W. Hills Residential Care v. Comm'r

Docket No. 28124-14L. Filed May 31, 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

1Unless 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, and respondent

filed a subsequent motion for summary judgment under Rule 121. The questions

for decision are: (1) whether IRS Settlement Officer Alcorte (SO Alcorte) abused

her discretion in rejecting petitioner's proposed installment agreement and

sustaining the proposed collection action; (2) whether she abused her discretion in

denying petitioner's request to have its account put on currently-not-collectible

(CNC) status; and (3) whether she had any prior involvement with respect to the

unpaid tax. For the reasons explained below, the Court will grant respondent's

motion for summary judgment and deny petitioner's.

Background

The following facts are based on the parties' pleadings and motion papers,

including the attached exhibits and affidavits.2 SeeRule 121(b). Petitioner oper-

ates 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.

2Each 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 U.S. Court of Appeals for the Tenth Circuit nor the U.S. Court of Appeals for the D.C. Circuit has specifically ruled on the issue. The Court denies both requests.

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[*3] 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. For that period, petitioner timely filed its Form 941 but failed to pay the

reported tax liability of $12,317.36 for that quarter. On March 31, 2014,

respondent assessed the tax 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

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. The CDP hearing

request stated that if respondent were permitted to levy, petitioner's difficulty with

private pay collections would render it unable to pay either the employment tax

balance it owed or its current taxes. Petitioner's CDP hearing 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 petitioner a letter dated June 6, 2014, acknowledging

receipt of petitioner's CDP hearing request, and SO Alcorte subsequently mailed

petitioner a letter scheduling a CDP hearing for August 28, 2014. SO Alcorte's

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[*4] 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 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 27, 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 neither signed nor certified by

a corporate officer. The Form 433-B listed petitioner's monthly income of

$18,455 and monthly expenses of $25,599.94, reflecting a net negative monthly

income. It listed no balance for petitioner's bank account and accounts receivable,

no outstanding liabilities,3 and no real property.4

3Contained in the record are two of petitioner's accounting spreadsheets-- one from December 2013, the other from June 2014. The 2013 spreadsheet shows

(continued...)

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[*5] In preparation for the CDP hearing SO Alcorte reviewed the administrative

record and noted in her case activity report that petitioner did not appear to qualify

for an installment agreement. She also noted that petitioner offered no explanation

regarding how it would make its proposed monthly installment agreement

payments of $6,000 while its net revenue was negative and that there was no

equity in assets.

On August 28, 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. And he requested that petitioner's account be placed in CNC

status.

SO Alcorte explained to petitioner's representative that she would not

consider petitioner's economic hardship argument because the economic hardship

3(...continued)

interest expense of $3,046.79 for December and an annual total of $14,190.52. The 2014 spreadsheet shows interest expense of $4,976.19 through the end of June. Petitioner offers no explanation for this discrepancy.

4The 2013 spreadsheet shows a property tax payment but no rent for the entire year; the 2014 spreadsheet shows a building rent payment in June of $4,179.52 but to date, only $4,359.52 in total rent payments. The 2014 spreadsheet does not show any property tax payments. Petitioner offers no explanation for this discrepancy either.

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[*6] exception is not available to corporations. She noted that because (1)

petitioner was not in compliance with its Federal employment tax deposit

obligations and (2) the economic hardship exception is not applicable to

corporations, she would be sustaining the proposed collection action and closing

the case. She did, however, agree to file an Appeals Referral Investigation (ARI)

request to investigate whether petitioner could qualify for CNC status.

On October 30, 2014, having received no response regarding the ARI, SO

Alcorte followed up with her request. The ARI had, in fact, been evaluated, and

her group manager spoke with petitioner's representative directly. During that

conversation the manager explained that petitioner did not qualify for CNC status

because, notwithstanding the outstanding employment tax liability, petitioner had

not shown it could continue to remit its current Federal employment tax amounts

and remain in business. In response, petitioner's representative indicated that

petitioner would pay the outstanding amount in full.5

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 November 13, 2014, issued to petitioner a notice

5Petitioner does dispute this fact in its response to respondent's motion for summary judgment.

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[*7] 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 filed a motion for summary judgment. Respondent also filed a

motion for summary judgment.

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).

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[*8] 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.

Where the validity of the underlying tax liability is properly at issue in a

collection case, 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 to proceed with collection for abuse of discretion.6

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 proposed

collection action, the Court considers whether she: (1) properly verified that the

requirements of any applicable law or administrative procedure have been met;

6Regardless 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, seeRule 331(b)(4) ("Any issue not raised in the assignments of error shall be deemed to be conceded."). Petitioner did not raise this issue neither with SO Alcorte or in its petition. The Court accordingly deems it conceded.

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[*9] (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." Seesec. 6330(c)(3).

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 section 301.6343-1(b)(4)(i), Proced.

