, it would have
been zero. As it stands, his average monthly income
for the seven year period is only $2,548.[22]
Mr. Lloyd’s income for the past 12 years is
better, but only marginally so, and certainly nowhere
near as good as the income reflected on the income/
expense table. In fact, for the 12 year period ending
in 2004, Mr. Lloyd’s average monthly is only $5,435,[22]
which is less than 1/3 of the average monthly income
reflected on the income/expense table.
22
See infra note 32.
- 39 -
As this analysis demonstrates, this is the type of
case where it would be unfair and misleading to calcu-
late average monthly income over only 3 years, because
income which is essentially earned over a much longer
period is bunched into one or two tax years. Further-
more, nowhere in the Code, the Regulations, or the
Internal Revenue Manual is a Revenue Officer such as
yourself constrained to average income over only three
years. IRM 5.8.5.5 identifies a number of situations
which “may warrant placing a different value on future
income than current or past income indicates.” One
such situation is where “a taxpayer has a sporadic
employment history or fluctuating income,” in which
case the revenue officer is directed to “average earn-
ings over several prior years.” Although the IRM does
indicate this is “usually . . . the prior 3 years,” it
does not and should not indicate that this is always
the case, particularly in a situation such as this one
where blind adherence to that rule would be patently
unfair.
Mr. Kaufmann enclosed with Mr. Kauffman’s December 15, 2005
letter a copy of the Income/Expense Table that the second offer
specialist enclosed with the second offer specialist’s September
6, 2005 letter and the following “Analysis of Gross Income” of
petitioner:
- 40 -
12 year analysis
Gross Cum. Tax. Average Cum. Avg.
Year Income Income Monthly Monthly
1 1993 55,000 55,000 4,583 4,583
2 1994 52,000 107,000 4,333 4,458
3 1995 110,100 217,100 9,175 6,031
4 1996 85,000 302,100 7,083 6,294
5 1997 98,000 400,100 8,167 6,668
6 1998 - 400,100 - 5,557
7 1999 - 400,100 - 4,763
8 2000 - 400,100 - 4,168
9 2001 - 400,100 - 3,705
10 2002 200,000 600,100 16,667 5,001
11 2003 329,151 929,251 27,429 7,040
12 2004 71,842 1,001,093 5,987 6,952
[23]
12 Year average monthly 5,435
7 year analysis
Gross Cum. Tax. Average Cum. Avg.
Year Income Income Monthly Monthly
1 1998 - - - -
2 1999 - - - -
3 2000 - - - -
4 2001 - - - -
5 2002 200,000 200,000 16,667 3,333
6 2003 329,151 529,151 27,429 7,349
7 2004 71,842 600,993 5,987 7,155
[23]
7 year average monthly 2,548
23
See infra note 32.
- 41 -
3 year analysis
Gross Cum. Tax. Average Cum. Avg.
Year Income Income Monthly Monthly
1 2002 200,000 200,000 16,667 16,667
2 2003 329,151 529,151 27,429 22,048
3 2004 71,842 600,993 5,987 16,694
[24]
3 year average monthly 18,470
On December 16, 2005, the settlement officer held a tele-
phonic conference with Mr. Kauffman. The settlement officer made
the following pertinent entries in her “Case Activity Records”
with respect to that conference:
POA had faxed a chart requesting that we use the last
seven years to compute the income of the taxpayer. I
explained I would use the last three years because
these years truly reflect the high and low end of his
client’s income. He stated he will talk to his client
and request the case be returned to compliance. A
determination letter will be issued * * *
On February 8, 2006, the Appeals Office issued to petitioner
a notice of determination with respect to petitioner’s unpaid
liabilities for 1990, 1991, 1992, 1994, 1996, 1997, and 2002.
That notice stated in pertinent part:
Summary of Determination
Your offer in compromise was not recommended for accep-
tance because our computation indicates you have the
ability to full[y] pay. We discussed the possibility
of an installment agreement and you disagree with the
monthly payment amount. We did not discuss any other
alternatives for payment. Based on the evidence in the
case file the District’s decision to issue the Final
Notice-Notice of Intent to Levy and Notice of your
Right to a hearing is sustained.
24
See infra note 32.
- 42 -
An attachment to the notice of determination stated in pertinent
part:
I. Verification of Legal and Procedural Requirements
With the best information available, the requirements
of various applicable law or administrative procedures
have been met.
IRC Section 6331(d) requires the taxpayer be notified
at least 30 days before a notice of levy can be issued.
The 30-day letter was sent on tax years ending
12/31/1990, 12/31/1991, 12/31/1992, 12/31/1994,
12/31/1996, 12/31/1997 and 12/31/2002 on February 7th
2005.
