ATL & Sons Holdings Inc. v. Commissioner

152 T.C. No. 8

• Court: United States Tax Court
• Decided: March 13, 2019
• Docket: 16288-16L
• Status: Unknown

Opinion

152 T.C. No. 8

UNITED STATES TAX COURT

ATL & SONS HOLDINGS, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16288-16L. Filed March 13, 2019.

For the year 2012, the shareholders of P, an S corporation, filed an application for an extension of time to file their Federal income tax return, and they then filed their Form 1040, “U.S. Individual Income Tax Return”, within the extended period. P itself did not file an application for an extension of time to file its own return, and P filed late its 2012 Form 1120S, “U.S. Income Tax Return for an S Corporation”. By means of a computer-generated assessment, R assessed a penalty under I.R.C. sec. 6699 for P’s failure to timely file its return. Written supervisory approval of the penalty was not obtained before it was assessed.

Held: P is liable for the I.R.C. sec. 6699 penalty (in the amount provided in that section), notwithstanding that P’s shareholders obtained an extension for, and timely filed, their own tax return, and notwithstanding that the IRS allegedly excused the penalty for another year on similar facts. -2-

Held, further, because P’s I.R.C. sec. 6699 penalty was “automatically calculated through electronic means” for purposes of I.R.C. sec. 6751(b)(2)(B), written approval by an immediate supervisor did not need to precede assessment of the penalty.

Ralph T. Allen, Jr. (an officer), for petitioner.

Rachel L. Gregory and Bartholomew Cirenza, for respondent.

OPINION

GUSTAFSON, Judge: In this collection due process (“CDP”) case,

petitioner ATL & Sons Holdings, Inc. (“ATL”), seeks review pursuant to section

6330(d)(1)1 of the determination by the Office of Appeals (“Appeals”) of the

Internal Revenue Service (“IRS”) to uphold a notice of intent to levy. The issue is

whether Appeals abused its discretion in making that determination. Respondent,

the Commissioner of the IRS, has moved for summary judgment under Rule 121,

contending that there are no disputed issues of material fact and that his

determination to sustain the proposed collection action was proper as a matter of

1 Unless otherwise indicated, all section references are to the Internal Revenue Code of 1986 as in effect at all relevant times (codified in 26 U.S.C. and referred to herein as “the Code”), and all Rule references are to the Tax Court Rules of Practice and Procedure. -3-

law. ATL filed a response to the motion for summary judgment. We hold that

Appeals did not abuse its discretion in determining to proceed with the proposed

levy. We will therefore grant the Commissioner’s motion.

Background

The following facts are based on the parties’ pleadings and other pertinent

materials in the record and are not in dispute. See Rule 121(b). ATL is an

S corporation with two shareholders, Ralph and Casandra Allen. ATL’s principal

place of business was in Maryland when it filed the petition.

Personal return for 2012

For their personal income tax return for the year 2012, due in April 2013,

Mr. and Mrs. Allen timely filed a request for an extension, presumably on

Form 4868, “Application for Automatic Extension of Time to File U.S. Individual

Income Tax Return”. An extension to October 15, 2013, was granted and they

timely filed their Form 1040, “U.S. Individual Income Tax Return”, on October

14, 2013. Because the extension had been requested and granted, the IRS did not

assess any addition to tax under section 6651(a)(1) for the late filing of the

personal income tax return. -4-

S corporation return for 2012

ATL filed a Form 1120S, “U.S. Income Tax Return for an S Corporation”,

for 2012. The Form 1120S was due by March 15, 2013, see sec. 6072(b), but was

filed almost six months late on September 13, 2013. No extension was requested

or granted for the filing of ATL’s Form 1120S.2

Assessment of penalty for 2012

On November 18, 2013, the IRS assessed a penalty for late filing under

section 6699 of $2,340 with respect to ATL’s tax year 2012. The assessment

appears on ATL’s IRS transcript with a transaction code “166”, which indicates:

“Computer generated assessment of Delinquency Penalty”; and ATL does not

dispute that its section 6699 penalty was computer-generated. No supervisory

approval of the penalty determination was obtained before the penalty was

assessed.

