T.C. Memo. 2017-50
UNITED STATES TAX COURT
LINDSAY MANOR NURSING HOME, INC., Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 24596-14L. Filed March 23, 2017.
David J. Looby, for petitioner.
Ann Louise Darnold, for respondent.
MEMORANDUM OPINION
PARIS, Judge: In this collection due process (CDP) case, petitioner seeks
review pursuant to section 6330(d)(1)1 of the determination by the Internal
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code of 1986, as amended and in effect at all relevant times, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
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[*2] Revenue Service (IRS or respondent) to uphold a notice of intent to levy.
Petitioner filed a motion for summary judgment under Rule 121 that the Court
addressed in part in its Opinion Lindsay Manor Nursing Home, Inc. v.
Commissioner (Lindsay Manor I), 148 T.C. __ (Mar. 23, 2017). And respondent
filed a subsequent motion for summary judgment under Rule 121. The remaining
questions for decision are whether IRS Settlement Officer Alcorte (SO Alcorte)
abused her discretion in rejecting petitioner’s proposed installment agreement and
sustaining the collection action. For the reasons explained below, the Court will
grant respondent’s motion for summary judgment and deny the remainder of
petitioner’s motion for summary judgment.
Background
The following facts are based on the parties’ pleadings and motion papers,
including the attached exhibits and affidavits.2 See Rule 121(b). Petitioner
2
Each party requests that certain of the other’s affidavits and exhibits be
stricken from the record because they were not part of the original administrative
record. Although conflicting authority exists as to whether the Court’s review in
CDP cases is limited to the administrative record, neither the Court of Appeals for
the Tenth Circuit nor the Court of Appeals for the D.C. Circuit has specifically
ruled on the issue. The Court sees no reason to address the issue here; those
requests are accordingly denied. See Lindsay Manor Nursing Home, Inc. v.
Commissioner (Lindsay Manor I), 148 T.C. __, __ n.7 (slip op. at 14-15) (Mar.
23, 2017) (addressing conflicting authority regarding the proper appellate venue in
this case and finding the determination irrelevant to the Court’s analysis).
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[*3] operates a nursing home facility in a rural community of fewer than 3,000
residents. Its principal place of business was in Oklahoma at the time the petition
was filed.
Petitioner has a long history of noncompliance with its Federal employment
tax obligations dating back to the mid-2000s.3 On multiple prior occasions
petitioner was given an installment agreement which the IRS revoked for
noncompliance with either the terms of the agreement or its Federal tax filing and
payment obligations. The case at issue relates to petitioner’s outstanding tax
liability from Form 941, Employer’s Quarterly Federal Tax Return, for the period
ending December 31, 2013.
Petitioner timely filed its Form 941 for the quarterly period ending
December 31, 2013, but failed to pay its tax liability for that quarter. On April 14,
2014, respondent assessed the tax of $108,911 reported on the return and began
collection efforts.
On April 24, 2014, respondent issued to petitioner a Letter 1058, Final
Notice--Notice of Intent to Levy and Notice of Your Right to a Hearing. In
3
Contained within petitioner’s administrative file is an Integrated Collection
System (ICS) history transcript. Petitioner disputes neither its authenticity nor the
contents of the statements contained within. The transcript notes indicate that
respondent had previously levied on petitioner’s Medicaid funds.
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[*4] response petitioner timely submitted a Form 12153, Request for a Collection
Due Process or Equivalent Hearing, seeking to enter into a $6,000-per-month
installment agreement for its unpaid employment tax liability. This request stated
that if respondent were permitted to levy, petitioner’s difficulty with Medicare and
Medicaid collections would render it unable to pay either the employment tax
balance it owed or its current taxes. Petitioner’s request, however, did not dispute
the underlying employment tax liability; petitioner checked the collection
alternative boxes for “Installment Agreement” and “I Cannot Pay Balance”.