& Admin. Regs. (defining economic hardship only with respect to individual taxpayers), is invalid and that SO Alcorte abused her discretion in failing to consider its request for relief under the economic hardship provision of section 6343(a)(1)(D). This contention is incorrect. This Court recently released its Opinion in Lindsay Manor Nursing Home, Inc. v. Commissioner (Lindsay ManorI), 148 T.C. __ (Mar. 23, 2017), finding that section 301.6343-1(b)(4)(i), Proced.

& Admin. Regs., is valid and that the economic hardship relief provided by section 6343(a)(1)(D) is available only to individual taxpayers. And in a companion Memorandum Opinion, Lindsay Manor Nursing Home, Inc. v. Commissioner, T.C. Memo. 2017-50, the Court concluded that the SO did not abuse her discretion

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[*10] in failing to consider a request for economic hardship relief made by a

corporate taxpayer. SO Alcorte did not abuse her discretion in declining this

request either.

Petitioner argues alternatively that SO Alcorte abused her discretion in

rejecting its installment agreement request, in denying its request for its account to

be placed in CNC status, and in failing to adequately consider its "economic

hardship" in the balancing analysis required by section 6330(c)(3).7 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 enter into an installment agreement if it

determines that doing so will facilitate full or partial collection of a tax liability.

Seesec. 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. &

7In Lindsay Manor I, this Court found that sec. 301.6343-1(b)(4)(i), Proced. & Admin. Regs., is valid; accordingly, the economic hardship exception is available only to individuals. To the extent that petitioner's other arguments attempt to rehash this issue, they are summarily disregarded. The Court will, however, address petitioner's economic position with respect to SO Alcorte's sec. 6330(c)(3)(C) balancing analysis.

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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, demonstrates that SO

Alcorte's rejection of petitioner's installment agreement was proper because

petitioner was not in compliance with its Federal employment tax deposit

obligations and because petitioner's income and expenses listed on its Form 433-B

did not reflect an ability of petitioner to pay the proposed installment payments of

$6,000 per month.8

1. Compliance With Federal Tax Obligations

In rejecting petitioner's proposed installment agreement, SO Alcorte noted

that petitioner was not in compliance with its current Federal employment tax

8The 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] deposit obligations. Established IRS policy requires 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 petitioner was not in compliance--she failed to consider that petitioner's

inability to remain current with its Federal tax deposits was a result of "industry

conditions beyond its control". 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

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[*13] 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., petitioner was indisputably not

in compliance when it requested an installment agreement. And because section

301.6343-1(b)(4)(i), Proced. & Admin. Regs., is valid, SO Alcorte's interpretation

was not erroneous. See Lindsay Manor I. Accordingly, SO Alcorte did not abuse

her discretion in rejecting petitioner's installment agreement request on the

grounds that petitioner was not in compliance.

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[*14] 2. Ability To Make Proposed Installment Payments

SO Alcorte also analyzed and relied on petitioner's submitted Form 433-B,

which she determined did not reflect petitioner's ability to make the proposed

installment payments of $6,000 per month. Internal Revenue Manual (IRM) pt.

5.14.1.4(4) (June 1, 2010) states: "Installment agreements must reflect taxpayers'

ability to pay on a monthly basis throughout the duration of the agreements." A

taxpayer's ability to pay is determined by comparing his monthly income to

allowable expenses. Friedman v. Commissioner, T.C. Memo. 2013-44, at *9.

Therefore, a SO may accept, at minimum, a monthly payment equal to the excess

of a taxpayer's monthly income over the taxpayer's allowable expenses. Boulware

v. Commissioner, T.C. Memo. 2014-80, at *29, aff'd, 816 F.3d 133 (D.C. Cir.

2016). But it is not an abuse of discretion for a SO to reject a proposed

installment agreement when a taxpayer's monthly income does not support the

proposed payment. Id.; Lipson v. Commissioner, T.C. Memo. 2012-252 (finding

no abuse of discretion when the taxpayer's Form 433 could not support the

proposed installment agreement payments).

SO Alcorte assumed that the financial information petitioner provided was

correct. That information reflected net negative monthly income of over $7,000

and zero assets. And petitioner did not explain how it would afford monthly

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[*15] installment payments of $6,000. Even if this had been her only reason for

rejecting petitioner's proposed installment agreement, SO Alcorte did not abuse

her discretion.

B. Petitioner's Request for CNC Status

Petitioner next challenges SO Alcorte's denial of its request for its account

to be placed in CNC status. IRM pt. 5.16.1.2.7 (Aug. 25, 2014), provides the

parameters to give CNC status to corporations that remain in business and are

unable to pay both the back taxes and the current taxes. This is exactly the

situation petitioner asserted to SO Alcorte in its CDP hearing request. Petitioner

reiterated its request during the CDP hearing, and SO Alcorte sought managerial

approval as she was required to. SeeIRM pt 5.16.1.5(1) (Aug. 25, 2014) ("The

decision to place an account in CNC status requires the approval of a manager.").