2 Mr. Allen initially alleged in ATL’s CDP hearing request that he did file for ATL a Form 7004, “Application for Automatic Extension of Time To File Certain Business Income Tax, Information, and Other Returns”. However, as we state below in part I.A, he did not produce any Form 7004 when Appeals requested a copy, and he did not allege the filing of a Form 7004 in ATL’s petition. The Commissioner’s motion for summary judgment shows that Appeals verified from the IRS’s records that no Form 7004 was filed for ATL; and in ATL’s response to the motion, Mr. Allen admits that he “ha[s] no evidence to support my filing a Form 7004” for ATL. Rather, he argues that his filing of Form 4868 to obtain an extension of time to file his Form 1040 personal income tax return should suffice for ATL’s Form 1120S. -5-

2013 returns

ATL asserts, and for purposes of the Commissioner’s motion we assume,

that for the year 2013--not at issue here--Mr. Allen made similar filings. That is,

he filed Form 4868 to obtain an extension of time to file his Form 1040, but he did

not file for ATL a Form 7004 to extend the filing deadline for ATL’s Form 1120S.

He then filed his Form 1040 and ATL’s Form 1120S within the period of the

extension granted for the Form 1040. The IRS initially proposed a penalty against

ATL for the late Form 1120S for 2013 but later relented. However, the IRS did

not so relent for 2012, the year at issue here.

Attempted collection of 2012 penalty

On April 27, 2015, the IRS credited an overpayment for 2013 of $394.03

against ATL’s outstanding 2012 penalty liability. On January 15, 2016, in an

effort to collect the remaining unpaid penalty liability of $1,945.97, the IRS sent

ATL a notice of intent to levy.

Request for CDP hearing

On February 12, 2016, ATL timely mailed to the IRS a Form 12153,

“Request for a Collection Due Process or Equivalent Hearing”. In its CDP hearing

request, ATL stated as the reason for its dispute: “I do not believe I should be

responsible for penalties (see attached letter for more details)”. -6-

In the attached letter dated February 12, 2016, Mr. Allen claimed that he

had requested an extension on ATL’s behalf by filing a Form 7004 for 2012.

Mr. Allen also claimed that ATL had reasonable cause for its failure to timely file

in that it has only two shareholders and therefore no one else was harmed by its

failure to timely file. In addition, Mr. Allen claimed that the IRS had prematurely

applied an overpayment from ATL’s 2013 tax year against its 2012 penalty

liability. (ATL argues that this application was an improper levy undertaken in

violation of section 6330(e)(1) before the conclusion of the CDP hearing. See

infra part II.F.)

Verification

The IRS received the Form 12153 on February 18, 2016. Although the

request had, in fact, been timely mailed, the IRS mistakenly treated the request as

untimely and proceeded as if ATL had requested an equivalent hearing. An

Appeals settlement officer (“SO”) reviewed the administrative file and verified the

amount due. She also verified that IRS records showed that ATL had requested no

extension of the 2012 filing deadline. -7-

Hearing before Appeals

On April 6, 2016, the SO sent ATL a letter scheduling a telephone hearing

for May 9, 2016. The letter requested that ATL provide “proof you requested an

extension of time to file for 2012”.

ATL did not contact the SO on the scheduled date for the telephone hearing.

On May 9, 2016, the SO sent ATL a letter giving it until May 23, 2016, to submit

additional information. The SO did not receive any additional information from

ATL. Mr. Allen faxed a letter on behalf of ATL to the SO on May 23, 2016, in

which he explained why he had missed the scheduled telephone hearing,

challenged his liability for the penalty, disputed the amount of the penalty, and

noted that the IRS had abated a similar penalty for 2013.

Appeals’ letter and ATL’s petition

On June 20, 2016, the SO issued to ATL a “Decision Letter on Equivalent

Hearing Under Internal Revenue Code Sections 6320 and/or 6330”. The SO

determined that all legal and procedural requirements for the proposed levy action

had been met. The SO also determined that ATL did not submit any proof for

penalty abatement consideration and did not qualify for first-time penalty

abatement because of past penalty abatements. The decision letter upheld the

proposed levy action. -8-

On July 19, 2016, ATL timely filed a petition challenging Appeals’

determination. On September 12, 2016, the Commissioner filed his answer, which

admits that ATL’s CDP request was timely submitted and that, though Appeals’

determination had been incorrectly styled as a “Decision Letter on Equivalent

Hearing”, it was in fact a determination that we have jurisdiction to review under

section 6330(d).