Respondent mailed to petitioner a letter dated June 6, 2014, acknowledging
receipt of petitioner’s hearing request, and SO Alcorte subsequently mailed to
petitioner a letter scheduling a CDP hearing for August 21, 2014. SO Alcorte’s
letter advised petitioner that it did not qualify for consideration of an installment
agreement because it was not in compliance with its employment tax deposit
requirements for the taxable period ending June 30, 2014. The letter further
advised petitioner that to qualify for a collection alternative it had to provide to SO
Alcorte the following items no later than August 11, 2014: (1) a completed Form
433-B, Collection Information Statement for Businesses, and (2) evidence that it
had made the required Federal employment tax deposits for the current taxable
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[*5] period. SO Alcorte informed petitioner that respondent could not consider
collection alternatives without the information requested.
Petitioner did not submit the requested Form 433-B until August 20, 2014,
one day before the scheduled hearing, asserting that the proposed levy would
result in “economic hardship” and, therefore, “this situation * * * mandate[s] the
release of the proposed levy”. The Form 433-B was signed by petitioner’s
president, Sam Jewell, listing among petitioner’s assets accounts receivable from
Private Pay, Medicaid Oklahoma, Medicare, and Insurance CoPay--with a
combined balance of $306,598.61 for the period April 30 through June 30, 2014.4
The Form 433-B also listed petitioner’s monthly income of $254,138.335 and
monthly expenses of $257,176.14.
In preparation for the CDP hearing SO Alcorte noted in her case activity
report that petitioner did not appear to qualify for an installment agreement
because its assets were sufficient to pay the outstanding liability in full. She also
noted that petitioner offered no explanation regarding how it would make its
4
Petitioner listed without substantiating on its Form 433-B an account
receivable from Medicare with a balance of $73,213.92.
5
SO Alcorte’s notes indicated that petitioner’s monthly income was
$154,138.33. This appears to be a scrivener’s error, as her notes on the Form 433-
B reflect $254,138. Either amount results in negative net monthly income.
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[*6] proposed monthly installment agreement payments while its net revenue was
negative. And she reviewed the administrative record.
The administrative record details previous installment agreements between
respondent and petitioner. Each followed a similar pattern: petitioner failed to
remit to the IRS the requisite employment tax deposit; petitioner would not pay the
amount in full until respondent sent a final notice of intent to levy; petitioner
would attempt to enter into an installment agreement; and for one reason or
another, petitioner defaulted on that agreement. Detailed notes accompanying
these installment agreements elaborate upon the extensive consideration given to
petitioner’s unique circumstances and the impact of collection action on its
employees and patients. These notes also show that despite ongoing collection
action by lien and by levy, petitioner was able to continuously provide sufficient
care to its patients and wages to its employees.
On August 21, 2014, the parties held a CDP hearing. Petitioner’s
representative did not contest petitioner’s underlying tax liability but instead
reiterated that it would suffer economic hardship if the proposed collection action
were sustained.6 SO Alcorte explained to petitioner’s representative that she
6
Interestingly, the notes in petitioner’s ICS history transcript indicate that it
“is not going out of business and that funds will keep coming in from Medicare
(continued...)
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[*7] would not consider petitioner’s economic hardship argument because the
economic hardship exception does not apply to corporations. She noted that
because (1) petitioner’s accounts receivable were sufficient to pay its outstanding
liability in full, (2) petitioner was not in compliance with its Federal employment
tax deposit obligations, and (3) the economic hardship exception is not applicable
to corporations, she would be sustaining the proposed collection action and
closing the case.
SO Alcorte verified that the assessment was properly made and that all other
requirements of applicable law and administrative procedure had been met. She
thereupon closed the case and, on September 17, 2014, issued to petitioner a
notice of determination sustaining the notice of intent to levy with respect to the
Form 941 tax period ending December 31, 2013.
Petitioner timely petitioned this Court with respect to the notice of
determination and, on March 31, 2015, filed a motion for summary judgment.
Respondent filed his motion for summary judgment on October 14, 2015. The
Court has issued its Opinion in Lindsay Manor I, finding that section 301.6343-
1(b)(4)(i), Proced. & Admin. Regs., is valid and that the circumstances of
6
(...continued)
and Medicaid.”
