Michael Banks v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 6, 2021
• Docket: 20-72163
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL GORDON BANKS, No. 20-72163

Petitioner-Appellant, Tax Ct. No. 5783-18 L

v. MEMORANDUM* COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted August 4, 2021** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

Michael Gordon Banks appeals pro se from the Tax Court’s decision to sustain

the Commissioner of Internal Revenue’s notice of federal tax lien related to his

outstanding tax liabilities from the years 2013 and 2015. We have jurisdiction under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 26 U.S.C. § 7482(a)(1). We review the Tax Court’s decision de novo, meaning we

engage in “a fresh analysis of whether the Commissioner abused his discretion.”

Fargo v. Comm’r, 447 F.3d 706, 709 (9th Cir. 2006). Finding no basis to conclude

there was an abuse of discretion, we affirm.

The Tax Court correctly determined that it was not an abuse of discretion to

sustain the rejection of Banks’s offer in compromise of $12,000. Banks did not

dispute that his assets totaled more than $110,000, nor did he provide evidence that

paying the outstanding $23,000 liability in full would cause him economic hardship.

See id. at 709 (describing the economic hardship analysis as one focused on basic

living expenses). It was not an abuse of discretion to reject Banks’s offer in

compromise on these facts. See Keller v. Comm’r, 568 F.3d 710, 717–18 (9th Cir.

2009) (finding no abuse of discretion where calculations revealed the taxpayers

could afford to pay substantially more than their offers).

The Tax Court correctly determined that it was not an abuse of discretion to

decline to withdraw the notice of federal tax lien. Although the Taxpayer Advocate

Service found that withdrawal of the lien would be in Banks’s best interest, there has

never been a determination that withdrawal would also be in the best interest of the

United States as required by I.R.C. § 6323(j)(1)(D). There is no support for Banks’s

argument that the notice was prematurely filed because his offer in compromise was

pending.

2 Finally, we reject as meritless Banks’s claims that the Commissioner engaged

in criminal activity or failed to follow proper procedures.

AFFIRMED.