Decision was entered for respondent.
2004 U.S. Tax Ct. LEXIS 35">*35 P was an investor in a partnership involved in tax shelter
litigation in this Court. In 1985, P entered into settlement
agreements with R, pursuant to which P could not deduct losses
in excess of payments he had made to or on behalf of the
partnership for taxable years before 1980 or after 1982. In
1999, after the partnership litigation concluded, R assessed
additional income tax and accrued interest for P's taxable year
1983 attributable to P's involvement in the partnership. P filed
a claim for abatement of the interest. During P's correspondence
conference with R, P provided to R a copy of the settlement
agreements and argued that he had settled the taxable year 1983.
R refused to consider the content or effect of the settlement
agreements and denied P's request for abatement of interest. P
then filed a petition with this Court, appealing R's
determination. After R filed an answer to the petition, R
decided that P was entitled to a full abatement of interest for
the taxable year 1983. P then filed a motion with this Court for
reasonable litigation2004 U.S. Tax Ct. LEXIS 35">*36 costs.
Held: The settlement agreements constituted binding
agreements between P and R; settled all taxable years after 1982
with respect to the partnership; and converted the partnership
items into nonpartnership items, giving R 1 year in which to
assess any income tax liabilities for taxable years included
under the settlement agreements' terms. Held,
further, R delayed in performing the ministerial act of
assessing P's 1983 tax liability. Held further, R's
position in the answer was not substantially justified.
Held: P is entitled to an award of reasonable
litigation costs.
123 T.C. 202">*202
OPINION
MARVEL, Judge: This case is before the Court on petitioner's motion for reasonable litigation costs filed pursuant to
On December 12, 2003, we filed the parties' stipulation of settled issues, 1 and petitioner's motion for reasonable litigation costs. On February 11, 2004, we filed respondent's response to petitioner's motion. On March 15, 2004, we filed an additional affidavit of petitioner pursuant to
On February 19, 2004, in petitioner's motion for leave to file a reply, petitioner requested that we schedule a hearing only if a relevant fact were in dispute. We have concluded, 2004 U.S. Tax Ct. LEXIS 35">*38 however, that a hearing on this matter is not necessary. See
Background
During the 1980s, petitioner was an investor in Boulder Oil and Gas Associates (Boulder), a partnership involved in the Elektra Hemisphere tax shelter litigation in this Court (the partnership litigation). 2 In 1985, petitioner signed Forms 906, Closing Agreement on Final Determination Covering Specific Matters, for the taxable years 1980 and 1982 (settlement agreements). The settlement agreements provided that, for taxable years before 1980 or after 1982, petitioner could not deduct losses in excess of payments he had made to or on behalf of the partnership. When petitioner executed the settlement agreements, his taxable year 1981 remained open as a result of the partnership litigation.
2004 U.S. Tax Ct. LEXIS 35">*39
After the partnership litigation concluded, in a letter dated September 14, 1999, respondent explained to petitioner that respondent had adjusted petitioner's 1983 income tax return as described in an enclosed Form 4549A-CG, Income Tax Examination Changes. The Form 4549A-CG indicated that petitioner owed additional income tax for 1983 attributable to his involvement in Boulder in the amount of $ 766 and 123 T.C. 202">*204 interest in the amount of $ 2,523.04. 3 On November 29, 1999, respondent assessed the additional income tax and accrued interest.
Believing that he had settled all taxable years other than 1981 when he signed the settlement agreements, petitioner first attempted to resolve the matter with the Taxpayer Advocate's Office in January 2000. Then, on August 31, 2000, petitioner submitted to respondent a Form 843, Claim for Refund and Request for Abatement, requesting an abatement of interest for the taxable year 1983. In a letter to Appeals Officer Paul Sivick dated2004 U.S. Tax Ct. LEXIS 35">*40 July 31, 2001 (July 31 letter), petitioner argued that he had settled all taxable years other than 1981. As evidence, petitioner attached copies of the settlement agreements.
In a letter dated September 18, 2001, Appeals Officer Sivick addressed the arguments in petitioner's July 31 letter. Responding to petitioner's argument that he had settled all taxable years other than 1981, Appeals Officer Sivick stated: "Your desire and belief are not the relevant factors considered under the law in abatement of interest cases. Therefore, I would not consider this argument to have any merit for purposes of a request for abatement of interest." Appeals Officer Sivick did not address the content or effect of the settlement agreements. In closing, Appeals Officer Sivick gave petitioner until October 17, 2001, to continue to present arguments.
In a notice of final determination dated July 26, 2002, respondent denied petitioner's request for an abatement of interest. Respondent explained the denial of petitioner's request as follows: "We did not find any errors or delays on our part that merit the abatement of interest in our review of available records and other information for the period from2004 U.S. Tax Ct. LEXIS 35">*41 April 15, 1984 to October 9, 1995."