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[*8] nonindividual taxpayers may properly be considered under the intrusiveness
analysis of the section 6330(c)(3)(C) balancing test. The Court proceeds to
address respondent’s motion for summary judgment and the portion of petitioner’s
motion not addressed in Lindsay Manor I.
Discussion
I. Summary Judgment and Standard of Review
The purpose of summary judgment is to expedite litigation and avoid
unnecessary and time-consuming trials. Fla. Peach Corp. v. Commissioner, 90
T.C. 678, 681 (1988). The Court may grant summary judgment when there is no
genuine dispute as to any 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),
aff’d, 17 F.3d 965 (7th Cir. 1994). If a moving party properly makes and supports
a motion for summary judgment, “an adverse party may not rest upon the mere
allegations or denials of such party’s pleading” but must set forth specific facts, by
affidavit or otherwise, showing that there is a genuine dispute for trial. Rule
121(d).
Upon due consideration of the parties’ motions, supporting declarations,
and responses thereto, the Court concludes that no material facts are in dispute and
that judgment may be rendered for respondent as a matter of law.
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[*9] Where the validity of the underlying tax liability is properly at issue, the
Court will review the matter on a de novo basis. Sego v. Commissioner, 114 T.C.
604, 610 (2000). Where, as here, there is no dispute concerning the underlying tax
liability, the Court reviews the Commissioner’s administrative determination for
abuse of discretion.7 Id. Abuse of discretion exists when a determination is
arbitrary, capricious, or without sound basis in fact or law. See Murphy v.
Commissioner, 125 T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006).
II. Collection Due Process
In deciding whether the SO abused her discretion in sustaining the
collection action, the Court considers whether she: (1) properly verified that the
requirements of any applicable law or administrative procedure have been met; (2)
considered any relevant issues petitioner raised; and (3) determined whether “any
proposed collection action balances the need for the efficient collection of taxes
with the legitimate concern of * * * [petitioner] that any collection action be no
more intrusive than necessary.” Sec. 6330(c)(3).
7
Regardless of whether petitioner could have contested its underlying
liability at the CDP hearing, this Court may consider a challenge to such a liability
only if the taxpayer properly raised it before the SO, Giamelli v. Commissioner,
129 T.C. 107, 115 (2007), and again in its petition to this Court, see Rule
331(b)(4) (“Any issue not raised in the assignments of error shall be deemed to be
conceded.”). Petitioner raised this issue neither with SO Alcorte nor in its
petition. The Court accordingly deems it conceded.
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[*10] Review of the record reveals that SO Alcorte conducted a thorough review
of petitioner’s account, determined that the taxes had been properly assessed, and
verified that other requirements of applicable law and administrative procedure
were followed. Petitioner’s primary contention is that SO Alcorte abused her
discretion in rejecting its installment agreement request. Secondary to this
argument is that the SO abused her discretion in failing to adequately consider
petitioner’s “economic hardship” in the balancing analysis required by section
6330(c)(3).8 Finally, petitioner suggests that SO Alcorte was not impartial as
required by section 6330(b)(3).
A. Petitioner’s Installment Agreement Request
In its discretion, the IRS may accept an installment agreement if it
determines that doing so will facilitate full or partial collection of a tax liability.
See sec. 6159(a). The IRS also has discretion to reject a proposed installment
agreement (subject to certain restrictions not applicable here). See Thompson v.
Commissioner, 140 T.C. 173, 179 (2013); sec. 301.6159-1(a), (c)(1)(I), Proced. &
8
In Lindsay Manor I, this Court found that sec. 301.6343-1(b)(4)(i), Proced.
& Admin. Regs., is valid; accordingly, the economic hardship exception applies
only to individuals. To the extent that petitioner’s other arguments attempt to
rehash this issue, they are summarily disregarded. However, to the extent that
petitioner seeks to point out its economic position for the sake of SO Alcorte’s sec.