* * * * * * *
IRC 6330(c) allows the taxpayer to raise any relevant
issues relating to the unpaid tax or the proposed levy
at the hearing.
This Settlement Officer has had no prior involvement
with respect to these liabilities.
II. Issues Raised by the Taxpayer
Challenges to the Amount of the Liability
You did not challenge the amount of the liability.
III. Balancing Efficient Collection and Intrusiveness
IRC section 6330 require[s] that the Settlement Officer
consider [whether] the collection action balances the
need for efficient collection of taxes with the tax-
payer’s legitimate concern that any collection action
be no more intrusive than necessary.
Collection alternatives include full payment, install-
ment agreement, offer in compromise and temporary
suspension of collection based on financial hardship.
You submitted an offer in compromise and it was deter-
mined you had the ability to pay the taxes and your
offer was recommended for rejection. We also discussed
an installment agreement but you were not in agreement
- 43 -
with the monthly payment amount. No further alterna-
tives were discussed.
The rejection of your offer was based on the following:
Monthly income:
Wages: $16,903.00- Based on 3 year average
Rental Income: 296.00
Pension: 145.00
Social Security: 1,551.00
Total Monthly Income: $18,895.00
Allowable Monthly Expenses:
National Standards: $1280.00
Housing/utilities: 1318.00
Taxes: 1450.00
Court-ordered payments: 2195.00
Total Expenses: $6243.00
Excess Monthly: $12,652.00
Assets:
Bank Accounts: $ 1517.00
Real Estate:
Fair Market Value: $995,714.00
Quick Sale Value: 796,571.20-80%
Encumbrances: Not documented
Equity: 796,571.20
Total Net Realizable Equity: $798,088.20
Future Income: (12,652 x 48) 607,296.00
Reasonable Collection Potential: $1,405,384.20
Based on the evidence in the case file the District’s
decision to issue the Final Notice-Notice of Intent to
Levy and Notice of your Right to a Hearing is sus-
tained.
The notice of determination made no determination with respect to
the notice of Federal tax lien filed with respect to petitioner’s
taxable years 1990 through 1992, 1994, 1996, and 2002. See supra
- 44 -
note 17 and accompanying text and note 18.
Discussion
The Court may grant summary judgment where there is no
genuine issue of material fact and 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). We
conclude that there are no genuine issues of material fact
regarding the questions raised in respondent’s motion.
A taxpayer may raise challenges to the existence or the
amount of the taxpayer’s underlying tax liability if the taxpayer
did not receive a notice of deficiency or did not otherwise have
an opportunity to dispute such liability. Sec. 6330(c)(2)(B).
In petitioner’s response, petitioner does not dispute the
existence or the amount of petitioner’s unpaid liabilities for
1990, 1991, 1992, 1994, 1996, 1997, and 2002.25 Where, as is the
case here, the validity of the underlying tax liability is not
properly placed at issue, the Court will review the determination
of the Commissioner of Internal Revenue (Commissioner) for abuse
25
In fact, petitioner does not advance in petitioner’s
response any arguments with respect to the existence or the
amount of petitioner’s unpaid liabilities for 1990, 1991, 1992,
1994, 1996, 1997, and 2002. Assuming arguendo that petitioner
were disputing in petitioner’s response the existence or the
amount of petitioner’s unpaid liabilities for those years, on the
record before us, we find that petitioner may not challenge the
existence or the amount of those liabilities. That is because
petitioner did not do so at the Appeals Office hearing. See
Washington v. Commissioner, 120 T.C. 114, 123-124 (2003).
- 45 -
of discretion. See Sego v. Commissioner, 114 T.C. 604, 610
(2000); Goza v. Commissioner, 114 T.C. 176, 181-182 (2000).
In petitioner’s response, petitioner advances three princi-
pal arguments in support of his position that respondent abused
respondent’s discretion in making the determinations in the
notice of determination. We turn to petitioner’s first principal
argument. In petitioner’s response, petitioner argues in perti-
nent part:
On September 6, 2004, an IRS Offer Specialist
[first offer specialist] determined that the Peti-
tioner’s Reasonable Collection Potential (“RCP”) was
only $139,707,[26] and the Petitioner promptly submitted
an offer to compromise for this amount.
Thereafter, in violation of applicable provisions
of the Code, Regulations, and its own Manual, the
26
In the first offer specialist’s September 6, 2004 letter,
the first offer specialist indicated that he had adjusted peti-
tioner’s offer figure to $139,766 to reflect, inter alia, as-
sessed Federal excise tax for the tax periods ended Dec. 31,
1991, and Dec. 31, 1992. See Internal Revenue Manual (IRM) pt.