Motion for summary judgment

The Commissioner moved for summary judgment. In its response to the

motion, ATL supplied an account transcript for the 2012 Form 1040 for Mr. and

Mrs. Allen (ATL’s shareholders) which shows a transaction bearing the code 460

along with the explanation that a request for an extension of time to file the

shareholders’ individual return was made on April 15, 2013, extending the time to

file that return until October 15, 2013. In a supplement to his motion for summary

judgment, the Commissioner argues that the section 6751(b)(1) supervisory

approval requirement does not apply to any penalty automatically calculated

through electronic means and that the section 6699 penalty at issue in this case

was so calculated. ATL filed a response to that motion in which it argues that the

supervisory approval requirement applies to the imposition of the section 6699

penalty and also challenges the “verification” process for approval of that penalty. -9-

Discussion

I. General legal principles

A. Summary judgment standard

The purpose of summary judgment is to expedite litigation and avoid

unnecessary 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).

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. Sundstrand Corp. v. Commissioner, 98 T.C. at 520. However,

the nonmoving party may not rest upon mere allegations or denials of his

pleadings but instead must set forth specific facts showing that there is a genuine

dispute for trial. Rule 121(d); see Sundstrand Corp. v. Commissioner, 98 T.C. at

520. Mr. Allen once alleged, in ATL’s request for a CDP hearing, that ATL had

filed a Form 7004; but in his motion the Commissioner showed that, during the

“verification” process required by section 6330(c)(1), the SO determined that ATL

had filed no request for an extension of the filing deadline for its Form 1120S, and - 10 -

ATL made no response to Appeals’ request that it provide “proof you requested an

extension of time to file for 2012.” In its petition filed with this Court, ATL did

not allege that it filed a Form 7004; and in ATL’s response to the Commissioner’s

motion, Mr. Allen admitted that he “ha[s] no evidence to support my filing a Form

7004” for ATL.

We therefore conclude that no material facts are “genuine[ly in] dispute”,

see Rule 121(b), and that this case is appropriate for summary adjudication.

B. Standard of review

Section 6330(d)(1) does not prescribe the standard of review that this Court

should apply in reviewing an IRS administrative determination in a CDP case.

Where the validity of the underlying tax liability was properly at issue in the CDP

hearing, the Court reviews the Commissioner’s determination de novo. Goza v.

Commissioner, 114 T.C. 176, 181-182 (2000). The Court reviews for abuse of

discretion other determinations not involving the underlying liability. Craig v.

Commissioner, 119 T.C. 252, 260 (2002). Abuse of discretion occurs 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). - 11 -

By raising the issue of reasonable cause, by disputing the amount of the

penalty, and by contending that the IRS’s favorable treatment as to 2013 entitled

ATL to favorable treatment as to 2012, ATL challenged its underlying penalty

liability during the CDP hearing and in the petition filed with this Court.

Therefore, the de novo standard of review applies with regard to the issue of

ATL’s underlying liability for the penalty. See Goza v. Commissioner, 114 T.C.

at 181-182. As to the nonliability issues that ATL raises, we review them under an

abuse of discretion standard. See Craig v. Commissioner, 119 T.C. at 260.

C. Collection due process principles

If a taxpayer fails to pay any Federal tax liability after demand,

section 6331(a) authorizes the IRS to collect the tax by levy on the taxpayer’s

property. However, the IRS must first issue a final notice of intent to levy and

notify the taxpayer of the right to an administrative hearing before the Office of

Appeals. Sec. 6330(a) and (b)(1). After receiving such a notice, the taxpayer may

request an administrative hearing before Appeals. Sec. 6330(a)(3)(B), (b)(1).

At the CDP hearing, the Appeals officer must determine whether the

proposed collection action may proceed. The Appeals officer is required to take

into consideration several things: - 12 -

First, the Appeals officer must obtain verification that the requirements of

any applicable law and administrative procedure have been met by IRS personnel.

See sec. 6330(c)(1), (3)(A). (Where the supervisory approval requirement of

section 6751(b)(1) applies, the Appeals officer should obtain verification that such

approval was obtained, see Rosendale v. Commissioner, T.C. Memo. 2018-99,

at *14; but as we discuss below in part II.E, no such approval was required in this

case.) ATL has raised no other verification issue in this case.

Second, under section 6330(c)(3), the Appeals officer must consider “any

relevant issue relating to the unpaid tax or the proposed levy”, sec. 6330(c)(2)(A),

including any “collection alternatives” proposed by the taxpayer,

sec. 6330(c)(2)(A)(iii). ATL proposed no collection alternative, so we need not

address any such issue; but a “relevant issue” that ATL did raise is the allegedly

premature application of the 2013 credit, discussed below in part II.F.

