Alhaji B. Benson

• Court: United States Tax Court
• Decided: June 29, 2021
• Docket: 15919-19
• Status: Unpublished

Opinion

T.C. Memo. 2021-78

UNITED STATES TAX COURT

ALHAJI B. BENSON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15919-19L. Filed June 29, 2021.

Alhaji B. Benson, pro se.

Rachel L. Schiffman, for respondent.

MEMORANDUM OPINION

URDA, Judge: In this collection due process (CDP) case petitioner, Alhaji

B. Benson, seeks review pursuant to sections 6320(c) and 6330(d)(1)1 of the

Unless otherwise indicated, all section references are to the Internal 1

Revenue Code in effect at all relevant times, and all Rule references are to the Tax

Served 06/29/21 -2-

[*2] determination by the Internal Revenue Service (IRS) Office of Appeals to

uphold the filing of a notice of Federal tax lien (NFTL) with respect to his Federal

income tax liabilities for 2008 and 2009 as well as associated interest. 2 Mr.

Benson argues that he had no tax liability for either year and that the settlement

officer thus erred in sustaining the NFTL filing. Mr. Benson, however, was

precluded from challenging his underlying liabilities, and we detect no abuse of

discretion by the settlement officer in upholding the NFTL filing. We accordingly

will grant the Commissioner’s motion for summary judgment.

Background

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

including the attached declaration and exhibits, which collectively constitute the

administrative record. See Rule 121(b). Mr. Benson resided in New Jersey when

he timely filed his petition.

Court Rules of Practice and Procedure. We round all monetary amounts to the nearest dollar. 2 On July 1, 2019, the Office of Appeals was renamed the Independent Office of Appeals. See Taxpayer First Act, Pub. L. No. 116-25, sec. 1001(a), 133 Stat. at 983 (2019). As the events in this case predate that change, we use the name in effect at the times relevant to this case, i.e., the Office of Appeals. -3-

[*3] A. Mr. Benson’s Tax Liabilities

Mr. Benson, a software tester, did not timely file Federal income tax returns

for his 2008 and 2009 tax years. Pursuant to section 6020(b), the IRS prepared a

substitute for return for each year and assessed the tax, penalties, and statutory

interest. On July 5, 2011, the IRS sent Mr. Benson by certified mail a notice of

deficiency for 2008, followed by a notice of deficiency for 2009 on November 28,

2011 (again, by certified mail). Mr. Benson did not petition this Court for

redetermination with respect to either year. As of September 14, 2020, Mr.

Benson’s balance of the assessed tax liabilities for the years at issue totaled

$27,502.

B. CDP Proceeding

In an effort to collect Mr. Benson’s unpaid 2008 and 2009 liabilities the IRS

issued him a notice of intent to levy on October 18, 2016. The notice gave Mr.

Benson until November 17, 2016, to request a CDP hearing to challenge the

proposed levy. Mr. Benson made no such request within the time specified.

On October 18, 2018, the IRS issued a notice to Mr. Benson informing him

of the filing of an NFTL with respect to his unpaid 2008 and 2009 liabilities. In

response Mr. Benson timely filed Form 12153, Request for a Collection Due

Process or Equivalent Hearing, with respect to a “Filed Notice of Federal Tax -4-

[*4] Lien”.3 He asserted that he “filed the returns for 2008 & 2009 and * * * do

not owe tax for those periods.” Mr. Benson did not request a collection alternative

on Form 12153.