5.8.1.7(1); 5.8.2.3.1(2) (May 15, 2004). Petitioner’s September
29, 2004 offer-in-compromise, which was investigated by the first
offer specialist, did not include such excise tax in the liabili-
ties with respect to which petitioner submitted that offer and
offered $139,707, and not $139,766, to compromise the liabilities
that that offer was submitted to compromise. After the settle-
ment officer indicated during the June 7, 2005 telephonic discus-
sion that petitioner was required to submit a new offer-in-
compromise, petitioner submitted petitioner’s June 24, 2005
offer-in-compromise. Petitioner’s June 24, 2005 offer-in-compro-
mise offered $139,776 to compromise the liabilities that that
offer was submitted to compromise and included Federal excise tax
for the tax periods Dec. 31, 1991, and Dec. 31, 1992, in the
liabilities with respect to which petitioner submitted that
offer. With the exception of those differences, the September
29, 2004 offer-in-compromise and the June 24, 2005 offer-in-
compromise are identical.
- 46 -
Service returned the offer in error (for an alleged
underpayment of a small estimated tax penalty which the
Petitioner disputed) and issued levies. The Petitioner
then filed a CDP hearing request.
Upon receipt of the CDP hearing request, the
Settlement Officer abused her discretion by requiring
the Petitioner to submit a new offer, instead of rein-
stating the existing offer as required by Regulation
§301.6330-1(e)(1). On September 6, 2005, exactly one
year after the first RCP determination * * * a second
IRS Offer Specialist looking at the same financial
information determined that the Petitioner’s RCP was
$979,527.
Although not altogether clear, it appears that petitioner is
arguing that the settlement officer abused the settlement offi-
cer’s discretion by (1) not accepting as petitioner’s reasonable
collection potential (RCP) the amount calculated by the first
offer specialist in connection with petitioner’s September 29,
2004 offer-in-compromise and (2)(a) instead requiring petitioner
to submit a new, updated offer-in-compromise (i.e., petitioner’s
June 24, 2005 offer-in-compromise) accompanied by a new, updated
Form 433-A (i.e., petitioner’s June 24, 2005 Form 433-A) and
(b) determining as petitioner’s RCP an amount different from the
amount of petitioner’s RCP that the first offer specialist
determined.
In support of the foregoing argument, petitioner relies on
section 301.6330-1(e)(1), Proced. & Admin. Regs., as in effect
with respect to requests for Appeals Office hearings made before
November 16, 2006. That regulation provided:
- 47 -
(e) Matters considered at CDP hearing.--(1) In
general.--Appeals has the authority to determine the
validity, sufficiency, and timeliness of any CDP Notice
given by the IRS and of any request for a CDP hearing
that is made by a taxpayer. Prior to issuance of a
determination, the hearing officer is required to
obtain verification from the IRS office collecting the
tax that the requirements of any applicable law or
administrative procedure have been met. The taxpayer
may raise any relevant issue relating to the unpaid tax
at the hearing, including appropriate spousal defenses,
challenges to the appropriateness of the proposed
collection action, and offers of collection alterna-
tives. The taxpayer also may raise challenges to the
existence or amount of the tax liability specified on
the CDP Notice for any tax period shown on the CDP
Notice if the taxpayer did not receive a statutory
notice of deficiency for that tax liability or did not
otherwise have an opportunity to dispute that tax
liability. Finally, the taxpayer may not raise an
issue that was raised and considered at a previous CDP
hearing under section 6320 or in any other previous
administrative or judicial proceeding if the taxpayer
participated meaningfully in such hearing or proceed-
ing. Taxpayers will be expected to provide all rele-
vant information requested by Appeals, including finan-
cial statements, for its consideration of the facts and
issues involved in the hearing.
Petitioner’s reliance on the above-quoted regulation is
misplaced. We find (1) no requirement in that regulation that
the Appeals Office use as a taxpayer’s RCP an amount of RCP
previously determined by respondent’s collection division and
(2) no prohibition in that regulation on the Appeals Office’s
requiring a taxpayer to submit a new, updated offer-in-compromise
accompanied by a new, updated Form 433-A.27
27
Part 5.8.5.2.2 of the IRM (Nov. 15, 2004) requires any
agent of the Commissioner who investigates an offer-in-compromise
to request updated financial information from the taxpayer if the
(continued...)
- 48 -
In advancing his first principal argument, petitioner makes
a related argument that respondent should not have returned to
petitioner petitioner’s September 29, 2004 offer-in-compromise.