And third, the Appeals officer must determine “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”, sec. 6330(c)(3)(C), an issue that ATL has not raised and that we

do not address. - 13 -

In addition, pursuant to section 6330(c)(2)(B), a taxpayer in certain

circumstances may challenge the underlying tax liability in a CDP hearing. ATL

makes such a challenge as to the 2012 penalty at issue here by disputing the

application of the penalty to its return (which we discuss below in part II.A), by

disputing the amount of the penalty that the IRS assessed (see part II.B), by

invoking the IRS’s alleged different treatment of another year (see part II.C), and

by asserting a defense of “reasonable cause and good faith” (see part II.D).

II. Analysis

A. The failure-to-file penalty of section 6699

An S corporation is required to file an annual information return on

Form 1120S. See sec. 6037(a); 26 C.F.R. sec. 1.6037-1(a), Income Tax Regs.

Section 6699(a) provides in pertinent part that an S corporation that does not file

its annual return within the time prescribed (including any extension of time for

filing) “shall be liable for a penalty determined under subsection (b) for each

month (or fraction thereof) during which such failure continues (but not to exceed

12 months), unless it is shown that such failure is due to reasonable cause.”

Section 6699(b) provides that “the amount determined under this subsection for

any month is the product of * * * $195, multiplied by * * * the number of persons

who were shareholders in the S corporation during any part of the taxable year.” - 14 -

ATL’s Form 1120S was due to be filed March 15, 2013, see sec. 6072(b),

but it was not filed until almost six months later on September 13, 2013. The

return was therefore late, and the penalty of section 6699 applies.

It is possible to obtain an extension of the filing deadline; and if a

Form 1120S is filed by that extended deadline, then the S corporation will not

incur the penalty; but in this case no extension was obtained. It is true that the

shareholders of ATL applied for and received an extension of time to file their

own 2012 Form 1040; and ATL seems to argue that this extension should have

applied also to ATL’s deadline for filing its Form 1120S.

However, an S corporation is an entity separate from its shareholders. In

general, the S corporation does not incur a liability for Federal income tax.

Sec. 1363(a). But see infra note 9. Rather, its shareholders are taxed on their

respective shares of the S corporation’s income. Sec. 1366(a)(1). As we noted

above, an S corporation is required to file an annual information return on its own

Form 1120S, and on that return it reports its own income, deductions, and other

matters. Sec. 6037(a); 26 C.F.R. sec. 1.6037-1(a), Income Tax Regs. To extend

the time to file the S corporation return, a separate form--Form 7004--is required.

See 26 C.F.R. sec. 1.6081-3(a)(1), Income Tax Regs.; 2012 Instructions for Form - 15 -

1120S. ATL did not file Form 7004 nor any other document requesting an

extension of the deadline for filing its 2012 Form 1120S.

B. Penalty amount

Under section 6699(a), the penalty for failure to file an S corporation return

is imposed for each month or fraction thereof for which the failure to file

continues--in this case, five months plus most of an additional month, for a total of

six months. The amount of that penalty for each month is determined by

multiplying $195 by the number of persons who were shareholders in the

S corporation during any part of the taxable year. Sec. 6699(b). In this case, since

ATL had two shareholders, the monthly penalty amount was $390 (i.e., 2 × $195 =

$390). Since ATL’s Form 1120S was six months late, the penalty imposed by the

statute was $2,340 (i.e., 6 × $390 = $2,340)--the amount that the IRS assessed.

ATL argues that the amount of the penalty under section 6699 should be

tied to the amount of tax due. Specifically, ATL argues that the penalty is the

smaller of $135 or 100% of the tax paid late. However, this limit that ATL

mistakenly posits is in fact the minimum amount of the addition to tax imposed

under section 6651 (as in effect for 2012) for certain failures to file, see

sec. 6651(a) (flush language), not a limit on the penalty under section 6699. The

limitation to the section 6699 penalty is different: - 16 -

The penalty for a late Form 1120S will not exceed 12 times the monthly

penalty amount (i.e., $195 multiplied by the number of shareholders)--in this case,

2 shareholders × $195 × 12 months = $4,680. In this case, not 12 months but only

6 months’ worth of penalty was imposed (i.e., only $2,340), so the statutory limit

was not exceeded. Contrary to ATL’s argument, the section 6699 penalty is

imposed without regard to any amount shown on the S corporation’s return or to

any amount of tax paid late by the shareholders.

C. Treatment in subsequent year

ATL seems to argue that it should be entitled to abatement of the section

6699 penalty because, ATL claims, the same penalty was excused for taxable year

2013 after ATL made an inquiry to the IRS and pointed out the extension that had

been obtained for the shareholders’ Form 1040. ATL is mistaken on this ground.