6330(c)(3)(C) balancing analysis, the Court will address them.
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[*11] Admin. Regs. Consequently, in reviewing this determination, the Court
does not substitute its judgment for that of Appeals and decide whether in its
opinion petitioner’s installment agreement should have been accepted. See
Woodral v. Commissioner, 112 T.C. 19, 23 (1999); Keller v. Commissioner, T.C.
Memo. 2006-166, aff’d in part, 568 F.3d 710 (9th Cir. 2009). Instead, the Court
reviews this determination for abuse of discretion.
Petitioner argues that it was an abuse of discretion for SO Alcorte to reject
its proposed installment agreement. The record, however, supports SO Alcorte’s
rejection of petitioner’s installment agreement as proper for either of her two
reasons: (1) the value of petitioner’s assets exceeded the underlying liability, and
(2) petitioner was not in compliance with its Federal employment tax deposit
obligations.9
1. Petitioner’s Assets
SO Alcorte rejected petitioner’s proposed installment agreement after
determining that its tax liability could be fully or partially satisfied by liquidating
or borrowing against its assets--$306,598.61 in accounts receivable alone. See
9
The Court finds disingenuous petitioner’s argument that SO Alcorte’s notes
in her case activity report constituted a predetermination. The notes indicate SO
Alcorte’s preparation for petitioner’s CDP hearing and reflect a thorough review
of the late-submitted Form 433-B and its attachments. This is not an abuse of
discretion.
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[*12] Internal Revenue Manual (IRM) pt. 5.14.1.4(5) and (6) (June 1, 2010)
(“Taxpayers do not qualify for installment agreements if balance due accounts can
be fully or partially satisfied by liquidating assets[.]”); see also Boulware v.
Commissioner, T.C. Memo. 2014-80 (finding that settlement officer’s reliance on
this IRM provision was not an abuse of discretion), aff’d, 816 F.3d 133 (D.C. Cir.
2016). But petitioner argues that SO Alcorte should have considered its economic
hardship argument.
When a taxpayer establishes in a prelevy collection hearing under section
6330 that the proposed levy would create an economic hardship, it is unreasonable
for the settlement officer to determine to proceed with the levy, which section
6343(a)(1)(D) would require the IRS to immediately release. Vinatieri v.
Commissioner, 133 T.C. 392, 400 (2009). Rather than proceed with the levy, the
settlement officer must consider alternatives. Id. Although SO Alcorte did not
consider petitioner’s request for economic hardship relief, this Court held in
Lindsay Manor I that section 301.6343-1(b)(4)(i), Proced. & Admin. Regs.,
limiting economic hardship relief to individual taxpayers, is valid. Because the
regulation is valid and because petitioner is not an individual taxpayer, SO Alcorte
was not required to consider petitioner’s economic hardship argument in the light
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[*13] of section 6343(a)(1)(D). It was not an abuse of discretion for SO Alcorte to
decline to consider an argument inapplicable to petitioner.
2. Compliance With Federal Tax Obligations
In rejecting petitioner’s proposed installment agreement, SO Alcorte also
noted that petitioner was not in compliance with its current Federal employment
tax deposit obligations. The IRS’ established policy is to require taxpayers to be
in compliance with current filing and estimated tax payment requirements to be
eligible for collection alternatives. See Reed v. Commissioner, 141 T.C. 248, 256-
257 (2013). Generally, current compliance with tax laws is a prerequisite to being
eligible for collection alternatives. See Cox v. Commissioner, 126 T.C. 237, 257
(2006), rev’d on other grounds, 514 F.3d 1119 (10th Cir. 2008). And despite
petitioner’s contention, SO Alcorte was well within her discretion to require
compliance with current tax obligations. See Giamelli v. Commissioner, 129 T.C.
107, 111-112 (2007); cf. Christopher Cross, Inc. v. United States, 461 F.3d 610,
613 (5th Cir. 2006) (finding no abuse of discretion when settlement officer
rejected collection alternative because taxpayer was not in compliance with its tax
payment obligations); Reed v. Commissioner, 141 T.C. at 257 (same).
