T.C. Memo. 2010-8
UNITED STATES TAX COURT
SALVADOR AND ELOISA GONZALEZ, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 21852-07L. Filed January 11, 2010.
Brenda G. Bates, for petitioners.
James H. Brunson, III, for respondent.
MEMORANDUM OPINION
WELLS, Judge: Respondent sent a Notice of Determination
Concerning Collection Action(s) Under Section 6320 and/or 6330
(notice of determination) to petitioners with respect to a levy
to collect unpaid Federal income tax liabilities for their 1993,
1994, 1995, 1997, 1998, 1999, and 2000 tax years. In response,
petitioners timely filed a petition, pursuant to section 6330(d),
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seeking review of respondent’s determination.1 We must decide
whether respondent’s Appeals officer abused her discretion by
sustaining the levy collection action against petitioners’ real
property for tax years 1993, 1994, 1995, 1997, 1998, 1999, and
2000 by not properly balancing the Government’s need for the
efficient collection of taxes with petitioners’ need for any
collection to be no more intrusive then necessary as required
pursuant to section 6330(c)(3)(C).
Background
Some of the facts and certain exhibits have been stipulated
by the parties. The parties’ stipulations of fact are
incorporated in this opinion by reference and are so found.
At the time they filed the petition, petitioners resided in
Georgia.
Petitioner Salvador Gonzalez is the pastor of a small church
and engages in a small construction business. Petitioner Eloisa
Gonzalez is unemployed.
For tax years 1993, 1994, and 1995 petitioners timely filed
joint Federal income tax returns. On October 13, 1997,
respondent asserted against petitioners additional income tax for
taxable years 1993 and 1994 on the basis of examination of
petitioners’ returns. On October 20, 1997, respondent asserted
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended.
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against petitioners additional Federal income tax for taxable
year 1995 on the basis of examination of petitioners’ return.
The additional tax resulted from petitioner Salvador Gonzalez’
construction business.
For tax years 1997, 1998, 1999, and 2000 petitioners timely
filed joint Federal income tax returns. Respondent asserted
against petitioners additional tax on the basis of insufficient
withholding and estimated tax payments.
A levy source was identified, and respondent sent
petitioners Letter 1058A, Final Notice--Notice of Intent to Levy
and Notice of Your Right to a Hearing, dated February 6, 2007,
regarding petitioners’ liabilities for tax years 1993, 1994,
1995, 1997, 1998, 1999, and 2000.
On February 28, 2007, petitioners submitted Form 12153,
Request for a Collection Due Process or Equivalent Hearing. In
their request petitioners claimed that the proposed levy action
would create an undue hardship on their family because of
insufficient funds with which to enter into an installment
agreement. A hearing was held with respect to petitioners’ levy
notice.
Respondent requested that petitioners prepare their Federal
income tax return for tax year 2006 and Form 433-A, Collection
Information Statement for Wage Earners and Self-Employed
Individuals, for submission at the Appeals Office hearing.
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On July 12, 2007, petitioners submitted a signed copy of
their return for tax year 2006 (2006 return). The 2006 return
failed to include approximately $100,000 of income on Schedule C,
Profit or Loss From Business, that related to petitioner Salvador
Gonzalez’ construction business.
On July 17, 2007, petitioners’ attorney appeared at a face-
to-face hearing with respondent’s Appeals Officer Duvall (Ms.
Duvall). Petitioners submitted their Form 433-A at the hearing.
On Form 433-A petitioners listed two properties--a home having a
value of $280,000 and a mortgage balance of $54,700, and an
unimproved lot having a value of $32,000 (the real properties).2
Form 433-A also showed that petitioners’ monthly expenses
exceeded their monthly income. The sole issue raised at the
Appeals Office hearing was a collection alternative. At the
hearing, Ms. Duvall informed petitioners’ attorney that if
petitioners filed an amended return that included the
approximately $100,000 of missing construction income,
petitioners’ collection alternative would be considered on the
basis of hardship.
On August 13, 2007, Ms. Duvall examined petitioners’
financial statement and determined that petitioners had
sufficient equity in their real properties to fully pay the
2
Petitioners have placed a “for sale by owner” sign in front
of each property asking $330,000 for the home and $85,000 for the
unimproved lot.
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outstanding tax liabilities. In a letter dated August 24, 2007,
Ms. Duvall sustained the proposed levy action, citing the equity
available in petitioners’ real properties.
After the Appeals Office hearing petitioners filed an
amended return for taxable year 2006 (2006 amended return) which
included approximately $100,000 in gross income from petitioner
Salvador Gonzalez’ construction business. The 2006 amended
return resulted in a small refund to petitioners.
Petitioners are currently in full compliance with the filing
of their individual Federal income tax returns.
