[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 13, 2008
THOMAS K. KAHN
No. 08-10136
CLERK
Non-Argument Calendar
D.C. Docket No. 06-01566-CV-T-24-MAP
ROBERT E. MARSHALL,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
(November 13, 2008)
Before DUBINA, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Robert E. Marshall (“Marshall”) appeals from the district court’s
order granting the United States’ motion for summary judgment and upholding a
notice of determination issued by the Internal Revenue Service (“IRS”) Office of
Appeals against taxpayer Marshall.
In 1999 and 2000, the IRS assessed trust fund recovery penalties against
Marshall because his corporation failed to collect, account for, and pay certain
employment taxes. In 2005, the IRS issued a Final Levy Notice against Marshall
and scheduled a Collection Due Process (“CDP”) hearing. Marshall then
submitted an Offer in Compromise (“OIC”) to the IRS, offering to pay $16,000 in
full satisfaction of the trust fund recovery penalties, which totaled $852,115.43.
Marshall also provided the IRS with his relevant financial information so that his
OIC could be fully evaluated. Although Marshall later withdrew his request for a
CDP hearing in January 2006, he continued to engage in discussions with IRS
Appeals Officer Darryl Lee regarding a CDP hearing and the OIC. Based on the
financial information available, Lee calculated Marshall’s reasonable collection
potential to be well above Marshall’s OIC. Marshall objected to Lee’s
calculations. Lee agreed to give Marshall until August 3, 2006, to respond to
Lee’s reasonable collection potential calculations and to supplement the financial
information already provided to Lee. However, on July 28, 2006, the IRS issued
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Marshall a notice of determination informing him of its decision to sustain the
proposed levy. Marshall filed a complaint in district court challenging the notice
of determination. The United States filed a motion for summary judgment arguing
that there were no genuine issues of material fact for trial as to whether the IRS
Appeals Office correctly exercised its discretion in upholding the levy. The
district court granted the United States’ motion and consequently upheld the notice
of determination. Marshall appeals.
We review a district court’s order granting summary judgment de novo,
reviewing the evidence in the light most favorable to the party opposing the
motion. See Patrick v. Floyd Med. Center, 201 F.3d 1313, 1315 (11th Cir. 2000).
After reviewing the record and the parties’ briefs, we conclude that the
district court properly granted summary judgment to the United States. “In a CDP
case in which, as here, the amount of the underlying tax liability is not at issue, the
trial court and the court of appeals review the determination of the IRS appeals
officer for abuse of discretion.” Olsen v. United States, 414 F.3d 144, 150 (1st
Cir. 2005) (citing Living Care Alternatives of Utica, Inc. v. United States, 411
F.3d 621, 624–625 (6th Cir. 2005)). The district court reviewing the
determination of the IRS appeals officer generally conducts its review on the
administrative record. Camp v. Pitts, 411 U.S. 138, 142, 93 S. Ct 1241, 1244
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(1973). Treasury regulations require an IRS appeals officer to consider: (1)
whether the IRS met the requirements of any applicable law or administrative
procedure; (2) any issues appropriately raised by the taxpayer; (3) any appropriate
spousal defenses raised by the taxpayers; (4) any challenges made by the taxpayer
to the appropriateness of the proposed collection actions; (5) any offers by the
taxpayer for collection alternatives; and (6) whether any proposed collection
action balances the need for the efficient collection of taxes, with the legitimate
concern of the person that any collection action be no more intrusive than
necessary. Treas. Reg. § 301.6330-1(e)(3)A-E1 (2006).
Because the IRS failed to consider his response to IRS Appeals Officer
Lee’s reasonable collection potential calculations, Marshall argues that the IRS
decided to sustain the Final Levy Notice based on an erroneous assessment of law
and facts, and therefore, abused its discretion. The United States argues that there
was no abuse of discretion on the part of the IRS. Because Lee fully complied
with the requirements of the Internal Revenue Code, the Treasury Regulations,
and the Internal Revenue Manual, we agree. Here, the record contains undisputed
evidence that Lee considered all relevant financial records submitted by Marshall
as well as the IRS’s records of Marshall’s account. Marshall concedes that while
the United States had to consider Marshall’s OIC, the United States had no
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obligation to negotiate the OIC with Marshall. Thus, we agree with the district
court that there is no genuine issue of material fact as to whether the IRS abused
its discretion to sustain the levy against Marshall.
Accordingly, we affirm the district court’s order granting summary
judgment in favor of the United States.
AFFIRMED.
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