FILED
NOT FOR PUBLICATION
SEP 21 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABIGAIL RICHLIN, No. 20-72392
Petitioner-Appellant, Tax Ct. No. 16301-16L
v.
MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Argued and Submitted September 1, 2021
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.
Appellant Abigail Richlin (Richlin) appeals the United States Tax Court
decision sustaining a tax levy imposed by the Internal Revenue Service (IRS) to
collect an outstanding tax obligation. More specifically, Richlin seeks credits from
a tax overpayment and several estimated tax payments made by her late
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ex-husband, Milton Schwartz (Schwartz). The IRS Office of Appeals (Appeals)
initially agreed with Richlin, but changed its position based on an opinion by the
IRS Office of Chief Counsel and the terms of the parties’ premarital agreement
(PMA).
1. “We review the Tax Court’s conclusions of law, including its
interpretations of the Internal Revenue Code, de novo. . . .” Mazzei v. Comm’r,
998 F.3d 1041, 1054 (9th Cir. 2021) (citation omitted). “[D]e novo review
amounts to a fresh analysis of whether the Commissioner abused his discretion.”
Fargo v. Comm’r, 447 F.3d 706, 709 (9th Cir. 2006).
2. The Forms 12257, Summary Notices of Determination, executed by
the parties did not constitute binding contracts precluding Appeals from changing
its position. According to the applicable statute and, as stated in the forms,
Appeals retains jurisdiction over any further proceedings based on changed
circumstances. See I.R.C. § 6330(d)(3). In addition, “compromises under 26
U.S.C. § 7122 are the exclusive method of settling claims.” Laurins v. Comm’r,
889 F.2d 910, 912 (9th Cir. 1989) (citation omitted).
3. Richlin’s reliance on the Taxpayer Bill of Rights, 26 U.S.C. §
7803(a)(3), is misplaced. That statute does not confer standalone substantive
rights. See Moya v. Comm’r, 152 T.C. 182, 197 (2019).
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4. Equitable estoppel against the government was not available to
Richlin. See United States v. Lynch, 903 F.3d 1061, 1076 (9th Cir. 2018)
(explaining that “to invoke estoppel against the Government, the party claiming
estoppel must show ‘affirmative misconduct’ as opposed to mere failure to inform
or assist”) (citation and alteration omitted); see also Baccei v. United States, 632
F.3d 1140, 1147 (9th Cir. 2011) (holding that “even if the IRS were negligent in
failing to notify [plaintiff], negligence alone will not support a claim of equitable
estoppel against the government”). Finally, “[t]he doctrine of equitable estoppel is
not a bar to the correction by the Commissioner of a mistake of law.” Gumataotao
v. Dir. of Dep’t of Revenue & Tax’n, 236 F.3d 1077, 1083 (9th Cir. 2001).
5. In any event, the IRS’s allocation of the tax credits was not erroneous.
Richlin misinterprets the PMA, which explicitly provides that her late ex-husband
was responsible for all taxes except taxes stemming from her separate property.
Her argument that the agreement required Schwartz to pay all taxes first and sue
her for reimbursement has no basis in the PMA. See American First Fed. Credit
Union v. Soro, 359 P.3d 105, 108 (Nev. 2015) (explaining that a “court need not
interpret the contract any differently from the contract’s plain meaning”) (citation
omitted). Moreover, IRS regulations preclude payments made after the parties’
divorce from being deemed joint payments. See Treas. Reg. § 1.6654-2(e)(5)(i).
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6. Despite finding clear error in the factual finding made by Appeals that
Schwartz intended certain estimated payments to be made for his own account, no
remand was required. The Tax Court was able to determine from the record how
Appeals would allocate a joint payment, so remand was unnecessary. See Kemper
v. Comm’r, 86 T.C.M. (CCH) 12 (T.C. 2003) (concluding that a non-productive
remand was unnecessary).
AFFIRMED.
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