Each tax year stands on its own and must be separately considered. See United

States v. Skelly Oil Co., 394 U.S. 678, 684 (1969). The Commissioner may

challenge in a succeeding year what was condoned or agreed to for a prior year.

See Rose v. Commissioner, 55 T.C. 28, 31-32 (1972). - 17 -

D. Reasonable cause and good faith

As we have noted, the section 6699 penalty is imposed on a failure to file an

S corporation return “unless it is shown that such failure is due to reasonable

cause”. Sec. 6699(a) (emphasis added). No regulations have been issued to

elaborate on this provision; but regulations under the analogous provision of

section 6651(a)(1) (imposing an addition to tax for failure to file a return) provide

that a taxpayer can show reasonable cause for the failure to timely file a return if

“the taxpayer exercised ordinary business care and prudence and was nevertheless

unable to file the return within the prescribed time”. 26 C.F.R. sec. 301.6651-

1(c)(1), Proced. & Admin. Regs. ATL did not present any argument or other

evidence showing that it exercised such care and prudence or that it was unable to

timely file the Form 1120S.

Instead, ATL argues that the reasonable cause exception should apply

because ATL’s two shareholders were aware of the business loss for taxable year

2012 and “no one else has been harmed”--i.e., no harm, no penalty. ATL

evidently conceives that the sole purpose of the Form 1120S is to give a

shareholder the information that he or she needs in order to file a Form 1040 tax

return; and since Mr. and Mrs. Allen knew the affairs of ATL, did eventually file

their Form 1040 timely (under an extension), and did not fail to report any income, - 18 -

the intended purpose of the S corporation’s filing requirement was accomplished

and the penalty was moot. ATL cites no authority in support of its claim that the

penalty should be waived on the grounds that its two shareholders were aware of

the information to be shown on the return. Section 6699 does not include a

condition of harm before the penalty is imposed; it simply imposes a penalty when

the filing is late (without reasonable cause). A taxpayer may not disregard a filing

deadline and be excused from this penalty simply because it reckons that no harm

was done.

E. Supervisory approval under section 6751(b)(1)

1. Section 6751(a)(1) and its exceptions

Section 6751(b)(1) provides: “No penalty under this title shall be assessed

unless the initial determination of such assessment is personally approved (in

writing) by the immediate supervisor of the individual making such determination

or such higher level official as the Secretary may designate.” If supervisory

approval is not obtained for a penalty subject to section 6751(b)(1), then the

penalty cannot be sustained. See Graev v. Commissioner, 149 T.C. 485, 493

(2017), supplementing and overruling in part 147 T.C. 460 (2016). However,

under exceptions in section 6751(b)(2), that supervisory approval requirement in

section 6751(b)(1) is excused: - 19 -

SEC. 6751(b). Approval of Assessment.--

* * * * * * *

(2) Exceptions.--Paragraph (1) shall not apply to--

(A) any addition to tax under section 6651, 6654, or 6655; or

(B) any other penalty automatically calculated through electronic means.

The Commissioner contends that the section 6699 penalty falls within these

exceptions, and ATL contends that it does not.

2. Explicit exceptions in section 6751(b)(2)(A)

Section 6751(b)(2)(A) provides that the supervisory approval requirement

does not apply to “any addition to tax under section 6651, 6654, or 6655”. None

of those additions to tax is at issue here, but to construe the exception in

section 6751(b)(2)(B), it will be helpful to note these exceptions in section

6751(b)(2)(A).

Section 6651(a) imposes additions to tax for certain failures:

• Section 6651(a)(1) imposes an addition to tax (i.e., a monthly percentage of tax required to be shown) for “failure * * * to file * * * on the date prescribed therefor” certain returns; and section 6651(f) increases the amount of the addition to tax where the “failure to file any return is fraudulent”. (Emphasis added.) - 20 -

• Section 6651(a)(2) imposes an addition to tax (i.e., a monthly percentage of tax shown on certain returns) for “failure * * * to pay the amount shown as tax * * * on or before the date prescribed for payment”. (Emphasis added.)

• Section 6651(a)(3) imposes an addition to tax (i.e., a monthly percentage of tax required to be shown on certain returns) for “failure * * * to pay any amount in respect of any tax required to be shown on a return * * * [after] notice and demand”. (Emphasis added.)