Discussion
Section 6330 requires, before any levy on any person’s
(taxpayer’s) property or right to property, that the Commissioner
give the taxpayer notice of intent to levy and notice of the
right to a fair hearing before an impartial officer of the IRS
Appeals Office. Secs. 6330(a) and (b), 6331(d). At the hearing
a taxpayer may raise appropriate spousal defenses, challenge the
appropriateness of collection actions, and offer collection
alternatives. Sec. 6330(c)(2)(A). Additionally, the taxpayer
may challenge the existence or amount of the underlying tax
liability only if the taxpayer did not receive a notice of
deficiency or did not otherwise have an opportunity to challenge
the underlying liability. Sec. 6330(c)(2)(B). At the hearing,
generally, the Appeals officer must consider the above-stated
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issues raised by the taxpayer, verify that the requirements of
applicable law and administrative procedure have been met, and
consider whether “any proposed collection action balances the
need for the efficient collection of taxes with the legitimate
concern of the * * * [taxpayer] that any collection action be no
more intrusive than necessary.” Sec. 6330(c)(3).3
Where the validity of the underlying tax liability is
properly in issue, the Court will review the matter de novo.
Where the validity of the underlying tax is not properly in
issue, however, the Court will review the Commissioner’s
determination for abuse of discretion. Sego v. Commissioner, 114
T.C. 604, 610 (2000); Goza v. Commissioner, 114 T.C. 176, 181-182
(2000). An abuse of discretion is any action that is arbitrary,
capricious, or without sound basis in law or fact. Woodral v.
Commissioner, 112 T.C. 19, 23 (1999).
In the instant case, the underlying liabilities are not in
issue. Accordingly, we review the Appeals officer’s
3
Petitioners made no argument regarding whether the
assessment in the instant case was proper. We have held that the
requirement pursuant to sec. 6330(c)(1) to verify that all
applicable laws have been met generally is satisfied if the
Appeals officer relied on a Form 4340, Certificate of
Assessments, Payments, and Other Specified Matters, or a
transcript containing similar information. There is no
requirement that the document be given to the taxpayer during the
hearing. Nestor v. Commissioner, 118 T.C. 162 (2002). The
record in the instant case contains a Form 4340 for each of the
years in issue.
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determination under the abuse of discretion standard. See Sego
v. Commissioner, supra; Goza v. Commissioner, supra.
Petitioners contend that respondent did not consider their
amended return for tax year 2006 and that respondent was
adequately protected by the liens in place on petitioners’ real
property. Petitioners contend that respondent, by failing to
consider those matters, did not balance the Government’s need for
efficient collection of taxes with the concern of petitioners
that any collection action be no more intrusive than necessary.
See sec. 6330(c)(3)(C). Petitioners contend that respondent’s
failure to engage in such balancing was an abuse of discretion.
Respondent contends that Ms. Duvall’s determination under section
6330(c)(3)(C) was not an abuse of discretion and petitioners have
sufficient equity in their real properties to fully pay their tax
liabilities.
We first consider the issue of respondent’s failure to
consider petitioners’ 2006 amended return. Petitioners contend
that it was an abuse of discretion to make a levy determination
without considering the amended return. Respondent contends that
nothing on the amended return, whether or not considered by Ms.
Duvall in making her determination to proceed with the levy,
would entitle petitioners to a reversal of the levy
determination.
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As required under section 6330(c)(3)(C), an Appeals officer
should consider, among other things, a taxpayer’s actions,
compliance history, and financial circumstances when balancing
the Government’s needs with those of the taxpayer. Internal
Revenue Manual pt. 8.7.2.3.13(6) (Jan. 1, 2006). In the instant
case, the sole issue raised at the Appeals Office hearing was a
collection alternative. Ms. Duvall did not consider petitioners’
financial condition when she informed petitioners that, if they
amended their Form 1040, U.S. Individual Income Tax Return, for
taxable year 2006, she would consider whether collection of their
liabilities would cause them economic hardship.4 Petitioners
submitted Form 433-A, which included information on petitioners’
4
Sec. 7122(a) provides that “The Secretary may compromise
any civil * * * case arising under the internal revenue laws”.
Whether to accept an offer-in-compromise is left to the
Secretary’s discretion. Fargo v. Commissioner, 447 F.3d 706, 712
(9th Cir. 2006), affg. T.C. Memo. 2004-13. The regulations
pursuant to sec. 7122(a) set forth three grounds for the
compromise of a tax liability: (1) Doubt as to liability; (2)
doubt as to collectability; or (3) promotion of effective tax
administration. Sec. 301.7122-1(b), Proced. & Admin. Regs. The
Commissioner may compromise on doubt as to collectability where
the taxpayer’s assets and income are less than the full amount of
the assessed liability. Id. Generally, the Commissioner will
accept an offer-in-compromise only if it reflects the taxpayer’s
reasonable collection potential. Rev. Proc. 2003-71, sec.