In support of that related argument, petitioner relies on section
301.7122-1(d)(2), Proced. & Admin. Regs.28 In the first offer
27
(...continued)
information submitted with such an offer is older than 12 months
or if there is any reason to believe the taxpayer’s situation may
have significantly changed. That part 5.8.5.2.2 of the IRM
provides:
(1) Collection Information Statements (CIS) submitted
with an offer in compromise should reflect infor-
mation no older than the prior six months. If
during the processing of the offer, the financial
information becomes older than 12 months, contact
should be made with the taxpayer to update the
information. However, in certain situations in-
formation may become outdated due to significant
processing delays caused by the Service, through
no fault of the taxpayer. In those cases, it may
be appropriate to rely on the outdated information
if there is no indication the taxpayer’s overall
situation has significantly changed. Judgment
should be exercised to determine whether, and to
what extent, updated information is necessary. If
there is any reason to believe the taxpayer’s
situation may have significantly changed, secure a
new CIS.
When petitioner submitted petitioner’s September 29, 2004 offer-
in-compromise in early October 2004, his 2003 return and his 2004
return were not due to have been filed. When the settlement
officer sent a letter to petitioner on May 24, 2005, with respect
to petitioner’s Form 12153, in which the settlement officer,
inter alia, requested updated financial information from peti-
tioner to be presented in a new Form 433-A, petitioner’s 2003
return and his 2004 return were due to have been filed.
28
Sec. 301.7122-1(d)(2), Proced. & Admin. Regs., provides in
pertinent part:
(continued...)
- 49 -
specialist’s September 6, 2004 letter, the first offer specialist
informed petitioner that his offer-in-compromise had to be
perfected to reflect Federal excise tax assessed for the tax
periods ended December 31, 1991, and December 31, 1992. In the
first offer specialist’s September 15, 2004 letter, the first
offer specialist informed petitioner (1) that an offer-in-
compromise may be returned where there is insufficient Federal
income tax withheld or paid and (2) that respondent’s records
indicated that insufficient Federal income tax had been withheld
with respect to petitioner’s taxable year 2003.
The first offer specialist and Mr. Silverberg had a tele-
phonic discussion on September 17, 2004. On October 1, 2004, the
first offer specialist left a voice mail for Mr. Silverberg.
Thereafter, Mr. Silverberg sent Mr. Silverberg’s October 1, 2004
letter to the first offer specialist and enclosed with that
28
(...continued)
If an offer accepted for processing does not contain
sufficient information to permit the IRS to evaluate
whether the offer should be accepted, the IRS will
request that the taxpayer provide the needed additional
information. If the taxpayer does not submit the
additional information that the IRS has requested
within a reasonable time period after such a request,
the IRS may return the offer to the taxpayer. The IRS
may also return an offer to compromise a tax liability
if it determines that the offer was submitted solely to
delay collection or was otherwise nonprocessable. An
offer returned following acceptance for processing is
deemed pending only for the period between the date the
offer is accepted for processing and the date the IRS
returns the offer to the taxpayer. * * *
- 50 -
letter petitioner’s September 29, 2004 offer-in-compromise.29
That offer-in-compromise did not offer to compromise the Federal
excise tax with respect to the tax periods ended December 31,
1991, and December 31, 1992, to which the first offer specialist
referred in the first offer specialist’s September 6, 2004
letter.30 On November 3, 2004, respondent’s collection division
sent a letter to petitioner in which respondent stated: “Our
records indicate the following period(s) was/were not included:
Excise tax for 1991 and 1992 tax periods.”31 On the record
29
The record does not indicate whether Mr. Silverberg re-
sponded in Mr. Silverberg’s October 1, 2004 letter to all of the
requests that the first offer specialist made to Mr. Silverberg.
30
In contrast, petitioner’s June 24, 2005 offer-in-
compromise offered to compromise not only petitioner’s unpaid
liabilities for 1990, 1991, 1992, 1994, 1996, 1997, and 2002 but
also the Federal excise tax for the tax periods ended Dec. 31,
1991, and Dec. 31, 1992.
31
Respondent’s November 3, 2004 letter further stated:
We are returning your Form 656, Offer in Compro-
mise for the following reasons(s):
All tax periods with a balance due must be in-
cluded in your Offer in Compromise. Our records indi-
cate the following period(s) was/were not included:
Excise tax for 1991 and 1992 tax periods.
If a deposit was made with the offer, we will mail
the refund separately in four to six weeks.
If you believe the return of your offer was made
in error, or your failure to provide the information/
substantiation we requested was due to circumstances
beyond your control (your serious illness, death or
serious illness of your immediate family member, or
(continued...)
- 51 -
before us, we conclude that respondent complied with section
301.7122-1(d)(2), Proced. & Admin. Regs., when respondent re-
turned to petitioner petitioner’s September 29, 2004 offer-in-
compromise.
