Abigail Richlin v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2021
• Docket: 20-72392
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION SEP 21 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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).

2 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).

3 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.