On January 21, 2003, petitioner filed a petition with this Court pursuant to
On March 7, 2003, respondent filed an answer to the petition. In the answer, respondent maintained that his determination not to abate interest pursuant to
From the preparation of the petition through the settlement of the case, Stephen Benda served as petitioner's attorney. On January 11, 2003, petitioner had his first meeting with Mr. Benda. Petitioner and Mr. Benda had a fee arrangement of $ 250 per hour. Petitioner now seeks litigation costs in the amount of $ 2,676.32. 4
2004 U.S. Tax Ct. LEXIS 35">*43
Discussion
Respondent concedes that petitioner did not unreasonably protract the court proceeding and that petitioner meets the net worth requirement of
A. Whether Respondent's Position Was Substantially Justified
For purposes of deciding a motion for reasonable litigation costs,
The Commissioner's position is substantially justified if it has a reasonable basis in both fact and law and is justified to a degree that could satisfy a reasonable person.
1.
2004 U.S. Tax Ct. LEXIS 35">*47
Under
2004 U.S. Tax Ct. LEXIS 35">*48
In the legislative history of
Similar to the issuance of either a notice of deficiency or a notice and demand for payment, the assessment of tax is a procedural action that does2004 U.S. Tax Ct. LEXIS 35">*50 not require the use of judgment or discretion.
2. The Parties' Contentions
In arguing that respondent's position was not substantially justified, petitioner contends that respondent did not have a reasonable basis in fact and law for the position that there were no delays in the performance of ministerial acts. In particular, petitioner alleges that respondent delayed in performing the ministerial acts of assessing petitioner's 1983 tax liability and issuing notice and demand for payment. According to petitioner, the terms of the settlement agreements clearly included the taxable2004 U.S. Tax Ct. LEXIS 35">*51 year 1983 and disallowed petitioner's deductions of partnership losses in excess of payments he had made to or on behalf of the partnership. Once 123 T.C. 202">*209 petitioner and respondent entered into the settlement agreements, petitioner argues: "all that remained was for Respondent to enforce the agreement according to its terms, a ministerial act requiring no discretion."
In contrast, respondent disputes that there was a delay in assessment that would reasonably warrant an abatement of interest. According to respondent, the amount of time that elapsed before respondent made an assessment was attributable to the partnership litigation, and petitioner's 1983 tax liability was assessed within 1 year of the partnership litigation's conclusion pursuant to
3. Reasonableness of Respondent's Position
2004 U.S. Tax Ct. LEXIS 35">*52 Although we agree with respondent that decisions on how to proceed during litigation are not ministerial acts, see id., petitioner's taxable year 1983 was not involved in the partnership litigation. To the contrary, in 1985, petitioner signed settlement agreements, the terms of which settled all taxable years after 1982 with respect to Boulder. The settlement agreements constituted binding agreements between petitioner and respondent. See
Under the circumstances, respondent's position that there were no delays in the performance of a ministerial act lacked a reasonable basis in both fact and2004 U.S. Tax Ct. LEXIS 35">*53 law. Considering the explicitness of the settlement agreements and the absence of petitioner's taxable year 1983 from the partnership litigation, 123 T.C. 202">*210 there is no reasonable explanation for respondent's delay in performing the ministerial act of assessment. If Appeals Officer Sivick had consulted the Internal Revenue Manual, the section pertaining to "Agreement Forms" for the settlement of tax shelter cases would have informed him of the following:
Closing agreements should be avoided in settlements when subsequent years are TEFRA. On the date they are executed by the Service these agreements convert partnership items to nonpartnership items for the future years involved, triggering a one year assessment period under
See 4 Administration, Internal Revenue Manual (CCH),
The record also indicates that petitioner appropriately provided all relevant information under his control and all relevant2004 U.S. Tax Ct. LEXIS 35">*54 legal arguments supporting his position. See
At the time of the exchange with respondent regarding the July 31 letter, petitioner was not represented by counsel, and the record contains no evidence that petitioner had any legal expertise. Nevertheless, petitioner provided respondent with the factual information respondent needed to verify that respondent delayed assessing petitioner's 1983 interest liability. Petitioner was entitled to expect that respondent2004 U.S. Tax Ct. LEXIS 35">*55 would give due consideration to petitioner's claims. 10
123 T.C. 202">*211 4. Conclusion
Respondent has not established that the position in the answer was substantially justified. Consequently, we conclude that petitioner is the prevailing party.
B. Exhaustion of Administrative Remedies
The documents in the record indicate that the parties conducted petitioner's conference through oral and written correspondence and that the conference began in July 2001 and ended on October 17, 2001. During this period, in the July 31 letter, petitioner argued that he had settled the taxable year 1983, and petitioner attached copies of the settlement agreements. In responding to petitioner's argument, Appeals Officer Sivick did not address the content of the settlement agreements or their possible effect on petitioner's 1983 taxable year. Indeed, the substance of Appeals Officer Sivick's response2004 U.S. Tax Ct. LEXIS 35">*57 suggests that he was unaware of the settlement agreements' relevance to petitioner's tax matter.