On the record before us, we find that the settlement officer
did not abuse the settlement officer’s discretion by (1) not
accepting as petitioner’s RCP the amount calculated by the first
offer specialist in connection with petitioner’s September 29,
2004 offer-in-compromise and (2)(a) instead requiring petitioner
to submit a new, updated offer-in-compromise (i.e., petitioner’s
June 24, 2005 offer-in-compromise) accompanied by a new, updated
Form 433-A (i.e., petitioner’s June 24, 2005 Form 433-A) and
(b) determining as petitioner’s RCP an amount different from
petitioner’s RCP that the first offer specialist determined.
We address next petitioner’s second principal argument. In
petitioner’s response, petitioner argues that the settlement
officer abused the settlement officer’s discretion in calculating
petitioner’s RCP by using as the “future income” component of
that calculation an average of petitioner’s wage income for the
31
(...continued)
disaster)[,] within 30 days from the date of this
letter you may contact * * * [the first settlement
officer] to request reconsideration of our decision to
close your offer. You should be prepared to discuss
specifics, provide verification of the circumstances
beyond your control and provide the information previ-
ously requested.
- 52 -
three-year period 2002 through 2004, instead of using an average
of petitioner’s wage income for the seven-year period 1998
through 2004 or the twelve-year period 1993 through 2004.32 In
32
In support of that argument, petitioner contends, and
respondent does not dispute, that petitioner had the following
wage income from his law practice for 1993 through 2004:
Year Wage Income
1993 $55,000
1994 52,000
1995 110,100
1996 85,000
1997 98,000
1998 -
1999 -
2000 -
2001 -
2002 200,000
2003 329,151
2004 71,842
Petitioner further contends that his average monthly wage
income for the seven-year period 1998 through 2004 was $2,548 and
that his average monthly wage income for the twelve-year period
1993 through 2004 was $5,435. We disagree. On the instant
record, we find that petitioner incorrectly calculated his
average monthly wage income for each of those periods. The
respective average monthly wage income amounts that petitioner
claims for the period 1998 through 2004 and the period 1993
through 2004 (as well as for the three-year period 2002 through
2004) are averages of cumulative averages of petitioner’s monthly
wage income for each of the years included in calculating those
respective average monthly wage income amounts. See supra text
accompanying notes 23 and 24. The use of those averages of
cumulative averages for the seven-year period 1998 through 2004
and for the twelve-year period 1993 through 2004, which places
significant emphasis on the years before 2002 that are included
in the respective calculations, is improper. The correct amount
of petitioner’s average monthly wage income for 1998 through 2004
is $7,154.68. The correct amount of petitioner’s average monthly
(continued...)
- 53 -
calculating the “future income” component of petitioner’s RCP on
the basis of the three-year period 2002 through 2004, the second
offer specialist first determined petitioner’s average monthly
income to be $18,895, consisting of (1) $16,903 of average
monthly wage income calculated by using an average of peti-
tioner’s wage income for the years 2002 through 200433 and
(2) other monthly income totaling $1,992. The second offer
specialist then calculated petitioner’s “excess” monthly income
(i.e., $12,652) by subtracting allowed monthly necessary living
expenses (i.e., $6,243) from petitioner’s average monthly income
(i.e., $18,895). Finally, the second offer specialist multiplied
petitioner’s “excess” monthly income ($12,652) by 48 months to
determine the “future income” component of petitioner’s RCP
(i.e., $607,296).
The settlement officer reviewed the second offer special-
ist’s determination of petitioner’s RCP and agreed with, inter
32
(...continued)
wage income for 1993 through 2004 is $6,952.03.
33
The record does not disclose the basis for the second
offer specialist’s calculation of petitioner’s average monthly
wage income for 2002 through 2004 (i.e., $16,903). The monthly
average of the wage income that petitioner claims for 2002
through 2004 is $16,694.25. The Court is unable to reconcile the
difference between the monthly average of petitioner’s wage
income for 2002 through 2004 as calculated by the second offer
specialist and the monthly average of the wage income that
petitioner claims for 2002 through 2004. However, it is not
necessary to reconcile that difference in order to dispose of
respondent’s motion.
- 54 -
alia, that specialist’s use of the three-year period 2002 through
2004 on which to calculate the “future income” component of such
RCP. We believe that the second offer specialist’s calculation
of the “future income” component of petitioner’s RCP on the basis
of the three-year period 2002 through 2004, with which the
settlement officer agreed, is supported by part 5.8.5.5 of the
IRM (Sept. 1, 2005), which provides:
5.8.5.5 * * * Future Income
(1) Future income is defined as an estimate of the
taxpayers [sic] ability to pay based on an analy-
sis of gross income, less necessary living ex-
penses, for a specific number of months into the
future. The number of months used depends on the
payment terms of the offer.
a. For cash offers -- project for the next 48
months.
b. For short term deferred offers -- project for
the next 60 months.
c. For deferred payment offers -- project for
the number of months remaining on the statu-
tory period for collection.