Mr. Benson’s CDP case was subsequently assigned to a settlement officer,

who first confirmed that the IRS’ actions complied with the requirements of

applicable law or administrative procedure. On April 22, 2019, the settlement

officer sent Mr. Benson a letter scheduling a telephone CDP hearing for June 27,

2019. In the letter she requested that Mr. Benson submit: (1) a completed

Form 433-A, Collection Information Statement for Wage Earners and Self-

Employed Individuals, and supporting financial documents and (2) signed tax

returns for tax periods 2013 through 2018. Mr. Benson did not provide the

3 On Form 12153, Mr. Benson also indicated “Proposed or Actual Levy” as a basis for the hearing and noted his desire for an equivalent hearing if he did not qualify for a CDP hearing. An equivalent hearing is an administrative hearing in the Office of Appeals that may be requested by those who fail to timely request a CDP hearing. Secs. 301.6320-1(i)(1), 301.6330-1(i)(1), Proced. & Admin. Regs. Although similar to a CDP hearing, an equivalent hearing does not result in a determination subject to judicial review. See Craig v. Commissioner, 119 T.C. 252, 258-259 (2002); secs. 301.6320-1(i)(2), Q&A-I6, 301.6330-1(i)(2), Q&A-I6, Proced. & Admin. Regs. A taxpayer is required to request an equivalent hearing within one year after the issuance of a levy notice. Sec. 301.6330-1(i)(2), Q&A-I7, Proced. & Admin. Regs. Mr. Benson’s Form 12153 was filed more than a year after the issuance of the 2016 notice of intent to levy, and the IRS Office of Appeals accordingly deemed him ineligible for an equivalent hearing relating to the levy notice. -5-

[*5] requested documents or otherwise communicate with the settlement officer

before the hearing date.

The settlement officer held the telephone CDP hearing as scheduled. She

and Mr. Benson discussed the issues raised on his Form 12153, and Mr. Benson

requested time to submit Form 433-A and supporting documentation, as well as

copies of his 2013 and 2014 tax returns. The settlement officer agreed to give him

until July 15, 2019, to submit the documentation but warned that she would sustain

the NFTL filing if she had not received the promised material by that date. On

July 16, 2019, the settlement officer closed the case, having heard nothing from

Mr. Benson.

On July 24, 2019, the Office of Appeals issued a notice of determination

sustaining the NFTL filing. The notice observed that Mr. Benson neither raised the

issue of collection alternatives, nor submitted documentation necessary for the

Office of Appeals to consider any such collection alternatives had one been

proposed. As to Mr. Benson’s contention that he owed no tax for 2008 and 2009,

the notice concluded that the assessments underlying the NFTL filing were valid. -6-

[*6] Discussion

I. Governing Principles

A. Summary Judgment

The purpose of summary judgment is to expedite litigation and avoid costly,

time-consuming, and unnecessary trials. See Fla. Peach Corp. v. Commissioner,

90 T.C. 678, 681 (1988). Under Rule 121(b) 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. Sundstrand Corp. v. Commissioner, 98 T.C.

518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994). In deciding whether to grant

summary judgment, we construe factual materials and inferences drawn from them

in the light most favorable to the nonmoving party. Id. The nonmoving party,

however, may not rest upon the mere allegations or denials in its pleadings but

instead must set forth specific facts showing that there is a genuine dispute for trial.

Rule 121(d); see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

B. Standard of Review

We have jurisdiction to review the Office of Appeals’ determination

pursuant to sections 6320(c) and 6330(d)(1). Where the validity of the underlying

tax liability is properly at issue, we review the determination regarding the

underlying tax liability de novo. Sego v. Commissioner, 114 T.C. 604, 610 (2000); -7-

[*7] Goza v. Commissioner, 114 T.C. 176, 181-182 (2000). We review all other

determinations for abuse of discretion. Sego v. Commissioner, 114 T.C. at 610;

Goza v. Commissioner, 114 T.C. at 182. In reviewing for abuse of discretion, we

must uphold the Office of Appeals’ determination unless it is arbitrary, capricious,

or without sound basis in fact or law. See, e.g., Murphy v. Commissioner, 125

T.C. 301, 320 (2005), aff’d, 469 F.3d 27 (1st Cir. 2006); Taylor v. Commissioner,

T.C. Memo. 2009-27, 97 T.C.M. (CCH) 1109, 1116 (2009).

II. Underlying Liabilities

Mr. Benson has sought to challenge his 2008 and 2009 tax liabilities both in

his CDP hearing and in this Court. A taxpayer may challenge his underlying

liability in a CDP proceeding if he “did not receive any statutory notice of

deficiency for such tax liability or did not otherwise have an opportunity to dispute

such tax liability.” Secs. 6320(c), 6330(c)(2)(B); see also sec. 301.6320-1(e)(3),

Q&A-E2, Proced. & Admin. Regs. “If the taxpayer previously received a CDP

Notice under section 6330 with respect to the same tax and tax period and did not

request a CDP hearing with respect to that earlier CDP Notice, the taxpayer had a

prior opportunity to dispute the existence or amount of the underlying tax

liability.” Sec. 301.6230-1(e)(3), Q&A-E7, Proced. & Admin. Regs.; see also -8-

[*8] Bell v. Commissioner, 126 T.C. 356, 358 (2006); Lang v. Commissioner, T.C.