Each of the three paragraphs of section 6651(a) imposes its addition “unless it is

shown that such failure is due to reasonable cause and not due to willful neglect”.

Section 6654 provides that an amount “shall be added to the tax” when there

is failure by an individual to pay “estimated tax”. Rather than having a

“reasonable cause” exception as in section 6651(a)(1), (2), and (3), section 6654

has a more limited “Waiver in certain cases”, sec. 6654(e)(3)--i.e., “to the extent

the Secretary determines that by reason of casualty, disaster, or other unusual

circumstances the imposition of such addition to tax would be against equity and

good conscience”, sec. 6654(e)(3)(A), or if an underpayment by a newly retired or

disabled taxpayer “was due to reasonable cause and not to willful neglect”,

sec. 6654(e)(3)(B). - 21 -

Section 6655 provides that an amount “shall be added to the tax” when there

is failure by a corporation to pay “estimated tax”. Section 6655 has no

“reasonable cause” exception.

All those additions to tax are excepted from section 6751(b)(1), and they

may be assessed without supervisory approval. But again, none of those additions

to tax excepted by section 6751(b)(2)(A) is at issue here.

3. The “automatically calculated through electronic means” exception in section 6751(b)(2)(B)

Rather, the Commissioner invokes section 6751(b)(2)(B), which provides a

further exception to the supervisory approval requirement for “any other penalty

automatically calculated through electronic means.” We must therefore determine

whether, for purposes of this exception, the section 6699 penalty is an “other

penalty automatically calculated through electronic means”.

a. Comparators in section 6751(b)(2)(A)

Neither the statute nor the regulations define the phrases “automatically

calculated” and “electronic means” that appear in section 6751(b)(2)(B).3

3 The IRS has explained the provision to its employees as follows: “A penalty is only considered to be ‘automatically calculated through electronic means’ if no Service human employee makes an independent judgment with respect to the applicability of the penalty.” Internal Revenue Manual pt. 20.1.1.2.3(5) (Nov. 21, 2017); cf. id. pt. 20.1.1.2.3(5) (Nov. 25, 2011) (“the (continued...) - 22 -

However, the statute gives an important aid to the interpretation of those phrases

by the use of the word “other”. Subsection (b)(2)(A) gives the explicit exceptions,

and then subsection (b)(2)(B) expands the exception to “any other penalty

automatically calculated through electronic means”. (Emphasis added.) This

“other” provision in subsection (b)(2)(B) suggests that the explicit exceptions in

subsection (b)(2)(A) are likewise “automatically calculated”. Therefore, we can

consider the explicit exceptions in subsection (b)(2)(A) to be comparators, and we

can conclude that penalties not explicitly listed in subsection (b)(2)(A) are

“automatically calculated” under subsection (b)(2)(B) (and are exempt from the

supervisory approval requirement) to the extent that they are similar to those

subsection (b)(2)(A) comparators in the manner of their “automatic[] calculat[ion]

through electronic means”.

b. “[A]utomatically calculated”

The section 6699 penalty at issue here is a monthly penalty for failure to

timely file an information return; and the penalty explicitly excepted in section

6751(b)(2)(A) that is most similar to the section 6699 penalty is the addition to tax

3 (...continued) assessment of a penalty qualifies as one calculated through electronic means if the penalty is assessed free of any independent determination by an IRS employee as to whether the penalty should be imposed against a taxpayer”). - 23 -

in section 6651(a)(1) for failure to timely file other returns, explained above.

Section 6651(a)(1) imposes an addition to tax--in the amount of 5% per month

(with a maximum of 25%) of the amount of the tax due--for “failure * * * to file

any return required under authority of subchapter A of chapter 61 (other than part

III thereof) * * * on the date prescribed therefor”. (Emphasis added.) Section

6651(a)(1) penalizes the late filing of an individual income tax return, the filing of

which is required by section 6012(a) in part II of subchapter A of chapter 61. If

one knows the tax liability, the date the return was due, and the date it was filed,

then the amount of the addition to tax is a simple and automatic computation.

Pursuant to section 6751(b)(2)(A), no supervisory approval is required for this

arithmetical addition to tax imposed by section 6651(a)(1).

That late-filing addition to tax of section 6651(a)(1) does not reach a late

information return filed by an S corporation. Rather, the filing of Form 1120S is

required under the authority of section 6037, which is in part III (“Information

Returns”) of subchapter A of chapter 61. This exclusion of an S corporation’s

part III “information return” from the section 6651(a)(1) addition to tax is logical,

if not inevitable, because the information return generally does not report tax due

(but see infra note 9), and a penalty of 5% of the tax due to be reported on the

typical S corporation return would be zero. Rather, a late S corporation return is - 24 -

penalized by section 6699, which imposes a monthly penalty not of a percentage

of tax due (generally zero) but instead of a fixed amount ($195 per shareholder).