Overall, petitioner made a reasonable and good-faith effort to disclose to Appeals Officer Sivick all relevant information in the context and development of the case at the time of the conference. See
C. Reasonableness of Costs Claimed
Respondent contends that the costs petitioner claims are unreasonable, because the $ 250 per hour fee arrangement between petitioner and Mr. Benda exceeds the statutory limit, and petitioner has not shown that any of the three special factors applies. On the other hand, petitioner asserts that this case involves an uncommon and difficult issue, which entitles him to the full amount of attorney's fees incurred in connection with the court proceeding. 11
We disagree with petitioner that he is entitled to enhanced attorney's fees. Petitioner has not established2004 U.S. Tax Ct. LEXIS 35">*59 that the issue in this case is of sufficient difficulty to qualify as a special factor under
We have considered the remaining arguments of both parties for results contrary to those expressed herein, and, to the extent not discussed above, we find those arguments to be irrelevant, moot, or without merit.
123 T.C. 202">*213 To reflect the foregoing,
An appropriate order and decision will be entered.
Footnotes
1. On Oct. 28, 2003, we entered the parties' stipulated decision. Then, on Dec. 1, 2003, we filed petitioner's motion to vacate the decision. On Dec. 12, 2003, we granted petitioner's motion to vacate and filed the decision document as a stipulation of settled issues.↩
2. See
Krause v. Commissioner,99 T.C. 132">99 T.C. 132 (1992), affd. sub nom.Hildebrand v. Commissioner, 28 F.3d 1024">28 F.3d 1024↩ (10th Cir. 1994).3. The interest was computed to Oct. 9, 1999.↩
4. In his motion for reasonable litigation costs filed on Dec. 12, 2003 (the motion), petitioner asked that we award litigation costs in the amount of $ 2,536.32. When petitioner filed his reply on Mar. 25, 2004, petitioner requested an additional $ 140 of litigation costs, part of which he had incurred since filing the motion. After examining petitioner's attorney's additional affidavit filed pursuant to
Rule 232(d) and the attached detailed summary of costs, we conclude that the court costs and "fees paid or incurred for the services of attorneys in connection with the court proceeding" totaled $ 2,676.32. Seesec. 7430(c)(1) ; see alsoSokol v. Commissioner, 92 T.C. 760">92 T.C. 760 , 92 T.C. 760">767↩ n. 12 (1989) (" The costs incurred in seeking an award of litigation costs may be included in the award.").5. "Appropriate Internal Revenue Service personnel" are those employees who are reviewing the taxpayer's information or arguments, or employees who, in the normal course of procedure and administration, would transfer the information or arguments to the reviewing employees.
Sec. 301.7430-5(c)(1), Proced. & Admin. Regs↩ .6. To the extent that petitioner's allegations in the present case are based on
sec. 6404(a)(2) and are in the nature of a claim for abatement that is prohibited bysec. 6404(b) , we do not consider them in deciding whether respondent's position with respect to petitioner's petition for abatement of interest undersec. 6404(e) was substantially justified. Seesec. 6404(b) ;Urbano v. Commissioner, 122 T.C. 384">122 T.C. 384 , 122 T.C. 384">395, 122 T.C. 384">122 T.C. 384, 2004 U.S. Tax Ct. LEXIS 22">2004 U.S. Tax Ct. LEXIS 22, (2004);Kosbar v. Commissioner, T.C. Memo. 2003-190↩ .7.
Sec. 6404(e) was amended by the Taxpayer Bill of Rights 2, Pub. L. 104-168,sec. 301(a)(1) and(2) ↩, 110 Stat. 1457 (1996), to permit the Commissioner to abate interest with respect to an "unreasonable" error or delay resulting from "managerial" or ministerial acts. The amendment applies to interest accruing with respect to deficiencies for taxable years beginning after July 30, 1996, and is inapplicable to the instant case.8. The final regulations under
sec. 6404 were issued on Dec. 18, 1998, and generally apply to interest accruing with respect to deficiencies or payments of tax described insec. 6212(a) for taxable years beginning after July 30, 1996. Seesec. 301.6404- 2(d)(1), Proced. & Admin. Regs. As a result,sec. 301.6404-2T, Temporary Proced. & Admin. Regs. ,52 Fed. Reg. 30163 (Aug. 13, 1987) , applies and is effective for interest accruing with respect to deficiencies for those taxable years beginning after Dec. 31, 1978, but before July 30, 1996. Seesec. 301.6404-2(c), Proced. & Admin. Regs.↩ 9.
Sec. 6303(a) provides in part: Where it is not otherwise provided by this title, the Secretary shall, as soon as practicable, and within 60 days, after the making of an assessment of a tax pursuant tosection 6203 ↩, give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof. * * *10. In a letter dated June 18, 2001, Appeals Officer Sivick provided to petitioner a "Review of the Law and related material". The review contained references to
secs. 6224(c) and6229(a) and(b) but did not mentionsecs. 6229(f) or6231(b)↩ .11. Although petitioner established that Mr. Benda was qualified to act as petitioner's attorney in this proceeding, petitioner submitted no evidence with respect to the availability of qualified attorneys or the local availability of tax expertise.↩