* * * * * * *
(3) Consider the taxpayers [sic] overall general situ-
ation including such facts as age, health, marital
status, number and age of dependents, highest
education or occupational training, and work expe-
rience.
(4) Retired Debts -- A taxpayers [sic] ability to pay
in the future may change during the period it is
being considered because necessary expenses may
increase or decrease. Adjust the amount or number
of payments to be included in the future income
calculation, based on the expected change in nec-
essary expenses.
- 55 -
Example: The taxpayer may pay off an auto loan 24
months from the date the offer is accepted.
This would increase the monthly future income
by the amount of the loan payment. Child
support payments may stop before the future
income period is complete because the child
turns a certain age. It is expected that
these retired payments would increase the
taxpayers [sic] ability to pay.
Note: Inclusion of retired debt should not be added
automatically in the calculation of the rea-
sonable collection potential (RCP). The
Offer Investigator should use judgment in
determining whether inclusion of the retired
debt is appropriate based on the facts of the
case; such as special circumstance or Effec-
tive Tax Administration (ETA) situations. In
all instances, the case histories should be
documented to support the inclusion and/or
exclusion of the retired debt.
(5) Some situations may warrant placing a different
value on future income than current or past income
indicates:
- 56 -
If... Then...
* * * * * * *
A taxpayer has a sporadic Average earnings over
employment history or several prior years.
fluctuating income Usually this is the prior
3 years.
Note: This practice does
not apply to wage
earners.
A taxpayer is elderly, in Adjust the amount or
poor health, or both and number of payments to the
the ability to continue expected earnings during
working is questionable the appropriate number of
months. Consider special
circumstance situations
when making any
adjustments.
* * * * * * *
(6) Below are some examples on when it is and is not
appropriate to income average. Judgment should be
used in determining the appropriate time to apply
income averaging on a case by case basis. All
circumstances of the taxpayer should be considered
when determining the appropriate application of
income averaging, including special circumstance
and Effective Tax Administration considerations.
a. The examples below are instances when income
averaging may or may not be appropriate.
Example: A taxpayer is a commissioned sales person and
the income varies year to year. It would be
appropriate to income average in this case.
* * *
Even if it were arbitrary for the settlement officer to have
agreed with and accepted the second offer specialist’s calcula-
tion of the “future income” component of petitioner’s RCP by
using petitioner’s average monthly wage income for the three-year
- 57 -
period 2002 through 2004, the settlement officer did not abuse
the settlement officer’s discretion in agreeing with the second
offer specialist that petitioner’s June 24, 2005 offer-in-
compromise should be rejected and in rejecting that offer. That
is because part 5.8.1.1.3(3) of the IRM (Sept. 1, 2005) requires
that generally “a Doubt as to Collectibility * * * offer amount
must equal or exceed a taxpayers [sic] reasonable collection
potential (RCP) in order to be considered for acceptance.” As
explained below, even if the period 1998 through 2004 or the
period 1993 through 2004 were used to determine petitioner’s
average monthly wage income and the “future income” component of
petitioner’s RCP, petitioner’s RCP nonetheless would exceed the
amount (i.e., $139,776) that petitioner offered in petitioner’s
June 24, 2005 offer-in-compromise to compromise, inter alia,
petitioner’s unpaid liabilities for 1990, 1991, 1992, 1994, 1996,
1997, and 2002.
Part 5.8.1.1.3 of the IRM (Sept. 1, 2005) provides:
5.8.1.1.3 * * * Policy
(1) Policy Statement P-5-100 states:
The Service will accept an offer in compromise
when it is unlikely that the tax liability can be
collected in full and the amount offered reason-
ably reflects collection potential. An offer in
compromise is a legitimate alternative to declar-
ing a case currently not collectible or to a pro-
tracted installment agreement. The goal is to
achieve collection of what is potentially collect-
ible at the earliest possible time and at the
least cost to the Government.
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In cases where an offer in compromise appears to
be a viable solution to a tax delinquency, the
Service employee assigned the case will discuss
the compromise alternative with the taxpayer and,
when necessary, assist in preparing the required
forms. The taxpayer will be responsible for ini-
tiating the first specific proposal for compro-
mise.
The success of the offer in compromise program
will be assured only if taxpayers make adequate
compromise proposals consistent with their ability
to pay and the Service makes prompt and reasonable
decisions. Taxpayers are expected to provide
reasonable documentation to verify their ability
to pay. The ultimate goal is a compromise which
is in the best interest of both the taxpayer and
the government. Acceptance of an adequate offer
will also result in creating for the taxpayer an
expectation of a fresh start toward compliance
with all future filing and payment requirements.