Petitioner argues that SO Alcorte abused her discretion because--even
though it was not in compliance--she failed to consider that its inability to remain
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[*14] current with its Federal tax deposits was a result of its nonreceipt of
Medicare and Medicaid funding from the Federal and State Governments. To
support its argument, petitioner cites Alessio Azzari, Inc. v. Commissioner, 136
T.C. 178(2011).
In Alessio Azzari, Inc., a lender stopped lending money to the taxpayer after
the Commissioner’s settlement officer erroneously determined that the
Commissioner did not need to subordinate his lien on the taxpayer’s accounts to
the lender’s lien on the same accounts. Id. at 181-183. As a result, the taxpayer
was unable to stay current with its employment tax deposits after being in
compliance for six consecutive quarters. Id. at 183. The Commissioner denied the
taxpayer’s installment agreement request because the taxpayer was no longer in
compliance. Id. at 183-184. The Court held that it was an abuse of discretion for
the Commissioner to deny the taxpayer’s request for an installment agreement on
the basis of the taxpayer’s failure to stay current on its tax deposits because the
settlement officer’s erroneous interpretation of law led to the lender’s decision to
stop lending money to the taxpayer, which led to the taxpayer’s not being in
compliance. Id. at 194.
Unlike the taxpayer in Alessio Azzari, Inc., there is no dispute that
petitioner was not in compliance when it requested an installment agreement. And
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[*15] as the Court found in Lindsay Manor I, section 301.6343-1(b)(4)(i), Proced.
& Admin. Regs., is a valid regulation. SO Alcorte did not interpret the law
erroneously. Accordingly, SO Alcorte did not abuse her discretion in rejecting
petitioner’s installment agreement request on the grounds that petitioner was not in
compliance.
B. SO Alcorte’s Balancing Analysis
Petitioner next argues that SO Alcorte either did not conduct the required
statutory balancing test or did not explain her reason for concluding that its
requirements were met. Petitioner suggests that it “proposed a viable collection
alternative that it could afford to pay on a monthly basis while staying current on
its federal tax deposit payments that was less intrusive than enforced levy action”.
This Court also found in Lindsay Manor I that the section 6330(c)(3)(C)
balancing test properly takes into account a taxpayer’s specific economic realities
and the consequences of a proposed collection action. On the basis of the Court’s
thorough analysis of the record in this case, the Court concludes that there is no
material issue of fact regarding whether the SO properly balanced “the need for
the efficient collection of taxes with the legitimate concern of * * * [petitioner]
that any collection action be no more intrusive than necessary.” See sec.
6330(c)(3).
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[*16] At the time petitioner requested this installment agreement, it had defaulted
on numerous previous installment agreements, several of which involved monthly
payments of $6,000--the same amount it has now promised to pay. Although
petitioner has argued that a levy would render it unable to meet its payroll and
patient obligations, the administrative record shows that when petitioner
previously complained of being unable to meet its payroll and patient obligations
because of a levy, it found the requisite funding when respondent refused to
release the levy.10
Petitioner’s Form 433-B showed that its monthly expenses exceeded its
monthly income. Although there was an ongoing dialogue between petitioner’s
counsel and SO Alcorte, petitioner gave no indication of how it would make the
proposed installment payments with negative monthly revenue. SO Alcorte noted
the existence of petitioner’s accounts receivable, which were together sufficient to
pay the outstanding liabilities in full. These accounts included delayed payments
from Medicare and Medicaid, but petitioner did not suggest that they would be
unpaid; rather, petitioner’s counsel stated that it “is not going out of business and
that funds will keep coming in from Medicare and Medicaid.”
10
The IRS revenue agent’s notes on this method of funding can be
summarized colloquially as “robbing Peter to pay Paul.”