Memo. 2014-183, at *12-*14.

Mr. Benson had two prior opportunities to contest his underlying liabilities

for tax years 2008 and 2009. First, there is no dispute that the IRS sent, and Mr.

Benson received, notices of deficiency for both years. As he had the opportunity

to petition this Court at that time for redetermination of his liabilities, these

liabilities are not before us. See secs. 6320(c), 6330(c)(2)(B); Beam v.

Commissioner, T.C. Memo. 2017-200, at *10.

Second, the record before us establishes, and Mr. Benson does not contest,

that the IRS issued a notice of intent to levy to him on October 18, 2016. This

notice provided him with an opportunity to request a CDP hearing with respect to

tax years 2008 and 2009, the years at issue in this case. Consequently, even if he

had not received the notices of deficiency, he nonetheless had “a prior opportunity

to dispute the existence or amount of the underlying tax liability[ies]” by means of

the notice of intent to levy, which likewise would bar us from considering his

challenge to his underlying liabilities. See sec. 301.6320-1(e)(3), Q&A-E7,

Proced. & Admin. Regs. -9-

[*9] III. Abuse of Discretion

We next consider whether the settlement officer: (1) properly verified that

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

(2) considered any relevant issues Mr. Benson raised; and (3) considered whether

“any proposed collection action balances the need for the efficient collection of

taxes with the legitimate concern of * * * [Mr. Benson] that any collection action

be no more intrusive than necessary.” Sec. 6330(c)(3). Our review of the

administrative record establishes that the settlement officer satisfied all of these

requirements.

A. Verification

As an initial matter, this Court has authority to review satisfaction of the

verification requirement regardless of whether the taxpayer raised that issue at the

CDP hearing. See Hoyle v. Commissioner, 131 T.C. 197, 200-203 (2008),

supplemented by 136 T.C. 463 (2011). Mr. Benson has not challenged

verification. Even if he had, we conclude from our review of the record that the

settlement officer conducted a thorough review of the account transcripts and - 10 -

[*10] verified that all applicable requirements were met with respect to the

collection action.

B. Issues Raised

Mr. Benson did not raise any issues at the CDP hearing beyond his

underlying liabilities, nor did he pursue any collection alternatives. We

accordingly conclude that the settlement officer did not abuse her discretion in

fulfilling her obligation under section 6330(c)(3)(B) to consider any “issues raised”

by Mr. Benson during the hearing. 4 See BM Constr. v. Commissioner, T.C.

Memo. 2021-13, at *18; Brennan v. Commissioner, T.C. Memo. 2013-123, at *11.

C. Balancing

Mr. Benson does not contend that the settlement officer failed to consider

“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.” See sec. 6330(c)(3)(C). He

accordingly has conceded this issue. See Rule 331(b)(4); see also Ansley v.

Commissioner, T.C. Memo. 2019-46, at *19. In any event the settlement officer

4 In his response to the motion for summary judgment Mr. Benson asserts that he supplied at least some of the financial documentation and tax returns requested by the settlement officer. By his own admission, Mr. Benson stated: “I did * * * not propose a collection alternative because I do not owe taxes for 2008 and 2009.” The issue of supporting documentation thus is of no moment. - 11 -

[*11] expressly concluded in the notice of determination that the filing of the

NFTL balanced the need for efficient tax collection with Mr. Benson’s legitimate

concerns about intrusiveness because he raised no issues at the hearing beyond his

underlying liabilities and pursued no collection alternatives.

IV. Conclusion

We conclude that Mr. Benson was precluded from challenging his

underlying liabilities during the CDP hearing (and subsequently in this Court).

Finding no abuse of discretion in any respect, we will grant the Commissioner’s

motion for summary judgment and sustain the notice of determination upholding

the filing of the NFTL for the years at issue. 5

To reflect the foregoing,

An appropriate order and decision

will be entered.

5 We note that Mr. Benson is free to submit to the IRS at any time for its consideration and possible acceptance, a collection alternative in the form of an offer-in-compromise, an installment agreement, or currently not collectible status, supported by the necessary financial information.