4.02(2), 2003-2 C.B. 517, 517. However, the Commissioner may
also compromise on the grounds of effective tax administration
when: (1) Collection of the full liability would create economic
hardship; or (2) exceptional circumstances exist such that
collection of the full liability would undermine public
confidence that the tax laws are being administered in a fair and
equitable manner; and (3) compromise of the liability would not
undermine compliance by taxpayers with the tax laws. Sec.
301.7122-1(b)(3), Proced. & Admin. Regs.
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financial condition, at the Appeals Office hearing. It was only
after the hearing that Ms. Duvall was able to consider the
section 6330(c)(3)(C) balancing because only at that point could
she consider all the relevant factors. Only following that
review was Ms. Duvall able to determine that petitioners had
sufficient equity to fully pay their liabilities and identify a
levy source. We also note that petitioners’ 2006 return omitted
nearly $100,000 of income. The “change” in petitioners status
was not a result of a failure to consider the 2006 amended
return, but rather of Ms. Duvall’s full consideration of all the
relevant facts. Accordingly, we conclude that Ms. Duvall did not
abuse her discretion by not considering the 2006 amended return.
We next turn to the issue of respondent’s liens on
petitioners’ real properties. Once an assessment has been made
against a taxpayer, section 6303 directs the Commissioner to give
the taxpayer notice of the assessment, and demand payment, within
60 days. If a taxpayer fails to pay, then the Federal tax lien
arises and attaches to all of the taxpayer’s property and rights
to property. Sec. 6321.
The Commissioner generally has 10 years from the date of a
properly assessed tax to collect the amount due. Sec. 6502. The
period of limitations on collections is suspended while a
taxpayer’s case is pending in the Tax Court and for 60 days
thereafter. Sec. 6503(a). If the 10-year period of limitations
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on collections is allowed to expire, a properly assessed tax may
become uncollectible.
Petitioners contend that respondent is fully protected by
the Federal tax lien. While petitioners offered to sell their
real properties to satisfy the lien, petitioners did not offer to
extend the period of limitations, and respondent was not given
any assurances that a sale would occur in a reasonable time.
Rather, petitioners merely insist that the Federal tax lien in
place is sufficient security for the Government’s interests while
petitioners seek a buyer for the real properties.
Respondent issued a notice of intent to levy on February 6,
2007, approximately 8 months before the period of limitations on
collections would have expired for 3 of the years in issue.5 Had
respondent failed to proceed with collection of petitioners’
liabilities for an additional 8 months, the liabilities for tax
years 1993, 1994, and 1995 might have become uncollectible on
account of the expiration of the period of limitations.6 We do
5
Taxes and penalties for the 1993 and 1994 tax years were
assessed on Oct. 13, 1997. For 1993 and 1994, the period of
limitations on collections, if not extended, would have expired
on Oct. 12, 2007. Assessment for the 1995 taxable year was made
on Oct. 20, 1997. For 1995, the period of limitations on
collections, if not extended, would have expired on Oct. 19,
2007. The notice of intent to levy was sent on Feb. 6, 2007,
approximately 8 months short of the dates on which the 10-year
periods of limitations on collections might otherwise have
expired.
6
As of Feb. 6, 2007, the date of the notice of intent to
(continued...)
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not find respondent’s decision to proceed to be an abuse of
discretion.
Petitioners also contend that they could sell the real
properties for more than respondent could in a foreclosure
proceeding. However, it is not an abuse of discretion to require
that taxpayers with sufficient assets to satisfy their
liabilities pay them off more rapidly than would be accomplished
through other methods. Castillo v. Commissioner, T.C. Memo.
2004-238; Clawson v. Commissioner, T.C. Memo. 2004-106. We note
that petitioners’ real properties have sufficient value for
petitioners to pay off the tax liabilities in full and that
petitioners’ real properties are a home in which they are not
living and a vacant lot. Petitioners offered little evidence to
prove that they are actively proceeding to sell their real
properties. Petitioners did not offer proof that the real
properties were listed with a broker. Petitioners merely have
placed a “for sale by owner” sign in front of each of the real
properties. Moreover, the only payments petitioners have made on
their tax liabilities over the preceding 10 years have been by
respondent’s application of refunds. It is evident that
petitioners have made little effort to satisfy their tax
6
(...continued)
levy, petitioners had outstanding liabilities of $22,619,
$124,266, and $9,882 for tax years 1993, 1994, and 1995,
respectively. The total liability for the years in issue was
$179,722.
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liabilities. Given that the periods of limitations on
collections were close to expiration for several tax years, we
conclude that it was not an abuse of discretion for respondent to
sustain the levy action against petitioners without relying
solely on the liens that were in place.
On the basis of the foregoing, we hold that Ms. Duvall did
not abuse her discretion on the issue of the balancing of the
Government’s need for the efficient collection of taxes with
petitioners’ need for collection not to be any more intrusive
than necessary. Accordingly, we uphold respondent’s
determination to proceed with the collection of petitioners’ tax
liabilities in issue.
The Court has considered all other arguments made by the
parties and, to the extent we have not addressed them herein, we
consider them moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
for respondent.