Thus, if one knows the number of shareholders, the date the return was due, and

the date it was filed, then the amount of this penalty is a simple and automatic

computation.

c. “[E]lectronic means”

Moreover, in circumstances like ATL’s,4 the section 6699 penalty

computation is accomplished “through electronic means” within the meaning of

section 6751(b)(2)(B). As we noted above, the assessment of ATL’s penalty was,

according to the IRS transcript, a “Computer generated assessment of Delinquency

Penalty”. (Emphasis added.) We recently held in Walquist v. Commissioner,

152 T.C. ___, ___ (slip op. at 15) (Feb. 25, 2019), that where “the penalty was

determined mathematically by a computer software program without the

involvement of a human IRS examiner, * * * the penalty was ‘automatically

4 We do not here address circumstances (if they exist) in which the section 6699 penalty might be calculated by other than “electronic means”. For example, if in a Tax Court case the Commissioner’s attorneys were to plead, as new matter in the answer, a liability for the section 6699 penalty, that would seem to be a situation materially different from ATL’s and would require a different analysis that we do not attempt here. - 25 -

calculated through electronic means,’ sec. 6751(b)(2)(B), as the plain text of the

statutory exception requires.”

The supervisory approval requirement in section 6751(b)(1) does not apply

to “any addition to tax under section 6651 * * * or * * * any other penalty

automatically calculated through electronic means.” (Emphasis added.) We

conclude that the section 6699 penalty imposed against ATL for its late

S corporation return is, like the section 6651(a)(1) addition to tax for late filing, a

“penalty automatically calculated through electronic means.”

4. ATL’s contention

ATL argues to the contrary. Quoting an argument by the National Taxpayer

Advocate,5 ATL states--

5 Nina E. Olson, “IRS Administrative Policy and Recent Litigation Weaken Supervisory Approval Requirement for Penalties”, Taxpayer Advocate Service: NTA Blog (Oct. 4, 2017), https://taxpayeradvocate.irs.gov/news/nta-blog-irs- policy-weakens-requirements-for-penalties. In the quoted article, the National Taxpayer Advocate seems to be arguing what the law and IRS practice should be, not necessarily what they are. If ATL means to argue what the law should be, then its argument would be properly addressed to Congress. We attempt here to discern ATL’s contention about what the law is. - 26 -

The IRS maintains that penalties calculated through its AUR[6] program are automatically calculated through electronic means and thus do not require supervisory approval under IRC § 6751(b). However, in determining whether to assert the accuracy-related penalty based on negligence,[7] the IRS should examine whether the taxpayer’s actions constituted a reasonable attempt to comply with the tax laws, which can be demonstrated by the taxpayer’s facts and circumstances. * * * By using an automated process to assert these penalties and not having a supervisor review the determinations, the IRS does not consider the facts and circumstances of a case until the taxpayer contacts the IRS to challenge the proposed penalty. Taxpayers who did make reasonable attempts to comply and acted in good faith must take extra, burdensome steps to rid themselves of arbitrary penalties. [Emphasis added.]

By quoting an argument that refers to “reasonable attempts”, “good faith”, and

“facts and circumstances”, ATL may be arguing that a determination of a penalty

like the section 6699 penalty--which applies “unless it is shown that such failure is

due to reasonable cause”--is not “automatically calculated”. We address ATL’s

“reasonable cause” argument above in part II.D; but here we address the

6 ATL states: “The IRS has interpreted this exception [in section 6751(b)(2)(B)] to include any penalties calculated through its Automated Under Reporter (AUR) program, which matches income reported on a taxpayer’s return with income reported to the IRS by third-party payors. In my case, I owed no taxes so the AUR program was not in play here.” 7 The accuracy-related penalty based on negligence, imposed by section 6662(a) and (b)(1), is not at issue in this case, which concerns only the penalty under section 6699. We do not address here the question whether the penalty for negligence can be deemed “automatically calculated” if asserted under the IRS’s AUR mechanism. - 27 -

suggestion that the statute’s provision for “reasonable cause” prevents the penalty

from being “automatically calculated”.