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[*17] Although petitioner complains of the possibility of being forced to close its
doors to its patients and terminate its employees, the record in this case indicates a
resilience despite its habitual noncompliance with the Internal Revenue laws. On
the basis of petitioner’s consistent history of noncompliance and its continual
ability to find and remit sufficient payment despite the balance sheet, this Court
finds that SO Alcorte gave due weight to petitioner’s specific circumstances. The
Government’s interest in efficiently collecting the amounts owed by petitioner
simply tipped the scale the other way.
Furthermore, it is well established that rejecting a collection alternative
because of noncompliance with estimated tax payment requirements does not
violate the proper balancing requirement. See, e.g., Orum v. Commissioner, 123
T.C. 1 (2004), aff’d, 412 F.3d 819 (7th Cir. 2005); Friedman v. Commissioner,
T.C. Memo. 2015-196; Schwartz v. Commissioner, T.C. Memo. 2007-155.
In preparation for the CDP hearing SO Alcorte discovered that petitioner
was not in compliance with its current employment tax deposit obligations for the
taxable period ending June 30, 2014, and that it did not provide proof of its
making the required September 30, 2014, deposit. Upon consideration of
petitioner’s financial position and its failure to remain in compliance with its
employment tax requirements, SO Alcorte determined that there was no alternative
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[*18] to sustaining the notice of intent to levy, which would be less intrusive to
petitioner and still allow the Government to collect its outstanding tax liability.
SO Alcorte explained the reasoning behind her determination in the notice of
determination. Accordingly, the undisputed material facts establish that SO
Alcorte did not abuse her discretion in conducting the balancing test under section
6330(c)(3)(C).
C. SO Alcorte’s Impartiality
Next, petitioner argues that SO Alcorte’s review of the documents it
provided before the CDP hearing violates its section 6330(b)(3) right to a CDP
hearing by an officer who had no prior involvement with respect to the unpaid tax.
Section 6330(b)(3) requires a CDP hearing to be “conducted by an officer or
employee who has had no prior involvement with respect to the unpaid tax * * *
before the first hearing”. Prior involvement exists only when (1) the taxpayer, the
tax, and the tax period at issue in the CDP hearing also were at issue in the prior
non-CDP matter and (2) the Appeals officer or employee actually participated in
the prior matter. Sec. 301.6330-1(d)(2), Q&A-D4, Proced. & Admin. Regs.
Petitioner does not argue that SO Alcorte had prior involvement in an
earlier, non-CDP matter; rather, it argues that, because she had reviewed
petitioner’s documents before the CDP hearing, SO Alcorte was not impartial.
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[*19] Petitioner is incorrect. The regulations clearly state that prior involvement
exists only when an Appeals officer actually participates in an earlier, non-CDP
matter. Id. Because petitioner does not assert that SO Alcorte participated in a
prior non-CDP matter, its argument must fail.
SO Alcorte verified that she did not have any prior involvement with respect
to the specific tax periods at issue. Because SO Alcorte did not participate in a
prior non-CDP matter concerning the same tax, taxpayer, and tax period at issue,
she was an eligible Appeals officer to preside over the CDP hearing. Accordingly,
the undisputed material facts establish that SO Alcorte did not abuse her discretion
by reviewing before petitioner’s CDP hearing the information petitioner had
provided.
III. Conclusion
Petitioner finally argues that the Court should remand this case for
additional consideration. The Court is not convinced it is necessary or would be
productive to remand this case. See Lunsford v. Commissioner, 117 T.C. 183, 189
(2001); Kakeh v. Commissioner, T.C. Memo. 2015-103, at *13. The purpose of a
remand is not to afford a “do over” for a taxpayer whose missteps during the CDP
process resulted in its collection alternative’s being rejected. See Kakeh v.
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[*20] Commissioner, at *13. It appears to the Court that petitioner is seeking a
“do over” here.
Finding no abuse of discretion in any respect, the Court will grant
respondent’s motion for summary judgment and deny the remainder of petitioner’s
motion for summary judgment. The Court has considered all of the arguments
made by the parties, and to the extent they are not addressed herein, they are
considered unnecessary, moot, irrelevant, or without merit.
To reflect the foregoing,
An appropriate order and decision
will be entered.