(2) Offers will not be accepted if it is believed that
the liability can be paid in full as a lump sum or
through installment payments extending through the
remaining statutory period for collection (CSED),
unless special circumstances exist. See IRM 5.14,
Installment Agreements.
(3) Absent special circumstances, a Doubt as to
Collectibility (DATC) offer amount must equal or
exceed a taxpayers [sic] reasonable collection
potential (RCP) in order to be considered for
acceptance.[34] The exception is that if special
34
The only reason that petitioner gave in petitioner’s June
24, 2005 offer-in-compromise for the IRS to accept petitioner’s
offer was “Doubt as to Collectibility”. Petitioner did not give
as a reason “Doubt as to Collectibility with Special Circum-
stance” or “Effective Tax Administration”. Consistent with the
general rule of part 5.8.1.1.3(3) of the IRM (Nov. 15, 2004) for
an offer-in-compromise based on “Doubt as to Collectibility”,
petitioner offered in petitioner’s June 24, 2005 offer-in-compro-
mise an amount ($139,776) that was greater than the amount of
petitioner’s RCP ($139,707) that petitioner claims the first
offer specialist determined in September 2004. Assuming arguendo
(continued...)
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circumstances exist as defined in IRM 5.8.4.3,
Effective Tax Administration and Doubt as to
Collectibility with Special Circumstance, or IRM
5.8.11, Effective Tax Administration, the offer
may be accepted on the basis of hardship or Effec-
tive Tax Administration (ETA).[35]
Assuming arguendo, as petitioner argues, that the “future
income” component of petitioner’s RCP should have been calculated
by using his average monthly wage income for the seven-year
34
(...continued)
that petitioner had based petitioner’s June 24, 2005 offer-in-
compromise on “Doubt as to Collectibility with Special Circum-
stance” or “Effective Tax Administration”, on the record before
us, we find that the settlement officer did not abuse the settle-
ment officer’s discretion in concluding that that offer-in-
compromise should be rejected on those grounds. Although peti-
tioner was 70 years old in September 2005 when the settlement
officer (and the second offer specialist) was considering peti-
tioner’s June 24, 2005 offer-in-compromise, petitioner was still
practicing law and did not claim that he had any health issues.
35
See Murphy v. Commissioner, 125 T.C. 301, 309 (2005),
affd. 469 F.3d 27 (1st Cir. 2006), where we stated:
Special circumstances are (1) circumstances demonstrat-
ing that the taxpayer would suffer economic hardship if
the IRS were to collect from him an amount equal to the
reasonable collection potential of the case or (2) if
no demonstration of such suffering can be made, circum-
stances justifying acceptance of an amount less than
the reasonable collection potential of the case based
on public policy or equity considerations. IRM pt.
5.8.4.3.4 (Sept. 1, 2005) (Effective Tax Administration
and Doubt as to Collectibility with Special Circum-
stances). To demonstrate that compelling public policy
or equity considerations justify a compromise, the
taxpayer must be able to demonstrate that, due to
exceptional circumstances, collection of the full
liability would undermine public confidence that the
tax laws are being administered in a fair and equitable
manner. Sec. 301.7122-1(b)(3)(ii), Proced. & Admin.
Regs.
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period 1998 through 2004 (i.e., $7,154.68), rather than his
average monthly wage income for the three-year period 2002
through 2004, petitioner’s RCP would be $937,464.84.36 Peti-
tioner’s RCP as so calculated exceeds the amount (i.e., $139,776)
in petitioner’s June 24, 2005 offer-in-compromise that petitioner
offered to compromise, inter alia, petitioner’s unpaid liabili-
ties for 1990, 1991, 1992, 1994, 1996, 1997, and 2002. See IRM
pt. 5.8.1.1.3(3) (Sept. 1, 2005).
36
The monthly average of petitioner’s wage income for 1998
through 2004 is $7,154.68. See supra note 32. Adding to that
amount petitioner’s other monthly income (i.e., $1,992) and
subtracting petitioner’s allowed monthly necessary living ex-
penses (i.e., $6,243) results in “excess” monthly income of
$2,903.68. That amount of “excess” monthly income multiplied by
48 months results in “future income” of $139,376.64. That amount
of “future income” plus the amount that the settlement officer
calculated as the “net realizable equity” component of peti-
tioner’s RCP (i.e., $798,088.20), which “net realizable equity”
component petitioner does not dispute in petitioner’s response,
results in a reasonable collection potential for petitioner of
$937,464.84. In this connection, we note that on Sept. 6, 2005,
the second offer specialist sent petitioner a letter and enclosed
with that letter a so-called Asset/Equity Table which showed a
fair market value of real estate owned by petitioner of $995,714,
a quick sale value of that real estate of the same amount,
encumbrances on that real estate of $625,000, and “net realizable
equity” with respect to that real estate of $370,714. However,
in a footnote next to those amounts the second offer specialist
indicated: “Encumbrances not documented - subject to further
valuation.” The notice of determination that the Appeals Office
issued to petitioner on Feb. 8, 2006, indicated, inter alia, that
petitioner had real estate with a fair market value of $995,714,
that that real estate had a quick sale value of $796,571.20 (or
80 percent of that fair market value), that any encumbrances with
respect to that real estate were “Not documented”, and that
petitioner’s total “net realizable equity” was $798,088.20. In
petitioner’s response, petitioner does not dispute the determina-
tion in the notice of determination of petitioner’s “net realiz-
able equity” of $798,088.20.