If this is ATL’s argument, we think that it must fail. Almost all of the

additions to tax explicitly excepted in section 6751(b)(2)(A) have some form of

“reasonable cause” provision (as we pointed out above in part II.E.2), yet

section 6751(b)(2)(B) excepts “other penalt[ies] automatically calculated”.

Evidently, a penalty can be “automatically calculated” for purposes of

section 6751(b)(2)(B) even if non-arithmetical issues might be invoked to

challenge the liability so calculated. The section 6699 penalty applies unless

reasonable cause “is shown”--i.e., shown by the taxpayer.

In litigation a taxpayer’s contention of “reasonable cause” is in the nature of

an affirmative defense, which the taxpayer is obliged to raise.8 That is, the

Commissioner establishes the liability without having to anticipate and negate any

8 Even in a case in which, under section 7491(c), the Commissioner has the initial “burden of production” with respect to a penalty liability, once the Commissioner carries that burden, the taxpayer then has the burden to raise “reasonable cause” as an affirmative defense. See Fleming v. Commissioner, T.C. Memo. 2017-120, at *6 (“The Commissioner bears the burden of production with respect to a taxpayer’s liability for additions to tax. See sec. 7491(c); Higbee v. Commissioner, 116 T.C. 438, 446 (2001). Once the Commissioner carries the burden of production, the taxpayer must come forward with persuasive evidence that the Commissioner’s determination is incorrect or that the taxpayer had an affirmative defense, such as reasonable cause and good faith. See Higbee v. Commissioner, 116 T.C. at 446-447” (emphasis added)). - 28 -

“reasonable cause” argument that the taxpayer might raise. Similarly, in tax

administration the IRS will often not know facts that might bear on a potential

“reasonable cause” defense; so where a penalty can be automatically calculated by

reference to objective facts that the IRS can determine by reference to the return

and its filing, the burden is properly on the taxpayer to raise “reasonable cause”.

The possibility of such a defense does not change the fact that the penalty itself is

“automatically calculated”.

Thus, where the penalty imposed by section 6699 on the late filing of an

S corporation’s return is automatically calculated by electronic means, it is

excepted by section 6751(b)(2)(B) from the supervisory approval requirement of

section 6751(b)(1). The IRS may assess the section 6699 penalty without the

written approval of an immediate supervisor having been obtained.

F. Application of overpayment credit

ATL also disputes the crediting of an overpayment from its 2013 tax year

Form 1120S9 to the section 6699 penalty liability at issue in this case.

9 The record does not explain how a 2013 overpayment arose for ATL. As we have noted, generally an S corporation is not subject to income tax. However, subchapter S does impose various taxes on certain S corporations, including a tax on built-in gains and a tax on net passive income. See secs. 1374, 1375. An S corporation must pay estimated tax for these taxes. Sec. 6655(g)(4). An S corporation may therefore have an overpayment if the sum of its estimated tax (continued...) - 29 -

Specifically, ATL argues that it was improper for the IRS to apply its 2013

overpayment before the issuance of the notice of intent to levy. It is true that

section 6330(a)(1) generally prohibits a levy before the IRS gives the taxpayer

notice of the proposed levy and of his right to a CDP hearing; and it is true that

once a CDP hearing is timely commenced, section 6330(e)(1) generally prohibits a

levy before the conclusion of the CDP hearing.

However, those prohibitions bar only collection by levy. The Code

specifically authorizes the IRS to credit overpayments “against any liability in

respect of an internal revenue tax on the part of the person who made the

overpayment”. Sec. 6402(a). Nothing in section 6330 prohibits the IRS from

engaging in other nonlevy collection actions, including offsetting payments from

other periods, as the IRS did in this instance. Boyd v. Commissioner, 451 F.3d 8

(1st Cir. 2006) (stating that informal offset procedures are not generally subject to

the procedural protections for levies), aff’g 124 T.C. 296 (2005); 26 C.F.R. sec.

301.6330-1(g)(2), Q&A-G3, Proced. & Admin. Regs. ATL has cited no authority

9 (...continued) payments, any overpayment credits from prior tax years, and certain other credits exceeds its actual liability for the tax on built-in gains, the tax on net passive income, and any applicable estimated tax penalty. - 30 -

that would render improper the crediting that the IRS performed here, and we

know of none.

III. Conclusion

In sum, there is no genuine dispute as to any material fact. Finding no error

or abuse of discretion in Appeals’ determination, we will grant summary judgment

for the Commissioner and sustain the proposed levy.

To reflect the foregoing,

An appropriate order and decision

will be entered.