SO Alcorte's group manager (GM) participated in evaluating petitioner's

request for CNC status, speaking with petitioner's representative directly. During

their conversation the GM explained that petitioner would not be entitled to CNC

status because it was not, in fact, current with its tax liabilities, and the financial

information it submitted did not support its assertion that it could remain current if

allowed CNC status. In response, petitioner's representative indicated that since

CNC was not viable, petitioner would pay the outstanding amount in full. And

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[*16] after the GM communicated the decision and reasoning to SO Alcorte, she

called petitioner's representative, informing him that she would be adopting the

recommendation that CNC status not be provided.

Petitioner argues that SO Alcorte was required to conduct her own

evaluation of its request and that she could not adopt her GM's reasoning. This

argument is not supported by the IRM provision requiring the opposite--that an

SO obtain approval of the decision regarding CNC status. Petitioner also argues

that SO Alcorte should have taken its economic hardship argument into account.

As discussed in Lindsay Manor I, the economic hardship exception of section

6343 is not available to corporations such as petitioner. And in any event, the

CNC hardship provision of the IRM specifically excludes corporations.9 See IRM

pt. 5.16.1.2.9 (Aug. 25, 2014). SO Alcorte did not abuse her discretion in

adopting the recommendation that petitioner not be provided CNC status. But to

the extent that petitioner's arguments can be construed to contest SO Alcorte's

balancing analysis under section 6330(c)(3)(C), the Court will evaluate them.

9"[T]he government is not required to continue subsidizing failing businesses by foregoing tax collection. Any other conclusion would create a bizarre tax system with perverse incentives for businesses to maintain themselves on the edge of insolvency in order to enjoy immunity from tax enforcement." Living Care Alts. of Utica, Inc. v. United States, 411 F.3d 621, 628 (6th Cir. 2005).

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[*17] C. 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 was less intrusive than enforced levy action" but then goes on to

argue that the financial documentation it submitted on Form 433-B demonstrated

that its expenses exceeded its income, it had no assets, and the business was

insolvent and had no ability to pay.

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 SO Alcorte 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." Seesec. 6330(c)(3).

At the time petitioner requested this installment agreement, it argued that a

levy would render it unable to meet its payroll and patient obligations.

Petitioner's own Form 433-B showed that its monthly expenses exceeded its

monthly income. Although there was an ongoing dialogue between petitioner's

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[*18] counsel and SO Alcorte, petitioner gave no indication of how it would make

the proposed installment payments with negative monthly revenue and zero

assets.10

Although petitioner complains of the possibility of being forced to close its

doors to its patients11 and terminate its employees, this Court finds that SO Alcorte

gave due weight to petitioner's specific circumstances. The Government's interest

in efficiently collecting the amounts petitioner owed 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

10The Court notes the inconsistency in petitioner's position. Petitioner listed on its Form 433-B zero assets and zero liabilities. But on its self-prepared accounting spreadsheets, petitioner reported it had made a property tax payment during 2013 and interest expense payments during both 2013 and 2014.

11The affidavit of Sam Jewell included with the petitioner's motion for summary judgment stated that petitioner is licensed for 28 beds but has only 3 beds occupied and does not receive any Federal or State funding. Petitioner's income was derived solely from private pay residents.

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[*19] compliance with its current employment tax deposit obligations for the

taxable period ending June 30, 2014, and that petitioner did not provide proof of

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

to sustaining the notice of intent to levy; she explained the reasoning behind her

decision in the notice of determination. Accordingly, the undisputed material facts

establish that SO Alcorte did not abuse her discretion in conducting the section

6330(c)(3)(C) balancing test.

C. SO Alcorte's Impartiality

Next, petitioner argues that SO Alcorte's review of the documents

petitioner provided before the CDP hearing violates petitioner's section

6330(b)(3) right to a CDP hearing by an Appeals 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

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[*20] 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, petitioner argues that, by reviewing petitioner's

documents before the CDP hearing, SO Alcorte was not impartial. Petitioner is

incorrect. The regulations clearly state that prior involvement means that an

Appeals officer actually participated in an earlier, non-CDP matter. Id. Because

petitioner does not assert that SO Alcorte participated in a prior non-CDP matter,

petitioner's argument must fail.

SO Alcorte verified that she had not had 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 the information petitioner had provided before its CDP hearing.

III. Conclusion

Finally, petitioner argues that the Court should remand this case for

additional consideration. The Court is not convinced that a remand is necessary or

would be productive. See Lunsford v. Commissioner, 117 T.C. 183, 189 (2001);

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[*21]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.

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 petitioner's. 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.