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Assuming arguendo, as petitioner argues alternatively, that
the “future income” component of petitioner’s RCP should have
been calculated by using his average monthly wage income for the
twelve-year period 1993 through 2004, rather than his average
monthly wage income for the three-year period 2002 through 2004,
petitioner’s RCP would be $927,737.64.37 Petitioner’s RCP as so
calculated exceeds the amount ($139,776) in petitioner’s June 24,
2005 offer-in-compromise that petitioner offered to compromise,
inter alia, petitioner’s unpaid liabilities for 1990, 1991, 1992,
1994, 1996, 1997, and 2002. See IRM pt. 5.8.1.1.3(3) (Sept. 1,
2005).
On the record before us, we find that the settlement officer
did not abuse the settlement officer’s discretion in rejecting
the offer of $139,776 in petitioner’s June 24, 2005 offer-in-
compromise.
37
The monthly average of petitioner’s wage income for 1993
through 2004 is $6,952.03. See supra note 32. Adding to that
amount petitioner’s other monthly income (i.e., $1,992) and
subtracting petitioner’s allowed monthly necessary living ex-
penses (i.e., $6,243) results in “excess” monthly income of
$2,701.03. That amount of “excess” monthly income multiplied by
48 months results in “future income” of $129,649.44. That amount
of “future income” plus the amount that the settlement officer
calculated as the “net realizable equity” component of peti-
tioner’s reasonable collection potential (i.e., $798,088.20),
which “net realizable equity” component petitioner does not
dispute in petitioner’s response, results in a reasonable collec-
tion potential for petitioner of $927,737.64. See supra note 36.
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We turn finally to petitioner’s third principal argument.
In petitioner’s response, petitioner argues that the settlement
officer “made no effort to balance the Service’s needs for
efficient collection of taxes against the taxpayers’ legitimate
concern that collection action be no more intrusive than neces-
sary.”
We have found that, assuming arguendo that the settlement
officer had calculated the “future income” component of peti-
tioner’s RCP by using petitioner’s average monthly wage income
for the seven-year period 1998 through 2004 or his average
monthly wage income for the twelve-year period 1993 through 2004,
petitioner’s RCP nonetheless would have exceeded the amount
(i.e., $139,776) that petitioner offered in petitioner’s June 24,
2005 offer-in-compromise. In the case of the use of such seven-
year period, petitioner’s RCP would have exceeded petitioner’s
offer by $797,688.84. In the case of the use of such twelve-year
period, petitioner’s RCP would have exceeded petitioner’s offer
by $787,961.64. As discussed above, in order to be considered
for acceptance, an offer based on “Doubt as to Collectibility”,
the basis on which petitioner submitted petitioner’s June 24,
2005 offer-in-compromise, generally must equal or exceed the
taxpayer’s RCP. Id. Regardless of whether the “future income”
component of petitioner’s RCP is calculated on one of the two
bases urged by petitioner or on the basis used by the settlement
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officer, petitioner’s offer of $139,776 in petitioner’s June 24,
2005 offer-in-compromise did not equal or exceed that RCP.
On the record before us, we find that the settlement officer
took into consideration whether the proposed collection action
with respect to petitioner’s unpaid liabilities for 1990, 1991,
1992, 1994, 1996, 1997, and 2002 balanced the need for the
efficient collection of those liabilities with the legitimate
concern of petitioner that that collection action be no more
intrusive than necessary. See sec. 6330(c)(3)(C).
Based upon our examination of the entire record before us,
we find that respondent did not abuse respondent’s discretion in
making the determinations in the notice of determination with
respect to petitioner’s unpaid liabilities for 1990, 1991, 1992,
1994, 1996, 1997, and 2002. On that record, we sustain those
determinations.
We have considered all of the contentions and arguments of
petitioner that are not discussed herein, and we find them to be
without merit, irrelevant, and/or moot.
On the record before us, we shall grant respondent’s motion.
To reflect the foregoing,
An order granting respondent’s
motion and decision for respondent
will be entered.